Laws+of+Assault

Common Law Assault
Common Law Assault is considered the least serious of all assaults, as it includes conduct without any contact, which causes the victim to apprehend the imminent application of force. It also includes contact which causes no injury.

There are two broad categories of common law assault - threat and force.

__Threat__ __Force__
 * Mens Rea**
 * The intention or recklessness to causing another to apprehend the imminent application of force.
 * The intention or recklessness to applying force to another

According to __R v Venna__ for recklessness to be adequately proven, it must be shown that the defendant to adverted to the possibility of causing the apprehension or harm to another. While __Campbell's case__ indicates that statutory assault will involve inadvertence to a probability, it seems that the better view is that common law assault only involves an advertence to a possibility.

__Threat__
 * Actus Reus**
 * Any conduct which induces in another an apprehension of imminent application of force.

__Force__
 * Any conduct which leads to the application of unlawful force to another.
 * Force must be unlawful, and thus any force applied by a police officer will be beyond criminal liability.

There is no requirement that an injury result from the conduct per __Collins v Wilcock__. Words alone can constitute assault. They must be viewed in context, and it must be asked whether they:
 * 1) created in the victim an apprehension of an imminent contact; and
 * 2) whether the apprehension of the victim was such that a reasonable person, in like circumstances, would have apprehended it.

According to __Barton v Armstrong__ the words must be uttered with an intention or recklessness to causing the victim an apprehension as to the imminent application of personal violence.

The test for whether or not the victim apprehended is in dispute:
 * __Ryan v Kuhl__ suggests that the test should be subjective and should look to whether or not the victim actually apprehended or feared.
 * However, __Barton v Armstrong__ suggests that the test should be partly objective, and the question asked should be whether or not an ordinary person in like circumstances would have been placed in apprehension.

Aggravated Assault
Aggravated assault is commonly referred to as statutory assault, and is incorporated under sections 16, 17 and 18 of the Crimes Act 1958 (Vic). These sections can be summarised as follows:
 * s16 relates to intentionally causing serious injury
 * s17 relates to recklessly causing serious injury
 * s18 relates to intentionally or recklessly causing injury

Aggravated assault is established where the defendant has intentionally or recklessly caused actual bodily harm or serious injury. Injury is defined under s15 of the Crimes Act 1958 (Vic) and includes "unconsciousness, hysteria, pain and any substantial impairment of bodily function". Serious injury consists of a combination of two of more of these effects.
 * Actus Reus**

According to __R v Clarence__ the term 'occassioning' or 'causing' has been construed narrowly to apply only to circumstances where there has been a direct or indirect application of force to the victim.

The mens rea required is an intention or recklessness to causing an injury to another per __R v Coulter__. However, for recklessness the defendant must have adverted to the probability of causing the requisite harm to the victim. This reflects the more grevious nature of the offence per R v Campbell and R v Westaway.
 * Mens Rea**

The defendant will not be guilty if they had a lawful excuse for committing the assault. However, if self-defence is raised, the amount of force must correspond with the amount of force used per R v Ryan.

Reckless Endangerment of Death
Reckless engagement of death and reckless endagerment of injury are covered under sections 22 and 23 of the Crimes Act 1958 (Vic). In determining recklessness a subjective test is used requiring that the defendant had the intention of engageing in the conduct that was reckless.

The second test is an objective test which requires proof beyond reasonable doubt that a reasonable person engaging in the very conduct that the defendant engaged in would have realised that he had or might have placed another in danger of death or injury.

In order to establish reckless endangerment, the prosecution must prove:
 * Elements**
 * 1) that the defendant engaged in conduct that a reasonable person in the defendant's position would realise placed or might place another in danger of death/serious injury;
 * 2) that the defendant did so without lawful excuse
 * 3) that the defendant foresaw or was reckless to the probably consequence of the conduct that another person would be killed

Negligence
Negligence is covered under section 24 of the Crimes Act 1958 (Vic) and arises where a person by a negligent act or omission causes serious injury to another.

In order to establish negligence, the prosecution must prove:
 * 1) that the defendant did or omitted to do something;
 * 2) that the act or omission was negligent; and
 * 3) that the act or omission caused serious injury to another.

Negligence has been held by courts to apply to situations in which if death had occurred the accused would have been guilty of manslaughter (i.e. the negligence msut involve a great falling short of the standard of care which a reasonable man would have excerised per R v Shields).

Consent
According to R v Schloss, there is a general rule that if someone consents to the application of force then no offence has been committed. However, the law does not allow persons to consent to infliction of actual, serious or grevious bodily harm.


 * Exceptions where consent applies:**
 * lawful sporting events (see McAveney's case and Pallante v Stadiums)
 * surgery
 * lawful chastisement (see R v Hopley)
 * sadomasichistic behaviour (see R v Brown)