Week 10 - Laucala Assaults and Injuries
Week 10 - Laucala Assaults and Injuries
Week 10 - Laucala Assaults and Injuries
Procedure I - 2022
Non Fatal offences against the person
Colvin and Malimali
Wednesday, 1st June 2022
Charlie and Isoa
Week 10
SO
• READ THE FACTS OF THE CASES THAT
YOU CITE OR REFER TO!!
1) Intention
2) Recklessness
3) Negligence
4) Knowledge
Involuntary Voluntary
Unlawful killing without Elements of murder are present
elements of murder • Eg causing death + Intent to cause
death
NOTE: Distinction has nothing to do with the ‘principle of voluntariness’ (i.e. the principle that
criminal liability can only be imposed for an act or omission directed by a conscious mind c/f a
seizure while driving which results in harm to a 3 rd party)
09/04/2023 Colvin and Malimali 14
Reminder on ‘act or omission’
• Most crimes are done by ‘commission’ of an
act
• An omission/failure to act will be a physical
element if:
– Law creating the offence makes it so; or
– It is implicit that there is a legal duty to perform an
act
– CA s17
Substantial
No Contribution?
Yes
Murder Was there a
suicide pact? Yes
Act with Settled
Was there a Was there a No intention of Yes
Yes Yes No dying?
Novus Actus? No sudden Act of
provocation?
No
Actual loss of Complicacy in
No self control? Suicide
Not Murder or
Manslaughter Yes
Would Ordinary
Person lose self
Yes Manslaughter
04/09/2023
09/04/2023 No Colvin and Malimali
control? 20
Lecture Overview
• Assault based offences
– Common assault
– Aggravated assault
• Direct v indirect force
• Assault and self-defence
• Consent to harm and mistaken belief in
consent
• Injury based offences
• Overlap of offences
24/03/2017 LW205 - 2017 21
Learning Outcomes
• At the successful completion of this Topic you will be able to:
– Demonstrate an understanding of the difference between assaults
involving threats and attempts and assaults involving the
application of actual force.
– Explain the mens rea and actus reus for assault and aggravated
assault.
– Identify the situations in which consent may be a defence to the
charge of assault and when the exceptions to the offence of assault
apply at common law.
– Explain the meaning of aggravated assault.
• Identify the offences that are aggravated assaults in the region
• Identify the offences that do not have assault as an element
– Explain the mens rea and actus rea for wounding, doing Grievous
Bodily Harm, Offences with intent to do GBH and Robbery.
If there has been an attack so that self-defence is reasonably necessary, it will be recognised that
a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If
the jury thought that that in a moment of unexpected anguish a person attacked had only done
what he honestly and instinctively thought necessary, that would be the most potent evidence
that only reasonable defensive action had been taken... the defence of self-defence, where the
evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what
the accused did was not by way of self-defence... The defence of self-defence either succeeds so
as to result in an acquittal or it is disproved, in which case as a defence it is rejected.
[35] In Zecevic v Director of Public Prosecutions [1987] HCA 26, the joint judgments of Wilson,
Dawson and Toohey JJ, following the Privy Council’s in Palmer at 831-832, recognised:
The question to be asked in the end is quite simple. It is whether the accused believed upon
reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief
and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the
matter, then he is entitled to an acquittal.
Issue
– Was she responding to an assault (was a condition for raising SD in NT)
– Code said must be a ‘present ability to effect the purpose’
Held
– Yes she was responding to an assault
– When does an assault occur? - “The reference…to ‘present ability’ means in this context, an ability, based on the
known facts as present at the time of the making of the threat, to effect a purpose at the time the purpose is to be
put into effect.”
– But was she responding to an assault when the offence occurred (he was sleeping! 2:1 yes.
– How long does it continue? - “an assault is a continuing one so long as the threat remains and the factors relevant to
the apparent ability to carry out the threat in the sense explained have not changed.”
Facts:
• The defendant caused disturbance to the people and police arrested him under the
Public Order Act 1936. However, the defendant struggled violently on his arrest and eventually,
fractured the hand of a police officer. Hence, he was convicted after following the direction to
the jury that recklessness in the use of force was considered to be sufficient to sustain a
conviction of assault.
Issue:
• The main issue in R v Venna (Henson George) [1975] 3 W.L.R. 737 is:
• The issue was if the reckless use of force could amount to the conviction of assault?
Held:
• Yes. Reckless use of force was sufficient to satisfy the element of Mens Rea in a criminal assault.
Reference:
[1976] Q.B. 421, [1975] 3 W.L.R. 737, [1975] 3 All E.R. 788
[1975] 7 WLUK 158, (1975) 61 Cr. App. R. 310, [1975] Crim. L.R. 701
(1975) 119 S.J. 679, [1975] C.L.Y. 504
76
R v Kiriau [2020] SBMC 12; Criminal Case 12 of
2020 (4 May 2020)
• Case Authorities
• The following are case authorities used to assist in pitching the appropriate starting point and
arriving at a proper and just sentence.
• In R v Ninamu[1], the Accused pleaded guilty to the charge of Domestic violence and physical
abuse against his own dear wife. He assaulted the victim by punching her left-side cheek and as
a result caused swollen and slight laceration. The particulars of the charge stated that he
grabbed the victim’s hair and dragged her around several times. He was sentenced to 8 months
imprisonment and suspended wholly for 2 years due to strong reconciliation by Reverend
Beckily Kahui and the physical appearance of the child and victim in Court to confirm the need
of the Accused in the family and forgiveness.
• In R v Foster[2], the accused assaulted his wife on two occasions. He pleaded guilty and was
sentenced to 6 months’ concurrent sentence to his other counts of Domestic violence and
intimidation. The accused used weapon to aid the assault on the victim. There was evidence of
reconciliation between his wife’s family and himself and that his wife desperately needs him
back in the family to support and care for their children. The court was tamed to accept that
principal of reintegration was appropriate to coincide with the need to impose deterrence
sentence.
• I wish to adopt the sentencing guidelines provided in a New Zealand case of R v Taueki[4] where O’regan
J, in delivering the judgment of the New Zealand Court of Appeal said at para [33], pp.383-384;
• “... (a) Domestic situation: the fact that violence occurs in a domestic situation should not be seen as
reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by
its very nature, one which is difficult to detect. It frequently involves violence by a man against a woman
or child, were vulnerability of the victim is a significant factor. (b) Victim’s plea: sometimes the victim of
a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence.
This provides something of a dilemma for a Court, but in our view the position is now clear that the
Court should not condone violent conduct even if the victim does so: there is a public interest at stake as
well as the interest of the victim: R v Clotworthy (1998) 15 CRNZ 651 at p659. That is not, however to
say that the views of the victim are to be ignored, rather it is simply to emphasize that the views of the
victim do not outweigh the public interest...”