1. Murder a. Actus i. Act or omission must have caused the death (s 18(1)(a) CA) b. Mens i. No punishment shall be incurred by person who kills by misfortune only (s 18(2)(b)) ii. Intention to kill or inflict GBH(s 18(1)(a)) 1. Requirement that D has actual awareness of consequences of actions (Aiton) 2. Subjective test: Conscious purpose, decision not desire (Hyam) 3. Foresight of certainty (Woollin) 4. Knowledge of chance of consequences fulfils malice requirement (Coleman); transferred malice (intent to kill some1 else) 5. “Grievous bodily harm” includes(s 4):
(a) the destruction of foetus, 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 (causing a person to contract a grievous bodily disease). iii. Reckless indifference to human life(s 18(1)(a)) 1. Act or omission must be malicious and without lawful cause/excuse (s 18(2)(a)) 2. ProbabilityNOT possibility of death or GBH required(Crabbe) a. Probability = likely, a real and substantial risk (Boughey), in that it could well have happened as a result of the act (Darkan) b.
Not indifference as to consequences; but knowledge that those consequences will probably occur c. Not a remote chance (Annakin) 3. Wilful blindness has no role to play in murder, the question is if D had actual knowledge or foresight of the probability of death/GBH, imputed knowledge is not enough (Crabbe) – subjective test! 4. Reckless indifference to GBH and not death issue amounts to manslaughter rather than murder (Solomon) iv. So long as one of the mental states for murder was present, irrelevant that the accursed did not intend the precise way in which death actually occurred (Royall) c. Penalty i.
Life imprisonment (s 19A(1)); natural life (s 19A(2)) 1. If court is satisfied that level of culpability is so extreme that community interest in retribution, punishment, community protection and deterrence can only be met through that sentence (s 61 CSPA) ii. Imprisonment for specified term can be imposed otherwise (s 21(1) CSPA) 2. Suicide a. Not a criminal offence to attempt suicide (s 31A CA) b. Offence to aid or abet suicide (s 31C(1)) 3. Euthanasia a. help bring about their death = murder/aiding or abetting suicide- 10 yrs imprisonment.
(s 31C(1)) 4. Protecting the foetus a. Foetus i. Right of pregnant women to choose whether to undergo medical treatment outweighs foetus’ need for treatment (St George’s Healthcare) ii. Abortion: offence to perform act with intent to procure miscarriage, unless therapeutic (ss 82-84 CA) iii. Violence to foetus causing death in utero (King) 1. Not murder or manslaughter 2. Death of foetus = GBH to pregnant woman (s 4 CA) b. Child – ‘alive’ i. Definition: 1. Murder: child is held to be alive if it has breathed, independent circulation and been wholly born into the world (s 20).
2. Manslaughter: any sign of life after delivery (Iby) ii. Child born alive but dying due to earlier violence can constitute criminal homicide and causing death by dangerous driving (Case of F) iii. GBH to child during /after delivery (s 42) iv. Wilfully contributing to a child’s death during/after delivery – alternative to murder (s 21) 5. Constructive Murder a. Actus i. Act or omission causing death is done in an attempt to commit, or during/immediately after commission, by accused/with accomplice,of a crime punishable by imprisonment for life or 25 years (s 18(1)(a) CA) ii.
Acts done in furtherance of/associated with purpose of committing felony (Mraz) iii. Base offence: 1. Felonious conduct must involve violence or danger to some person (Ryan) 2. Example s 98 CA: robbery with arms and wounding b. Mens i. No intent to murder ii. Guilty mind must coincides with substantial act, but need not coincide with final act, e. g. walking around with loaded gun (Ryan) iii. Death may be an accident; but act causing death must still be voluntary (Ryan) 1. Need not prove that D realised death/other consequence could result, or that RP could have appreciated any such risk (Munro).
iv. Require consequential accident AND involuntary act to contest constructive murder (Ryan) c. Causation i. Close connection necessary, but no strict causal link required (Munro) ii. Injuries must be an operative and substantially contributing cause of death iii. Time dimension on case by case basis(Elliott) 6. Involuntary Manslaughter a. Every other punishable homicide shall be taken to be manslaughter (s 18 (1)(b) CA) b. No absolute liability if death is caused, depends on what RP in D’s position would have expected c. No need to prove malice (Lavender) d. Objective test: Reasonable person.
i. Reasonable person has characteristics of D and knowledge of D of surrounding & ordinary fortitude of strength of mind (Lavender) ii. Excludes emotional, mental state or anything personal affecting reasoning/judgement (Wills) iii. Subjective beliefs are irrelevant (Lavender) e. Manslaughter by an unlawful act i. Actus: 1. Unlawful act, not omissione. g. child neglect (Lower) a. Direct contact not necessary,t5r still liable if injury occurred as an immediate result of D’s act without a fresh intervening cause (Mitchell) b. Includes: injection with unlawfully possessed drug (Cato) i.
Administering drug must be ‘direct act’ for manslaughter (Dalby) c. Excludes: self defence(Cornelissen), natural mistake (Lamb) d. Motor vehicle accident only unlawful where vehicle used as weapon, otherwise criminal negligence (Pullman) 2. Need distinct offence, tort/contract/other civil wrong not enough (Wilson) ii. Objective test 1. Dangerous act: RP in D’s position should have realised that the act carried with it an appreciable risk of serious injury (Wilson) 2. Intention to do an unlawful thing, need not be directed at ultimate victim (A-G’s Reference (No 3)) f. Manslaughter by criminal negligence.
i. Actus: Negligence is of a degree high enough to warrant criminal punishment: 1. Conscious and voluntary act omission causes death; ii. Objective test: falls ‘short of the standard of care which a RP would have exercised, and which involved such a high risk of death or GBH (Nydam) 1. Need not prove act was unlawful iii. Duty in negligence (BRD): Duty of care, breach through act/omission, causation(Sood) 1. Duty exists even where there was joint unlawful activity (Wacker) iv. Defence of HRMF is not available (Lavender) g. Penalty h. 25 years imprisonment (s 24) 7. Deaths on the road: a.
Death by culpable driving (s 52A CA) (1) Dangerous driving occasioning death (10 years) (a) intoxicated, or (b) speeding, or (c) driving dangerously. (2) Aggravated dangerous driving occasioning death (14 years) (3) Dangerous driving occasioning GBH – as above (7 years) (4) Aggravated dangerous driving occasioning GBH (11 years) b. Negligent driving causing death/GBH (s 42 Road Transport Act) 8. Homicide by omission a. Actus: Failure to act i. @CL there must be a duty to act(Instan) ii. No duty where victim is capable of taking care of themselves (Russell) b. Duty to act: i.
Special relationship(Russell)e.g. parental, but not husband – wife ii. Legal duty created by undertaking – contract iii. Voluntary assumption (VA) of responsibility 1. Possible VA where there is someattempt to care (Stone and Dobinson) 2. Where person secludes helpless person, preventing others from getting aid (Taktak) iv. Control over a dangerous thing v. Duty imposed by statute 9. Causation for proving actus in homicide a. General rules i. Must be a cause, not necessarily the cause (Royall) ii. Must have a temporal nexus between the act and death(Royall) b. Tests for causation i. Substantial contribution 1.
Whether an act/omission consciously performed is so connected that it had a sufficiently substantial causal effect, which subsisted up till the event and was not sufficiently interrupted by another act/event. (Hallett) a. Chain of causation only broken by extraordinary events, e. g. earthquake ii. Natural consequence test(Royall) 1. Whether V’s act/death could reasonably have been foreseen as a natural consequence of D’s act(Roberts in Royall) 2. E. g. D’s conduct induces in V a well-founded apprehension of physical harm, then V gets injured in the course of escaping (Royall) iii. Reasonable foreseeability test.
1. Harm must be foreseeable, not the way that the harm occurred (Royall) iv. Operating and substantial cause test 1. Where there is more than one potential cause of death, original injuries inflicted must be continuing, operating, substantial causes of V’s death(Smith) c. Medical treatment cases breaking causal chain i. Thoroughly bad treatment (Smith) 1. Only reckless (not negligent) med-treatment will break chain of causation (Cheshire) 2. Where brain stops working, dr will not be guilty of homicide for withdrawing life support because V is technically dead before removal (s 33 Tissue Act) ii.
Palpably wrong treatment (Jordan) iii. Liability on medical profession: generally if hasten death, responsible in law for causing it (Dyson) iv. Patient’s wishes 1. Adult of sound mind can refuse medical treatment (St George’s NHS Trust v S) 2. Dr guilty of battery if insists on treating patient against wishes, unless a court acting in its parenspatriaejuris authorises it (Royal Alexandra Hospital v Joseph) 3. Dr guilty of murder if dr removes life support from competent patient who wished to continue treatment (R(Burke) v General Medical Council) d. Pre-existing condition – take victim as you find them (Blaue) e.
Fright and flight cases – novusactusinterveniens i. Reasonable foreseeability (Paggetts) 1. Act of a 3rd party causing death, even if done in self-defence from original aggressor, death will not be imputed to original aggressor as it is too remote(Paggett) ii. Reasonable and proportionate test 1. Jury to determine if V’s response was reasonable/proportionate in the circumstances (RIK) 10. Voluntary manslaughter a. Met mens for murder, but mitigating factors limit culpability b. Provocation, substantial impairment, intoxication, excessive self defence, infanticide Defences 1. Burden of proof a. Defence with evidential burden.
i. Evidential burden on D to prove defence elements ii. Judge decides whether issue is left to the jury based on reasonable possibility iii. Persuasive burden on P to prove BRD to the jury iv. Includes – non-insane automatism, provocation, intoxication, self-defence, duress, necessity b. Affirmative defence i. Persuasive burden on D on the BOP: insanity, substantial impairment, insane automatism ii. Burden on P who raises insanity is BOP(Ayoub) 2. Justifications and excuses – reasoning a. Offence is satisfied but challenge wrongfulness/attribution of the act b. Harm caused outweighs harm prevented 3.
Mental illness: Insanity defence a. M’Naghten test i. At the time of act, D was labouring under such a defect of reason, from disease of the mind as to not know: 1. The nature and quality of the act he was doing 2. Or that what he was doing was wrong b. Defect of reason i. Defect must be cognitive – prevent D from knowing what is wrong, does not cover feelings ii. Defence not available for volitional defects e. g. impulses (Sodeman) iii. Psychopaths/sociopaths not covered – not cognitive defect, emotional defect(Willgoss) iv. D thought there was good reason for killing due to mental illness (Jones) c.
Disease of the mind i. Presumption of soundness of mind to be criminally responsible (Porter) ii. D not of sound mind when act was done iii. State of mind must be one of disease, disorder or disturbance rather than stupidity/lack of self control (Cheatham) iv. Uncertain if intellectual disability d. Nature and quality of the act i. Intention to kill, but little capacity to understand nature of killing (Cheatham) e. Wrongness i. Stapleton ii. Know he was killing & why killing, but unable to appreciate wrongness (Cheatham) iii. ‘Wrong’ having regard to everyday standards of reasonable people iv.
Mere difficulty with reasoning processing too low of a standard, must be unable to appreciate or incapable (Cheatham) f. Special verdict: not guilty for mental illness(s 38 MHCPA) i. Detained in custody for indeterminate period, as the court thinks fit(s 39 MHCPA) 4. 5. 6. 7. ii. No appeal available after receiving special verdict (Logan) iii. However, if convicted, may appeal to the CCA (s 5(2) CAA) Fitness to plead a. D will be unfit to stand trial if incapable of understanding nature/purpose of proceeding, or incapable of community with the court (Presser) b.
Minimum standard for trial – to understand what he is charged with, plead to the charge, exercise right to challenge, understand general nature of proceedings, let counsel know his version of the story (Presser) c. Issue of unfitness may be raised by either party, proven on BOP (no party bears onus), should be raised before the trial, but can occur during proceedings (Pt 2 MHCPA) d. Matter decided by judge/jury; court refers D to the Mental Health Review Tribunal Forensic patients a. Patients who are (ss 97, 98 MHA): i. Unfit to be tried ii. Not guilty by reason of mental illness iii. Transferred from general prison due to mental illness.
b. Inspected every 6 months by Tribunal (ss 80-83 MHA) c. Released: person no longer mentally ill and no longer require hospital detention i. AG can refuse on ground of insufficient time in custody (s 84 MHA) via discretionary powers of public scrutiny (Hayes et al) d. Summary proceedings i. Mag may adjourn if D is mentally ill (s 33 MHA) or suffering from mental condition (s 32) Civil proceedings for involuntary committal a. No criminal offence, involuntarily committed to hospital or self-protection/protection of others b. Act of last resort when no other care is appropriate(s 20 MHA) c.
Appeal made to Tribunal Insane and non-insane automatism a. Automatism: Act done by the muscles without control by the mind(Bratty) i. Can be raised with insanity (Falconer) b. Sane automatism is where involuntary act does not proceed from disease of mind (Bratty) c. Insane automatism is where involuntary act proceeds from disease of mind. d. Test: Is there a disease of the mind? (Falconer): i. Prone to recur (not transitory)= disease of the mind ii. Arising from external cause = not disease 1. Reaction of mind to own delusions/external stimuli = suggests disease e. Not involuntary act because: i.
Doer does not remember (Hill v Baxter) ii. Doer could not control impulse (Brown) iii. Unintentional, or consequences are unforeseen (Hill v Baxter) f. Causes i. Insane -Special verdict(Judge may leave insanity to jury even if D does not want to) 1. Hyperglyceamia: Failure to take insulin – no external factor (Hennessy) 2. Epilepsy: recovering from seizure (Sullivan) 3. Sleepwalking: Abnormality of mind (internal); transitory but can recur (Burgess) ii. Non-insane – COMPLETE DEFENCE 1. Concussion in sport: Falconer test, question of involuntariness left to jury(Wogandt) 2. Intoxication & drugs (O’Connor).
3. Hypoglycaemia: taking insulin – external factor (Quick) 4. Psychological trauma from prolonged abuse (Falconer) 5. Sleepwalking: not a neurological illness but a sleep disorder (Jiminez, Parks) 6. Dissociation (post traumatic stress disorder) (Donyadideh) g. Voluntariness and psychiatric evidence i. Evidence indicating disease of the mind cannot support automatism, used to prove insanity (Falconer) ii. Where insanity is not raised, psychiatric evidence of mental disease is not admissible on question of voluntariness(Hawkins) 8. Substantial Impairment (Partial defence) a. s 23A CA i.
At the time of the killing there was substantial impairment of D’s capacity to: 1. understand events 2. judge whether decisions were right or wrong or 3. control him/herself ii. Impairment was due to abnormality of mind arising from underlying condition iii. Impairment so substantial as to warrant reducing murder to manslaughter iv. Effect on D was not result of self-induced intoxication b. Abnormality of the mind i. State of mind so different that ordinary human being consider abnormal (Byrne) ii. Question is if abnormality substantially impaired D’s mental responsibility; jury can consider medical evidence, acts/statements of D, demeanour.
iii. Affecting: 1. Perception of physical acts and matters 2. Ability to exercise rational judgement as to whether an act is wrong or right 3. Ability to exercise will power to control physical acts in accordance with rational judgement c. Underlying condition i. Pre-existing, not transitory ii. Silent on requirement for medical evidence; not usually admissible – only if relevant to capacity to understand events/self-induced intoxication iii. E. g schizophrenia, depression, psychopathy d. Causes: Biology, gender, responsibility – women & PMS, men & testosterone? e. Sentencing i.
Substitutes manslaughter for murder(s 23A(5)) ii. Longer sentence, judges view them as being incapable of being cured (Veen) iii. Consideration of protection of society balanced with culpability 9. Infanticide (Alternative verdict, partial defence) a. s 22A CA i. Wilful act or omission causing death of child < 12 mths; mind disturbed by reason of not having fully recovered from giving birth(s 22A(1) CA) ii. Does not affect power of jury to give murder (or insanity defence) (s 22A(3) CA) b. Alternative verdict to murder; sometimes obtained by way of plea of guilty rather than jury verdict 10. Intoxication a.
Negativing factor, complete defence to crimes of SPECIFC INTENT (bar murder; partial) b. Cannot be used for other offences, but may be considered if NOT SELF-INDUCED (s 428D) c. s 428A: Self induced intoxication: not involuntary, intoxicated as a result of fraud, extraordinary emergency, accident, duress or force, medical purposes d. s 428B(1): Offence of specific intent: intention to cause specific result e. Pt 11A Crimes Act i. ACTUS REUS – voluntariness 1. s 428G(1): NOT SELF-INDUCED intoxication can determine voluntariness 2. s 428G(2): If conduct resulted from NOT SI intoxication, not criminally responsible a.
Simply having reduced ability to control actions is not an excuse (Kingston) b. Determine causation: ‘common sense’ test (March) – not but for test ii. MENS REA – specific intent/ basic intent to cause specific result necessary for crime 1. s 428C: Evidence of intoxication (SELF-INDUCED or otherwise) may be taken into account to determine if there was specific intent, except if: a. D resolved to do act before being intoxicated b. Become intoxicated to strengthen their resolve 2. s 428D: Evidence of NOT SELF-INDUCED intoxication may be taken to determine mens rea in offence other than specific intent.
3. s 428E: Evidence of NOT SELF-INDUCED intoxication can be used to determine mens rea for manslaughter (no specific intent) 4. s 428F:RPis NOT intoxicated iii. Specific intent: ALL murder even where murder is based on reckless indifference (Grant) iv. Jury must ask whether D had the capacity to form intent & formed the intent (Makisi) v. Lesser offences:Malicious wounding with intent to cause GBH (s 33): SELFINDUCEDintoxication relevant to intention to cause GBH, but NOT malicious-ness 11. Provocation (Partial defence) a. Reduces liability for murder to manslaughter (s 23(1)).
b. Burden: Evidential burden on D; P to prove BRD that conduct did not cause provocation (s 23(4)) CA) c. Elements i. Provoking circumstance, that induces ordinary person to form intent to kill (s 23 CA) 1. Words alone: must be inflammatory in context, not necessarily an insult(Lees) 2. Within sight or hearing:yes; s 23(2)does not expressly require conduct to occur in D’s presence, but legislature did not intend to change CL position (Davis) 3. Self-induced: not available where D invited/induced provocation (Edwards) ii. Two tiered gravity &self control test (Stingel): 1.
Subj test: D must have lost self control (s 23(2)(a) CA) a. Gravity/offensiveness of provocation to OP with D’s characteristics b. Ordinary person (OP) has all the relevant circumstances: i. Gender+ Battered woman’s syndrome(Osland) ii. History with V (Masciantonio) iii. Intoxication (Croft) iv. Age (Stingel) v. Ethnicity(Masciantonio) vi. Mental deficiency(Luc ThietThuan) vii. Depression (Smith) viii. Sensitivity to sexual assault: homosexual advance(Green) c. Time factor:V’s conduct at any time may form basis for provocation, must still draw distinction between provocation and planned (Chhay), 2.
Obj test: Could an OP have lost self-control to the same extent as D(s 23(2)(b)) a. OP: Includes person’s age if infant, young adult/late teens (Stingel) b. Excludes sex, other particular attributes of D (Stingel) 12. Self defence (SD) a. SD available when(s 418): i. Subj: D believes conduct necessary to: 1. Defend self or other 2. Prevent unlawful deprivation of liberty 3. Protect property 4. Prevent criminal trespass ii. Subj/Obj: AND conduct is reasonable response in circumstances as he or she perceives them 1. Unclear of intoxication should be taken into account (Conlon: yes /Katarzynski: no) 2.
Unreasonable where there is no nexus between offence an threat (Burgess) iii. COMPLETE DEFENCE (s 418(1)): which prosecution must negative (s 419) b. SD for intentional or reckless infliction of death: i. Does not apply to conduct to protect property/ prevent trespass (s 420) ii. Applies to conduct NOT reasonablein circumstances as he or she perceives them but D believed to be necessary to defend self/other or prevent deprivation of liberty(s 421) 1. PARTIAL DEFENCE: reduces murder to manslaughter c. SD is NOT excluded merely because(s 422): i. Conduct that D responded to is lawful ii.
Other person was not criminally responsible for conduct to which D responded d. Battered woman syndrome i. Evidence of BWS to contextualise act of retaliation is admissible (Kelly); both tests (Osland) ii. Expert evidence assists ordinary person in understanding position of battered wife (Lavallee) iii. Applicable in AU, evidence admitted to support duress but also provocation & SD (Runjanjic) 13. Necessity a. COMPLETE CL Defence b. 3 elements at CL(Loughnan) i. Irreparable harm ii. Belief on reasonable grounds of imminent peril (subjective) 1. Strong enough pressure to break law? – imminence, immediacy (Quayle) 2.
Actual or apparent danger iii. Proportionality between act done to avoid peril and peril avoided (objective) 1. Necessary Response – proportionality, alternatives? 2. Inevitable that something specific is bound to happen or which could not have otherwise been avoided (Limbo v Little) 3. Origins: higher duty to die than to kill an innocent person (Dudley) 4. Homeless & hunger is not a defence to squat (Southwark Lounden Borough) 5. Insufficient evidence to support necessity of prison escape (Dawson) iv. 4th element added in Vic: Action must have effect or remove peril (Dixon-Jenkins) c.
Available for strict liability offences e. g. criminal negligence in driving(White) d. Medical necessity e. g. drugs for pain i. Require of imminence and immediacy not met by internal motivation to engage in prohibited activities to prevent medical or alleviate pain (Quayle UK) ii. Prohibition on medical exemptions violates right to liberty (Parker Canada) iii. Successful necessity defences for use of cannabis in USA (Jenks) e. Political protest: rarely successful, requires evidence of imminent peril (Dixon-Jenkins) f.
Abortion: only area where necessity is raised successfully i.s 82 CA: woman who acts with intention to procure own miscarriage, 10 years ii. s 83: crime to unlawfully procure miscarriage of pregnant woman, 10 years iii. s 84: supplier of drugs intended for abortion, 5 years iv. Common law test 1. Wald Test: necessary to avoid serious danger to life or phys/mental health a. Can look to economic, social and medical conditions 2. Danger of abortion was not out of proportion to danger averted(YACS) 14. Duress a. CL defence: scope & application vague; murder excluded (Howe) b. Onus on crown to prove acts were voluntary to eliminate possibility of duress (Abusafiah) c.
Threatened harm i. D did act under threat of death, GBH (Hurley)or serious bodily violence (Lawrence) d. Person of ordinary firmness i. Person of ordinary firmness, age + sex, in like circumstance was likely to yield to the threat the way that D did (Lawrence) ii. Objective test: person of ‘ordinary firmness of mind’ (Abusafiah) e. Present & continuing threat i. Threat was present, continuing, imminent & impending (Hudson) ii. No duress where opportunity to request protection from police iii. No duress where D voluntarily joins a criminal enterprise (Palazoff in Hudson) iv.
Criticises leniency, D should be expected to take reasonable steps to avoid crime (Hasan) f. Belief as to nature of threat: D reasonably apprehended that threat would be carried out (Hurley) g. D had no means of safety to himself of preventing execution of threat (Hurley) h. Evidence of battered women’s syndrome relevant to question of whether wills of appellants were overborne (Runjanjic) Assault 1. Definitions: a. Assault is fear or apprehension of immediate/unlawful contact (Darby) b. Battery: Actual application of force without consent, lawful excuse or justification 2. Elements a. Actus Reus i.
Application of force or act causing V to apprehend immediate infliction of force (Knight) ii. Depends on circumstances (Barton) iii. Immediate fear, once instilled, may be ringing presently in one’s ears as a continuing threat without necessity for repetition (Zanker) iv. Unlawful imprisonment: not assault unless the fear induced would have impeded V’s ability to escape until a confrontation had occurred (Zanker) v. Mere words/silence 1. Telephone threats: Mere words may constitutes assault although V does not know when physical violence may occur (Barton) 2. Silent caller: if intention by silence is to cause fear, assault (Ireland) vi.
Small force e. g. spitting(JWH) 1. Assault cannot occur until V is aware of actions 2. Battery is infliction of force, extent irrelevant unless in ordinary social context 3. Touching clothes is touching person vii. Omission and coincidence of AR and MR(Fagan) 1. Assault requires an intentional act, mere omission insufficient, unless it was part of continuing act and intention 2. Elements of AR and MR must be present at the same time, but one may be superimposed on the other b. Mens Rea(MacPherson) i. Intent to effect unlawful contact or create an apprehension of imminent unlawful contact in the mind ii.
Recklessness can give rise to assault, does not need foresight of dangerous consequences, but a highly blameworthy degree of inadvertence to consequences iii. One cannot do something without caring about the consequences if he did not direct his mind to the consequences 3. Consent to harm a. Consent is material i. Prize fighting, sparring, boxing, contact sports, surgery, lawful correction, dangerous pastimes, rough horseplay, prostitution, fighting (Brown) ii. Branding, like tattooing between husband and wife in privacy of home (Wilson) iii. Suffering of horrendous burns – consensual act of horseplay (Aitken) iv.
Sexual risk taking in Emmet– can go well beyond the line beyond which consent becomes immaterial and should be distinguished from Wilson b. Consent is immaterial i. Right to have private life without interference from public authority, unless in the interests of national security, public safety, economic well-being of country, prevention of disorder or crime, protection of health or morals, protection of rights and freedoms of others(EHRC) ii. Beating with such a degree of violence that the infliction of bodily harm is probable (Brown) iii. Society entitled/bound to protect itself against violence, cruelty is not legitimised by consent iv.
Hostility not an essential element of unlawful battery c. Consent to medical treatment i. Medical/surgical treatment only lawful where consented by patient or emergent conditions procurement of consent impractical (Richardson) ii. Informed consent: consent given freely after explanation of basic nature/risk of procedure iii. Only mistake as to nature of act or identity of person doing it vitiates consent iv. Female Genital Mutilation (s 45CA) 1. Excise, infibulate or otherwise mutilate labia/clitoris of another, unless necessary for medical welfare, 7 yrs 2. Consent is not a defence 4. Acceptable violence a.
Chastisement of children i. @CL parents can use reasonable, moderate force ii. Defence of lawful correction (s 61AA CA) 1. Force must be reasonable, having regard to age, health, maturity, characteristics of child and nature of misbehaviour 2. Force must not be applied to head or neck and must only last for a short period b. Violence in sport i. Players deemed to consent to force which could be reasonably expected (Billinghurst) ii. Only unreasonable infringement of rules involving contact is a crim offence(Re Jewell) iii. No consent to malicious use of violence/recklessly causing GBH (Stanley) 5. Common assault a.
Not occasioning actual bodily harm (s 61 CA); summarily (12 mths, 20 p. u) or upon indictment (2 yrs) 6. Aggravated assault a. Likely to be dealt with on indictment b. Causing a particular injury: no proof of further or specific intent required (Percali) i. Actual bodily harm (ABH)(s 59 CA)- 5 yrs, 7 yrs in company 1. Harm calculated to interfere with health or comfort of V, need not be permanent but must be greater than mere transient or trifling (Donovan) 2. Includes psychiatric injury, but not mere emotions e. g. fear, distress, panic, nervous shock, or states of mind not clinically identifiable(Chan-Fook) ii.
Reckless Grievous bodily harm (GBH)(s 35 CA)–10 yrs, 14 in company 1. Must be more serious than wounding, e. g. breaking bone, organ damage 2. Includes serious, permanent disfiguring, destroying foetus, causing person to contract grievous bodily disease (s 4 CA) iii. Reckless Wounding(s 35 CA) – 7 yrs, 10 in company 1. Incision or puncture of dermis; breaking of epidermis, outer layer not sufficient (Shepherd) 2. Can be inflicted by fist, weapon or instrument iv. Negligent infliction of GBH, 2 yrs (s 54 CA) – degree of negligence is gross/criminal (D) c. Specific intent i.
Assault with intent to commit murder 1. Poison, wounding, GBH, 25 years (s 27 CA) 2. Shoots, loaded arms, drown, suffocate, strangle, 25 years (s 29) ii. Assault with intent to do GBH or resist lawful arrest 1. Wounds/causes GBH with intent to cause GBH, wound, resist arrest, 25 years (s 33) 2. Discharge firearm with intent to cause GBH, or resist arrest, 25 years (s 33A) 3. Use or possess weapon to resist arrest, threatens injury with intent to commit indictable offence or hinder detention of himself or another person, 12 years (s 32A) iii. Assault with intent to commit other indictable offence 1.
Attempts to choke, suffocate or strangle, 25 yrs (s 37) 2. Administers intoxicating s