Offence: S313(1)(b), Common assault
The Criminal Code = how to reference. Summary – Magistrate and no jury. Indictment – District Court +, with a jury. If a summary penalty is listed then it can be tried either summarily or on indictment. If no summary conviction penalty, it is indictable only (more serious). (Be careful if stating that an offence is indictable only!) Offence or at least one element must be committed in WA. The Golden Thread principle (Woolmington: adopted in WA case of Mullen) - burden of proof is on the prosecution – the jury should only find guilt if it is ‘beyond reasonable doubt’. If raising a defence, the def has an evidentiary burden to prove before the defence can go to the jury, e.g. R v Secretary (1996) 5 NTLR 96: trial judge decision was overturned due to the context of the situation, i.e. the present ability of a threat of an assault was still apparent even though a wife killed her husband in his sleep, due to the history of violence and the husband’s threat before going to sleep, therefore the defence of self-defence should be put before the jury. An evidentiary burden – defence must put it in issue and there must be some basis that the jury might acquit on based on that defence (will usually got to the jury). If an evidentiary burden is satisfied the prosecution must then disprove the defence beyond a reasonable doubt. Assault to wounding
Offence: S313(1)(b), Common assault Elements: unlawfully assaults (if relevant, circumstances of aggravation/circumstances of racial aggravation – offence: s313(1)(a)). RL: s222 defines assault as either: 1. Actual application of force (either directly or indirectly) without consent; 2. Attempt with a bodily gesture to apply force without consent; or 3. Threat with a bodily gesture to apply force without consent (there must be a present ability to apply the force), e.g. making someone flinch by raising your hand to them and threating them. If relevant – circumstances of aggravation is defined in s221(1): family, domestic relationship or child present or act breaches an order or victim is or over 60. ‘Family and domestic’ defined in s4 Restraining Orders Act 1997. Circumstances of racial aggravation defined in s80I and relates to a person being a member of a ‘racial group’). S233 defines unlawful assault – ‘unless it is authorised or justified or excused by law’ (we focus on consent authorising the action).
In relation to applies force – s222 confirms this as ‘strikes, touches, or moves, or otherwise applies force of any kind’. In relation to application of force, think about context of scenario, e.g. someone runs over someone’s foot by mistake but then realises and keeps the car on the foot – defence of accidence no longer apparent and therefore there is an application of force (continuing to apply force) when the person realises: as in the case of Fagan v Commissioner of Police [1969] 1 QB 439.
Threats:
Hall v Fonceca [1983] WAR 309 – fight over drinks at a hockey club. In this case the court did not follow The Criminal Code in relation to the offence of assault regarding a threatening gesture, determining that a bodily gesture (which in this case was when Hall raised his right hand) needed with it Hall’s intent or mens rea that Fonceca would apprehend an assault.
It could (position is unclear in WA) be enough that such an intention is reckless, i.e. the person knows that someone could find the gesture threatening and does it anyway… Apart from scenario relating to a threat with a bodily gesture, intent is not relevant in this offence however (as per s23 – intent is not relevant unless expressly declared in offence). And it is irrelevant whether the accused intended to cause harm or personal discomfort.
Brady v Schatzel [1911] St R Qs 206 – in relation to a threatening gesture, apprehension is sufficient, that is, you do not need to cause fear (as long as there is present ability).
In relation to a present ability and a threat, consider context of a situation, e.g. ‘if it weren’t for the police, I would hit you’, no present ability.
Consent: – context is important:
Lergesner v Carroll [1991] 1 Qld R 206– CofA found that there was consent to a fist fight (or at least honest and reasonable mistake of fact as to consent) and therefore no aobh. Shepherdson J, “[I]t is for the tribunal of fact…to decide, in respect of the assault said to have consented to…whether the degree of violence used in the assault exceeded that to which consent had been given”.
Key case on consent in fighting context: Raabe (1984) 14 A Crim R 381 – consent in a fight is not consent to the other party doing whatever they like, there are limits (consent to someone holding a piece of timber in a fight, e.g. still participating in the fight, does not mean the person is consenting to the injuries that follow (consent as to degree of injury is a factor – difficult to define).
Also look at what happened before the alleged ‘assault’ in order to establish consent. How was the victim acting/what did the victim say? Even if the victim later says they didn’t consent, do their actions suggest otherwise?
Child and consent is a tricky issue – if not in relation to an indecent/sexual act: Horan v Ferguson [1995] 2 Qd R 490 - per Mcpherson, the absent or presence of consent isn’t determine by the spoken word. Children commonly consent to physical forms of encouragement in an educational setting.
Consent is not willingness – can be unwilling and still be giving your consent: Kimmorley v Atherton[1971] Qd R 117 (girl didn’t kiss back, but was still consenting to the kiss or at least the boy could not reasonably be expected to know that she wasn’t consenting).
Collins v Wilcock (1984) 1 WLR 1172 – consent is given in relation to everyday conduct, e.g. on a busy train consent is implied in relation to incidental human contact and on an ongoing basis.
Pallante v Stadiums Pty Ltd – consent given in the context of a sport, i.e. boxing match. Per McInerney J, “each [party] consents to take the risk of infliction on him such violence as is ordinarily and reasonably to be contemplated as incidental to the sport in question”.
Offence: S313(1)(b), Common assault Elements: unlawfully assaults (if relevant, circumstances of aggravation/circumstances of racial aggravation – offence: s313(1)(a)). RL: s222 defines assault as either: 1. Actual application of force (either directly or indirectly) without consent; 2. Attempt with a bodily gesture to apply force without consent; or 3. Threat with a bodily gesture to apply force without consent (there must be a present ability to apply the force), e.g. making someone flinch by raising your hand to them and threating them. If relevant – circumstances of aggravation is defined in s221(1): family, domestic relationship or child present or act breaches an order or victim is or over 60. ‘Family and domestic’ defined in s4 Restraining Orders Act 1997. Circumstances of racial aggravation defined in s80I and relates to a person being a member of a ‘racial group’). S233 defines unlawful assault – ‘unless it is authorised or justified or excused by law’ (we focus on consent authorising the action).
In relation to applies force – s222 confirms this as ‘strikes, touches, or moves, or otherwise applies force of any kind’. In relation to application of force, think about context of scenario, e.g. someone runs over someone’s foot by mistake but then realises and keeps the car on the foot – defence of accidence no longer apparent and therefore there is an application of force (continuing to apply force) when the person realises: as in the case of Fagan v Commissioner of Police [1969] 1 QB 439.
Threats:
Hall v Fonceca [1983] WAR 309 – fight over drinks at a hockey club. In this case the court did not follow The Criminal Code in relation to the offence of assault regarding a threatening gesture, determining that a bodily gesture (which in this case was when Hall raised his right hand) needed with it Hall’s intent or mens rea that Fonceca would apprehend an assault.
It could (position is unclear in WA) be enough that such an intention is reckless, i.e. the person knows that someone could find the gesture threatening and does it anyway… Apart from scenario relating to a threat with a bodily gesture, intent is not relevant in this offence however (as per s23 – intent is not relevant unless expressly declared in offence). And it is irrelevant whether the accused intended to cause harm or personal discomfort.
Brady v Schatzel [1911] St R Qs 206 – in relation to a threatening gesture, apprehension is sufficient, that is, you do not need to cause fear (as long as there is present ability).
In relation to a present ability and a threat, consider context of a situation, e.g. ‘if it weren’t for the police, I would hit you’, no present ability.
Consent: – context is important:
Lergesner v Carroll [1991] 1 Qld R 206– CofA found that there was consent to a fist fight (or at least honest and reasonable mistake of fact as to consent) and therefore no aobh. Shepherdson J, “[I]t is for the tribunal of fact…to decide, in respect of the assault said to have consented to…whether the degree of violence used in the assault exceeded that to which consent had been given”.
Key case on consent in fighting context: Raabe (1984) 14 A Crim R 381 – consent in a fight is not consent to the other party doing whatever they like, there are limits (consent to someone holding a piece of timber in a fight, e.g. still participating in the fight, does not mean the person is consenting to the injuries that follow (consent as to degree of injury is a factor – difficult to define).
Also look at what happened before the alleged ‘assault’ in order to establish consent. How was the victim acting/what did the victim say? Even if the victim later says they didn’t consent, do their actions suggest otherwise?
Child and consent is a tricky issue – if not in relation to an indecent/sexual act: Horan v Ferguson [1995] 2 Qd R 490 - per Mcpherson, the absent or presence of consent isn’t determine by the spoken word. Children commonly consent to physical forms of encouragement in an educational setting.
Consent is not willingness – can be unwilling and still be giving your consent: Kimmorley v Atherton[1971] Qd R 117 (girl didn’t kiss back, but was still consenting to the kiss or at least the boy could not reasonably be expected to know that she wasn’t consenting).
Collins v Wilcock (1984) 1 WLR 1172 – consent is given in relation to everyday conduct, e.g. on a busy train consent is implied in relation to incidental human contact and on an ongoing basis.
Pallante v Stadiums Pty Ltd – consent given in the context of a sport, i.e. boxing match. Per McInerney J, “each [party] consents to take the risk of infliction on him such violence as is ordinarily and reasonably to be contemplated as incidental to the sport in question”.
