Examines How Criminal Law Responds to a Broad Range of Violent Behaviours

Seminar 3 Criminal Law – Chapter 7 Assault

ASSAULT

Introduction [7.1]

• Examines how criminal law responds to a broad range of violent behaviours.
• Differences in responses to violence that occurs in public and private settings.
• Public violence typically involves men as both offender and victim, often associated with alcoholic consumption, frequently occurs around licensed areas and public streets
• Private violence is committed by men against their female domestic partners.

Partners of victimisation [7.1.1]

• Key themes to keep in mind when considering patterns of personal violence.
• First, violent crime (the rate of under reporting is far higher for violent crime then for property crime.
• Secondly, is the familial or relational nature of violence – violence in Australian society mainly involves persons who are known to each other – who are intimates, friends, acquaintances or who have a pre- existing relationship.
• Thirdly, male violence against women and adult violence against children.
• Other examples include; racist violence, violence against gays

R Hogg and D Brown, Rethinking Law and Order

• Interpersonal violence – entails relationships between people both in the most obvious and immediate sense (offender and victim), which in the circumstances provide opportunity and contexts within which violence events occur
• Two broad types of violent interaction;

• Confrontational violence – between males, typically young. A social interaction that escalates into physical contact
• Between family members and other intimates – usually spouse, de facto, parents and children.

Violence among men

•  Majority of these men from marginalised socio economic backgrounds
• excessive alcohol use, death is an un common outcome.
• Vast non fatal accidents are not reported to police. Not as worthy of an action unless they are perceived as a breach of peace or result in serious injury – ‘IN HOUSE MATTERS’
• For police, ‘trouble’ relates to issues of public order rather than the number of violent.  

Violence among family members

•  Involves inequalities of power and strength
• 15-20 percent involves family cases
• high levels of hidden family violence, difficult to generalise about characteristics of offenders and victims
• unskilled workers and unemployment was a factor of spouse homicides
• Court based studies reveal that most domestic violence victims are women who are not in paid employment, and have children receiving welfare benefit.
• The role of the criminal justice system in the prevention and control of family violence.

Marginalisation and violence in Aboriginal communities

• under employment, chronically bad and overcrowded housing, horrific health standards, high levels of alcoholism, limited educational opportunities. Sense of hopelessness and alienation.
• The level on non-fatal violence in some aboriginal communities is also very high.

COMMON ASSAULT [7.2]

Introduction

• ‘Assault’ – was the crime of putting another person in fear or apprehension of an unlawful contact that is threatening someone with unlawful physical contact,
• ‘Battery’ – the actual application of force without consent, lawful excuse or justification
• ‘Actus reus’ – An assault where violence must be committed by an act, must be without the consent of the victim.

Acts not omissions [7.2.1.1]

Fagan v commissioner of Metropolitan Police

• Appellant convicted of assaulting police constable. The sole issue being whether the facts proved by the prosecution amounted in law to the crime of assault
• Was asked to park the car on the side of the road by police, too far from kerb at first, then parked again and was on officer’s foot. Officer asked to drive off foot, appellant said wait .. etc
• Judges; whether the mounting of the wheel on to the officer’s foot was deliberate or accidental
• “knowingly, proactively and unnecessarily allowed the wheel to remain on the foot of the officer” – they found on the facts an assault was proved.
• Argued that there was no act of the wheel mounting the foot came to an end without there being any mens rea. The failure to remove car (omission), could not in law provide the necessary mens rea to convert the original act.
• To constitute the offence of an assault some intentional act must have been performed: a mere omission to act cannot amount to an assault.

Consent [7.2.1.2]

• Element of common assault. “The term assault involves the notion of want of consent. Thus in general terms it may be said that an assault with consent is no assault at all.”
• For there to be an assault the law requires an intentional application of force to the person of another which is unlawful.
• For it to be an unlawful act of the accused there must be no lawful justification for it. E.g. consent

Apprehension of immediate infliction of force [7.2.1.3]

• Where assault involves an act causing the victim to apprehend the immediate infliction of unlawful force, questions sometimes arise as to wether the threat of harm is sufficiently imminent to satisfy the actus reus requirement.

Knight

• Appellant was convicted of assault under s61 of the Crimes Act and convicted of making false statements giving rise to apprehension for a person’s safety, following threatening and abusive phone calls
• A question on appeal was whether the evidence of the threats was sufficient to constitute assault.
• Abusive phone calls were made to Constable Rowles, Mr Henderson SM and the judge, answered by family members over consecutive period.
• The police took action and tried to trace calls, they found the appellants name in a phone box
• No other evidence in the case, in matter of an assault.
• Question arises whether the evidence of the threats made was sufficient to constitute an assault, from which any conclusion could be drawn that any of the recipients of the calls were ever in any danger of immediate violence.
• Another question arises; how immediate does the fear of physical violence have to be? Judge; “in my opinion, the answer is it depends on the circumstances.”
• Because a threat is made by phone it could not thereby constitute an assault.

Zanker v Vartzokas

• Appeal against the dismissal by a magistrate of a complaint alleging assault occasioning actual bodily harm
• Young women accepted lift from defendant her offered her money for sexual assault.
• Appellant conceded that he was unlawfully imprisoning the young women but he was not charged with crime, he said the wrong charge of assault had been made
• His conduct he said, did not constitute an assault.
• He did not touch her or gesture towards her
• Magistrate found that the words, induced in the appellant’s mind apprehension of injury later on
• Authorities referred to the immediacy of the feared physical violence
• Immediate fear that sexual harm would occur
• Question; how immediate must the threatened physical violence be after the utterance of the threat which creates fear

The victim’s apprehension, Conditional threats, Spitting [7.2.1.4-6]