SUBJECT: CRIMINAL LAW

Assault

Common Assault

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Assault is:

any act committed intentionally or recklessly

•••

that causes another person to apprehend immediate and unlawful violence → Fagan, Venna

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Section 61 → sets out maximum punishment, 2 years imprisonment

Actus Reus

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Unlawful contact in applying force to another
Note → spitting at and contacting another with spit will constitute assault: Smith; DPP v

JWH

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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

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Assault can be committed by telephone if sufficiently imminent → Barton v

Armstrong; Knight

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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

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Victim’s state of mind:

Must actually fear → Kuhl

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Must be aware → Pemble (rifle to the back)

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Reasonable fear → Barton v Armstrong

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• Defendant aware of unusual timidity → unreasonableness of fear may not prevent

conviction → MacPherson

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Imminence:

Fear must be imminent although ‘immediate and continuing‘ can suffice → Zanker v

Vartzokas

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Threats of future violence not assault → Knight

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Examples:

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Where D was in another room → Lewis

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• 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

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Conditional threats:

• Generally not going to constitute assault → Tuberville v Savage

ꢀ where D has no right to impose condition → Police v Greaves

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Psychic → ABH

Where D’s psychic assault causes V to act in such a way as to inflict in ABH

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The prosecution must establish:
D committed an assault V suffered actual bodily harm D caused these injuries

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Operating and substantial cause → Zanker v Vartzokas; Royall

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If V’s response was not a perverse reaction to the threats, then it

will be an operating and substantial cause

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It is irrelevant whether D foresees that V will respond in a particular way - only need to have mens rea for common assault

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Mens Rea

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MR will be established where the defendant:

Intends to make unlawful contact, or

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••

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

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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

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• Possibility not probability → MacPherson

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Defendant must subjectively have recognised the possibility

Not a reasonable person standard → MacPherson

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Coincidence:
AR and MR must coincide in time

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Where there is a continuing act, the mental element may be superimposed after the act has been commenced → Fagan

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Consent to Assault

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Assault cannot be unlawful if the victim consents → Schloss and Maguire

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If actual bodily harm is occasioned, then consent to that type if harm is immaterial to establishing criminal liability → Brown

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Consensual relations between married man and woman in matrimonial home held to be lawful

→ Wilson

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Human Rights (Sexual Conduct) Act → s 4(1): sexual conduct between only consenting

adults (18+) in private cannot be subject to criminal law

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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

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Ordinary and natural meaning → any hurt or injury calculated to interfere with the health or

comfort of the victim: Donovan

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Need not be permanent

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Must be more than merely transient or trifling → Donovan

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Psychiatric harm where there is medical evidence ꢀ →ꢁChan-Fook The elements are assault and occasioning of ABH

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• No need to prove specific intent to cause ABH → Williams

Wounding

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A wound is an injury involving breaking through the whole skin
Must break through the epidermis → Vallance

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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

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Grievous Bodily Harm

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‘Really serious bodily harm’ → Perks

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‘Any permanent or serious disfiguring of the person’ → s 4(1)

Causation

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‘Occasioning’ → denotes causation

Substantial and operating cause test → Zanker v Vartzokas; Smith; Royall

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Can be direct or indirect

Aggravated Assaults under Crimes Act 1900

Aggravating Factor

Injury - ABH

Crimes Act

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

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s 33(1): whoever wounds (a) or causes GBH (b) with intent to cause GBH → 25 years s 35(2): whoever causes GBH (a) and is reckless to causing ABH (b) to that or any person → 10 years
Injury - GBH 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 → 25 years
Intent to kill

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 person/property with intent to commit indictable offence → 12 years
Intent to commit

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 years
Use of weapon or

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 on the child, whether wholly born or not → 14 years
Children 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

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