7.4.9 - Statutory Assault 1

7.4.9 - Statutory Assault[1]

7.4.9.3–Charge: Assaulting an Emergency Worker, Youth Justice Custodial Workeror Custodial Officer on Duty (Police Officer) (s31(1)(b))

This charge is designed for cases where the complainant is a police officer. The charge must be adapted where the complainant is a different type of emergency worker, youth justice custodial worker or a custodial officer. See Statutory Assaultfor guidance on the types of workers covered by the offence.

This charge must also be adapted if the complainant is a person who was lawfully assisting an emergency worker, youth justice custodial worker or custodial officer.

I must now direct you about the crime of assault. Under the law, there are a number of different types of assault that a person can be charged with. In this case, the accused has been charged with assaulting a police officer in the due execution of duty. To prove this crime, the prosecution must prove the following 7 elements beyond reasonable doubt:

One- the complainant was a police officer.

Two- the complainant was “on duty”.

Three - the accused knew that the complainant was a police office, or knew that the complainant was probably a police officer.

Four - the accused applied force to the body[2] of the complainant.[3]

Five - the accused applied force to the complainant’s body with an intention to [insert one or more of the following as relevant: injure the complainant, inflict pain, cause discomfort, cause damage, cause insult or deprive the complainant of liberty].[4]

Six - the accused’s actions resulted in the complainant being [insert one or more of the following as relevant: injured, caused pain, caused discomfort, caused damage, insulted or deprived of liberty].

Seven - the application of force was without lawful excuse.

I will now explain each of these elements in detail.

Police officer[5]

The firstelement that the prosecution must prove is that the complainant was a police officer. In this case [insert relevant evidence].

On Duty[6]

The secondelement that the prosecution must prove is that the complainant was on duty at the time the force was applied. This means that they must have been acting lawfully, performing the duties or exercising the powers of a police officer.

[If there is an issue regarding whether the police officer was acting outside the scope of his or her duties, add suitable directions on the scope of duties. See Statutory Assaultfor guidance.]

In this case, the prosecution argued that [insert evidence]. The defence responded [insert evidence]. It is for you to determine whether NOC was actually performing [his/her] duties when NOA [insert evidence].

Knowledge or recklessness that complainant was police officer[7]

The thirdelement relates to what the accused knew. The prosecution must prove that at the time the accused applied force to the complainant’s body, he/she/they knew that the complainant was a police officer, or knew that the complainant was probably a police officer.

In this case, the prosecution argued that [insert evidence]. The defence responded [insert evidence].

Application of force

The fourth element relates to what the accused did. The accused must have applied force to the body of the complainant.

It does not matter how the force was applied. It could involve any type of physical contact, [if relevant, add:such as kicking or punching, pushing or hitting with an object].

[If relevant, add: The application of force could also involve an application of heat, light or electric current to the body of the complainant, or the application of any substance, including liquids or gases.]

It also does not matter how much force was applied. Even a slight touch is enough for this element to be satisfied.

In this case, the prosecution argued that NOA applied force to NOC when [insert evidence]. The defence responded [insert evidence].

Intention

The fifth element relates to the accused’s state of mind. The prosecution must prove that the accused applied force to the complainant’s body with an intention to [insert one or more of the following as relevant: injure the complainant, inflict pain, cause discomfort, cause damage, cause insult or deprive the complainant of liberty]. That is, when NOA touched NOC, [he/she] intended or meant to cause one of these consequences.

Result of the accused’s acts

The sixth elementrelates to the results of the accused’s actions. The prosecution must prove that the accused’s actions [insert one or more of the following as relevant: injured the complainant, inflicted pain, caused discomfort, caused damage, caused insult or deprived the complainant of liberty].

It is not necessary that the accused intended to cause the particular outcome that resulted from their actions. This element may still be met even if the result of their actions differs from what was intended. What is necessary is that the complainant was [insert one or more of the following as relevant: injured, caused pain, caused discomfort, damaged, insulted or deprived of liberty].

Lawful excuse

The seventh element that the prosecution must prove is that the accused’s actions were without lawful excuse.

[If any lawful excuses, such as self-defence, are open on the evidence, add: In this case, the defence argued that [insert evidence of lawful excuse]. The prosecution argued [insert any counter arguments]].

[If no lawful excuses are open on the evidence, add: In this case, it has not been suggested that there was a lawful excuse for the accused’s alleged actions. The main issue[s] for you to determine are [refer to facts in issue.]]

Summary

To summarise, before you can find NOA guilty of assault the prosecution must prove to you beyond reasonable doubt:

One–that NOC was a police officer; and
Two –that NOC was on duty; and
Three – that NOA knew that NOC was a police officer or knew that NOC was probably a police officer; and
Four– that NOA applied forceto NOC’s body; and
Five– that NOA applied that force with the intention to [insert one or more of the following as relevant: injure NOC, inflict pain, cause discomfort, cause damage, cause insult or deprive NOC of liberty]; and
Six–that NOA’s actions resulted in NOC being [insert one or more of the following as relevant: injured, caused pain, caused discomfort, damaged, insulted or deprived of liberty]; and
Seven – that NOA acted without lawful excuse.

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of assault.

[1] This document was last updated on 5 June 2018.

[2] Section 31(2) of the Crimes Act 1958 provides that the application of force can also be to clothes or equipment worn by the complainant. In cases involving such an application of force, the wording of the charge will need to be modified accordingly.

[3] It is also possible for this element to be satisfied if the accused threatened to apply force to the body of the complainant. In relevant cases, the charge will need to be amended accordingly.

[4] It is also possible for this element to be satisfied by recklessness. In relevant cases the charge will need to be amended accordingly (see Recklessness for assistance).

[5] This part of the direction must be modified if the complainant is not a police officer, or if the complainant is a person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer.

[6] This part of the direction must be modified if the complainant is not a police officer, or if the complainant is a person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer.

[7] This part of the direction must be modified if the complainant is not a police officer, or if the complainant is a person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer.