LAW 2599 Lecture Notes - Lecture 7: Absolute Liability, 5Aa, Endangerment
23 May 2018
School
Department
Course
Professor
Step 1: identify the legislation and its elements
1. Identify physical elements
a. See below: conduct, circumstance, state of affairs, result
2. Identify fault elements
a. See below: subjective of objective
3. Identify inherent statutory defences
4. Identify if a full fault/ strict liability/ absolute liability offence
a. Full fault: PE anD FE need to be proven- principle of contemporality needs to be satisfied
b. Strict liability: Need only prove PE. No requirement of FE to accompany PE (eg drive under disqualification)
c. Absolute liability: Need only prove PE. No requirement of FE to accompany PE. Regardless of mental state (eg
produce child pornography – R v Clarke)
d. If uncertain if SL or AL- He Kaw Teh analysis (below)
i. If interpretation favours both SL and AL, SL is favoured as defence of RMOF is available to D, and
criminal offences are construed in favour of D when there is ambiguity
Step 2: assess the client’s liability
1. Clarify definitions
2. Voluntariness
3. Apply facts to elements
4. Apply facts to statutory defence
Step 3: Seriousness and penalty of offence
Step 4: Burden of proof of the statutory defence
Step 5: other defences? Burden of proof
1. Different for SL and AL- see blelow
Step 6: alternative charges
Step 7: whether to plead guilty or not guilty (explain grounds), negotiate alternative with police, other action
Division 7 s 20 assault – about conduct
PE – Result not required (except s 20(4))
FE – only intention (not recklessness)
FE – only as to the conduct
OFFENCES AGAINST THE PERSON
Division 7A s 23 cause harm and 24 cause serious harm – about result
PE – Result is required
FE – intention or recklessness
FE – as to the conduct and the result
Issue spotting – is there harm?
If no: consider Div 7
s 20 assault
If yes: consider Div 7A. Is the harm:
s 23 serious harm:
Definition s 21 (a) endangers a person's life; or consists of, or results in, (b)
serious and protracted impairment of a physical or mental function; or (c)
serious disfigurement
s 24 harm
Definition s 21 "harm" means physical or mental harm. "physical harm"
includes—
(a) unconsciousness; (b) pain; (c) disfigurement; (d) infection with a disease;
Are there features of aggravation? - s 5AA
find more resources at oneclass.com
find more resources at oneclass.com
ASSAULT s 20 (DIV 7 and 7A OFFENCES)
Note: if V consented there is no assault. D can only be charged under ss 23 or 24 causing harm/ serious harm where the defence of
consent may be available
STEP 1: previously common law offence, now codified in s 20 CLCA.
→ Covers any unlawful interference with the person of another, including actual force and the threat of force R v McIntyre
→ includes any act which intentionally or recklessly causes another person to apprehend immediate and unlawful
personal violence, or the actual intended (or reckless) use of unlawful force to another person without his or her
consent (Fagan v Commissioner or Met Police)
STEP 2: are any of the s 20(1) criteria made out? Prosecution to prove PE and FE beyond reasonable doubt
section
PE - conduct
PE - circumstance
FE
s20(1)(a)
The intentional application
of direct or indirect force to
the V
No need for personal contact
• Can be to their clothing
→ throwing water over/ spitting on someone = direct
application of force Pursell v Horn
• Cannot be the reckless application of force (unlike common
law)
• Slightest degree of force suffices Collins v Willcock
• Can be the indirect application of force (s 20 makes this
clear, though contentious at common law)
→ Eg: if A digs a hole for B to fall into and B fell into it =
assault by indirect application of force R v Clarence;
Heystead v Chief const of DS; R v McMasters
• Doesn’t extend to mere omissions
→ Contrast DPP v Santa-Bermudez which appears to
extend the notion to cover mere omissions
➢ D falsely assured police officer who was about to
search him that he didn’t have sharps on him, causing
her to stab herself on a syringe as she searched his
pocket
➢ MOs better charged as = doing an act likely to
cause harm (s 29(3)); or if mental element is present,
recklessly or intentionally causing harm (s 24)
(Below)
Without consent
D intended the
PE
s 21(b)
Intentionally making direct
or indirect physical contact
knowing that the victim
might reasonably object to
such contact (whether or
not V was aware of the
contact)
• Fodgen v Wade: fear of violence need not be explicit. Can be
implied from wider circumstances
→ Dark alley way, D was trespassing, asked V to have sex.
V feared sexual violence. Held to be assault.
Without consent,
knowing V may
reasonably object to
such contact
Intended the
PE with
knowledge of
the
circumstances
s 20(1)(c)
Threatening by words or
conduct to apply direct or
indirect force and
reasonable grounds for the
V to (i) believe person who
made threat or is in position
to carry out threat and
intends to do so OR (ii) real
possibility that the person
will carry out the threat
• Silence or menacing calls: words alone (or silence) = assault
if there exists a fear of immediate or at least imminent
threat of force
→ R v Ireland
→ Zanker v Vortzokas (menacing calls)
→ Contrast R v Knights
• Assault by threat of force: immaterial if culprit cannot carry
out the threat so long as they intend the victim to fear that
force will be inflicted on him or her and the victim actually
fears imminent force (eg threat by toy gun)
→ R v Everingham
→ A conditional threat may be an assault (‘your money or
your life) R v Greaves
Without consent +
with reasonable
grounds for the V to
believe
(i) person who made
threat or is in
position to carry out
threat and intends to
do so; OR
(ii) real possibility
that the person will
carry out the threat
Intended the
PE and had
knowledge of
the
circumstance
s 20(1)(d)
Doing of an act of which
the intended purpose is to
apply force to another
• Doing an act to apply force
• D guilty of assault if they have the intention is to apply force +
they do the act to fulfil that purpose, but force is not actually
applied to V Police v Wilson
• Without consent
Intended PE
find more resources at oneclass.com
find more resources at oneclass.com
s 20(1)(e)
Accosting or impeding
another in a threatening
manner
• Restrict or prevent free passage- mob of students trapping a
lecturer Mc Pherson v Brown
• Without consent
Intended PE
Assault causing harm s
20(4)
• Commits an assault under ss 20(1)(a)-(e)
Circumstance:
without consent +
RESULT: causes
harm to another
Intended PE
STEP 3: DEFENCES
• Statutory: s 20(2)(a) within limits generally accepted in community as normal incidents of social interaction/ community life,
or (b) justified/ excused by law (DETAILED BELOW)
→ See below – eg child discipline
• Involuntary conduct/ automatism
• self-defence
• Mental impairment
STEP 4: aggravated offence?
• if one of the aggravating elements outlined in s 5AA is satisfied, the offence will become an aggravated offence.
• s 5AA Assault on child (note – if D is parent and conduct was disciplinary* = defence of conduct accepted by community);
60 years +; nurses/ docs in medical context; use of weapon; 2 or more perpetrators; V has physical/ mental disability
STEP 5: penalties
A person who commits an assault is guilty of an offence s 20(3). Maximum penalties:
(a) for a basic offence—imprisonment for 2 years;
(b) for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;
(c) for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.
Step 6: whether to plead guilty or not guilty (explain grounds), negotiate alternative with police, other action
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Step 1: identify the legislation and its elements. Identify physical elements: see below: conduct, circumstance, state of affairs, result. Identify fault elements: see below: subjective of objective. Identify if a full fault/ strict liability/ absolute liability offence: full fault: pe and fe need to be proven- principle of contemporality needs to be satisfied, strict liability: need only prove pe. No requirement of fe to accompany pe (eg drive under disqualification: absolute liability: need only prove pe. Step 2: assess the client"s liability: clarify definitions, voluntariness, apply facts to elements, apply facts to statutory defence. Step 4: burden of proof of the statutory defence. Burden of proof: different for sl and al- see blelow. Division 7 s 20 assault about conduct. Pe result not required (except s 20(4)) If no: consider div 7 s 20 assault. Division 7a s 23 cause harm and 24 cause serious harm about result. Fe as to the conduct and the result.
