Interpersonal Violence Offences

Collins v Wilcock

‘every person’s body is inviolate’ i.e. mere touching sufficient. Does not require skin contact

Kovalev v Police

electric shock

Gaunt v Police

spitting (or throwing water) = application of force

Mitchell v Police

standing in someone’s way or bracing your body to resist them pushing you is not ‘applying’ force

Taka v Police

no threat to apply force = no assault

DPP v Smith

(Michael Ross) includes hair

Narayan v Police

indirectly = touching V through another medium e.g. object/crowd/substance, or knocking away a support so that they fall

Kovalev v Police

even when step by V necessary before force applied

Police v Palmer

other contexts ‘act’ includes omission but depends on construction of statute & nature of offence

Fogden v Wade

act/gesture need not be an attempt at physical contact, just has to convey a threat to do so

R v Ireland

phone call may be an assault, q of fact for jury if present ability

Tuberville v Savage

if condition indicates no present intention to realise threat = no assault

Police v Greaves

distinguished Tuberville if condition does not neutralise the threat =

assault

Rozsa v Samuels, Taka v Police

no assault if w/in D’s right to act in self-defence, disproportionate = assault

R v Kerr

need not awareness if D has present ability, only 4 th category need

Graves v Police

q of fact whether V honestly believed D had present ability to apply force & whether reasonable i.e. 4th type

R v Young

recklessness not sufficient must be deliberate

Lazarus v Police

intention to perform threatening act and intention to threaten V

Narayan v Police

MR can be transferred

Chandler v Police

doctrine transfers but does not transform malice

Te Moananui v R

objective assessment of intention

R v King

harm to foetus = bodily harm to mother

DPP v Smith

parameters of a person’s body include their hair = ABH

R v Chan-Fook (cited in R v Mwai)

bodily harm includes recognisable psychological damage but not mere emotions

R v Sturm

for stupefying q of fact for jury whether V’s mental state is ‘really serious’, need not be unconscious

R v Crossan

threat believed by V = incapable of resistance

R v Hende

intention to ‘calm’ via medicine not = ‘stupefy’

Filitonga v R

medical advances may persuade jury HIV not GBH

Cameron v R

recklessness = conscious taking of an unjustified risk

R v Mwai

transmission = causing bodily harm (s 188(2) causing GBH w/ reckless disregard)

R v Lee

subjective honest belief in consent

Ah-Chong v R

honest but mistaken belief in consent is a defence

R v Lee obiter discussing R v Mwai

if D wore a condom no duty to disclose, otherwise informed

consent = defence (to s 145 & s 188)

R v Lee 4 tiers

(no harm/ABH/GBH/death)

S v R endorses Glazebrook’s dissent in R v Barker

sliding scale - more serious harm

intended/risked more likely public policy factors (e.g. social utility, preventing harm, V vulnerability) will exclude defence of V consent

Kempson v R

confirms s 63 withdraws consent as a defence if MR for murder

(intention/recklessness)

R v Cey (Canada) approach accepted in R v Lee

scope of implied consent in team sport determined via objective criteria (type of sport, level, extent of risk etc.)

Boughey v R

act reasonably necessary for the common intercourse of life if only done for that

purpose & not disproportionate to the occasion = no assault even if no consent