Melbourne University Law Students Society

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Melbourne University Law Students
Society Student Tutorial Service Criminal Law
and Procedure 730-368 Freya Dinshaw
Sponsoring Partners Clayton Utz Mallesons
Stephen Jaques Leo Cussen Institute
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DISCLAIMER These tutorials and the notes are
designed to assist students in their learning.
The tutorials and the notes are not a substitute
for the course material, nor should they be
relied upon as representative of the subject
matter of the course. Neither the Melbourne
University Law Students Society nor the student
tutor of these tutorials will take responsibility
for any consequences flowing from the use of the
material provided in the tutorials or in the
notes.
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Tutorials Schedule

• Email f.dinshaw_at_unimelb.edu.au

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Assault

• Plan for today
• Actual Physical Force
• Statutory crimes ss 16-18, 24 Crimes Act
• CL crime applying actual physical force
• Causing one to apprehend force
• Statutory s 31 Crimes Act
• CL crime causing another to apprehend physical
  force
• Defences
• Common intercourse, consent, lawful excuse
• Supporting offences
• Stalking (S 21A CA), Endangerment (ss 22, 23)
• Hypothetical

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Actual Physical Force

• Statutory crimes
• Section 16
• Causing serious injury intentionally (Level 3)
• Section 17
• Causing serious injury recklessly (Level 4)
• Section 18
• Causing injury intentionally or recklessly
• Intentional Level 5, Reckless Level 6
• Section 24
• Negligently causing serious injury (Level 6)

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Actual Physical Force

• Result injury
• Section 15
• Includes unconsciousness, hysteria, pain and any
  substantial impairment of bodily function
• Serious injury includes a combination of injuries
• Causation
• Relevant conduct must have caused the injury
  (same as for homicide)

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Actual Physical Force

• Common law assault
• Where A intentionally/recklessly applies actual
  physical force to another persons body
• 1st of two arms of CL assault (s 320 CA). Max
  penalty 5 years
• In practise tried as a summary offence Summary
  Offences Act 1966, s 23 (max penalty 3 months)
• Elements
• Actus Reus Actual bodily contact
• Must be voluntary
• Can be through another instrument (Fagan)
• Result Unwanted contact
• Mens Rea Intention, recklessness?
• Fagan Must be intentional a mere omission to
  act cannot amount to an assault. Question over
  recklessness.
• Temporal Coincidence (Fagan)
• Absence of any defence

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Causing apprehension of force

• Common law assault
• Where A intentionally/recklessly causes another
  to apprehend the application of physical force to
  their body
• 2nd of two arms (s 320 CA or SO Act s 23)
• Elements
• Actus Reus The threat of bodily contact or
  prohibited harm
• Question is mere words or conditional
  threats enough? (Knight)
• Result V actually apprehends immediate contact
• Zanker v Vartzokas immediate can mean in near
  future in certain circumstances
• Knight - Could be over phone
• Mens Rea Intention, recklessness, negligence
• Awareness of possibility?
• Temporal Coincidence
• Absence of any defence

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Causing apprehension of force

• Section 31 Crimes Act
• Level 6 imprisonment
• (1) A person who-
• assaults or threatens to assault another person
  with intent to commit an indictable offence OR
• assaults or threatens to assault, resists or
  intentionally obstructs- (i) a member of the
  police force in the due execution of dutyOR
• assaults or threatens to assault a person with
  intent to resist or prevent the lawful
  apprehension or detention of a person-
• is guilty of an indictable offence.
• (2) In sub-section (1), assault means the
  direct or indirect application of force by a
  person to the body of, or to clothing or
  equipment worn by, another person where the
  application of force is-
• without lawful excuse and
• with intent to inflict or being reckless as to
  the infliction of bodily injury, pain,
  discomfort, damage, insult or deprivation of
  liberty-
• and results in the infliction of any such
  consequence (whether or not the consequence
  inflicted is the consequence intended or
  foreseen).
• Different to CL because penalty could be higher,
  and need intent to inflict injury/serious injury
  not just battery

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Defences

• Common intercourse
• Commonplace intentional but non-hostile acts
  such as patting another on the shoulder to
  attract attention or pushing between others to
  alight from a crowded bus do not amount to
  common assault since the victim has given their
  implied consent to the touching (Boughey)
• Lawful excuse
• Self-defence
• Law of arrest (defence if arresting someone)
• Other excuses medical procedures, sport,
  tattoing, earpiercing (Brown)

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Defences

• Is consent a defence?
• R v Brown
• Vs consent will negate the assault offence if
  the injury arises from a foreseeable incident in
  a lawful activity in which the V is a consenting
  participant
• Consent is a defence to the infliction of bodily
  harm in the course of some lawful activities.
  (Lord Templeton)
• However V cannot consent to infliction of injury
  beyond a certain degree of seriousness
• Maybe only unlawful if intent to kill or cause
  GBH (Minor)
• No assault if no hostile intent consent of V
  (Pallante v Stadiums)

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Supporting Offences

• Stalking (s 21A Crimes Act)
• Almost strict liability no requirement that A
  is aware of the harm caused to V
• Actus reus defined in s 21A(2)
• Mens rea (s 21A(2))
• intention to cause physical or mental harm OR
• intention of arousing apprehension or fear in the
  victim for his/her own safety or that of any
  other person AND
• the course of conduct engaged in actually did
  have that result
• (3) Offender also has intentionif that offender
  knows, or in all the particular circumstances
  that offender ought to have understood, that
  engaging in a course of conduct of that kind
  would be likely to cause such harm or arouse such
  apprehension or fear, and it actually did have
  that result

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Supporting Offences

• Endangerment (ss 22 and 23 Crimes Act)
• No requirement that victim knows what is
  happening based on actual danger created
• Question as to what level of awareness needed?
• S 22 Conduct endangering life
• S 23 Conduct endangering persons (serious injury)

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Hypothetical

• Based on R v Abdool-Rasool
• As five children attended Maribyrong Secondary
  College. Her oldest daughter, Rafif, did not
  return home from school four days before the
  offence took place. A was worried and made
  inquiries of the school and the police about
  Rafifs whereabouts but was not told that Rafif
  had been placed in a refuge.
• A became increasingly distressed and on Monday 5
  August 2008 met with the deputy principal of the
  school (Ms C) in her office. She brought her son
  with her., and carried a handbag and a plastic
  bag. An interpreter was called, despite As
  reasonable command of English.
• A demanded to know where Rafif was, but Ms C
  regarded this as confidential information and
  said that she did not know. A became distraught,
  began to speak a mixture of languages and began
  slapping her own face, waving her arms and
  pulling her hair. She pulled a can of petrol out
  of the plastic bag she was carrying and poured
  petrol over herself. There was a cigarette
  lighter on the top of the bag which she had
  placed by her side. Ms C testified that A said
  I am going to burn the school, I am going to
  burn you. Some petrol splashed onto the carpet,
  wall and desk, and onto the clothing of Ms C and
  the interpreter.
• The ambulance was called and the paramedic
  testified that A repeated her threat saying Ill
  kill myself and you and burn the school down.
  The paramedic wrestled the petrol away from A,
  screwed the cap onto it and threw it out the
  window. A was arrested.
• What crimes has A committed?