Criminal Law Assault-Based offences

Common vs. Statutory Offences

  • Common law offences vs. statutory offences.
  • Common assault: Focus on problematic elements.

Citing Cases

  • Cite correct cases when interpreting law.
  • Use right cases/circumstances/authority.
  • Apply universal principles (voluntariness) to aligned offenses.

Common Assault

  • Physical Common Assault: Act applying force.
    • Causation-based, usually direct/immediate.
  • Non-Physical Common Assault: Approach causing apprehension.
    • Analyze precise wording of offences.

Elements of Common Assault

  • Voluntary act.
  • Application of force to another's body.
  • Slightest touching can satisfy actus reus.
  • No injury needed for common assault.

Application of Force

  • Force can be direct/indirect (e.g., weapon).
  • Example: Driving a vehicle onto someone's foot.

Omissions

  • Common assault cannot be committed by omission.
  • Act required.

Mens Rea and Actus Reus

  • All offences need to be contemporaneous (actus reus & mens rea).

Fagan Case

  • Continuing act: Act wasn't over when mens rea formed, contemporaneity satisfied.

Non-Physical Common Assault & Immediacy

  • Victim apprehends immediate force (subjective state of mind).
  • Cannot be satisfied if victim unaware of threat.

Immediacy Element

  • Victim's belief needs reasonable grounds.

Telephone Call Cases (e.g., Ireland)

  • Circumstances matter (e.g., young women alone at night).
  • Jury can accept accused caused belief of imminent force.

Threats

  • Threat to protect self (self-defense) may still be common assault if disproportionate.

Continuing Threat (Zanker case)

  • Threat began when made, continued while victim trapped.
  • Victim's belief of imminent application of force was reasonable.

Broader Circumstances

  • e.g., touching sword while making a threat.

Unlawful Force

  • Lawfulness not directly an element of the defense.
  • Sufficient to intend to apply force.

Socially Acceptable Force

  • Brushing past someone on a train: Actus reus & mens rea satisfied, but not common assault due to social acceptability.
  • Treated as a defense.
  • Consensual application of force = no crime.
  • Mistakenly believing in consent destroys mens rea.

Scope of Consent

  • What was consented to?
  • Sport example: Consented to touching within game rules, not intentional punches.

Statutory Assault

  • Start with the most serious offence available.
  • If there's an issue of satisfying an element go to less serious.

Types of Statutory Assault

  • Physical assault (causing injury/serious injury).
  • Threat-based offences.
  • Stalking.
  • Endangerment offences.

Section 16 & 17

  • Intent or recklessness (respectively) to cause serious injury.
  • Voluntary act causing the result.

Recklessness

  • Foresaw serious injury as probable consequence.

Causation

  • But-for test: Did act cause injury/serious injury?
  • Substantial and operating cause.

Serious Injury

  • All serious injuries are injuries, but not vice versa.

Alternative Offences Consideration

  • If problems proving intent for serious injury, consider Section 18.
  • Justify based on analysis of why an element is problematic for a more serious offense.

Section 24

  • Breached by acts and omissions.
  • Requires an act that causes a serious injury.
  • Differentiated by breach of duty of care, causing serious injury.

Mens Rea for Section 24

  • Objective standard: Gross falling short of reasonable person's standard.

Inherently Dangerous Acts

  • Failure to take reasonable precautions when performing dangerous acts.

Omissions

  • Failure to do something properly (obligation to act).

Section 15 - Definitions

  • Injury must be a physical injury - Harm to mental health.

Serious Injury Definition

  • Substantial and protracted, or dangerous.
  • Logical flow is essential.

Threat Offenses

  • Focus on accused's intent for victim to be afraid.
  • Immediacy isn't relevant.
  • Threat can be words/conduct.
  • Since they're much more serious, start with theft.

Endangerment

  • Focus on the possibility of something more serious happening.
  • Apply only if no actual injury or force.

Section 23

  • All the elements are exactly the same except it's phrased by reference to a serious injury.

Appreciable Risk

  • The term danger or death or serious injury has been interpreted to mean an appreciable risk.

Speculative Conduct

  • Focus on what actually happened, not speculative future conduct.

Likelihood of Harm

  • Subjective mens rea.
  • The accused knew that a course of harm would be likely to cause harm.

Consent as a Defense

  • Prosecution must disprove.
  • If ineffective, prosecution don't need to disprove that.
  • An injury needs a public policy justification or rationale, consent will not be effective.

Aaron Spine

  • Consent as a defense will realistically only be argued in relation to common assault that has actually evicted an injury