Assault can include?
Advance towards someone with a clenched fist (threats)
Using a dog as a weapon
Non-consenting kiss
Spitting on a person
Striking a horse causing the rider to fall
Pointing an unloaded/loaded firearm or toy pistol (if the victim believes it to be a pistol/taser)
An unlawful arrest
Excessive force
S 61 Crimes Act Elements of Common assault prosecuted by indictment
- The accused
- Assaulted
-Intentionally or recklessly
-Without consent
-Without lawful excuse - A person
Two years imprisonment – Indictable Offence
S 60 Crimes Act
Assault and other actions against police officers
S 59 Crime Act Assault occasioning actual bodily harm
- The accused
- Assaulted
- Intentionally or recklessly
- Without consent
- Without lawful excuse - A person
- Occasioning actual bodily harm
Shall be liable to imprisonment for five years.
Definition of actual bodily harm?
- Includes any hurt or injury calculated to interfere with the health or comfort of the victim.
- Such hurt need not be permanent but must be more than merely transient and trifling, for example, scratches and bruises.
- Examples of actual bodily harm may include bruising, bleeding nose, split lip. Actual bodily harm is considered less serious than grievous bodily harm.
S 35 Crimes Act Reckless grievous bodily harm or wounding
- For Crimes Act 1900 (NSW), Section 35, an injury is caused recklessly if the accused foresaw the possibility of causing actual bodily harm to the victim by his or her actions yet he or she went ahead and acted as he or she did.
- For example, a person knowing that they are HIV positive has sexual intercourse with another person without disclosure to that person.
S 33 Wounding or grievous bodily harm with intent
Definition of Wound?
- Wounding requires the breaking of the continuity of the skin - dermis (interior layer) and epidermis (outer layer). It need not involve the use of a weapon.
- Defined at common law, wounding involves the breaking of the skin (dermis). It is an injury in which the skin, tissue, or an organ is broken by some external force such as a blow or incision or deep laceration, with damage to the underlying tissue. ‘Skin’ includes the skin inside the mouth, ears, nose, genitals and anus.
- The extent of the injury would be determined by a legally qualified medical practitioner. This would be in the form of an expert witness statement
What is Actus Reus?
Actus reus is an element of criminal responsibility, the wrongful act or omission that comprises the physical components of a crime.
What is Mens Rea?
There is a common law presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in criminal offences’.
Courts generally require proof of both actus reus and mens rea on the part of a defendant in order to establish criminal liability.
Mens rea and Actus reus of Assault?
Mens rea:
-The intention to effect an unlawful contact or to create an apprehension of imminent unlawful contact in the mind of the other person.
Actus reus:
-The unlawful contact or the act creating apprehension of such an unlawful contact.
What is Temporal Coincidence
Temporal Coincidence occurs when mens rea and actus reus coincide in time. Then criminal liability may be established.
What are some legal defences to assault?
- Self-defence - someone attempts to hit you and you push them away to avoid being assaulted
- Accidental use of physical force – you are carrying some drinks from the bar to your table and a person turns and accidentally bumps into you causing you to spill the drinks
- When consented to, for example, sports
- Medical procedures (e.g. surgery)
- Defence of Lawful Correction - a parent smacks a child on the bottom once to discipline them after they deliberately hit another child
- Taking blood samples, forensic procedures
- Defence of family - someone attempts to hit your child and you push the person away to protect your child
- Defence of home or property – a person breaks into your house and you physically restrain them until the police arrive
- Lawful arrest or execution of process – a police officer lawfully arrests a person for an offence and they resist arrest, the police officer then physically restrains them
S 11A Summary Offences Act Violent disorder
Elements of offence:
-Where three or more persons are together using or threatening unlawful violence; and
the conduct of them (taken together) was such that it would have caused a person of reasonable firmness present at the scene to fear for his/her safety.
-Each of the persons who threatens or uses unlawful violence is guilty of this offence.
S 93C Crimes Act Affray
- The accused used or threatened to use unlawful violence towards another person; and
- The conduct of the accused was such as would cause a person of reasonable firmness present at the scene to fear for his/her personal safety.
S 93B Riot Crimes Act
- 12 or more persons were present together; and
- Used or threatened to use unlawful violence for a common purpose; and
- Their conduct taken together was such that it would cause a person of reasonable firmness present at the scene to fear for his/her safety; and
Public Order Offences – the differences:
Violent Disorder
3 or more (conduct taken together)
Use or threaten violence (incl. words alone)
Towards persons or property
(10 penalty units or 6 months imprisonment)
Affray
1 person or more
Use or threaten violence - must be more than just words
Must be toward another person – (Not property)
(10 years imprisonment)
Riot
12 or more,
Defendant must use violence
Common purpose, towards person or property
(15 years imprisonment)
What does Acting in Concert mean?
Agreement to commit the crime together (Common Purpose) now becomes the doing of the crime together (Acting in Concert).
The principal offence committed is the SAME which the parties intended and agreed to commit.
What does Criminal Complicity Mean?
A key element of Riot is Criminal Complicity involving Common Purpose and Acting in Concert. It is necessary to prove this Common Purpose to prove the offence of Riot.
What does Common Purpose common purpose mean?
Common Law Doctrine
We all agree to commit a crime together, therefore we are all liable.
Common Purpose = the Agreement
First Response – Roles and responsibilities of police
[DREALPINE]
Duty Officer and supervisor to be notified
Respectful and supportive of the victim
Ensure the victim’s immediate safety
Assess and attend to urgent medical needs including Sexual Assault Investigation Kit (SAIK) and/or Early Evidence Kit (EEK)
Liaise with criminal investigation staff
Privacy of the victim
Identify and secure any primary/secondary crime scene and/or other forensic evidence
Notebook entry
Encourage the victim not to change
Definitions of willfully and obscenely?
Wilfully means that the act is done deliberately and intentionally, not by accident, or inadvertence, but so that the mind of the person who does the act goes with it
Obscenely means offensive to modesty or decency, indecent, inciting to lust or sexual depravity, lewd.
S 61KECrimes Act
Elements of offence
- The offender
- Knowing the victim does not consent
- intentionally
- Carried out a sexual act
- towards the victim/s
61KF Crimes Act Aggravated sexual act
Elements of the offence
- The accused
- Without consent of the alleged victim
- knowing the victim does not consent
- Intentionally
- Carried out a sexual act
- Towards the victims
- In circumstances of aggravation
The difference between Section 61KE and 61KF is when the offence is committed in circumstances of aggravation.
For example:
teacher
foster parent
legal guardian
minister of religion with pastoral responsibility for the child (Altar boys)
employer
youth worker
sports coach
counsellor
health professional
member of the police force acting in the course of his or her duty in respect of the child
Employee in or providing service to a remand centre, youth residential centre, youth justice centre or prison and is acting in the course of their duty in respect of the child.
