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NSW Common Assault - Common Defences?

Discussion in 'Criminal Law Forum' started by Steve500, 11 June 2015.

  1. Steve500

    Steve500 Well-Known Member

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    When someone pleads "not guilty" to a criminal matter eg Common Assault, Assault to cause grevious bodily harm, is provocation or diminished responsibility common?

    Is there a difference between provocation and diminished responsibility if anyone knows? Or other defences like intoxication or stress (e.g, suffered spousal abuse and a wife hits her husband and breaks his nose in a verbal argument, but claims she has suffered years of domestic violence and abuse (assault and battery) both verbal and physical).

    If the other party is found to have provoked the assault, can they then be found guilty of "Provocation" and get a criminal record, or a jail sentence?

    Just trying to understand the elements of criminal law within the NSW Crimes Act, or any other State or Territory in Australia.
     
  2. Sarah J

    Sarah J Well-Known Member

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    Hi Steve500,

    Assault in domestic violence situations are different from common assault matters (e.g. bar fight). It also depends on whether the assault is pursued as a criminal offence (in which case, the defences are limited to statute) or civil action (defences are determined by case law).

    I assume you're asking about provocation and diminished responsibility in the context of criminal law.

    The partial defence of "diminished responsibility" appears to have been replaced in NSW. It seems to have been substituted by "substantial impairment" under section 23A of the Crimes Act 1990 (NSW), which is more narrow in scope and has a higher threshold. It is applicable at trial (cf. sentencing) to reduce an offence that resulted in death or serious injury. To satisfy this, the defendant needs to show: (i) there is an underlying condition (e.g. mental illness), (ii) which the defendant was suffering from at the time (e.g. suffering from an episode of schizophrenia), and (iii) the underlying condition is substantial enough to justify a reduction in liability from murder to manslaughter.

    Provocation is found under section 21A of the Crimes (Sentencing Procedure) Act 1990 (NSW). It works like a "partial defence" however, it is actually one of many mitigating factors when it comes to considering what sentence to give a defendant convicted of an offence (not just an offence that results in death or serious injury). It does not reduce the offence, or counter a conviction, but merely justifies a lower sentence. A victim cannot be convicted of provocation (especially in domestic violence matters, you should NEVER victim blame in court, this will not be received well), just like how a bar tender cannot be convicted of serving someone alcohol leading to the mitigating factor of intoxication in an offender.

    ...

    Intoxication (not self-induced intoxication) may be a mitigating factor when it comes to sentencing and may be taken into account as evidence in lowering the mental element (intention, recklessness etc) of the offence under section 428D of the Crimes Act 1990. For offences involving the element of intent, intoxication (including self-induced intoxication) can be a defence to intention (i.e. used to show that the offender possessed no intention to commit the offence) under section 428C of the Crimes Act 1990.
     
  3. Sarah J

    Sarah J Well-Known Member

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    Stress is not a mitigating factor.
     
  4. Steve500

    Steve500 Well-Known Member

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    Sarah J

    A good summary, it covered alot of ground and various mitigating-circumstances. With provocation, you bring up some good points, but I wonder on face-value, and this is all face value, what if the accused hits the victim (eg workplace bullying there boss), when they were haveing a heated verbal argument, as the Accused had suffered years eg 2-3 years of workplace bullying and intimidation and relationship breakdown with there boss, and lashes out after being teased by them and pushed to breaking-point eg that may fall under Section 23A in NSW. Or of a man gets into a bar fight and hits someone at a bar who was verbally abusing his wife to a high level of abuse and for a long period of time eg 20-minutes or more, but he nor the victim were affected by alcohol just bushed to breaking-point or stressed or traumitised etc.
    Or if a homeless person gets into a fight with another person who say breaks a promise to help them or is abused.
    A few curly questions and thoughts, but a good summary you provide, thank you.
     
  5. Sarah J

    Sarah J Well-Known Member

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    Hi Steve500,

    Once the elements of assault (as defined in statute or case law) are present, there will be assault. If the police and victim decide to pursue the matter, then there will most likely be a conviction of assault, unless self-defence can be made out.

    In instances where the boss bullies an employee to breaking point and the employee ends up hitting the boss (an action constituting assault), then chances are, the police will not wish to pursue the matter further given the circumstances, or the boss may not wish to have their dirty laundry aired in public court and so will refuse to be a witness to the trial. So chances are, it will not proceed to trial. But if it does, and the elements of assault are proven, the employee will unlikely get out of a conviction. The surrounding circumstances will be considered. However, they will be considered after a conviction, at sentencing, as mitigating factors. Therefore, the employee may get a light sentence, such as a reprimand.

    In the examples you raise, in none of the circumstances does it actually justify one person hitting another. While unfortunately this does happen often in real life, one person gets mad and uses force against another, the "lawful" thing to do is to actually walk away. The employee could report the abuse and try and stop the bullying before it gets to a point of physical violence. The man at the bar could try and remove him and his wife some the verbal abuse of another. The homeless man who is abused could report to the police. Verbal abuse, taunting and harsh words hardly justify violence. In court, the judge will ask "was violence really necessary?" "was the act really an involuntary response to the situation or was it intentional?"
     
  6. Steve500

    Steve500 Well-Known Member

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    Sarah J - Good summary. I'll tell you about a story, if you or anyone else can be bothered answering it, about a situation that potentially may of potentially got very sad/disturbing and ugly along time ago(10years ago), but thankfully it didn't escalate. But I've always wondered what would have been the result, had it escalated legally.

    At a bus stop in Sydney, on a nice day, nothing doing, a man and his young daughter aged 2-4, were standing at a bus stop minding there own business, when out of nowhere a drunk fairly old man (60-65) approached them. Was normally dressed, but I'd seen him around as I used to live in that area, he always looked normal, probably a homeless man but I suspected he was unemployed/or on a pension, or no fixed address(maybe living in a boarding house) and had problems with alcohol(could of been an alcoholic or had a drinking problem as I'd seen him drinking at bus stops/park benches etc, but always normally groomed and dressed smart casual eg jeans/clean shirt and washed not dirty etc). Anyway he walked past, and either he thought the little girl got in his way, or he for whatever reason lost it at her and starting verbally abusing her unprovoked, I will say highly agressively "lost the plot" to almost deranged if not possibly deranged levels. The dad was caught "completley off guard", the girl was frozen and crying, the dad was intimidated may if said leave her alone or just said okay mate, all this happened in front of shocked by-standers". I like the dad had immediate concerns for the girls safety, but were both caught off-guard, nervous didn't know how to respond. In a instant, I considered attacking the "old man" and hitting him from behind eg(a swinging arm), I was disturbed and emotional by what I saw,and had concerns for the child's safety.

    But I refrained fearing I would either get hurt by attacking the man, as he was the same size as me and in an angry mood, or even if i hurt him and he hurts me, will we both be charged with assualt, or what if I hit him from behind will i get charged with "murder or manslaughter" if he dies and found guilty of either, knowing if that were to happen my defence would have to be I was concerned about the "personal safety of the child". All this happened so fast i had 30seconds to respond, as the incident went for about 1 minute max. The man then in an angry mood, then lied down on the grass as it was next to a park, and was rolling around angry and I think emotionally disturbed/shocked/upset by what he had done to this "child". Then the (dad+child), me and everyone else got on the bus, and that was that, the end.

    But yep I have wondered what my defence would be if that had happened and I'd hypothetically hit that old-man, I suppose it would be along the lines of stories like if someone breaks into your house eg like in the US and the person shoots or stabs the thief, sometimes they go to jail(eg unecceasry force to contain the situation), or if someones dog at the park attacks you and you get angry at the owner and he gets angry back, and his dog keeps barking at you, intimidating you and protecting it's owner and you hit the owner as a result of being intimidated by both the agression verbally of the owner and the potential physical attack by there dog a strong dog (eg german shepard/pit-bull).
    But yep my main defence would have been concerned about the "personal-safety of the child", if I'd have killed the old-man or caused serious injury to him eg broken jaw/nose/fractured skull/brain damage/put him in a wheel-chair eg paraplegic/quadraplegic etc.
     
  7. Rod

    Rod Well-Known Member

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    You would have been in deep manure if as a third party you struck someone who was yelling at someone else.

    There have to be extremely good good reasons why a person who strikes someone else first can get off once charged with assault. Your case doesn't appear to fit that category. Violence is never a good thing and rarely solves a problem, no matter how much better you may feel from hitting someone. Walking away is the best course when confronted with an angry person.
     
    Sarah J likes this.

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