ASSAULT

S61 simple/common assault S59 assault occasioning ABH S35 malicious wounding or inflicting GBH S33 - ntentional wounding or GBH Assault: non fatal offence !otion of assault foundational to offences against t"e person #aw de$eloped in pat"wor% fas"ionneeds reform and possi&le codification Appears as t"oug" man' cases of $iolence are condoned (oot&all pla'ers ) not lia&le for GBH if %noc%s anot"er pla'er and causes in*ur' not assault +omestic $iolence used to &e lawful wife used to &e propert'

NON SEXUAL ASSAULT

TYPES OF ASSAULT ,ertain amount of "uman contact is allowed e-g- sports&o.ing and foot&all Historicall' t"ere are / t'pes of assault0 Battery: p"'sical assault/ unlawful contact Psychic: $ictim fears assault i-e- no real unlawful contact &ut fear created !ow t"ese / com&ined under s61 in Assault 1'pes of assaults0 1- ,ommon Assault /- Aggra$ated Assault Assault wit" intent to %ill 2s/93 (urt"er specific intent 2ss/4-/95 33-33B534-365 563 7ictims wit" special status0 police 2s5635 disa&led5 mentall' disa&led etc 2ss8/-885 56-563 9articular in*uries0 Actual &odil' "arm0 :more t"an merel' transient or trifling;- Donovan (1934) Grie$ous Bodil' Harm0 <reall' serious &odil' "arm= Perks (1986) n*ur' t"at &rea%s t"roug" t"e w"ole s%in Vallance >alicious0 <Acting wit" indifference to "uman life or suffering5 or intent to in*ure some person/s wit"out lawful cause or e.cuse5 or acting rec%lessl' or wantonl'= S5 1"is definition is misleading for t"e purpose of s35 ?se of malicious means rec%less for t"e purpose of s35 S350?nlawful or malicious wounding or GBH @ounding >an' woundings can &e grie$ous

9ro&lematic &ecause it can &e minimal &ut "as t"e potential to &e life t"reatening 1erm <or= in s35 means can "a$e minor wounding Assault as an offence does not reAuire intention (Vallance, Venna and Coleman) S56 and 59 can also &e guilt' if rec%less @"at is t"e minimum t"at t"e prosecution "as to pro$eB CD,E#DSS!DSS Cec%lessness Su&*ecti$e ris% ta%ing Fou %now t"at t"ere is a ris% &ut 'ou ta%e t"e ris% an'wa' S61 "ere it=s to appre"end/fear an imminent outcome of $iolence Applies to 565 59 and 61 #ia&le under s35 w"ere rec%less

MENS REA Battery ssa!lt ntentional or rec%less 2recognition of t"e possi&ilit' of3 unlawful contact (Vallance, Venna and Coleman) Cec%less Assault0 +efinition of rec%lessness set out in ,oleman (or purposes of s35 malicious means rec%less 2definition of rec%less is different for s35 and s613 Coleman S61 case not s35 Anal rape using a &ottle !S@ ,ourt of criminal Appeal0 >alicious means t"e accused realiGed t"e possi&ilit' t"at in*ur' mig"t occur &ut went a"ead and too% t"e ris% an'wa' 2Enew t"e ris% &ut too% it an'wa'3 Cec%lessness "as no rele$ance outside murder t"us its not rele$ant to assault ntentional application of force need not &e "ostile Bo!"#ey 1asmanian +octor +uring se. placed "and on nec% and strangled $ictim allegedl' to "eig"ten se.ual orgasm Got out of control and t"e and 7 died &/c of strangulation +ealt wit" under 1asmanian ,riminal ,ode S1541B of t"e code states0 Guilt' of murder if %new li%el' to cause deat" ntention to cause GBH #i%el'- trail court *udge said t"is means pro&a&le Basis of appeal was + said t"at *udge got t"e definition wrong H, up"eld t"e definition of 9CHBAB#D Aspect of "ostilit' relates to intention to cause BH + argued t"at can=t satisf' intention &/c t"ere was consent &' t"e $ictim and no "ostilit' &etween + and 7

+ argued "ostilit' is an integral part of assault H, ma*orit' said t"at "ostilit' is not an essential ingredient Brennan I dissented Hpinion 2 +3 9ossi&le to sa' t"at in all cases of assault5 w"ere p"'sical contact5 t"ere is some notion of "ostilit' &ecause of t"e application of p"'sical force Psyc#$c ssa!lt intention to create5 or recognition of t"e possi&ilit' 2rec%lessness3 of t"e creation of5 t"e appre"ension of imminent unlawful contact + must S?BID,1 7D recogniGe t"e ris%iness of +=s &e"a$iour + s"ould not &e *udged &' an o&*ecti$e standard of w"at a reasona&le person would "a$e foreseen 2i-e- !H1 o&*ecti$e3 %acP#erson v Bro&n 219453 Students 23J35 including +5 surrounded lecturer &/c angr' w/ "im @ouldn=t let "im pass ,onfrontation lasted appro.imatel' 15 minutes 7 later stated "e was in fear of p"'sical danger from t"e group 7 as%ed to &e allowed t"roug" 1ouc"ed a student to get t"roug" 1rial ,ourt *udge0 +ou&ted + aware t"at "e created fear in 7 + "ad &een rec%less and H?GH1 to "a$e %nown "is conduct would gi$e reasona&le grounds for creating fear *udge used o&*ecti$e test (ound + guilt' Appeal ,ourt0 1est s"ould &e su&*ecti$e Bra' I0 + s"ould &e *udged &' w"at "e did %now !H1 w"at SHH?#+ "a$e %nown Since student didn=t recogniGe 9HSS B # 1F !ot Guilt' 9CHBAB # 1F is onl' for murder 2t"is is actuall' t"e e.ception3K 9HSS B # 1F is for all ot"ers li%e assault Assaults cannot &e committed negligentl' 2Hig"l' unli%el' to find negligent3 ACTUS REUS All offences 2under t"is topic3 e-g- 615 59 etc can onl' occur &/c of a positi$e act e.cept s580negligent causing of GBH Psyc#$c ssa!lt ntentional or rec%less creation of t"e appre"ension of imminent unlawful contact ,ausing of a $ictim to appre"end/fear imminent or immediate p"'sical $iolence 1. Requirement of imminence 9"one ,alls0 'n$"#t (1988)

+ found guilt' of assault on a &us >ade t"reatening p"one calls to magistrate5 *udge and cops in$ol$ed in case >ade statements to t"e effect of : =m not gonna do it tonig"t &ut 'ou don=t %now w"en am gonna get 'ou; >ade past and future t"reats &ut no present t"reats ssue0 t"e e.tent to w"ic" t"e t"reats related to imminent p"'sical $iolence ,ourt of Appeal0 1"reats didn=t amount to imminent p"'sical $iolence (actuall' no imminence &/c didn=t t"reaten an't"ing After tapping t"e p"ones t"e' disco$ered "e was call from $er' far awa' i-e- not e$en p"'sical pro.imit' (ound not guilt' &/c no imminence or immediac' 2"ad t"e circumstances &een t"at "e called from outside t"e "ouse ma'&e on a mo&ile t"en imminence ma' "a$e &een pro$en3 #oo% at t"e case in terms of t"e circumstances of0 @"o is recei$ing t"e t"reats 1"e content of t"e t"reats 1"e person ma%ing t"e t"reats Barton and rmstron" (1969) Business transaction + t"reatened 7 wit" serious $iolence if didn=t sign legal document 7 made complaint 7 stated in inter$iew wit" t"e police t"at + was a person in aut"orit' and t"at and 7 was trul' scared ,ourt0 D$en t"oug" t"e t"reat was made on t"e p"one it was made &' a person in aut"orit' + capa&le of carr'ing out t"e t"reat &ased on t"ese circumstances Sufficient for amounting to assault mminence recognised &/c of wor%ing relations"ip and aut"orit' of + made "im stronger part' +istinction &etween mere words and words needs to &e made ,ontinuing t"reats0 (anker and Vart)okas (1988) 7 missed lift from sister 7 called + and as%ed for lift and as%ed "im to follow sister + dri$ing slowl' and made se.ual ad$ances 7 re*ected + sped up and 7 pulled t"e door s"ut + made more ad$ances + t"en stated : am going to ta%e 'ou to m' mate=s "ouse- He will reall' fi. 'ou up; 7 leaped out of t"e car in fear of +=s argument was t"at t"e potential p"'sical $iolence w"ic" t"e friend would possi&l' "a$e committed was not imminent

,ourt0 :1"e 'oung woman was in immediate and continuing fear so long as s"e was imprisoned &' t"e defendant; 2per @"ite I3 :1"ere was no escape5 no reasona&le possi&ilit' of novus actus internveniens to &rea% t"e causal lin% &etween t"e t"reat and t"e e.pected infliction of "arm; 2per @"ite I3 ,ontinuing num&er of t"reats 9ut 7 in state of fear Ceal fear of imminent p"'sical $iolence Based on t"e esta&lis"ed causation + was found lia&le n some cases imminence is an issue consider0 1"e time gap &etween t"e t"reat and t"e actual carr'ing out of t"e t"reat Some form of p"'sical or temporar' difference i-e- geograp"ical separation f dealing wit" assault and imminence is not an issue *ust note its reAuirement and satisfaction and mo$e on Sals*!ry !otion of inflict doesn=t mean assault muc" &roader notion t"an assault

2. Victims state of mind (apprehension/fear) >ust cause t"e $ictim to appre"end/fear 7 :must &elie$e t"at $iolence is to &e feared; 2Barton v rmstron" + ,S-./ 4513 n &atter' assault5 doesn=t matter if 7 is aware of t"e assault (ear of 7 must &e esta&lis"ed and &e reasona&le @"at "appens if 7 is not afraidB (ear not present0 /yan and '!#l (1909) Ce0 Actual fear of 7 + and 7 were in ad*oining toilet cu&icles 7 was ma%ing se.ual suggestions to + Hole &etween cu&icles + t"rust large %nife t"roug" "ole allegedl' to stop 7 from anno'ing "im @"en 7 testified to police "e stated t"at "e was not scared ,ourt0 (ound 7=s statement re0 lac% of fear was &asis for Auas"ing t"e con$iction Because t"e reAuirement for assault is t"at t"e 7 must fear imminent p"'sical $iolence And 7 said "e was not Brady (1911) 7) police officers @ent to +=s "ouse in response to complaint made >et at t"e door &' + wit" rifle + swore at t"em and said to clear out or : =ll put somet"ing in 'our &lood' arses; ,"arged wit" common assault ,ourt of Appeal0 ?p"eld con$iction

D$en t"oug" t"e police said t"e' were not scared5 Appears as t"oug" if someone uses a weapon and points it at someone t is assumed t"at it gi$es rise to fear 2e$en if 7 is not scared3 A&ilit' of t"e accused to e.ecute t"e t"reat0 1ver$n"#am (1949) !o reAuirement t"at + actuall' &e a&le to e.ecute t"reat + pointed a to' pistol at 7 #oo%ed li%e real one 7 t"oug"t it was real and feared for life ,ourt found + guilt' of assault >a'&e argua&le t"at if to' didn=t loo% real fear ) unreasona&le Ceasona&le (ear0 Barton and rmstron" ssue0 s t"e 7s fear reasona&leB ,ourt0 Fes &ecause comparati$e position of + and 7 2+ stronger part'3 + said to &e in aut"orit' Doyle (1991) + was "eroin addict @ent to c"emist and t"reatened p"armacist t"at "e=d %ill "er if s"e didn=t "and o$er certain medications Appeared to &e serious t"reat ,onstitutes ps'c"ic assault + was in a serious state of wit"drawal at t"e time + was so p"'sicall' wea%ened t"at "e could &arel' stand (ederal ,ourt0 Luas"ed con$iction 9rosecution didn=t adeAuatel' deal wit" t"e issue (acts to suggest t"at 7=s fear was unreasona&le D$idence t"at s"ould "a$e &een considered at trial t"at wasn=t appeal was allowed 1a%e t"e $ictim as 'ou find t"em D-g- f scare someone w"o o$erreacts5 'ou ma' &e lia&le f 'ou sa' &oo and 7 passes out and goes to "ospital5 'ou are not lia&le D-g- f o$erreaction was reasona&le still lia&le if aware of condition f %now t"at t"e 7 "as ner$ous condition and still sa' &oo5 t"en lia&le ,onditional 1"reats0 2!*erv$lle (1669) 1"reats wit" attac"ed condition Still good law + and 7 "ad confrontation and argument + put "and on sword and slig"tl' drew it from sca&&ard +0 : f it were not assiGe time would not accept 'our insults; 2i-e- would "a$e used t"e sword3 ,"arged wit" assault ,ourt0 Culed in fa$our of +

n effect no t"reat in t"e circumstances !ot a Auestion of imminence Luestion of w"et"er t"reat/not ,ondition implies t"at t"e condition can undo t"e t"reat !ot true &/c in 1 t"ere was no t"reat 1"ese can cause pro&lem for t"e law5 as t"ere is no imminence if 7 ad"eres to t"e t"reat Cig"t to impose t"reat0 Luestion of w"o "as t"is rig"t Pol$ce v 3reeves (19644,() f 'ou come an' closer =ll sta& 'ou ,ourt0 1"reat for t"e purpose of assault + "ad no rig"t to impose t"e condition 1"reat was unlawful (ound assault /os)a v Sam!els (1969) +ispute &etween / ta.i dri$ers 7 at "ead of ta.i ran% Aue + *umped t"e Aue to front and 7 went to remonstrate "im + pulled out %nife + : f 'ou tr' t"is =ll cut 'ou into &its; 7 stopped + from getting out &' pus"ing "im ,ourt0 1oo% approac" similar to Gree$es f put condition wit" no rig"t to do so ) unlawful t"reat f sa' 'ou will stri%e and don=t satisf' condition ) assault !o rig"t to impose t"e t"reat of e.cessi$e force5 and t"us not rel' on self-defence-

Battery ssa!lt An omission cannot amount to an assault 2per Iames ,I3 5a"an + re$ersing car w"en consta&le directed "im to cur& side + didn=t approac" it properl' and officer directed "im to w"ere "e was + re$ersed onto consta&le=s foot Hfficer screamed for "im to remo$e it se$eral times (inall' + remo$ed car ,ourt0 ,an=t consider in form of failure to remo$e car from foot Ha$e to consider as positi$e act 2&/c assault3 9ositi$e act0 conduct at time w"en + dro$e car onto foot + argued t"at w"en dro$e car on foot it was accident 2no dispute a&out t"at3 !o criminal lia&ilit'

,ourt0 Still could &e lia&ilit' if consider dri$ing car on foot as continuing act w"ic" started w"en "e dro$e on consta&le=s foot and ended w"en "e remo$ed it An'w"ere along t"e continuum of time it could &e said t"at + formed a guilt' mind ,ould &e said t"at t"ere is coincidence &etween t"e Actus Ceus and t"e >ens Cea >ere touc"ing can amount to an assault o Collins v Wilcock (1 !") o + ma' &e relie$ed of lia&ilit' on ot"er grounds suc" as mplied consent #ac% of >C ?se of lawful force e-g- w"ere + &umps into 7 on a &us ,onsent o #nla$ful Contact0 f t"ere is consent to t"e contact5 t"en it is not unlawful- 1"e iron' is t"at 'ou cannot consent to an unlawful contacto Without Consent0 <7 cannot consent to actual &odil' "arm unless + is acting in t"e course of a generall' appro$ed social purpose= 2Bro&n [1 !" # $LR %%&3 o #aw imposed polic' decision Fou cannot consent to ABH 1"us e$en if 'ou consent to ABH + still ma' &e lia&le B' t"is courts are imposing certain moral standards t"e communit' to control le$els of $iolence Donovan o +efinition of ABH :An' "urt or in*ur' calculated to interfere w/ t"e "ealt" or comfort of 7- Suc" "urt or in*ur' need not &e permanent5 &ut must5 no dou&t5 &e more t"an merel' transient or trifling; Auestion of fact for t"e *ur' w"et"er an in*ur' amounts actual &odil' "arm o mportant re0 mind of accused o + male o 1oo% 14 'ear old female &ac% to residence w"ere "e caned "er o !o ABH sustained o ,"arged w/ common M indecent assault o Luas"ed on appeal and released o ,ourt Had t"e *ur' &een directed M s"own ABH was intention t"en + could "a$e &een5 con$icted Bro&n (1n"l$s# *!t sa$d to *e 6os$t$on #ere $n ,S-) o +ono$an was important &asis for Brown o Attracted a lot of media attention o Ga' rig"ts lo&&' got in$ol$ed

o As was found in %onovan consent is null M $oid w"ere ABH is sustained -$lson o @ &randed girlfriend=s &uttoc%s w/ red "ot %nife w/ initials $tken o + poured flamma&le liAuid o$er girlfriend w"ilst s"e wore a fire suit

Sport General principle re0 sport as discussed in &ro$n D$er' participant in lawful sporting e$ent is said to consent to t"e le$el of $iolence w"ic" is contemplated &' t"e sport as long as t"at infliction of $iolence is w/ t"e rules of t"e game 1"is will depend on t"e game &eing pla'ed o D-g- ,"ess $- &o.ing +ifferent e.pectations of le$el of $iolence from none to intense !ot muc" e.ists in t"e wa' of case law in t"is field !ot man' successful actions are &roug"t M carried out Ceason &eing t"e notion of <w/ t"e rules of t"e game= is unclear Sport "as its own Auasi-legal s'stem w/ its own law M rules Go$ernment "as consciousl' left dealing w/ sports w/ to sport itself 1"us in relation to assault it lac%s consistenc' o 1"e application of force is unlawful unless 7 consented o 9rosecution must pro$e t"at 7 did not5 impliedl' or e.pressl'5 consent to t"e assault Sc#loss v %ac"!$re (1890) :1"e term assault of itself in$ol$es a notion of want of consent- An assault w/ consent is no assault at all; ,onsent ma' &e e.press or implied Coll$ns v -$lcock '1 ()* Great deal of contact in societ' assumed to "a$e implied consent Bo!"#ey (1986) +C o :commonplace5 intentional5 &ut non-"ostile acts suc" as patting anot"er on t"e s"oulder to attract attention5 or pus"ing &etween ot"ers to alig"t from a crowded &us5; are e.cluded from assault5 as 7 "as gi$en implied consent o 7=s consent ma' &e $itiated 2treated as t"oug" it was not present35 in specific situations ,onsent w"ic" is o&tained &' force or t"reats of force is not rele$ant5 as t"e use of t"is force or t"reats would constitute assault ,onsent is no defence to certain se.ual offences (raud ma' sometimes negati$e consent At common law5 consent of 7 is not a defence to assault occasioning ABH Pallante Stad$!ms Pty .td (1906) Bro&ne (1994)

o 7 cannot consent to ABH or more unless +=s actions were w/ lawfull' recognised e.ceptions suc" as surger'5 &o.ing5 <contact sports=5 lawful correction5 dangerous e."i&itions M manl' pastimes o n$ol$ed a group of sado-masoc"ist men ) +s M 7s o n pri$ac' of own "ome for o$er 1J 'ears carried out acts of sado-masoc"ism o 9assi$e partner consented to in*uries suc" as genital torture o !o permanent in*uries inflicted o !o 7 "ad complained o +s c"arged w/ N of counts of unlawful M malicious wounding M assault occasioning ABH o H of #s ,onsidered legal de$elopment of consent D$en if t"ere is consent to ABH or worse + still lia&le unless circumstances fall under one of t"e e.ceptions or t"ere is a *ustification >a*orit' found no pu&lic interest t"at=d *ustif' creation of a furt"er e.ception in t"is case D.ceptions lawful medical treatment5 +issenting *udges0 #ords >ustill M Sl'nn argued t"ese practices were pri$ate se.ual relations M matters of personal moralit' w/ w"ic" t"e law s"ould not &e concerned mportant in t"e ?E affected Ga' rig"ts lo&&' ,i$il li&ertarian lo&&' i-e- s"ould &e a&le to do w"at 'ou li%e in 'our own "ome argued t"at court allowed some acts for "eterose.uals 2uneAual law3 -$lson (1996) o ssue0 7=s a&ilit' to consent to ABH or more5 or t"e purposes of sado-masoc"ism o Dnglis" ,ourt of Appeal o Hus&and &randed "is initials on "is wife=s &uttoc%s w/ "ot %nife at "er instigation o ,ourt Hus&and=s con$iction of assault occasioning ABH s"ould &e Auas"ed Basis w"at + did was no more dangerous or painful t"an tattooing 5 w"ic" if carried out w/ adult=s consent O criminal offence o

1J

>a*orit' emp"asised t"at consensual acti$it' &etween "us&and M wife5 in pri$ac' of matrimonial "ome5 s"ould not &e su&*ect to criminal in$estigation or prosecution D.ceptions to t"e rule against consent to ABH o D.ceptions to rule t"at consent isn=t a defence w"ere ABH inflicted o D.ceptions &ased on notions of pu&lic interest or w"ere t"ere is general social appro$al Surger' performed w/ informed consent of patient e$en w"ere GBH inflicted Sports in$ol$ing &od' contact e-g- &o.ing5 foot&all5 net&all M "oc%e' Pallante v Stad$!ms Pty .td (1906) + relie$ed from criminal lia&ilit' for in*ur' inflicted upon sporting opponents pro$ided t"at o + %eeps w/ recognised M reasona&le rules of t"e game o Application of force &' + against 7 must &e in a sporting spirit M not due to "ostilit' or anger o Application of force &' + must &e no more t"at ordinaril' M reasona&l' contemplated as incidental to t"e game 2per >c nerne' I3 ,ourts ac%nowledged t"at in man' games t"ere=ll &e numerous &reac"es of t"e rules /e 7e&ell 8 cr$mes com6ensat$on (1980) "eld t"at e$en t"oug" 7 was "armed during Aussie rules matc"w"en pla'er &ro%e t"e rules of t"e game did not amount to &reac" of criminal law #egoe I0 o :A pla'er cannot e.pect5 nor is "e entitled to e.pect5 t"at e$er' pla'er will pla' strictl' according to t"e rules; 2H&*ecti$e3 >ust &e coincidence &etween AC M >C for assault to occur Hostilit' is not a component of assault for >ens Cea 9ro$ocation is a$aila&le as a defence for assaults wit" intention to %ill onl'5 !H1 GBH2'elmhout 2196J3 89 (#C3 #awful o D-g- !C#5 soccer o Also e.tends to local game of touc" foot' if assault occurred "ere its unclear w"o would &e responsi&le o #ocal clu& comp referee o #e$el of licensing reAuiredB Ce0 &o.ing5 martial arts t"us alwa's needs to &e lawful in t"at sense Coney ,onsidered %onovan and &ro$ne Had licensed price fig"t ,onditions o ?nlimited N of rounds

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o (ig"t o$er onl' w"en one participant was nearl' dead o 1"us &/came unlawful o 1"us consent was lost f fig"t occurs &etween indi$iduals at t"e time5 place etc to settle personal dispute unlawful n !S@ women are not allowed to &o. t"us its alwa's unlawful 2&ut allowed in t"e ?S3 Case ( Super 1/s / pla'ers sent off 1 temporaril' M 1 permanentl' 9ermanent 1 s"owered M c"anged into ci$ilian clot"es 1emporar' 1 still in uniform/foot' gear 9ermanent 1 t"rew at temporar' 1 e$en t"oug" t"e game was o$er !o suggestions of criminal lia&ilit' @"'B o Suggestion t"at no&od' would pla' if criminal lia&ilit' was a possi&ilit' o M sport more important t"an t"e law ""ravated ssa!lt +istinction &etween common M aggra$ated assault Assaults considered aggra$ated due to presence of additional or aggra$ating circumstances Assault wit" furt"er specific intent o + intended some greater le$el of "arm to 7 e-g- assault w/ intent to inflict ABH5 or assault w/ intent to %ill s/4 o Assault &e part of anot"er crime e-g- assault w/ intent to resist lawful arrest s56 Assault on $ictims wit" special status o Assault on 7s w/ speciall' protected status regarded as more serious M deser$ing of "ig"er penalties D-g- wi$es5 c"ildren5 wards5 apprentices5 ser$ants M insane people s88 o D-g- police officers and ot"er similar officials s56 o )olice *fficers + doesn=t "a$e to &e aware t"at 7 was a cop /eyn#o!dt (196+) !o reAuirement t"at + &e aware t"at 7 was a cop or t"at "e was acting in t"e course of dut' Dsta&lis"ing status of 7 as a cop ) matter for t"e AC f 7 not acting in t"e course of dut' w"en assaulted + not commit aggra$ated offence 9rosecution must est- 7 was acting in t"e course of dut' w"en assaulted Scope of cop=s dut' &roadl' construed as including an't"ing t"at can fairl' M reasona&l' &e regarded as a carr'ing out of a cop=s dut'

1/

Assaults wit" particular in*uries o !o reAuirement of "arm in common assault o @"ere "arm is caused i-e- actual in*ur' to 7 ma'&e aggra$ated assault w/ "ig"er penalt' o +ssault occasionin, +&' S59 >ens Cea + to common assault (anker (1988) and Co!lter (1988) As no reAuirement of permanence of in*ur'5 an assault t"at results in 7 suffering s"oc% or an' ps'c"iatric in*ur' ma' amount to assault occasioning ABH o %$ller (1954) o +ssault occasionin, -&' ACTUS REUS Hffence to inflict or cause GBH s35 GBH o <reall' serious &odil' "arm= Perks (1986) o <an' permanent or serious disfiguring of t"e person= s8213 o Auestion of fact for t"e *ur' nflict o Application of force directl' or indirectl' to 7 pro$iding causation M positi$e infliction can &e est ,ause o + commits an or act t"at su&stantiall' caused 7 to suffer GBH o !o reAuirement of direct or indirect application of force pro$ided +=s causal responsi&ilit' can &e est MENS REA offence of maliciousl' inflicting GBH w/ intent to inflict GBH s33 9rosecution must esto nflicting GBH maliciousl' o ntending to inflict GBH Coleman (1999) >alicious imports >C reAuirement CeAuires + to act w/ intent to cause "arm or rec%lessl' in relation to its occurrence + doesn=t need to act w/ intent to cause wounding or GBH enoug" for + to act w/ intention to in*ure some person Stokes (1999) ncludes minor "arm t"us imposes lia&ilit' on + w"o "as >C for common assault M wounds or inflicts GBH S33 reAuires prosecution to pro$e intent to inflict GBH malice reAuirement ) redundant S35 unlawful M malicious wounding Woundin, o ntentionall' wound s/1

13

o >aliciousl' wound ss33 M 35 o n*ur' t"at &rea%s t"roug" t"e w"ole s%in i-e- &ot" inner M outer s%in Vallance (1 .1) >inor cut to serious5 deep %nife wound o CeAuirements same as for GBH Assaults in com&ination wit" ot"er offences o Co&&er' assault w/ larcen' ss98-96 o A&ducting assaulting plus false imprisonment ss69-9JA De:ences to ssa!lts + not lia&le for w"at=d ot"erwise constitute assault if +=s resort to force is lawful e-g- selfdefence (orce lawful w"ere o #aw recognises situation as 1 w"ere force can lawfull' &e resorted to o +ecision to use force ) reasona&le 2o&*ecti$e3 o Luantum of force ) reasona&le +efence of pro$ocation a$aila&le as defence to assault reAuiring proof of >C for murder

SEXUAL ASSAULT
Histor' o 1961 law underwent complete o$er"aul re0 se.ual assault o prior to 1961 onl' real consideration was re0 rape restricted conduct to penis $agina penetration Hnl' >ale + M female 7 ?p"eld man' arc"aic e.ceptions D-g- Cape in marriage not possi&le o 1961 ,rimes Amendment Act passed o s61-4J o (ocus on s61 M 66 o Ht"er reforms re0 aspects of procedure o ncluding D$idence allowed into court >anner in w"ic" *ur' directed D-g- ,orro&oration o @"ere onl' "ad 7=s word against accused o Iudge reAuired at ,# to tread carefull' w"en considering con$iction if no supporting e$idence o Ceforms said t"e warning was no longer reAuired o D$en as far as sa'ing man' reasons for w"' lac% of e$idence o Attac%ing credi&ilit' of 7 of prior se.ual "istor' o !ow $irtuall' all se.ual e.perience "istor' is e.cluded

18

o N of c"anges introduced to protect 7 o Also amendment to punis"ment ?sed to ma. penalt' of life in *ail o Sometimes felt t"at + acAuitted w"en felt penalt' to "ars" o 1"us penalt' was ad*usted according to gradient/ le$el of assault ,urrent #egislation o @idened &e'ond t"e traditional act of rape as penetration of a $agina &' a penis to comprise of <se.ual intercourse= w/o a person=s consent o Hffence <se.ual assault= 2used to &e <rape=3 s61 o 9re$iousl' rape reAuired penile penetration of $agina could onl' &e man against woman M ot"er non consensual acts of se.ual penetration e-g- sodom'5 use of o&*ects P fellatio not result in rape c"arges !ow definitions of se.ual intercourse/ penetration &roadened

ACTUS REUS Se.ual ntercourse must occur ,-. c./se/t of t"e 7 1. /e0ual 1ntercourse +efined in s61 2se.ual intercourse3 o 2an3 person $ho has se0ual intercourse $ith another person $ithout the consent of the other person and $ho kno$s that the other person does not consent to the se0ual intercourse is lia4le to penal servitude for 1" 3ears. +efined as a continuing act0 s61H2132d3 o f consent initiall' gi$en &ut t"en w/drawn &' 7 M if + doesn=t stopse. ) w/o consent 9enetration o S61H o slig"test degree of penetration Pa6ad$m$tro6o!los (1950) o 9enile penetration of $agina5 anus5 mout" o 9enetration of $agina or anus &' an' ot"er part of t"e &od' or &' an o&*ect ,an &e committed &' eit"er se. against a person of eit"er se. s61H +octrine of marital immunit' a&olis"ed s6112a3 2also a&olis"ed at ,#3 2. Consent 9rosecution must pro$e lac% of consent s61 ,onsent Auestion of fact Acts not unlawful if $ictim consents 9resumption t"at male Q 18 incapa&le of rape a&olis"ed in s 61S Age of ,onsent0 s && o Age of consent is 16 o (or se.ual intercourse &etween / males it is 16

15

o 1"is is a source of criticism as it suggests t"at t"e law finds somet"ing wrong wit" "omose.ualit' o S && C0 f one &elie$es t"at t"e person is a&o$e 16 and t"e person is 18P and it is an "onest and reasona&le &elief t"en t"ere is a defence a$aila&le- Alternati$el' t"e' >AF loo% at t"e age gap also e-g- intercourse &etween 13 and 18 'ear olds seems o% o 5a!lkner v 2al*ot (1981) + 2woman3 "ad se. w/ &o' &elow 16 ,"arged w/ indecent assault &/c under statute "e couldn=t consent to t"e act o + can argue + "ad reasona&le cause to &elie$e M in fact did &elie$e t"at c"ild was 16P &ut onl' if c"ild is actuall' 18P But circumstances ma' go &e'ond se.ual intercourse to ABH 2Coleman3 f $ictim is asleep or semi conscious no consent s61 ,onsent o&tained &' force or fraud consent is $itiated 2i-e- said not to e.ist3 5raud o 1n"l$s# Case Singing teac"er told pupil t"at se. would impro$e singing ,ourt (raud Cape 6ature of +ct o +ealt w/ under s61C o Rsing incidence of se. under t"e guise of medical treatment o %o*ol$o ssue0 7 mista%en as to nature of act distinction drawn &etween understanding w"at is &eing done M understanding of w"' it=s &eing done n$ol$ed insertion of ultrasound de$ice in female patient=s $agina for ultrasound #egitimate practice &ut "ere onl' carried out for radiograp"er=s se.ual gratification 7 didn=t %now 9ro&lematic &/c 7 consented ,ourt Held0 7 consented on &asis 7 was aware of nature M Aualit' of act + was performing !ature M Aualit' of act didn=t c"ange &/c + "ad secret se.ual moti$es 1"is scenario "as &een o$erturned &' statute s61C2/32a13 f 7 consents to se.ual intercourse under mista%en &elief it=s for medical/"'gienic purposes 7=s consent ) $itiated 7istaken 1dentit3 o Pa6ad$m$tro6olo!s (1950) +eception in relation to identit' 7 'oung migrant woman +uped &' + into &elie$ing t"e' were married

16

B/c mista%en &elief 7 "ad se. w/ + H, !ot a fundamental mista%e >ista%e re0 social identit' +=s status as "us&and Held0 7 consented to p"'sical act w/ + + !ot guilt' 1"is scenario o$erturned &' statute s61C2/32a32ii3 !ow consent would &e deemed as $itiated o 3all$enne (1963) 7 in &ed Belie$ed t"at person clim&ing into &ed was "us&and consented to se. ,ourt Held consent to &e $itiated &/c mista%e re0 + &asic t'pe 8hreats 9 Violence o ,onsent o&tained t"roug" t"reats of p"'sical M non-p"'sical %ind $itiated Pa6ad$m$tro6o!los (1950) S61C2/32d3 2o!t '1 (0*0 t"reatened girls unless t"e' "ad se.ual intercourseo +on=t need to p"'sicall' resist to demo lac% of consent e-g- $ictim freeGes w/ terror s612/32d3 Psyc#$c ssa!lt V must 4e a$are of the threat of force o f + engages in indecent conduct t"at 7 is unaware of5 alt"oug" in 7=s presence O indecent assault %s conduct must amount to assault o + ma' offer indecenc' &ut if no assault O indecent assault B!rro&s (1951) + in$ited 7 to mastur&ate !ot indecent assault &/c lac% of assault /ol:e (195+) + e.posed "imself mo$ed towards "er in$ited "er to "a$e <connection w/ "im= + did not touc" 7 Assault + put imminent fear of unlawful contact in 7 Battery ssa!lt ?nlawful application of force &' + against 7 CeAuirements o 9roof of &atter' o ndecenc' must &e offered to 7 2,ircumstance of indecenc' must accompan'3 8echnical 4atter3

14

o !o pain caused o + fondles or touc"es 7=s &od' B (1954) 1 male mastur&ated anot"er 'ostilit3 is not necessar3 o P#$ll$6s (1901) 1nvitation to indecenc3 o f + in$ites 7 to touc" no assault 5a$rclo!"# v -#$66 (1951) + in$ited 7 2aged 93 touc" "is penis !o assault +$areness of V o f offence committed M assault accompanied &' act of indecenc' w"ic" occurs :on or in t"e presence of; t"e ot"er person 2s61#3

MENS REA 1. -uilt3 if intend se0 $/o victims consent Enowledge o CeAuires %nowing 7 was not consenting to se.ual intercourse Cec%lessness0 o 9rosecution doesn=t "a$e to pro$e it intention O minimum reAuirement can &e guilt' of rec%lessness o '$tc#ener ,ourt / approac"es to ta%e to determine if + is guilt' of rec%lessness 1- Cecognition of t"e possi&ilit' of non-consent f + %nows t"ere=s a ris% w/ 7 not consenting &ut goes a"ead M ta%es it an'wa' o 9HSS B # 1F NOT 9CHBAB # 1F /- (ailure to consider t"e issue of consent at all State of mind re0 conduct ma' indicate + didn=t care Honest &ut unreasona&le mista%e0 o B/c of >C=s su&*ecti$e nature its led to consideration t"at in some circumstances t"e indi$idual ma' rel' on "onest &ut mista%en &elief t"at consent was t"ere o DPP v %or"an (1n"l$s# 1906) >r- > didn=t li%e wife At local pu& met / indi$iduals +uring con$ersation effecti$el' incited t"em to go M rape >rs- > Said s"e li%ed se. w/ strangers M &eing roug"ed up 1"e' went M raped M &eat "er D$en t"oug" tec"nical misdirection at trial

16

!o *ur' would "a$e deemed t"at t"e indi$iduals "onestl' &elie$ed t"ere was consent from >rs- > @"en *ur' was &eing directed t"e' must onl' consider w"et"er t"e &elief was an "onest one 2Su&*ecti$e Auestion3 9rior to >organ position "ad to loo% at su&*ecti$e "onest' 9#?S o&*ecti$e reasona&leness ,ourt Said its state of mind contrar' to loo% at o&*ecti$eness !ot e.cluding total reasona&leness AGGCA7A1D+ !+D,D!1 ASSA?#1 ,ircumstances of aggra$ation s61> o + is in t"e compan' of anot"er person or persons o 7 Q 16 'ears old o 7 is under +=s aut"orit' o 7 "as a serious intellectual disa&ilit' @"en 7 Q 4 additional o$erall circumstance of aggra$ation ) in*ected s61>2/3

19

COMPL1C1TY
,omplicit' o Celates to circumstances w"ere we "a$e 1 indi$idual or more t"an one descri&e as principle/s most in relation to t"e commission of t"e offence directl' responsi&le for t"e commission of t"e crime t"e'=re t"e ones w"o actuall' did it i-e- actuall' %illed ,# applies in !S@ s3855 386 M 351 7ariations in lia&ilit' o 9rinciple in t"e 1st degree 2913 9erson or persons w"o are said to &e directl' responsi&le for t"e commission of t"e offence *sland Case ss385 M 386 o 9rinciple in t"e /nd degree 2Ioint $enture3 29/3 !ot directl' responsi&le 9"'sicall' present at t"e offence Aiding 2gi$ing assistance3 and/or a&etting 2encouragement/incitement3 o HC Accessor' BD(HCD t"e fact 2AB3 ,ounselling or procuring !ot present at t"e actual scene of t"e crime &ut in$ol$ed o Accessor' A(1DC t"e fact Assists t"e felon 2"iding5 getting rid of e$idence3o f aid5 a&et or counsel +on=t "a$e to "a$e caused t"e offence o But if procure +o "a$e to cause t"e offence +istinctions a&o$e are ar&itrar' largel' a&olis"ed

PART1ES TO A CR1ME 1; Pr$nc$6al<s $n t#e :$rst de"ree= 6er:orm$n" acts &#$c# "o to const$t!te cr$me 9rinciple in 1st degree cannot &e c"arged if t"e' lac% >C or are under a certain age?nder statute 9/5 AB "a$e same ma.imum lia&ilit' as 91 All of t"em can &e tried e$en if 91 is not caug"t@"ere more t"en one 9 *oint criminal enterprise or acting in concert 91

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+irectl' responsi&le for commission of t"e offence @"at if more t"an oneB @"at is notion of *oint criminal enterprise/acting in concertB ,lose connection to law on conspirac' #oo%ing for e$idence of agreement &etween t"e parties to carr' out t"e particular offence o !eed acts &eing committed &' parties to &ring a&out t"e commission of t"e offence 2/// to conspirac'3 o Appears 2alt"oug" not certain3 all t"e parties "a$e to present at t"e scene of t"e crime o 1"us in relation to t"e offence can &e s"own all t"e parties can &e s"own to "a$e t"e >C for t"e offence o D-g- if tal%ing a&out murder All t"e principles "a$e to &e s"own to eit"er intend deat"5 GBH or rec%lessl' indifferent Ioint criminal enterprise / acting in concert o Agreement to commit criminal offence &' A and + o AC committed &' 1 2or 1P3 parties to agreement o A and + present w"en AC committed o + "as necessar' >C + can &e guilt' of offence as principal in first degree >sland o n$ol$ed a mot"er M son w"o planned M t"ereafter murdered fat"er/"us&and o 9lan >um gets drugs M puts in food +ad gets drows' or falls asleep t"en son &eat "im to deat" 1"en &ur' "im o All went according to plan o Bot" c"arged M con$icted of murder o mportant for &attered woman=s s'ndrome M pro$ocation M self-defence H, recognised e$idence regarding >um=s "istor' of domestic $iolence (act t"at s"e "ad &een &attered &' dad Cele$ant to "er case !one of t"is sa$ed eit"er of t"em re0 con$iction of murder o Bot" appealed against con$ictions o mportance of case ultimatel' son 2+a$id3 onl' found guilt' of manslaug"ter &/c Caised N of defences re0 pro$ocation M self-defence Iur' undecided &ased on "is circumstances 1"us c"arge of manslaug"ter su&stituted on appeal o >rs- Hsland Hn appeal s"e said "ow can &e guilt' of murder if t"e ot"er person in t"e *oint enterprise is onl' guilt' of manslaug"ter f "e=s onl' guilt' of manslaug"ter t"en s"ould onl' &e guilt' of manslaug"ter o o o o o

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>atter went to H, H, ,onfirmed t"at s"e was part' to enterprise to murder of "us&and !ot"ing wrong w/ t"e law w"ere&' t"ere could &e a finding of one part' onl' guilt' of murder M ot"er of manslaug"ter ,onfirmed con$iction for murder

mportant parts of t"e *udgement as it relates to *oint enterprise o Agreement o Steps ta%en to &ring t"e agreement a&out clearl' pro$en "ere o 9resence at t"e scene of t"e crime / of *udges in H, in t"is case were not con$inced t"at p"'sical presence was a reAuirement o Anot"er legal principle related to t"is w"ic" is important common purpose ,onfirms t"at an indi$idual in relation to ID can &e guilt' of t"e offence e$en w"ere t"e ot"er part'/s are not @"at needs to &e considered o @as t"ere a ID o #oo% at t"e lia&ilit' of t"is indi$idual ma' not necessaril' &e affected &' t"e lia&ilit' of t"e ot"er person o So can get murder for one M manslaug"ter or e$en acAuittal for ot"er person 2pro&a&l' get not guilt' &' insanit'3

Doctr$ne o: ?nnocent "ency +istinct M not related to a&o$e stuff ,ircumstances w"ere one of indi$iduals in$ol$ed in commission of t"e offence is not guilt' for t"e offence in circumstances w"ere it could &e argued t"at t"e' in fact did not commit t"e offence at all Hccurs w"ere + encourages5 instigates or assists 9 to perpetrate AC of t"e crime B?1 9 ) innocent agent >a' occur w"en 9 una&le to commit offence &/c o Age o nsanit' + escapes lia&ilit' &/c o #ac%s >C M "asn=t committed crime as 91 o + "asn=t committed crime &/c + "asn=t performed AC +octrine reAuires o + caused t"e innocent agent to perform t"e AC of t"e offence

//

Br$""s (1980) 9rosecution not reAuired to est- t"at + specificall' instructed t"e innocent agent to commit AC + ma' "a$e used deception to cause A to act o 9rosecution to est- t"at conduct of t"e A was suc" t"at5 if committed &' +5 would "a$e constituted an offence ,lassic e.ample o Adult/c"ild situation -#$te v /$dley (1908) !ot restricted to c"ild situations0 Co"an and .eak (1906) o >r- # didn=t li%e >rs- # o # incited ,ogan to go M rape wife 2as in 7or,ans case3 o Ce0 ,ogan &ased on ruling in >=s case ,=s con$iction for rape was o$erturned @as said re0 "is trial *ur' "ad &een instructed in relation to "is lia&ilit' regarding "is mista%en &elief t"at "is mista%e "ad to &e "onest and reasona&le >isdirection 2&ased on >=s case3 cause &elief onl' "as to &e "onest 1"us con$iction o$erturned !Bt"ere is a reAuirement t"at t"ere actuall' &e a su&stanti$e offence offence must &e committed # w"o was c"arged M con$icted w/ aiding M a&etting in t"e rape of wife5 said "e can=t &e lia&le &/c no crime "as &een committed t was found "e was not lia&le for t"e commission of t"e offence &/c didn=t "a$e t"e reAuired >C no offence #=s argument no crime not lia&le for aiding M a&etting a crime t"at didn=t ta%e place ,ould "a$e &een lia&le for incitement for w"en "e was 1st tal%ing to , But not lia&le for part' to actual offence ,ourt o Ce0 #=s lia&ilit' o # , rape o 1oo% , out of t"e eAuation 2&ased on doctrine of innocent agenc'3 o Culed n effect # raped "is wife o Caised anot"er issue re0 rape &/c # was "us&and of 7 law in Dngland at t"e time t"at "us&and could not rape "is wife Hnl' in 199J in H of #s decision in R v R a&olis"ed immunit' of "us&ands o Said re0 "us&and=s immunit' in rape does not e.tend to t"ese circumstances o #=s con$iction for rape up"eld 1"is doctrine important &ut rarel' occurs Hnl' consider if "a$e adult/c"ild situation or Co,an and :eak situation

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+; Pr$nc$6le<s $n t#e second de"ree and ccessor$es *e:ore t#e :act ACTUS REUS /ndr' participation aid 2assisting35 a&et 2inciting/encouraging35 counsel 2encouraging o$erlap w/ a&et3 or procure 2causing3 o 3$or"$ann$ '1 (%* ,ausation0 o 1"ere is no causation reAuirement unless t"e' "a$e 2r.cure3 t"e crime 2don=t need to pro$e causation if aid5 a&et or counsel3 9rosecution must t"en pro$e causation0 3@s /e:erence no1 o: 1905 o n$ol$ed person lacing drin%s of "is friend o @"o t"en dro$e "is car M su&seAuentl' con$icted for drin% dri$ing o ,ourt 9erson w"o put alco"ol/laced drin%s could &e said to "a$e procured t"e drin% dri$ing of t"e principle #ia&le in t"ose circumstances f t"at approac" ta%en must pro$en t"at person putting alco"ol caused t"e drin% dri$ing offence +etermining w"ere indi$idual was accessor' &efore t"e fact distinction is ar&itrar' ;ohns case person ma'&e deemed eit"er ,lassic notion of accessor' &efore t"e fact is if someone did somet"ing da' &efore M not present at scene of crime 9erson at seen of crime aids M a&ets 9erson not at scene of crime counsels M procures >ere presence is sufficient o +epends on circumstances /!ssell [1 !!" Hus&and watc"ed wife drown "erself M t"e c"ildren ,ourt o considered ot"er t"an w"at led to outcome o considered w"et"er lia&le for aiding M a&eting o Said could "a$e &een lia&le not lia&le for wife &ut lia&le for c"ildren o ,"arged as accessor' o (ound guilt' of manslaug"ter o B' "is omission constituted some form of assent to wife=s actions o ,ase important re0 lia&ilit' ma' also arise if omission ,f- Clarkson v Carroll [1 01" 2Dnglis" case3 n$ol$ed prosecution of indi$iduals w"o stood &' M watc"ed w"ile ot"ers gang raped female $ictims Based on e$idence of t"ose w"o actuall' committed t"e rape

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Said encouraged &' t"e p"'sical presence of ot"ers M fact t"e'=d done not"ing to inter$ene 9rosecution "ad no ot"er e$idence ot"er t"an p"'sical presence Hn appeal con$ictions for ot"ers w"o=d stood t"ere5 for aiding M a&etting rape con$iction Auas"ed ndi$iduals in t"is case ne$er retried acAuitted &/c ,ourt ruled o >ore t"an mere presence reAuired in t"ose circumstances o Somet"ing else reAuires in form of communication reAuired from t"e indi$iduals to t"e rapists of some form of encouragement for w"at t"e' were doing

MENS REA (rom 3$or"$ann$ '1 (%* two reAuirements0 o Enowledge of t"e essential facts5 w"ic" made t"e principle offence a crime o @it" t"at %nowledge5 + intentionall' aided5 a&etted5 counselled or procured2 ntention onl'5 not rec%lessness rec%lessness ) insufficient3 Enowledge o Actual %nowledge crime is &eing or going to &e committed o Actual %nowledge can &e general doesn=t "a$e to &e specific o >ere rec%lessness insufficient o Ba$n*r$d"e A1969B @ell %nown t"eif approac"ed B M as%ed to &orrow o.' acetelene eAuipment 2cuts metal3 1"eif used in ro&&er' Bro%e into &uilding M stole safe ?sed eAuipment to cut open safe He said "e t"oug"t indi$iduals were going to steal scrap metals from factories 9rosecution "ad to pro$e t"at0 + %new t"at felon' of t"e same %ind was intended @it" %nowledge + did somet"ing to assist t"e felons ,ourt of Appeal B "ad sufficient %nowledge of a propert' crime @asn=t specific &ut doesn=t need to &e o Enew propert' was &eing stolen actual %nowledge sufficient doesn=t "a$e to &e specific ,on$iction up"eld o 3$or"$ann$ '1 (%* +C Somew"at different to B case n$ol$ed semi trailer accident at Bulli pass +efecti$e semi trailer ran out of control Can into car w/ famil' M %illed 5 passengers

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Ceason for noteriet' &rea%s for $e"icle were so defecti$e t"e' were &eing "eld toget"er &' coat "angers 1urns on issues &/c principle offence was culpa&le dri$ing causing deat" 2statutor' strict lia&ilit' offence3 ssues e.tent to w"ic" %nowledge was reAuired of principle offence5 w"ic" reAuires no >C "ow did it impact on >C reAuirement of G D$en t"oug" %nowledge not an element of principle offence certainl' element of t"e lia&ilit' of G in considering "im as &eing AB G was owner of semi trailer facts disclosed "e was in$ol$ed in repairs M maintenance of truc% &ut unclear as to w"at e.tent i-e- some %nowledge of defecti$e &rea%s G said a AB M 9/ must "a$e %nowledge of t"e essential facts Dasier in terms of 9/ &/c person is t"ere easier &/c t"ere seeing w"at was going on strong e$idence onl' &/comes issue if AB if not t"ere Hwner 2G3 didn=t need ,onsidered meaning of intention 1rial ,ourt *udge ndicated G not reAuired to intend to procure commission of e$ents #esser form of >C sufficient H, 9rosecution "ad to est- t"at G "ad directed dri$er to dri$e truc% %nowing &rea%s were defecti$e ,ases of strict lia&ilit' ma%e +=s guilt' mind reAuirement esp- clear o + must "a$e actual or constructi$e %nowledge -$- mere suspicion t"at all t"e facts constituting t"e offence are to &e or are &eing >ere rec%lessness insufficient @ilful &lindness could pro$ide &asis for finding of actual %nowledge ntention reAuired &ut rec%lessness su&*ecti$e test insufficient for &eing AB or 9/ Specific intention reAuired to &e lia&le in circumstances o ,riticism of - case for inconsistenc' f 9 dri$es truc% suspecting defecti$e mac"iner' M accident "appens 9 can &e c"arged w/ culpa&le dri$ing causing deat" or GBH But if 9=s Der also suspects &ra%es ) defecti$e5 &ut lets 9 dri$e5 M accident "appens5 t"en 9 incurs no lia&ilit' o @"at "appens if 91 commits anot"er crime s 9/ or AB lia&le /ndr' part' can &e lia&le for additional crimes w"ere it can &e said t"at 'ou foresaw t"e possi&ilit' of t"e additional crimes can &e lia&le for crimes t"at 'ou "a$e no intention of at start of *oint enterprise &ut %now are a possi&ilit' in t"e e$ent t"e' occur

/6

o Stokes 8 D$::ord (1999) n$ol$ed S)91 con$icted of s33 + onl' guilt' of s35 9rinciple *udgement 2Hunt I3 + needed to %now or was aware of S=s intention to not onl' stri%e $ictim &ut also of S=s intention inflict real "arm in t"e sens of it &eing GBH Based in t"is +=s con$iction was Auas"ed All "e %new was t"at Ss ma' "a$e &een going to stri%e t"e 7 in t"ose circumstances Doctr$ne o: Common P!r6ose An accessor' &ears0 2+ criminal lia4ilit3 for an act $hich $as $ithin the contemplation of 4oth himself and the principal in the 1st de,ree as an act $hich mi,ht 4e done in the course of carr3in, out the primar3 criminal intention< an act contemplated as a possi4le incident of the ori,inall3 planned particular venture S7o#ns '1 (4*T ,ommon purpose w"ere t"e +s "a$e &een in agreement to commit a crime 7o#ns '1 (4* o I dro$e car to scene of ro&&er' o (ig"t occurred &etween @atson 2913 M 7 2w"o "ad no U3 o 91 s"ot M %illed 7 o I as%ed w"at "ad "appened o 91 said it "ad gone &ad o I=s con$iction up"eld on &asis t"at I "ad certain %nowledge o I aware @ was $iolent M &ad tempered person M aware @ carried a gun o I said %new @ "ad gun &ut didn=t %now it was loaded o ,ourt Based on doctrine of common purpose guilt' of AB murder &/c %new $iolence was possi&le Io"ns was "eld lia&le B/c onl' >C reAuirement was "e foresaw t"e possi&ilit' of deat" i-e- "e recognised t"e possi&ilit' of 91 using t"e gun f 'ou want to wit"draw from a common enterprise 'ou must neutralise t"e situation i-e- must undo w"at 'ou=$e done to &e found wit"out >C e-g- if 'ou c"ange 'our mind "alf wa' t"roug" and get out it=s not enoug"K 'ou must tell t"e cops or ta%e steps similar to t"at %c !l$::e (1995) o / &ros M +a$is were drin%ing M smo%ing dope o @ent out armed e$idence of "ammer M pieces of wood o +ecided to go &as" o (ound / 7s 1"ai M @esterner o @esterner sa$agel' &eaten M left unconscious o 1"ai &as"ed &' +a$is M 1 >cAulliffe &ro o At some point appears > stopped M caused final &lows o 7 fell to ledge

/4

7 fell o$er cliff M drowned w"en tide came in +)91 Brot"ers ) 9/s 1rial ,ourt ,onsidered lia&ilit' w"et"er/not 9/s lia&le re0 murder (ound guilt' o Appealed to ,ourt of ,riminal Appeal M H, o n statement to cops indicated agreement Ioint Dnterprise o +efence argument #ia&le for manslaug"ter not murder &/c couldn=t &e said t"at "ad an' intention re0 %illing Hnl' intention to "arm w"ic" falls s"ort of t"e reAuirement for murder o H, Brot"ers must "a$e %nown t"at deat" was possi&le ,on$ictions up"eld o All Accessor' "as to recognise is t"e possi&ilit' of GBH to &e responsi&le for t"e murder under ,ommon 9urpose 2>C for murder is easier in t"is case3 Argument/criticism o 9olic' &ased o &/c courts want to deter certain t'pes of &e"a$iour e-g- gang attac%ing Approac" of courts o f get in$ol$ed in a gang li%e t"is e-g- triad o M Go M stuff w/ intention to murder 'ou could &e lia&le for murder &/c %new it was possi&le o o o o

#ow >C reAuirements under ,ommon 9urpose- 1o pro$e >C of 9/ or accessor' &efore t"e fact0 o ,ommon ntention o Celations"ip wit" 91 and t"e ,ommon ,riminal +esigno Cecognition of possi&ilit' of circumstances occurring3$llard (+993) CC o +ifferent outcome to ; M 7 &ut confirm t"eir decisions o G was effecti$el' t"e lac%e' for a "itman 2professional %iller3 o D$idence t"at G was of low mental a&ilit' M alco"olic o H used G for minor *o&s o Hn t"is occasion H got G to dri$e "im to location w"ere "e %illed / people M attempted to %ill a 3rd o G c"arged as 9/ o G dro$e to location M rung up to find out if 1 of 7s was t"ere &ut didn=t %now "it would "appen

/6

o Argua&le t"at B/c of mental capacit' didn=t %now w"at was going on 2!H1 insane3 o H, D$en if some1 "as %nowledge Auestion of manslaug"ter s"ould &e left to t"e *ur' 1rial court *udge erred &' doing so Also confirmed ; M 7 s it possi&le for 9/ or AB to w/draw from enterprise w"en offence occurs can rel' on w/drawal in relation to crime o Fes &ut restrictions #aw not li%el' to escape lia&ilit' &/c $oluntaril' got in$ol$ed in crime in 1st place ,onditions >ust communicate w/drawal o D-g- Sa' somet"ing/oral communication o Simpl' running awa' wouldn=t &e enoug" 9"'sical ,ommunication o w/drawal must su&stanti$el' pre$ent offence ta%ing place o D-g- Ceporting offence to police n relation to 91 communication must &e uneAui$ocal ttem6t (s 344 ) Separate offence on its ownACTUS REUS <Be'ond mere preparation=0 Based on Auestion of facts 2Br$tten v l6o"!t [1 (0" 5R !013o Stone#o!se [1 0(" Got life insurance out and fa&ricated t"e appearance of "is deat" so wife could claim mone' @ife refused to do it5 so + was c"arged wit" attempt to ta%e propert' &' deception- 1"e Auestion of fact was w"at was &e'ond mere preparation Be'ond mere preparation was t"e fa&rication of deat"o >@Connor v '$ll$an '1 ()* +eposited someone else=s c"eAues into "er own account5 &ut didn=t wit"draw t"e mone'- 1"is was &e'ond mere prep (ocuses on t"e accused=s criminal intention 9roposed tests for <&e'ond mere prep-=2Stone#o!se30 9ro.imit' test 2How near were t"e' to completing t"e offence3 #ast Act test Serious acts test0 Pa"e [1 !!" 5LR !%1 ?neAui$ocal test 1"ere tests are not definiti$eK Auestion of fact alwa's remains to s"ow &e'ond mere preparation-

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MENS REA 9rosecution "as to pro$e a <Guilt' intent to commit a recognised crime= 2Br$tten v l6o"!t3 7er' specific 'n$"#t '1 #* o Eilled 1 person o ,"arged wit" attempt murder of anot"er o H, "eld t"at for prosecution to succeed to pro$e attempt murder onl' intention to %ill is sufficient !H1 intention GBH coG wouldn=t lead to actuall' murder 1"erefore needs to &e 7DCF Specific again (or attempt larcen' AC is different &ut intention is t"e same 1"e law doesn=t ma%e a distinction &etween factuall' impossi&le incidents and criminal acts+oes not matter if 'ou succeed or not5 lia&le for same penalt'162.ssi7ility cases (actual impossi&ilit'- no defence #egal impossi&ilit'0 + is not lia&le- Br$tten v l6o"!t [1 (0" o Br$tten v l6o"!t0 + &elie$ed M intended to import canna&is5 &ut actuall' importing anaest"etics t was concealed5 didn=t declare it M got caug"t He was "eld guilt' for attempted importation of an illegal su&stance coG "e "ad intention M went &e'ond mere preparation alt"oug" t"e su&stance was legal an'wa' Attempt cases are >C cases D$en if it is a Strict #ia&ilit' offence- attempt reAuirements are stricter t"an for t"e offence itself-

8EFENCES
1NSAN1TY
t must &e pro$ed on t"e &alance of pro&a&ilities t"at at t"e time of committing t"e act t"e accused was la&ouring under suc" defect of reason5 owing to a disease of t"e mind5 as0 o !ot to %now t"e nature and Aualit' of "is/"er act HC o f t"e accused did %now it5 t"at s"e/"e did not %now t"at w"at s"e/"e was doing was wrong-

3J

+o not often see defences f successful outcome could &e worse t"an con$iction f successful o +ealt w/ under mental "ealt" legislation o ,an &e classified as insane o ndeterminate fas"ion go to mental "ealt" institution o ndeterminate institutionalisation period-$- determinate o Su&*ect to e.amination Case o 196Js o + "ad &een at ,a$ean 9ar% mental institution o #oc%ed up M forgotten a&out for almost 35 'ears Hutside of murder almost ne$er see defence Hlder cases often used &/c alternati$e ) life in prison/deat" 2w"en capital punis"ment still in force3 ,an &e found insane &' court e$en if 'ou don=t raise it +efence o !ot lia&le for offence &/c incapa&le of forming >C at t"e time o +efence of >C 9rosecution o 9resumption of &asic sanit' o ,an raise &' wa' of information w"ere no1 else does yo!* (1984) ,"arged w/ murder of fat"er Caised diminis"ed responsi&ilit' defence 9rosecution now allowed to raise insanit' H!#F if defence raises issues related to insanit' 9rosecution raised insanit' defence + found not guilt' on grounds of mental illness ,ourt o @"et"er 9rosecution/defence raises defence BH9 ) same %@,a"#ten (1843) o ,"arged wit" murder- &elie$ed t"at "e was &eing persecuted &ut s"ot t"e wrong person- found !H1 guilt'- pu&lic outcr' o House of #ords o Sentenced to // 'ears imprisonment and died o :>=!ag"ten Cules;- "a$en=t c"anged1- +efect of Ceason o #e$el of awareness totall' confused /- +isease of t"e >ind o #egal Auestion &ut not medical e$idence o H&$iousl' medical e$idence important

31

o @as t"is a disease of t"e mindB 3a3 ?naware of t"e nature M Aualit' of t"e act &3 f aware of nature M Aualit' did not %now it was wrong >ost successful ones rel' on 2a3 ?naware ma' suggest $oluntariness w"ic" ma' suggest automatism f e.ternal trigger/cause good argument to dispro$e insanit' nsanit' needs !1DC!A# trigger

Balance o: 6ro*a*$l$t$es +efence of insanit' ) e.ception to t"e Woolmin,ton principle +efence "as &urden on BH9s greater &/c its an e$identiar' &urden d defence can=t disc"arge t"e e$identiar' &urden *udge doesn=t "a$e to lea$e it as Auestion for t"e *ur' on BH9s it=s more li%el' t"an not f defence does disc"arge &urden s"ifts to t"e prosecution to dispro$e &e'ond all reasona&le dou&t D$sease o: t#e m$nd +efence if pro$en &/c + of > if + didn=t understand t"e nature M Aualit' of t"e act &' + t"at attracted t"e c"arge defence onl' a$aila&le if defect of reason is due to disease of mind >ust pro$e + of > on BH9 #egal not medical term 'em6 '1 %0* o ssue0 w"et"er or not sufficient e$idence of e.istence of disease of mind for issue to go to *ur' Auestion of law for *udge to determine o rrele$ant w"et"er temporar'5 permanent cura&le/incura&le o But temporar' insanit' enoug" to ground defence Porter '1 !!* o Administered str'c"nine poison to 11 mont" old son o 1ried to ta%e it "imself &ut cops inter$ened o @ife called cops M reported t"at "us&and "ad ta%en son o B/c wife "ad left "im and was $er' emotional M "ad t"reatened to do t"e a&o$e o 9rior to attac% + "ad e.treme ner$ous &rea%down o ,lassis >urder esta&lis"ed o 1"en defence of nsanit' 21emporar' nsanit' e-g- drugs etc-- sufficient to point to +isease of t"e >ind3 o + disease of t"e mind can &e descri&ed as0 +=s <state of mind must "a$e &een one of disease5 disorder or distur&ance>ere e.cita&ilit' of a normal man5 passion e$en stupidit'5 o&tuseness5 lac% of self-control or impulsi$eness are Auite different from w"at "a$e attempted to descri&e as a state of disease or disorder or mental distur&ance5

3/

arising from some infirmit'5 temporar' or of long standing-= 9orter (1 ==) >> C:R 1!2? %i0on ; o +=s case turned on / lim&s rule ! of %@s rules D$idence t"at + was aware of nature M Aualit' of w"at "e was doing Ga$e son poison M wanted to ta%e it "imself H, Luas"ed murder con$iction &/c e$idence suggested t"at "e was unaware of w"at "e was doing Someone could &e %illing someone M %now t"e' were doing somet"ing &ut not %now t"at it was wrong D-g- &rea%ing some1=s nec% to t"em could &e no different to snapping a twig off a tree !otion of nature M Aualit' &est demonstrated &' semi-consciousness (actor in determining disease of mind li%eli"ood of recurrence o BAS ,A##F if + "as possi&ilit' of repeating same t"ing againK "ig"er t"e c"ances of arguing insanit'o Based on polic' considerations re0 communit' safet' -$- medical conceptions @0amples o +rteriosclerosis Arteriosclerosis0 Hardening of arteries affecting &od' 'em6 '1 %0* o '3per,l3caemia >a' lead to &lac% out Cennessy '1 ( * D!$ck '1 0!* >alfunctioning of t"e mind due to insulino /leep$alkin,A B!r"ess '1 1* GBH M wounding c"argeK insanit' &roug"t as defenceo @pileps3A S!ll$van '1 ()* Eic%ed someone w"o tried to "elp said seiGure &ut medicall' not a disease of t"e mind &ut according to law it iso ,ertain personalit' diseases ma'&e e$idence of + of > &ut not necessaril' so 1"ere "as to &e an offence 1"en t"e +efence of nsanit' @"at diseaseB 1"en t"e / arms of insanit' 21 M / a&o$e3

1; ,at!re and E!al$ty o: t#e act 9"'sical nature and conseAuences of an act rat"er t"an moral aspects o Sodeman '1 !&*

33

D.tremel' difficult to argue Porter o t was said t"at "e %new &/c "e=d alread' t"reatened to %ill son M "imself M t"erefore understood t"e nature of life M deat"o Where % 2is prevented 43 mental disorder from kno$in, the ph3sical nature of the act he is doin,B 1n a case $here a man intentionall3 destro3s life? he ma3 have so little capacit3 for understandin, the nature of life and the destruction of life? that to him it is no more t#an t#e *reak$n" o: a t&$", or destroy$n" an $nan$mate o*Fect . Porter (1933) 'em6 '1 %0* o +isease "it wife wit" "ammer o 1"erefore argued nsane Automatism &/c at t"e time didn=t understand w"at "e was doing

+; 'no&led"e o: &ron":!lness D$en w"ere + %new nature M guilt' of act + ma' secure acAuittal if pro$es on BH9 didn=t %now t"at t"e act was wrong &/c + of > @rong according to t"e principles of reasona&le people o Porter '1 !!* o B/c of disease of mind incapa&le of reasoning i-e- no %nowledge of wrongfulness i-e- /nd &ranc" of >=!ag"ten Culeso 1"erefore successful M found !H1 guilt' due to insanit' +oes not mean wrong in t"e sense of &eing contrar' to t"e law o Sta6leton '1 %#* ,"arged wit" murder of policeman + pleaded insanit' H, Standard w"et"er <"is act was wrong5 according to t"e ordinar' standards adopted &' reasona&le men= +id "e %now if it was rig"t or wrong normall' M not &' lawB 1"erefore retrial ordered ssue is !H1 medical !ot necessar' t"at some1 w"o understands an offence is legall' wrong t"at at t"e time of t"e offence t"e' understood t"e difference &etween rig"t M wrong Sco6e o: t#e de:ence )s3chopath3 o 9s'c"opat"' doesn=t of itself amount to disease of t"e mind o 9s'c"opat" ma' lac% emotional appreciation of wrongness of act B?1 if ps'c"o "as intellectual compre"ension5 t"en cannot rel' on t"e defence o 2+ccordin, to the la$ someone $ho has no emotional comprehension 4ut has mental comprehension i.e. kno$ that its $ron, 4ut doesnt care an3$a3 o +oes not of itself amount to a disease of t"e mind -$ll"oss '1 &4*

38

>urder 1ried to argue gross ps'c"o5 due to lac% of self-control M gross diminution of emotional feeling in$ol$ed gross diminution of conscience But ps'c"opat"s don=t fit into t"e defence of insanit' M t"us responsi&le under t"e law o 1"at=s w"' S > "as &een esta&lis"ed1rresisti4le impulse o Hccurs w"en + is una&le to control +=s actions 3 v Bro&n (1969) o doesn=t e.clude operation of insanit' defence as long as &ased in + of > o +efence doesn=t appl' w"ere + ) aware t"at action=s wrong &ut incapa&le &/c of disease of mind to pre$ent +=s actions Sodeman '1 !&* murder of girl ,onfessed to murders of 3 ot"er girls also in t"e same wa' Said "e too% girls to t"e same spot and %illed later +efence argued uncontrolla&le impulse a&out t"e fact t"at "e couldn=t "elp %illing t"em w"en "e too% t"em to t"e spot 9rosecution said "e was in control w"en "e too% t"em to t"e spot 1"erefore "e was found guilt' M couldn=t argue insanit' &' uncontrolla&le impulse /elf<1nduced 1nsanit3 o + cannot rel' on insanit' if defect of reason is self-induced to pro$ide impetus to %ill o D-g- f + forms intent to %ill M drin%s to get guts to do it can=t rel' on insanit' 3 v 3alla"#er (1943) o nto.ication itself doesn=t permit insanit' &/c doesn=t ) + of > o Hnl' if into.ication triggers underl'ing + of > can use insanit' defence 3 v 3alla"#er (1943)

AUTOMAT1SM
D.onerates person from lia&ilit' from person w"o didn=t control or direct t"eir actions ?nder doctrine person isn=t responsi&le for in$oluntar' act ssue relating to AC +efence pro"i&ited in case of $oluntar' nto.ication s8/6G Pres!m6t$on o: %ental Ca6ac$ty 9rosecution entitled to presume t"at + "ad sufficient mental capacit' to act according to an e.ercise of t"e will o 5alconer (1999) 1o raise A + must raise t"e possi&ilit' t"at +=s actions were not $oluntar' 9rosecution must pro$e &e'ond a reasona&le dou&t t"at +=s actions were $oluntar' ,ertain p"'sical conditions gi$e rise to it

35

@0amples o ,onsumption of alco"ol M drugs >@Connor o Sleepwal%ing 7$m$ne) (199+) o ,oncussion from &low to t"e "ead o Blac% out 5alconer (1999) o H'pergl'caemia D!$cke (1903) o Dpileps' S!ll$van mpecca&le c"aracter5 epileptic +uring ar$o tea "ad epileptic fit M in*ured 7=s leg 1rial ,ourt *udge o +irected as in Luic% &/c + of > o ,"anged plea to guilt' Hn appeal con$iction up"eld o +issociation due to e.ternal stress 5alconer9 /ad:ord /ad:ord '1 (%* He s"ot e.-wife=s friend 4 times He &elie$ed e.-wife and friend were in a les&ian affair toget"er He was o&sessed wit" e.-wife and later decided to %idnap "is wife ,ourt said t"at +=s actions were due to an e.ternal and not internal state of mind A re-trial was ordered coG t"e *udge commented on unli%eness and s"ould "a$e left it up to t"e *ur' As soon as raise argument o ,ourt ma' agree A &ut not sane A &ut insane A o +isastrous outcome esp- if e-g- offence ) assault non fatal offence

D!$ck (1903) o 9atient in "ospital e$idence of dia&etes o Assaulted anot"er patient o Hadn=t ta%en food after insulin o +efence said going to raise A o Iudge said "e=d find + guilt' of insanit' M would direct *ur' w/ insanit' o + w/drew defence o Ce0 A o @"ere A self-induced not t"roug" n still can=t raise A ?nsan$ty 8 !tomat$sm

36

+efence of A confined to sane A +efence of ma' include A if t"e $oluntar' act was caused &' a + of >

2#e B!rden o: Proo: +ifferent BH9 depending on if sane or insane automatism o Sane results in complete acAuittal + "as e$identiar' &urden 9rosecution must negate A &e'ond reasona&le dou&t o nsane results in $erdict not guilt' &' reason of + "as BH9 on &alance of pro&a&ilities D$st$n"!$s#$n" Sane 8 ?nsane !tomat$sm +istinction &etween t"e / often rests on w"et"er dangerous &e"a$iour li%el' to recur +istinguis"ing tests onl' guidelines o Recurrence 8est f mental condition prone to recur s"ould &e considered + of > Bratty v 3 (1963) o 1nternal/@0ternal 8est f mental state is !1DC!A# to + -$- e.ternal s"ould &e classified + of > 5alconer (1999) o + con$icted of wilful murder of "us&and w/ s"otgun s"e fired o D$idence of $iolent marriage M se.ual a&use of daug"ters o Hn da' of deat" + "ad se.uall' assaulted 7 o + remem&ered not"ing from t"en til found "erself on floor w/ gun ne.t to "er M + dead &eside "er o H, ?p"eld +=s acAuittal +etermined t"at o&*ecti$e facts cited as proof were rele$ant circumstances upon w"ic" *ur' could rel' w"en determining if <ordinar' person would "a$e succum&ed to a state of dissociation /// to t"at w"ic" >rs ( claims o$ertoo% "er t"at da'= 1"e ordinar' person doesn=t possess an' of t"e particular emotional features of + at t"e time of t"e offence D-g- >rs ( suffering from depression @ouldn=t "a$e &een ta%en into account in determining ordinar' person=s reaction &/c ordinar' person not suffering from depression H&*ecti$e factors can &e ta%en into account e-g"istor' of $iolence M a&use of c"ildren o #nsound/sound mind test >ore sop"isticated $ersion of /nd test ,ategorises <dissociati$e states=

34

+ of > considered5 on t"is test5 to &e e$idenced &' reaction of an unsound mind to its own delusions or e.ternal stimuli /ad:ord (1985) !tomat$sm 8 ?ntoG$cat$on >@Connor (1989) o H, +efence of nto.ication could &e raised in relation to an' ot"er office 1"us it could &e raised to negate >C M AC elements t"at prosecution is reAuired to pro$e +efence could &e raised t"at + was so drun% t"us was incapa&le of acting $oluntaril'

1NTOX1CAT1ON
>a*or c"ange to law in !S@ in 1996 wit" t"e insertion of 9art 11A0 sections 8/6A- ,ommon law a&olis"ed &' s8/6H #aw prior to 1996 in accordance wit" t"e H, decision in H=,onnor o >@Connor (1989) #andmar% decision on into.ication in Australia Significantl' altered position on into.ication at t"e time 9re *Connor #aw &ased on 7aCe$ski 2Dnglis" case M position3 *Connor re*ected 7aCe$ski ,ourt Ce*ected 7 >urp"' I o it was surface le$el *udgement/artificial Ce*ected specific M &asic intent (or 16 'ears law followed *Connor 1996 legislation amendment codification of 7aCe$ski 1"us 7aCe$ski re*ected M resurrected nto.ication not defence to criminal c"arge &ut ma' negate elements of crime if causes condition inconsistent w/ criminal responsi&ilit' n ma' form &asis of o 9lea of A going to AC arguing in$oluntariness o +efence of insanit' w"ere into.icant "as triggered underl'ing disease of t"e mind o +enial t"at + "ad necessar' >C B!rden o: Proo: + &ears e$identiar' &urden of raising issue of automatism +=s e$idence of n s"ould &e reasona&l' persuasi$e &efore determined issue can &e left to *ur' o S#a& (1981) D$idence=ll &e related to fact of ingesting an into.icant M degree of into.ication o @"ere + raises t"e n in relation to defence of A5 in$oluntariness or lac% of >C

36

+ onl' &ears e$identiar' &urden 9rosecution t"en needs to pro$e $oluntariness or >C &e'ond reasona&le dou&t o @"ere + raises n in relation to nsanit' + must pro$e on &alance of pro&a&ilities Pos$t$on $n ,S %aFe&sk$ (1900) o !ot $er' important case on t"e surface &ut allowed courts to deal wit" issues t"e'=d &een wanting to do for a long time o + got $ drun% consumed $ large amount of alco"ol o @"ile drun% assaulted cops o (actuall' could &e said not guilt' if into.icated o n ) defence of capacit' sa's 'ou=re not capa&le of forming necessar' >C o 7aCe$skis 7odel 1- +etermine t'pe of offence ntention desired result S2eci:ic 2Cec%less ndifference3 Cec%less !egligence N./ S2eci:ic 2Basic3 /- +ecide if into.ication is 5.lu/tary HC 1/;.lu/tary o f crime is one of specific intent 'ou ma' raise n as a defence regardless of w"et"er it=s $oluntar' or in$oluntar' minorit' of crimes o f into.ication was $oluntar' 'ou are pro"i&ited from raising n as defence in court o f crime is one of &asic intent 'ou are allowed to use n as defence o 7 did t"is model &/c wanted to stop defendants using $oluntar' n as defence t"e' wanted to close t"e pro$er&ial floodgates on t"e defence o ,ourt f some1 gets so drun% t"at t"e' can=t control t"emsel$es drun%enness was rec%less How could t"e' sa' rec%less re0 drin%ing M appl' to conduct 1rue notions of criminal lia&ilit' were t"rown out t"e door in fa$our of a polic' &ased approac" o Cec%less indifference is an indirect form of intention 3rant ssue0 f $oluntar' n can argue so drun% incapa&le of forming intention to %ill5 GBH or rec%less indifference reAuired for >C f accepted can &e guilt' of manslaug"ter 1"us can operate as partial defence >urder case +ealing wit" t"e 1996 pro$isions Iudge said

39

nto.ication a$aila&le in circumstances of intention to %ill or GBH ,ourt of Appeal said Cec%less indifference is a specific crime /elf<induced v Voluntar3 1n o n ta%en to &e self-induced unless it was in$oluntar' due to fraud5 sudden emergenc'5 accident5 reasona&le mista%e5 duress or forceK or w"ere a prescription or non-prescription drug was ta%en in accordance w/ instructions s8/6A o +ctus Reus Self induced n can=t use for defence of in$oluntariness s8/6G +efence a$aila&le if +=s n not self-induced s8/6G2/3 o 7ens Rea +istinction drawn &etween crimes of <specific=5 <&asic= M <general= intent s8/6B Hften ar&itrar' &ut in legislation Has ta&le of specific intent crimes !ot e."austi$e list Ht"ers ma'&e added Guideline to definition in s8/6B Specific intent offences w"ere intent to cause specific result is an element /"2!C n can &e used re0 specific intent crimes w"et"er/not self-induced or not Ce0 Hffences ot"er t"an spec- intent 5 w"ere + raises n as negati$ing factor of >C f n self-induced cannot &e ta%en into account s8/6+2a3 f not self-induced can &e ta%en into account s8/6+2&3 Spec- rules re0 n murder f +=s n self-induced murder can onl' &e reduced to manslaug"ter f not + can &e acAuitted s8/6D %utch Coura,e o S8/6,2/3 + cannot use n w"ere "as &ecome into.icated for <+utc" courage= 3 v 3alla"#er (1943) )art 11+ o S8/6A +efinition section mportant definition Self-induced into.ication t=ll &e self-induced n unless falls w/ e.ceptions o n$oluntar' e-g- spi%ed drin% o n w/ fraud/force #egall' ma'&e in relation to ta%ing it accidentall' or duress or force o n from consuming prescri&ed medicines +istinction drawn &etween consumption M n D-g- Fou mig"t react to a drug in a wa' different to intended purpose 2'ard33

8J

1oo% $allium nstead of &/coming calm &/came agitated M e.cited Assaulted some1 ,"arged/con$icted Appeal court H$erturned con$iction ,onsumption $oluntar' &ut n was not o 9art 11A doesn=t use 7s terminolog' of in$oluntar' o >C 6on<self<induced (involuntar3) into0ication o '$n"ston (1993) C o: .s ?p until 1993 law in Dngland M !S@ was &ased on t"is Auestion @ould + "a$e done w"at t"e' did "ad t"e' "a$e &een so&erB 2 t was said almost guaranteed acAuittal3 n$ol$ed paedop"ilia + li%ed 'oung males / people formulated plan Said got "otel room M found 'oung &o' for + Blac%mailers drugged &ot" parties M put t"em in &ed toget"er ,ops arrested e$er'1 + was c"arged 1rial court nfluenced &' circumstances ,on$icted + + appealed M court of appeal allowed it But prosecution appealed to H of #s H of #s reinstated decision of +=s guilt ,ourt A drun%en intention is ne$ert"eless an intention D$en w"ere circumstances of in$oluntar' into.ication can still &e con$icted !eed to consider in$oluntar' into.ication 9re D approac" possi&le acAuittal Still unclear w"et"er !S@ or ot"er *urisdictions "a$e adopted D approac" &/c no superior court decisions re0 t"is matter n answer to Auestion 'ard3 is pro&a&l' closest to position "ere 1nto0ication and the reasona4le person E s"2!5 o @"ere$er reasona&le person is t"e approac" ta%en re0 offence M defence o Ceasona&le people don=t get drun% o Ce0 +uress Alwa's measured o&*ecti$el'

o Cardy

81

f 'ou said 'ou responded to duress &/c 'ou were drun% 'ou=ll %ill t"e duress defence &/c ordinar' person not drun% o Ce0 9ro$ocation Hrdinar' person re0 pro$ocation is not drun% o Ce0 Self defence Su&*ecti$e w/ n can &e considered H&*ecti$e $oluntar' n cannot &e considered

SELF 8EFENCE
,rimes 2Self-+efence3 Amendment Act /JJ1 2 n force (e& /JJ/3 sections 816-8/3 S816 +efence a$aila&le in accordance wit" circumstances under 8162/32a3-2d3 S816 go$erning piece of statute &urden of )roof o S819 2/// to s/3283 re0 pro$ocation3 o Hnce raise S+ prosecution "as &urden to dispro$e S+ &e'ond reasona&le dou&t S8162/3 1F9DS H( +D(D!,DS o 1- +efending 'ourself or anot"er person o /- 1erminate unlawful depri$ation of 'our li&ert' or some1 else=s D-g- Eidnapping o 3- 9rotecting 'our propert' form unlawful ta%ing5 destruction5 damage or interference o 8- 1o pre$ent trespass M can ta%e actions to remo$e trespasser D-g- Home in$asion @or%place in$asion o Ce0 233 M 283 Self defence not a$aila&le if 'ou "a$e intent to %ill or rec%less as to infliction of deat" S"ould &e 'our propert' &ut still Auestiona&le t"us if $isitor to friend=s "ouse ma' use t"is 'atar)ynsk$ o Howie I sole *udge @ent t"roug" "istor' of t"e new legislation / points of law su&sumed 'ome 1nvasions +ct o Dna&les some1 in "ome in$asion to %ill M &e acAuitted of it o Cefers to 7unroe #egislation /// to a&o$e act Work )lace 1nvasions +ct o ntroduced in /JJ1 o Bot" t"e acts incorporated t"e new amendment Luotes in *udgement from /nd reading speec" of t"e Act in parliament &' t"e minister >inister sa's new pro$isions effecti$el' a&olis" t"e ,# !o specific pro$ision li%e s8/6H w"ic" a&olis"es ,# re0 into.ication !o specific statutor' interpretation a&olis"ing ,# &ut its >9# D+

8/

#aw prior to /JJ/ on S+ go$erned &' Fekevich F no longer applies F and C no longer appl' Approac" ta%en 1- S?BID,1 7D 1DS1 s t"ere is a reasona&le possi&ilit' t"at t"e accused &elie$ed t"at "is or "er conduct was necessar' in order to defend "imself or "erselfB Celates to &elief of t"e accused M state of mind ,onsider accused=s c"aracteristics +id accused &elie$e t"e' were under attac%B 9ro&lem in case of D w"et"er c"aracteristics of into.ication included 2 Conlan sa's 'es 3 nto.ication is allowed in >C not AC ,ompletel' su&*ecti$e 9otentiall' remo$e <reasona&le= Luestion for *ur' Iur' must consider if defence "as disc"arged &urden f positi$e answer t"en loo% at o&*ecti$e test f conclusion re0 su&*ecti$e test is !H defence (A #S D defence failed clear on facts /- HBID,1 7D 1DS1 /// to approac" ta%en in F f t"ere is5 is t"ere also a reasona&le possi&ilit' t"at w"at t"e accused did was a reasona&le response to t"e circumstances as "e or s"e percei$ed t"em o&*ecti$e assessment of t"e proportionalit' of t"e accused=s response to t"e situation t"e accused su&*ecti$el' &elie$ed "e or s"e faced Ce0 S+ consider proportionalit' &etween attac% M response nto.ication e.cluded &/c ordinar' person so&er aspect of S+ a&olis"ed in F resurrected f w"at accused did e.cessi$e S+ can rel' on it s8/1 !ew pro$isions &ased on >odel ,riminal ,ode Hfficers ,ommittee 9ro$isions i-e- &ased on committee draft largel' &ased on 1asmanian ,riminal ,ode mportant *udgement 7ckuller 21asmanian case3 7unroe important case dealing w/ "ome in$asion pro$isions Argua&le t"at if H Act su&sumed in amendment in +i$ision 3 t"en a&o$e / cases appl' +istinction &etween draft committee=s pro$isions re0 murder F confirmed &' Conlan C supreme court case &ut onl' trial court *udgement

83

o 1"us not as muc" weig"t as appeal/H, *udgement mportant element of facts if accused is into.icated at time of offence 9uts person in different circumstances to ot"er defences D-g- insanit' goes to >C -$- S+ w"ic" goes to t"e actual lawfulness of t"e offence more of an academic position practical application is Auestiona&le 1"us f sa' S+ effecti$el' sa'ing t"at t"e conduct was !H1 unlawful Accused ma' rel' on "onest &ut into.icated mista%e o 9osition re0 so&er reliance on mista%e well est- 7or,an ?sed in &eckford 2Iamaican3 -ladstone William o + found / people struggling on t"e ground o 9erson "ad stolen &ag o A 2&ig man3 c"ased M &eat 2small man3 t"ief o + con$icted o But on appeal ,ould rel' on mista%en &elief &/c accused &elie$ed need to inter$ene &eckford B "olding people "ostage Celeased "ostages B t"oug"t 7 "ad weapon 7 mo$ed B t"oug"t 7 was going to use weapon B s"ot 7 dead ,on$iction up"eld in Iamaican Supreme ,ourt Luas"ed at 9ri$' ,ouncil appeal relied on 7or,an Conlan (,S-) o ,an rel' on S+ for "onest &ut unreasona&le circumstances e$en if into.ication o C sa's can rel' on into.ication for o&*ecti$e test

8URESS
Care defence 28hreats of immediate death or serious personal violence? so ,reat as to over4ear the ordinar3 po$er of human resistance? should 4e accepted as a Custification for acts $hich other$ise $ould 4e criminalB Where the e0ercise of duress is availa4le? it must 4e clearl3 sho$n that the overpo$erin, of the $ill $as operative at the time the crime $as actuall3 committed? and? if there $ere reasona4le opportunit3 for the $ill to reassert itself? no Custification can 4e found in antecedent threats. +- v Whelan (1 =") 7urna,han ; issue0 e.tent to w"ic" it s"ould &e defence #aw &ased on law=s compassion on + faced w/ c"oice of / e$ils "arm due to t"reat of commission of crime +uress communication of t"reat in words and/or actions

88

Aspects of mitigation Support for a&olis"ing t"ese as defences M esta&lis"ing as mitigating factors ,onsidered o&*ecti$el' o ,an consider c"aracteristics of accused 2not su&*ecti$e3 o >a' include as c"aracteristics of ordinar' person B!rden or Proo: o f + succeeds in defence acAuitted of all c"arges o + must satisf' e$identiar' &urden M once satisfied o 9rosecution must negati$e &e'ond reasona&le dou&t Sco6e o: De:ence o A$aila&le for most offences including manslaug"ter B?1 !H1 >urder &ro$n (1 !.) 7connell (1 GG) o4iter 2not &inding3 accessor' to murder can rel' on duress 1lements o: t#e De:ence 8hreats o +eat" and GBH to 'ourself someone connected to 'ou0 'urle3 o #awful t"reats e-g- steal or =ll %ill 'ou o mprisonment0 :a$rence o 1orture0 -oddard v *s4orne o Harm to a t"ird part'0 +4usafiah @ould person of ordinar' firmness 'ield to t"is t"reatB 2HBID,1 7D3 -#eelan o 1"reat must &e imminent 2HBID,1 7D3 o f t"ere=s an a$enue for escape M its possi&le to do so M 'ou don=t ta%e ad$antage of it t"en unreasona&le appre"ension M +D(D!,D (A #S o 1"reat must induce 'ou to carr' out crime o ,rime can=t &e murder or an' aspect of it +enied defence of duress if t"reat arises w"ere *oined group or gang to carr' out offence o 5$t)6atr$ck CA o S#e66ard o S#ar6e n$ol$ed in gang of ro&&ers @anted out M leader said =ll &low 'our "ead off if 'ou lea$e ,ourt ,an=t rel' on duress B/c %new possi&ilit' w"en got into gang @ould ordinar' person "a$e 'ielded to t"reatB o +oes it mean possi&ilit' or pro&a&ilit'B o Bro&n Supports possi&ilit'

85

o o C!rley

*!sa:$a# Supports pro&a&ilit' an pro&a&ilit' is li%el' Hrdinar' person @H?#+ "a$e 'ielded li%e accused

o "e "elped / escaped prisoners &/c t"e' "eld "is wife "ostage o 9leaded duress o ,ourt said He "ad reasona&le opportunit' to e$ade t"e t"reat and didn=t5 1"us c"arged as an accessor' But dissenting *udge said He s"ould "a$e &een a&le to argue duress and discussed t"e following tests to esta&lis" w"et"er its duress0 o Serious t"reat if act not doneo A person of ordinar' firmness would "a$e 'ielded to t"reat 2H&*ecti$e test3 o 1"e t"reat was present and imminent 2w"et"er 'ou could "a$e a$oided t"e t"reat3o Accused reasona&l' &elie$ed t"reat would &e carried outo Actuall' assisted a crimeo ,rime was not a murdero 1"e accused didn=t &' t"eir own fault e.pose t"emsel$es to t"e t"reat 2e-g- &eing in a gang $oluntaril' and t"en tr'ing to lea$e3o Accused "ad no means to a$oid t"e t"reat1"e prosecution can negate an' of t"e a&o$e t"reats1"e o&*ecti$e test states t"at0 o An a$erage person of ordinar' fitness of mind5 of a li%e age and se.5 in li%e circumstances5 would "a$e done t"e actsK and o 1"ere was no reasona&le wa' of a$oiding t"e t"reats- 2.a&rence3 +uress is a ,omplete +efence &attered Women /3ndrome o 'ont$nnen v /!nFanF$c '1 1* %! A Cri6 R !&#0 / women were used as o&*ects t"at were su&*ect to $iolence and false imprisonment 7 t"reatened t"em and made t"em lure anot"er woman for se.ual fa$ours He made t"em %eep "er- D$en w"en 7 was not "ome5 t"e' %ept woman in "ouse and didn=t escape t"emsel$es ,ourt first said no duress e.isted &ecause t"e' "ad t"e c"ance to escape B@S i-e- continuing M imminent t"reat was later esta&lis"ed and a new trial orderedCustomar3 :a$

86

o -arren, Coom*es and 2!cker '1 &* (( A Cri6 R 0(0 A&originals groups w"o were "a$ing inter-tri&al pro&lems Said customar' law compelled t"em to punis" $ictim coG if t"e' didn=t t"en t"e' would &e punis"ed under customar' law and t"erefore argued duress At first instance duress was esta&lis"ed B?1 1"en found t"at +=s wanted to do it and t"erefore guilt' 2actuall' assisted a crime3

NECESS1TY
!ecessit' at time of offence it was necessar' for + to do so #i%e duress &ut relates to circumstances Care defence Aspects of mitigation Support for a&olis"ing t"ese as defences M esta&lis"ing as mitigating factors ,onsidered o&*ecti$el' o ,an consider c"aracteristics of accused 2not su&*ecti$e3 o >a' include as c"aracteristics of ordinar' person !eed a t"reat o >ust &e of sufficient %ind >ust ta%e steps to relie$e 'ourself if it is reasona&le to do so Four response to t"reat must &e according to Wheelan o Accused must reasona&l' appre"end t"at t"e t"reat mig"t &e carried out f 'ou *oin a gang effecti$el' t"e t"reat is self-induced o 5$t)6atr$ck o S#e66ard o S#ar6e H&*ecti$e test o @ould ordinar' person of ordinar' resol$e 'ield to t"e t"reat o @/ t"e e.ception of certain inclusions of personal c"aracteristics of accused defence is o$erall considered o&*ecti$el' Bro&n '1 (&* suggests possi&ilit'5 w"ere *!sa:$a# suggests pro&a&ilit'!ot a lot of Australian law more Dnglis" &ut &ot" "a$e de$eloped differentl' Dnglis" o +uress of circumstances -#$te (1980) +istrict court case re0 speeding + was speeding D.cuse dri$ing son to "ospital &/c "ad massi$e ast"ma attac% He could rel' on it M court Auas"ed con$iction Sort of necessit' !ecessit' ma' &e c"oice &etween / e$ils o D!dley 8 Ste6#ens (1884) n$ol$ed in s"ipwrec%

84

.o!"#man o inmates t"reatened "im o escaped- said "e t"oug"t "e HA+ to escape in order to sa$e "is life o ,ourt Said t"at it wasn=t a good enoug" reason to escape o Sets out 3 elements needed for defence of necessit' Act must "a$e &een done to a$oid conseAuences t"at would "a$e inflicted "arm or accused t"ose "e/s"e meant to protect 1"reats incl- deat"5 serious p"'sical "arm5 se.ual assault or suicide !o reAuirement t"reats &e e."austi$e 1"reat must "a$e e.erted immense pressure on accused due to o mminence of t"reat occurring o Gra$it' of t"reatened "arm5 w/o an' urgenc' in$ol$ed

N people sur$i$ed Got in life &oat >iddle of ocean w/ little water or food Got rain water M some fis" insufficient to sur$i$e +ecided to draw lots to decide w"o to %ill M eatSpo%e to Broo%s w"o was in c"arge said "e didn=t want an' part Cest of t"em decided on a wea% &o' called 9ar%erBroo%s and t"e ot"ers ate "im t"e ne.t da' But Broo%s ne$er %illed 9ar%er e$idence s"owed t"at t"e' would "a$e died ot"erwise Got sa$ed M came &ac% to Dngland as "eroes 1"en disco$ered t"e' sur$i$ed &' eating t"e ca&in &o' +MS argued necessit' Iudge Hffence at ,# But not a$aila&le to murder Sentenced to deat" &/c con$icted of murder Cecei$ed ro'al clemenc' M onl' spent 6 mont"s in *ail &/c "ad lot of pu&lic support &efore people found out "ow sur$i$ed &ut lot of it still carried on after Broo%s was ne$er c"arged as "e was used as a witness against +MS

Accused must &elie$e possi&ilit' of imminent t"reat/peril 1"reat can &e o Ceal in t"at it was capa&le of &eing demonstrated o&*ecti$el' to "a$e e.isted o maginar' i-e- "onestl' M reasona&l' B?1 mista%enl' &elie$ed &' + to e.ist

86

1"reat must &e suc" t"at ordinar' person must &e capa&le of 'ielding in t"e wa' t"at + did >ust &e lesser of / e$ils i-e- peril must &e lesser HBID,1 7D 1DS1 o Hrdinar' person would "a$e decided t"at commission of crime lesser e$il t"an peril +uress M !ecessit' Care defences Alwa's difficult to get successful acAuittal B/c an' e$idence of unreasona&leness on t"e part of t"e accused is negati$el' $iewed

*ort$on o S 6/ o A&ortions are unlawful unless t"e' are necessar'- ,ourt "as a rela.ed $iew on w"at is necessar'- Dav$dson [1 & " 5R &&0- issue was w"et"er it was necessar' to preser$e t"e life of a woman5 &' a&orting t"e &a&'5 w"o would "a$e died due to t"e pregnanc'- 9roportionalit' was found to &e fair enoug" in t"at to sa$e "er life was more importantStr$ct .$a*$l$ty o rrepara&le "arm e-g- t"at a woman mig"t gi$e &irt" in t"e car unless 'ou speed to t"e "ospitalo n strict lia&ilit' offences5 necessit' is a$aila&le- -#$te '1 (0* NS$LR )#00 son was an ast"matic and rus"ed to "ospital- 1"erefore accepted as necessit'-

89