OFFENCES AGAINST THE PERSON
OFFENCES AGAINST THE PERSON • Requires a person to be the victim – a person is a live born human being (thereby excluding the yet to be born, the legally dead and live animals) o Offences against the person do not automatically apply to fetuses as fetuses are not legal persons o If damage is done to a fetus in utero and the child is born dead, there can be no homicide or offence against the person o However, in King it was held that damage to the fetus was damage to the woman because the close physical bond between the mother and the fetus is of such a character that for purposes of offences such as this, the fetus should be regarded as part of the mother. § Here the father didn’t want the baby so he kicked the mother in the stomach and damage to the fetus occurred. • Always look at context – a mere touching can constitute an assault in the right circumstances, and on the other hand serious injury may be caused without criminal liability attaching. In order of seriousness: Assault à Causing Harm à Causing Serious Harm (and if its intentional it will be more serious than if it were reckless, also will be more serious if its aggravated) **consistent with the harm principle and the classic model of a serious crime** If YES = Consider Div 7A (causing Is there a harm? harm and causing serious harm) If NO = Consider Div 7 (assault) **next page** Are any of the physical elements in s 20(1)(a)-‐(e) made out? Was the fault element satisfied? Defendant Note: PE’s are in blue must have INTENDED the conduct (recklessness will NOT suffice) 20—Assault (1) A person commits an assault if the person, without the consent If no = no offence [PE – circumstance] of another person (the victim)— If yes = consider the inherent statutory (a) intentionally [FE] applies force (directly or defences indirectly) to the victim; or (b) intentionally [FE] m akes physical contact (directly or indirectly) with the victim, knowing that the S 20(2) However— victim m ight r easonably o bject [ FE] t o t he c ontact (a) conduct that lies within limits of what would in the circumstances (whether or not the victim be generally accepted in the community as was at the time aware of the contact); or normal incidents of social interaction or threatens (by words or conduct) to apply force [PE (c) community life cannot amount to an assault; – circumstance] (directly or indirectly) to the victim and and there are r easonable grounds for the victim to (b) conduct that is justified or excused by law believe that— cannot amount to an assault. [i.e. conduct (i) the person who m akes the threat undertaken in self defence or conduct is in a position to carry out the threat and intends undertaken by a law enforcement officer for a to do so; or [PE – circumstance: note this does not legitimate law enforcement purpose]. require fear] (ii) there is a r eal possibility that the If yes = defence succeeds, no offence person will carry out the threat; or If no = offence is established does an act of which the intended purpose is to (d) apply force (directly or indirectly) to the victim; or accosts or impedes another in a threatening (e) manner [accost = approach aggressively and impedes = to IS THE ASSAULT block their way] AGGRAVATED? • Section 5AA Make sure you’ve discussed the fact there was no consent – • Heavier penalties will this is what assault is all about. JS Mill said we have a right to apply if so personal sovereignty over ourselves, so we have a right to control human contact and preserve a zone of private space. This is why assault doesn’t NEED to require touching or injury. Collins v W illcock: EVERYONE has this right, every person’s body is inviolate
If YES = Consider Div 7A (causing there a harm? Is harm and causing serious harm) **next page** Section 21: Harm means physical or m ental harm (whether temporary or permanent). A person is said to cause harm if their conduct is the sole cause of the harm or substantially contributes to the harm. Is i t physical harm? Is it serious physical harm? Is it m ental harm? S 2 1: Physical harm serious harm m eans— Section 21: m ental harm means includes— (a) harm that endangers a person's life; or psychological harm and does (a) unconsciousness; (b) harm that consists of, or r esults in, serious NOT include emotional reactions (b) pain; and protracted impairment of a physical or such as distress, grief, fear or mental function; or (c) disfigurement; anger unless they result in (d) infection with a disease; (c) harm that consists of, or results in, serious psychological harm; disfigurement. Therefore, s 24 is the Therefore, s 24 applies BUT only relevant offence. Therefore, s 23 is the relevant offence. if… Consider s 22(5): CONSIDER THE FAULT ELEMENT (a) Did the defendant endanger victims life or physical safety (and Was there intention (s 24(1)) Was there intention (s 23(1)) or recklessness (s the m ental harm arose out of 23(3)) as to causing serious physical harm? or recklessness (s 24(2)) as that)?; or to causing physical harm? (b) Was causing m ental harm the defendants primary purpose? = offence established. BUT the division will not apply to the conduct of a person If yes If yes = offence is m ade out (s 24 who causes harm to another, if the victim LAWFULLY CONSENTED to the act causing – offence of causing harm). the harm, s 22(1). If no = no offence Did the victim lawfully consent to the harm? S 22(3): A person m ay consent to harm (including serious harm) if the nature of the harm and the purpose for which it is inflicted fall within limits that are generally accepted in the community. Examples where you can consent to harm: • For a r eligious purpose (e.g. male circumcision, but not female genital Case law regarding consent in child discipline, sexual mutilation) • Harm for a genuine therapeutic purpose (e.g. someone with 1 kidney can scenarios and sport on next slide consent to donate 1 for the purpose of transplantation to someone with kidney disease) • Harm for the purpose of controlling fertility (e.g. vasectomy or tubal ligation) • Sporting or r ecreational activity (within the limits generally accepted in the community) consent to harm arising from a risk inherent in the nature of the activity (e.g. boxer may accept the rick of being knocked unconscious and consent to that harm) If no = offence established. S 22(4): If a defendant's conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community If yes = defence succeeds, life, this Division does not apply to the conduct unless it is established that the NO offence. defendant intended to cause harm. No offence of causing harm. Consider: No offence of causing serious harm. Consider: Did If there was no intent to cause ANY harm – Division 7 would D intend any of the s 20(1) physical elements? If n o = no offence fail and you cannot establish an offence. If y es = offence under s 20(4) – assault causing harm. But if there was an intention to cause harm (just not serious harm) s 25 comes into effect and we consider the lesser offence of s 24 – offence of causing harm.
Child Discipline DMC: There is no real physical consent, but consent to MODERATE physical contact is implied by a parent/child relationship. Here the father grabbed the daughters arm and dragged her away. Sexual Content: Donovan: consent that was given to beat a prostitute with a cane was NOT valid, cannot agree to actual bodily harm – for reasons of bad public policy. Brown: Homosexual sado-‐masochistic ring culture where they put fish hooks through male parts (no permanent injury) but consent was NOT valid. Wilson: Husband carved his initials in the wife’s buttocks – for reasons of privacy consent WAS valid. à Inconsistent cases Sport Common law has struggled to identify when harm in sport is valid and lawful Re Jewell and Crimes Compensation Tribunal: even a breach of the rules of the game will not turn a violent and injurious sporting action into assault – players contemplate that the game will be played and breaches of the rules will occur, and this is accepted within reasonable limits. I.e. major breaches may not be acceptable R v Barnes: Consent is implicit by taking part in the game – probably not criminal if something is within the rules and practice of the game and in high competitive sports, conduct outside the rules is expected to occur in the heat of the moment. You have consented to this – UNLESS IT GOES TOO FAR. Consider the type of sport, the level at which it was being played, the nature of the act, the degree of force used, the extent of the risk of injury and the state of mind of the defendant. à Essentially, if there is animosity the conduct has changed its character.
Other offences against the person S 19 Unlawful Threat Have they made a threat (by words or conduct) that they will kill/endanger someone’s life or cause them harm with the intention of arousing fear that the threat will be carried out (or recklessly indifferent as to its arousal)? à If so, guilty of this offence. S 19AA Unlawful Stalking Stalking = on at least 2 separate occasions the person follows another, loiters outside their residence or a place frequently visited by the other person, gives/sends offensive material or leaves it where it can be found or brought to their intention, puts offensive material on the internet, communicates with them by mail phone etc. in a manner that could reasonable cause fear, KEEP UNDER SURVEILLANCE. à And with the INTENT to cause serious physical or mental harm to the other or cause serious apprehension of fear (put in to stop people like journalists/paparazzi being charged). Domestic Violence • Assault in the home is the same offence as assault outside the home – it now attracts greater penalties as it is likely to be aggravated assault • Can apply for intervention orders (restraining orders) that extend the scope of the law. Note: these are not confined to domestic violence situations o Objects s 5(a) – to assist in preventing domestic and non-‐domestic abuse, and exposure of children to the effects of such abuse, by providing for intervention orders. o S 6(a): Can obtain an intervention order if there is reasonable suspicion that D will (without intervention) commit an act of abuse. § This is broadly defined (s 8(2)) to include physical injury, emotional/psychological harm, denial of money, damage to property, keeping under surveillance, derogatory taunts etc. • Police v Giles: intervention order was given – G had committed serious assaults in 2007 and 2009; G and V separated in 2011; heated exchanges since about access to children, including G saying he will smash V in front of the kinds.
If YES = Consider Div 7A (causing there a harm? Is harm and causing serious harm) **next page** Section 21: Harm means physical or m ental harm (whether temporary or permanent). A person is said to cause harm if their conduct is the sole cause of the harm or substantially contributes to the harm. Is i t physical harm? Is it serious physical harm? Is it m ental harm? S 2 1: Physical harm serious harm m eans— Section 21: m ental harm means includes— (a) harm that endangers a person's life; or psychological harm and does (a) unconsciousness; (b) harm that consists of, or r esults in, serious NOT include emotional reactions (b) pain; and protracted impairment of a physical or such as distress, grief, fear or mental function; or (c) disfigurement; anger unless they result in (d) infection with a disease; (c) harm that consists of, or results in, serious psychological harm; disfigurement. Therefore, s 24 is the Therefore, s 24 applies BUT only relevant offence. Therefore, s 23 is the relevant offence. if… Consider s 22(5): CONSIDER THE FAULT ELEMENT (a) Did the defendant endanger victims life or physical safety (and Was there intention (s 24(1)) Was there intention (s 23(1)) or recklessness (s the m ental harm arose out of 23(3)) as to causing serious physical harm? or recklessness (s 24(2)) as that)?; or to causing physical harm? (b) Was causing m ental harm the defendants primary purpose? = offence established. BUT the division will not apply to the conduct of a person If yes If yes = offence is m ade out (s 24 who causes harm to another, if the victim LAWFULLY CONSENTED to the act causing – offence of causing harm). the harm, s 22(1). If no = no offence Did the victim lawfully consent to the harm? S 22(3): A person m ay consent to harm (including serious harm) if the nature of the harm and the purpose for which it is inflicted fall within limits that are generally accepted in the community. Examples where you can consent to harm: • For a r eligious purpose (e.g. male circumcision, but not female genital Case law regarding consent in child discipline, sexual mutilation) • Harm for a genuine therapeutic purpose (e.g. someone with 1 kidney can scenarios and sport on next slide consent to donate 1 for the purpose of transplantation to someone with kidney disease) • Harm for the purpose of controlling fertility (e.g. vasectomy or tubal ligation) • Sporting or r ecreational activity (within the limits generally accepted in the community) consent to harm arising from a risk inherent in the nature of the activity (e.g. boxer may accept the rick of being knocked unconscious and consent to that harm) If no = offence established. S 22(4): If a defendant's conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community If yes = defence succeeds, life, this Division does not apply to the conduct unless it is established that the NO offence. defendant intended to cause harm. No offence of causing harm. Consider: No offence of causing serious harm. Consider: Did If there was no intent to cause ANY harm – Division 7 would D intend any of the s 20(1) physical elements? If n o = no offence fail and you cannot establish an offence. If y es = offence under s 20(4) – assault causing harm. But if there was an intention to cause harm (just not serious harm) s 25 comes into effect and we consider the lesser offence of s 24 – offence of causing harm.
Child Discipline DMC: There is no real physical consent, but consent to MODERATE physical contact is implied by a parent/child relationship. Here the father grabbed the daughters arm and dragged her away. Sexual Content: Donovan: consent that was given to beat a prostitute with a cane was NOT valid, cannot agree to actual bodily harm – for reasons of bad public policy. Brown: Homosexual sado-‐masochistic ring culture where they put fish hooks through male parts (no permanent injury) but consent was NOT valid. Wilson: Husband carved his initials in the wife’s buttocks – for reasons of privacy consent WAS valid. à Inconsistent cases Sport Common law has struggled to identify when harm in sport is valid and lawful Re Jewell and Crimes Compensation Tribunal: even a breach of the rules of the game will not turn a violent and injurious sporting action into assault – players contemplate that the game will be played and breaches of the rules will occur, and this is accepted within reasonable limits. I.e. major breaches may not be acceptable R v Barnes: Consent is implicit by taking part in the game – probably not criminal if something is within the rules and practice of the game and in high competitive sports, conduct outside the rules is expected to occur in the heat of the moment. You have consented to this – UNLESS IT GOES TOO FAR. Consider the type of sport, the level at which it was being played, the nature of the act, the degree of force used, the extent of the risk of injury and the state of mind of the defendant. à Essentially, if there is animosity the conduct has changed its character.
Other offences against the person S 19 Unlawful Threat Have they made a threat (by words or conduct) that they will kill/endanger someone’s life or cause them harm with the intention of arousing fear that the threat will be carried out (or recklessly indifferent as to its arousal)? à If so, guilty of this offence. S 19AA Unlawful Stalking Stalking = on at least 2 separate occasions the person follows another, loiters outside their residence or a place frequently visited by the other person, gives/sends offensive material or leaves it where it can be found or brought to their intention, puts offensive material on the internet, communicates with them by mail phone etc. in a manner that could reasonable cause fear, KEEP UNDER SURVEILLANCE. à And with the INTENT to cause serious physical or mental harm to the other or cause serious apprehension of fear (put in to stop people like journalists/paparazzi being charged). Domestic Violence • Assault in the home is the same offence as assault outside the home – it now attracts greater penalties as it is likely to be aggravated assault • Can apply for intervention orders (restraining orders) that extend the scope of the law. Note: these are not confined to domestic violence situations o Objects s 5(a) – to assist in preventing domestic and non-‐domestic abuse, and exposure of children to the effects of such abuse, by providing for intervention orders. o S 6(a): Can obtain an intervention order if there is reasonable suspicion that D will (without intervention) commit an act of abuse. § This is broadly defined (s 8(2)) to include physical injury, emotional/psychological harm, denial of money, damage to property, keeping under surveillance, derogatory taunts etc. • Police v Giles: intervention order was given – G had committed serious assaults in 2007 and 2009; G and V separated in 2011; heated exchanges since about access to children, including G saying he will smash V in front of the kinds.
