Criminal Law Exam Notes

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 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 PAGE 5 OF 27 SUBJECT: CRIMINAL LAW 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 PAGE 6 OF 27

Criminal Law Exam Notes

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