LLB 130 Study Guide - Final Guide: Grievous Bodily Harm, Assault Occasioning Actual Bodily Harm, Assault
Scaffold for Assault
What is the AR?
AR 1: Unlawful physical contact
• Is the act a positive voluntary act? (not an omission) – Fagan
• Was there application of force without consent?
- Spitting constitutes force – Stenecker v Police
- Touching clothes can be application of force – R v Day
- Not necessarily causing harm or injury
• Was there non-consent?
AR 2: Act creating apprehension of imminent unlawful physical contact
• Does the fear relate to an immediate act? Zanker; Knight
• Is the act a positive act? (not an omission) Fagan
• Was there non-consent?
What is the MR?
• Was there intent? – required for both heads
OR
• Was there recklessness? – MacPherson v Brown
- Recklessness is the foresight of the possibility that by their actions they would
either make physical contact or the victim would be put in imminent fear
If AR + MR are met and there are no aggravating factors = common assault = imprisonment
for two years (Crimes Act s 61)
Are there aggravating factors?
• Need to be precise about identifying AR and MR
• Same MR for common assault
• Can the prosecution prove specific intent?
• Aggravated assault can include (full list in notes):
- Actual bodily harm (s 59)
- Wounding (ss 35(3) and (4))
- Grievous bodily harm (ss 33 & 35(1)(2))
- Grievous bodily harm: death of a foetus
- Grievous bodily harm: causing a grievous bodily disease
- Assaults using offensive weapons
- Assaults involving the use of intoxicating/poisonous substances
- Victims of special status
- Aggravated intoxicated assaults
- Causing dog to inflict wounding/ABH/GBH
Offence
Conduct/act
Circumstance
Consequence
Assault
Physical contact
Non-consent
ABH/wound/GBH
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Document Summary
Spitting constitutes force stenecker v police. Touching clothes can be application of force r v day. Is the act a positive act? (not an omission) fagan. Recklessness is the foresight of the possibility that by their actions they would either make physical contact or the victim would be put in imminent fear. If ar + mr are met and there are no aggravating factors = common assault = imprisonment for two years (crimes act s 61) Are there aggravating factors: need to be precise about identifying ar and mr, same mr for common assault, can the prosecution prove specific intent, aggravated assault can include (full list in notes): Grievous bodily harm (ss 33 & 35(1)(2)) Grievous bodily harm: death of a foetus. Grievous bodily harm: causing a grievous bodily disease. Assaults involving the use of intoxicating/poisonous substances.
