SUBJECT: CRIMINAL LAW Assault Common Assault • Assault is: • any act committed intentionally or recklessly • that causes another person • to apprehend immediate and unlawful violence → Fagan, Venna • Section 61 → sets out maximum punishment, 2 years imprisonment Actus Reus • Unlawful contact in applying force to another • Note → spitting at and contacting another with spit will constitute assault: Smith; DPP v JWH • The act of creating fear of immediate unlawful contact • Victim must actually be put in fear → Kuhl • The harm threatened must be sufficiently imminent → Zanker v Vartzokas; Knight • Assault can be committed by telephone if sufficiently imminent → Barton v Armstrong; Knight • It is unnecessary that force be accompanied by hostility → Boughey • Mere touching can amount to an assault → Collins v Wilcock • D may be relieved of liability on other grounds, such as: • Lack of mens rea • Implied consent, for example, contact during ordinary social intercourse → Boughey • Use of lawful force, such as self-defence • Victim’s state of mind: • Must actually fear → Kuhl • Must be aware → Pemble (rifle to the back) • Reasonable fear → Barton v Armstrong • Defendant aware of unusual timidity → unreasonableness of fear may not prevent conviction → MacPherson • Imminence: • Fear must be imminent although ‘immediate and continuing‘ can suffice → Zanker v Vartzokas • Threats of future violence not assault → Knight • Examples: • Where D was in another room → Lewis • Where D was on other side of locked door about to force entry → Beech • Where D showed V a gun in a drawer and threatened to hold hostage → Logdon • Where D pointed a toy gun at V, who thought it was real → Everingham PAGE 3 OF 27 SUBJECT: CRIMINAL LAW • Conditional threats: • Generally not going to constitute assault → Tuberville v Savage • where D has no right to impose condition → Police v Greaves • Psychic → ABH • Where D’s psychic assault causes V to act in such a way as to inflict in ABH • The prosecution must establish: • D committed an assault • V suffered actual bodily harm • D caused these injuries • Operating and substantial cause → Zanker v Vartzokas; Royall • If V’s response was not a perverse reaction to the threats, then it will be an operating and substantial cause • It is irrelevant whether D foresees that V will respond in a particular way - only need to have mens rea for common assault Mens Rea • MR will be established where the defendant: • Intends to make unlawful contact, or • Intends to create a fear of immediate unlawful contact in the mind of the victim • Recklessly makes unlawful physical contact or creates fear → Williams • Reckless where foreseeable that one might hit somebody and not caring • Recklessness → relevant consequences are adverted to even if not desired: MacPherson v Brown • NOTE: need only recognise that the type of harm might be inflicted, not the degree → Coleman • Possibility not probability → MacPherson • Defendant must subjectively have recognised the possibility • Not a reasonable person standard → MacPherson • Coincidence: • AR and MR must coincide in time • Where there is a continuing act, the mental element may be superimposed after the act has been commenced → Fagan Consent to Assault • Assault cannot be unlawful if the victim consents → Schloss and Maguire • If actual bodily harm is occasioned, then consent to that type if harm is immaterial to establishing criminal liability → Brown • Consensual relations between married man and woman in matrimonial home held to be lawful → Wilson • Human Rights (Sexual Conduct) Act → s 4(1): sexual conduct between only consenting adults (18+) in private cannot be subject to criminal law PAGE 4 OF 27 SUBJECT: CRIMINAL LAW • Sporting context → Pallante • D is relieved from liability for injury inflicted on sporting opponents if: • In the reasonable rules of the game • Not due to hostility or anger • No more than reasonably contemplated as incidental to the game Aggravated Assaults Actual Bodily Harm • Ordinary and natural meaning → any hurt or injury calculated to interfere with the health or comfort of the victim: Donovan • Need not be permanent • Must be more than merely transient or trifling → Donovan • Psychiatric harm where there is medical evidence →Chan-Fook • The elements are assault and occasioning of ABH • No need to prove specific intent to cause ABH → Williams Wounding • A wound is an injury involving breaking through the whole skin • Must break through the epidermis → Vallance • Where the skin of a bodily cavity is continuous with outside skin then the flow of blood must come from rupture of skin within the cavity → Eisenhower Grievous Bodily Harm • ‘Really serious bodily harm’ → Perks • ‘Any permanent or serious disfiguring of the person’ → s 4(1) Causation • ‘Occasioning’ → denotes causation • Substantial and operating cause test → Zanker v Vartzokas; Smith; Royall • Can be direct or indirect Aggravated Assaults under Crimes Act 1900 Aggravating Factor Crimes Act Injury - ABH s 59(1): assault occasioning ABH → 5 years s 33(1): whoever wounds (a) or causes GBH (b) with intent to cause GBH → 25 years Injury - wounding s 35(4): whoever wounds (a) and is reckless to causing ABH (b) to that or any person → 7 years PAGE 5 OF 27 SUBJECT: CRIMINAL LAW s 33(1): whoever wounds (a) or causes GBH (b) with intent to cause GBH → 25 years Injury - GBH s 35(2): whoever causes GBH (a) and is reckless to causing ABH (b) to that or any person → 10 years s 54: unlawful or negligent act/omission causing GBH → 2 years s 27: whoever poisons, wounds or causes GBH with intent to commit murder → 25 years s 28: whoever sets fire to, destroys property/buildings etc. with intent to murder Intent to kill → 25 years s 29: whoever attempts to poison, shoot at, drown/suffocate/strangle someone with intent to murder (irrespective of whether any injury effected) → 25 years s 30: whoever attempts by any other means to murder → 25 years s 33B: whoever attempts to, threatens or uses a weapon or threatens injury to Intent to commit person/property with intent to commit indictable offence → 12 years indictable offence s 58: assaults with intent to commit serious indictable offence or obstruct/resist/ assault any officer in execution of duty → 5 years s 33A: whoever attempts to/discharges firearm with intent to cause GBH → 25 Use of weapon or years instrument s 33B: whoever attempts to, threatens or uses a weapon or threatens injury to person/property with intent to commit indictable offence → 12 years s 35(1): whoever causes GBH and is reckless as to causing ABH in company of another person → 14 years In company s 35(2): whoever wounds (a) and is reckless as to causing ABH (b) in company of another person → 10 years s 94: whoever robs or assaults with intent to rob → 14 years s 95: whoever robs or assaults with intent to rob in aggravated circumstances - corporal violence 2(a), inflicts ABH (b), deprives liberty (c) → 20 years s 96: whoever commits s 95 and causes wounding → 25 years Plus robbery s 97: whoever, armed with weapon or in company, robs/assaults with intent to rob, or stops vehicle, with intent to rob → 20 years s 98: whoever armed/in company robs/assaults with intent to rob, and wounds/ inflicts GBH → 25 years s 42: whoever during/after delivery of baby intentionally/recklessly inflicts GBH Children on the child, whether wholly born or not → 14 years s 60(1): assaults/harasses police while executing duty without ABH → 5 years s 60(1A): assaults/harasses police while executing duty during public disorder without ABH → 7 years s 60(2): assaults police occasioning ABH → 7 years s 60(2A): assaults police during public disorder occasioning ABH → 9 years Police officer s 60(3): wounds or causes GBH (a) and is reckless to causing ABH to that officer/any person (b) → 12 years s 60(3A): during public disorder wounds or causes GBH (a) and is reckless to causing ABH to that officer/any person (b) → 14 years s 60(4): execution of duty will be satisfied if as a consequence/retaliating against actions undertaken while on duty/because they’re a police officer PAGE 6 OF 27.