Aggravated Assault and Domestic Violence

Criminal Laws, S2 2014, Class 13

Revision
1.) What is the difference between assault and battery?
2.) What are the three categories of harm for the purposes of aggravated
assault, and what are the differences between them?
3.) Can words (such as a telephone call) constitute the actus reus of an
assault?
4.) Can an omission constitute the actus reus of an assault?
5.) What type of recklessness is required as the mens rea for assault?

Aggravated Assault
More serious than common assault because of the presence of
additional aggravating elements (either harm or consequence
caused, or specific intent)

59 Assault occasioning actual bodily harm

(1) Whosoever assaults any person, and thereby occasions actual

bodily harm, shall be liable to imprisonment for five years.

(2) A person is guilty of an offence under this subsection if the person

commits an offence under subsection (1) in the company of another person
or persons.

A person convicted of an offence under this subsection is liable to

imprisonment for 7 years.

Other Examples
33 Wounding or grievous bodily harm with intent

(1) Intent to cause grievous bodily harm A person who:

(a) wounds any person, or
(b) causes grievous bodily harm to any person, with intent to cause grievous bodily
to that or any other person is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

harm

35 Reckless grievous bodily harm or wounding

(2) Reckless grievous bodily harm A person who:

(a) causes grievous bodily harm to any person, and

(b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(4) Reckless wounding A person who:

(a) wounds any person, and

(b) is reckless as to causing actual bodily harm to that or any other person, is guilty of an offence.

Maximum penalty: Imprisonment for 7 years.

Other Examples
25A Assault causing death
(1)A person is guilty of an offence under this subsection if:
(a) the person assaults another person by intentionally hitting the
other person with any part of the persons body or with an object
held by the person, and
(b) the assault is not authorised or excused by law, and
(c) the assault causes the death of the other person.
Maximum penalty: Imprisonment for 20 years.
54 Causing grievous bodily harm

Whosoever by any unlawful or negligent act, or omission, causes grievous

bodily harm to any person, shall be liable to imprisonment for two years.

D [1984] 3 NSWLR 29 = gross negligence

Causing a Disease
Section 4: Definitions
"Grievous bodily harm" includes:
(a)the destruction (other than in the course of a medical procedure) of the foetus of a pregnant
woman, whether or not the woman suffers any other harm, and
(b)any permanent or serious disfiguring of the person, and
(c)any grievous bodily disease (in which case a reference to the infliction of grievous bodily
harm includes a reference to causing a person to contract a grievous bodily disease).
Second Reading Speech (Hatzistergos)
simply reckless as to the possibility, that is to say that he or she does not care whether
the disease is passed on
Coleman: realisation by the accused of the particular kind of harm tha tmight be inflicted
Policy rationale
Increasing or undermining responsibility (e.g. with regard to testing)?

Public Health Act 1991

11 Precautions against spread of certain medical conditions
(1)A person who:
(a) suffers from a Category 2, Category 3, Category 4 or Category 5 medical
condition, and
(b) is in a public place or other place of public resort (including any means of
public transport), and
(c) fails to take reasonable precautions against spreading the medical
condition,is guilty of an offence.
Maximum penalty: 50 penalty units or imprisonment for 6 months.
(2)

It is a defence to a prosecution of a person for an offence under this

section if it is proved that the person was, at the time of commission of the
alleged offence, ignorant of the existence of the medical condition on
which the prosecution is based.

Public Health Act 1991

13 Sexual intercourse-sexually transmissible medical
condition

(1) A person who knows that he or she suffers from a

sexually transmissible medical condition is guilty of an offence if
he or she has sexual intercourse with another person unless,
before the intercourse takes place, the other person:

(a) has been informed of the risk of contracting a

sexually transmissible medical condition from the person with
whom intercourse is proposed, and

(b) has voluntarily agreed to accept the risk.

Maximum penalty: 50 penalty units.

Assaults with Offensive Weapons

and Dangerous Substances
33A Discharging firearm etc with intent
(1)Intent to cause grievous bodily harm A person who:
(a)
(b)

discharges any firearm or other loaded arms, or

attempts to discharge any firearm or other loaded arms,with intent to cause grievous bodily harm to any
person is guilty of an offence.
Maximum penalty: Imprisonment for 25 years.

47 Using etc explosive substance or corrosive fluid etc

Whosoever:

causes any gunpowder or other explosive substance to explode, or

sends, or delivers to, or causes to be taken, or received by, any person, any
explosive substance, or other dangerous or noxious thing, or

puts or lays at any place, or casts or throws at, or upon, or otherwise applies
to, any person, any corrosive fluid or any destructive or explosive substance,
with intent in any such case to burn maim disfigure disable, or do grievous bodily
harm to, any person, shall, whether bodily injury is effected or not, be liable to
imprisonment for 25 years.

Spiking Drink or Food

Section 38A
(2) A person:

(a) who causes another person to be given or to consume

drink or food:

(i) containing an intoxicating substance that the

other person is not aware it contains, or

(ii) containing more of an intoxicating substance than

the other person would
reasonably expect it to contain, and

(b) who intends a person to be harmed by the consumption

of the drink or food, is guilty of an offence.
Maximum penalty: Imprisonment for 2 years or 100 penalty
units, or both.

Assaults on Law Enforcement

Officials
Section 58: Assault with intent to commit a serious indictable offence on certain

officers
Whosoever:
assaults any person with intent to commit a serious indictable offence, or
assaults, resists, or wilfully obstructs any officer while in the execution of his or her
duty, such officer being a constable, or other peace officer, custom-house officer, prison
officer, sheriffs officer, or bailiff, or any person acting in aid of such officer, or
assaults any person, with intent to resist or prevent the lawful apprehension or detainer
of any person for any offence,
shall be liable to imprisonment for 5 years.

Section 60: Assault and other actions against police officers

(1)A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer
while in the execution of the officers duty, although no actual bodily harm is occasioned to
the officer, is liable to imprisonment for 5 years.
Section 322: threatening, intimidating or causing injury to witnesses, jurors, judicial
officers or public justice officials in connection with a judicial proceeding

Assaults on Law Enforcement

Officials
1.) What meaning was given to the words in the execution of
his or her duty by the Federal Court in Noordhof v Barlett?
2.) Does the accused need to know that the person assaulted
was a police officer acting in the execution of his or her duty?
What contrasting views on this issue did the court take in
Reynhoudt?
3.) How might He Kaw Teh affect the judgment in Reynhoudt?
4.) What does the prosecution need to establish to show that
an officer was intimidated by the conduct of the accused?
5.) Where a police officer arrests a person, does this qualify
the requirements of public justice official and in connection
with a judicial proceeding for the purposes of s 322?

Patterns of Victimisation
Under-reporting
Interpersonal violence as personal interaction
Two main types of interpersonal violence
Factors contributing to violence
Violence in licensed premises: in-house matters?
Differences between two main types of violence
Violence in Aboriginal communities
Dangers of soft policy/education approaches?

Domestic Violence
Statistics
Working-class vs petit bourgeois violence
Task Force on Domestic Violence (1981)
Crimes (Domestic Violence) Amendment Act 1982, 1983
Improvements
Limits/remaining problems

Crimes (Domestic and Personal Violence) Act

2007

Apprehended Domestic Violence Order (ADVO)

16 Court may make apprehended domestic violence order
(1)A court may, on application, make an apprehended domestic
violence order if it is satisfied on the balance of probabilities that a
person who has or has had a domestic relationship with another
person has reasonable grounds to fear and in fact fears:

(a) the commission by the other person of a personal violence

offence against the person, or

(b) the engagement of the other person in conduct in which the

other person:

(i) intimidates the person or a person with whom the

person has a domestic relationship, or

(ii) stalks the person,being conduct that, in the opinion of

the court, is sufficient to
warrant the making of the order.

Domestic Relationship
Section 5
Meaning of domestic relationship
For the purposes of this Act, a person has a "domestic relationship" with another
person if the person:

(a) is or has been married to the other person, or

(b) is or has been a de facto partner of that other person, or

(c) has or has had an intimate personal relationship with the other person,
whether or not the intimate relationship involves or has involved a relationship of a
sexual nature, or

(d) is living or has lived in the same household as the other person, or

(e) is living or has lived as a long-term resident in the same residential facility
as the other person and at the same time as the other person or

(f) has or has had a relationship involving his or her dependence on the
ongoing paid or unpaid care of the other person, or

(g) is or has been a relative of the other person, or

(h) in the case of an Aboriginal person or a Torres Strait Islander, is or has

been part of the extended family or kin of the other person according to the
Indigenous kinship system of the persons culture.

Crimes (Domestic and Personal Violence) Act

2007

Apprehended Personal Violence Order (APVO)

(1)A court may, on application, make an apprehended personal
violence order if it is satisfied on the balance of probabilities
that a person has reasonable grounds to fear and in fact
fears:

(a) the commission by the other person of a personal

violence offence against the person, or

(b) the engagement of the other person in conduct in which

the other person:

(i) intimidates the person, or

(ii) stalks the person, being conduct that, in the opinion of

the court, is sufficient to
warrant the making of the order.

Restrictions: s 35
(2) Without limiting the generality of subsection (1), an apprehended violence order made by a court
may impose any or all of the following prohibitions or restrictions:

(a) prohibiting or restricting approaches by the defendant to the protected person,

(b) prohibiting or restricting access by the defendant to any or all of the following:

(i) to any premises occupied by the protected person from time to time or to any
specified premises occupied by the protected person,

(ii) to any place where the protected person works from time to time or to any specified
place of work of the protected person,

(iii) to any specified premises or place frequented by the protected person,whether or

not the defendant has a legal or equitable interest in the premises or place,

(c) prohibiting or restricting the defendant from approaching the protected person, or any such
premises or place, within 12 hours of consuming intoxicating liquor or illicit drugs,

(d) prohibiting or restricting the possession of all or any specified firearms or prohibited
weapons (within the meaning of the Weapons Prohibition Act 1998) by the defendant,

(e) prohibiting the defendant from destroying or deliberately damaging or interfering with the
protected persons property,

(f) prohibiting or restricting specified behaviour by the defendant that might affect the protected
person.

Offence for Breach

14 Offence of contravening apprehended violence
order
(1) A person who knowingly contravenes a prohibition
or restriction specified in an apprehended violence
order made against the person is guilty of an offence.
Maximum penalty: Imprisonment for 2 years or 50
penalty units, or both.

Presumption Against Bail

Bail Act 2013

21 Special rule for offences for which there is a
right to release
(3) Each of the following offences under the Summary
Offences Act 1988 is an "excluded offence" :

(b) an offence under section 11A (violent disorder)

if the person has previously been convicted of an
offence under that section or of a personal violence
offence,

Stalking and Intimidation

13 Stalking or intimidation with intent to cause fear of physical
or mental harm

(1) A person who stalks or intimidates another person with the

intention of causing the other person to fear physical or mental harm is
guilty of an offence.

Maximum penalty: Imprisonment for 5 years or 50 penalty units, or

both

(2) For the purposes of this section, causing a person to fear physical
or mental harm includes causing the person to fear physical or mental
harm to another person with whom he or she has a domestic relationship.

(3) For the purposes of this section, a person intends to cause fear of
physical or mental harm if he or she knows that the conduct is likely to
cause fear in the other person.

(4) For the purposes of this section, the prosecution is not required to
prove that the person alleged to have been stalked or intimidated
actually feared physical or mental harm.

(5) A person who attempts to commit an offence against subsection

(1) is guilty of an offence against that subsection and is punishable as if
the offence attempted had been committed.