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Understanding Assault and Unlawful Physical Contact: Consent, Harm, and Imminence, Study notes of Law

Liverpool Hope UniversityLaw

The legal concepts of assault and unlawful physical contact, focusing on the requirements of voluntary act, imminence, and harm. It also discusses the role of consent, acceptable violence, and child discipline in this context. Cases such as Fagan, Ireland & Burstow, Brown, and Billinghurst are analyzed to provide a deeper understanding of these concepts.

What you will learn

  • What role does consent play in assault cases?
  • How is the concept of imminence defined in the context of assault?
  • What are the key elements required for an assault charge?

Typology: Study notes

2021/2022

Uploaded on 09/12/2022

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ASSAULT&–&DIAGRAM&
&
&
ASSAULT&–&SUMMARY&&
!
• S&61&0&Common&Assault:!Whosoever!assaults!any!person,!although!not!occasioning!actual!bodily!harm,!shall!be!liable!
to!imprisonment!for!two!years.!
!
ACTUS&REUS&
!
1. Unlawful&physical&contact&(application&of&force)&
: Must!be!a!voluntary!act!(cannot!be!omission!–!Fagan%–!but!note!flexible!use!of!AR!and!MR!coincidence%
requirement!in!that!case)!
: Need!not!cause!harm!or!injury!(can!be!spitting!–!see!DPP%v%JWH)!
: Application!of!force!can!only!give!rise!to!criminal!liability!if!it!occurs!without!the!other!person’s!consent%
(express!or!implied!–!the!circumstance)!
2. Act&creating&apprehension&of&imminent&unlawful&physical&contact&
: D!may!be!guilty!of!assault!even!if!no!contact!is!made!with/force!is!applied!to!another!person!
: Words!alone!in!inappropriate!circumstances!can!constitute!assault!at!common!law!(Barton%v%Armstrong)!
: Where!D!creates!in!V!an!apprehension!of!imminent!(immediate)!unlawful!contact!
: Requires!a!positive!act!(Fagan)!–!but!there!is!a!broad!definition!(see%Ireland%and%Burstow)!
: IMMINENCE:&
o Knight:!Threatening!&!abusive!phone!call,!absent!the!potential!for!immediate!violence,!did!not!
constitute!assault!
o Zanker%v%Vartzokas:!Verbal!threat,!within!the!context!of!continuing!unlawful!imprisonment,!
constituted!a!threat!of!immediate!violence,!consequently!injury!sustained!escaping!=!assault!
occasioning!ABH!
o Ireland%&%Burstow:!Silent!phone!calls!may!constitute!an!assault!depending!on!the!facts!
!
MENS&REA&
P!must!prove!either!that!D:!
1. Intention:!Intended!to!effect!unlawful!contact;!or!create!apprehensions!of!imminent!unlawful!contact;!or!
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Download Understanding Assault and Unlawful Physical Contact: Consent, Harm, and Imminence and more Study notes Law in PDF only on Docsity!

ASSAULT – DIAGRAM

ASSAULT – SUMMARY

  • S 61 -­‐ Common Assault: Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. ACTUS REUS 1. Unlawful physical contact (application of force) -­‐ Must be a voluntary act (cannot be omission – Fagan – but note flexible use of AR and MR coincidence requirement in that case) -­‐ Need not cause harm or injury (can be spitting – see DPP v JWH ) -­‐ Application of force can only give rise to criminal liability if it occurs without the other person’s consent (express or implied – the circumstance ) 2. Act creating apprehension of imminent unlawful physical contact -­‐ D may be guilty of assault even if no contact is made with/force is applied to another person -­‐ Words alone in inappropriate circumstances can constitute assault at common law ( Barton v Armstrong ) -­‐ Where D creates in V an apprehension of imminent (immediate) unlawful contact -­‐ Requires a positive act ( Fagan ) – but there is a broad definition (see Ireland and Burstow) -­‐ IMMINENCE: o Knight : Threatening & abusive phone call, absent the potential for immediate violence, did not constitute assault o Zanker v Vartzokas : Verbal threat, within the context of continuing unlawful imprisonment, constituted a threat of immediate violence, consequently injury sustained escaping = assault occasioning ABH o Ireland & Burstow : Silent phone calls may constitute an assault depending on the facts MENS REA P must prove either that D:
    1. Intention: Intended to effect unlawful contact; or create apprehensions of imminent unlawful contact; or
  1. Recklessness: was reckless as to whether his/her actions would effect unlawful contact; or create apprehensions of imminent unlawful contact. Subjective! wether D knows could give V reasonable ground of apprehension RECKLESSNESS! foresight of a possibility (negligence insufficient – MacPherson v Brown ) CL: Particular form of recklessness is inadvertent recklessness. But, also see CA s 4. AGGRAVATED ASSAULTS ss 32 -­‐ 61
  • Presence of one of more factors o Harm caused o Harm intended (or inflicted recklessly) o Method used (e.g. weapon) o Status of victim (e.g. police officer) o Setting (e.g. school, during public disorder, etc)
  • HARM o Actual Bodily Harm (ABH) -­‐ defined in CL as “any hurt or injury calculated to interfere with the health or comfort of the prosecutor…need not be permanent…but more than merely transient and trifling ( Donovan ); can be a psychiatric illness ( Ireland & Burstow ). No statutory MR – look to case law. o Grievous Bodily Harm (GBH) – non-­‐exhaustive definition: Crimes Act s 4: “the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman...any permanent or serious disfiguring of the person...any grievous bodily disease...really serious" (see DPP v Smith ; death of a foetus see King). Can be caused by an omission (s 54) – degree of negligence same for manslaughter ( R v D ) o Wounding – defined in CL as “an injury involving the breaking or cutting of the interior layer of the skin (dermis) ( R v Smith )
  • Wounding or causing GBH requires intent to cause GBH. Misdirection of intended harm does not negate the intention for the purposes of proving the offence.
  • “Occasioning” = there must be causation! assault occasioning ABH is common assault which happens to cause ABH! MR for that offence is identical to that of common assault ( Zanker ) ACCEPTABLE VIOLENCE
  • CONSENT o Absence of consent an ingredient of criminal responsibility – operates like a ‘defence’ o Aggravated assault w/harm caused – consent NO defence ( Brown) o Accepted exceptions: tattooing, male circumcision, body piercing, branding spouse ( Wilson ), sports ( Billinghurst ), medical procedure (vitiated by mistake as to nature of act/identity of person ( Richardson)
  • CHILD DISCIPLINE o Crimes Act, s 61AA – defence of lawful correction; parents entitled to use reasonable and moderate force to chastise their children ASSAULT – CASES Unlawful physical contact:
  • Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 ( Fagan ) o Issue: Was there the necessary coincidence of criminal intent with the physical element of the assault, sufficient to constitute a crime? o Held: No mere omission to act can amount to an assault. But, physical element of assault regarded as a continuing act. Criminal intent formed during the course of continuing act Apprehension of imminent unlawful physical contact:
  • MacPherson v Brown: An assault is any act, which intentionally or recklessly causes another person to apprehend immediate and unlawful violence of physical contact. The mens rea is D’s intention to produce such a fear/ reckless as to whether their conduct would give rise to such a fear and continues anyway.
  • Rozsa v Samuels: A threat made in a way that implies that violence will be inflicted only in certain circumstances will meet the definition of assault based on apprehension of immediate violence if the accused had no right to make the condition e.g. going beyond what was reasonable as self-­‐defence.
  • Knight v R (1988) 35 A Crim R 314 ( Knight ) o Issue: Where a phone call in which threats of violence were made could constitute an assault o Held: Distinction between apprehending immediate violence (AR of CL assault) and immediately apprehending violence (perception of potential victim, may or may not be justified in the circumstances). Victim must reasonably anticipate the threat of force e.g. if caller lived in a neighbouring street.
  • R v Ireland; R v Burstow [1997] 4 All ER 225 ( Ireland & Burstow ) o Issue: Can silent phone calls prove a sufficient threat of immediate violence to constitute and assault? o Held: Yes, in certain circumstances they can. Context and facts of each case required.
  • Zanker v Vartzokas (1988) 34 A Crim R 11 (SASC) o Issue: can a verbal threat constitute a threat of immediate violence? o Held: Yes, within the context of continuing unlawful imprisonment – consequently, an injury sustained escaping immediately after the verbal threat was sufficient to sustain a charge of assault occasioning ABH.

causing a person to contract a grievous bodily disease). Offensive weapon or instrument means: (a) a dangerous weapon, or (b) any thing that is made or adapted for offensive purposes, or (c) any thing that, in the circumstances, is used, intended for use or threatened to be used for offensive purposes, whether or not it is ordinarily used for offensive purposes or is capable of causing harm. 4A Recklessness For the purposes of this Act, if an element of an offence is recklessness, that element may also be established by proof of intention or knowledge. 33 Wounding or grievous bodily harm with intent (1) Intent to cause grievous bodily harm A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to cause grievous bodily harm to that or any other person is guilty of an offence. Maximum penalty: Imprisonment for 25 years. (2) Intent to resist arrest A person who: (a) wounds any person, or (b) causes grievous bodily harm to any person, with intent to resist or prevent his or her (or another person’s) lawful arrest or detention is guilty of an offence. Maximum penalty: Imprisonment for 25 years. 35 Reckless grievous bodily harm or wounding (2) Reckless grievous bodily harm A person who: (a) causes grievous bodily harm to any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 10 years (14 years if in company) (4) Reckless wounding A person who: (a) wounds any person, and (b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence. Maximum penalty: Imprisonment for 7 years (10 years if in company) 54 Causing grievous bodily harm Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years. 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years. 61 Common assault prosecuted by indictment

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. 61AA Defence of lawful correction (1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if: (a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and (b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances. (2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied: (a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period. (3) Subsection (2) does not limit the circumstances in which the application of physical force is not reasonable. (4) This section does not derogate from or affect any defence at common law (other than to modify the defence of lawful correction). (5) Nothing in this section alters the common law concerning the management, control or restraint of a child by means of physical contact or force for purposes other than punishment. (6) In this section: child means a person under 18 years of age. parent of a child means a person having all the duties, powers, responsibilities and authority in respect of the child which, by law, parents have in relation to their children. person acting for a parent of a child means a person: (a) who: (i) is a step-­‐parent of the child, a de facto partner of a parent of the child, a relative (by blood or marriage) of a parent of the child or a person to whom the parent has entrusted the care and management of the child, and (ii) is authorised by a parent of the child to use physical force to punish the child, or (b) who, in the case of a child who is an Aboriginal or Torres Strait Islander (within the meaning of the Children and Young Persons (Care and Protection) Act 1998 ), is recognised by the Aboriginal or Torres Strait Islander community to which the child belongs as being an appropriate person to exercise special responsibilities in relation to the child. BACKGROUND OF ASSAULT Social context:

  • e.g. sport, parents, school
  • basic assault offence (s 61) max penalty of imprisonment 2 yrs
  • 5 yrs basic larceny offence (s 117) and malicious damage to property (s 195)
  • rise in reporting of domestic assault Legal categories:
  • assault (assault and battery)
  • still a distinction between the two! assault: putting another person in fear or apprehension of an unlawful contact battery: actual application of force without consent Statistics
  • common assault -­‐ second most common offence prosecuted in Local Courts in 2007
  • imprisonment a less frequent outcome Patterns of victimisation Rethinking Law & Order – R Hogg & D Brown
  • violence among men! interpersonal violence; excessive use of alcohol
  • violence among family members! inequalities of power and strength; bound up in intimate relationships; unemployed/receiving welfare marginalisation and violence in Aboriginal communities ! due to under-­‐employment, overcrowded housing, bad health standards, high levels of alcoholism, limited educational opportunities for the young ! lead to sense of hopelessness and alienation, ! also due to legacy of government policies of dispossession, forcible resettlement, segregation and the breaking up of families and communities e.g. by systematic removal of children