South Australian Numbered Acts South Australian Numbered Acts10—Substitution of sections 20 to 27
Sections 20 to 27—delete the sections and substitute:
20—Assault
(1) A person commits
an assault if the person, without the consent of
another person (the "victim")—
(a)
intentionally applies force (directly or indirectly) to the victim; or
(b)
intentionally makes physical contact (directly or indirectly) with the victim,
knowing that the victim might reasonably object to the contact in the
circumstances (whether or not the victim was at the time aware of the
contact); or
(c)
threatens (by words or conduct) to apply force (directly or indirectly) to the
victim and there are reasonable grounds for the victim to believe that—
(i)
the person who makes the threat is in a position to carry
out the threat and intends to do so; or
(ii)
there is a real possibility that the person will carry
out the threat; or
(d) does
an act of which the intended purpose is to apply force (directly or
indirectly) to the victim; or
(e)
accosts or impedes another in a threatening manner.
(2) However—
(a)
conduct that lies within limits of what would be generally accepted in the
community as normal incidents of social interaction or community life cannot
amount to an assault; and
(b)
conduct that is justified or excused by law cannot amount to an assault.
(3) A person who
commits an assault is guilty of an offence.
Maximum penalty:
(a) for
a basic offence—imprisonment for 2 years;
(b) for
an aggravated offence (except one to which paragraph (c)
applies)—imprisonment for 3 years;
(c) for
an offence aggravated by the use of, or a threat to use, an offensive
weapon—imprisonment for 4 years.
(4) A person who
commits an assault that causes harm to another is guilty of an offence.
Maximum penalty:
(a) for
a basic offence—imprisonment for 3 years;
(b) for
an aggravated offence (except one to which paragraph (c)
applies)—imprisonment for 4 years;
(c) for
an offence aggravated by the use of, or a threat to use, an offensive
weapon—imprisonment for 5 years.
Note—
This offence replaces section 40 (assault occasioning actual bodily harm) as
in force prior to the commencement of this subsection and, consequently, see
Coulter v The Queen (1988) 164 CLR 350.
Division 7A—Causing physical or mental harm
21—Harm
In this Division—
"cause"—a person causes harm if the person's conduct is the sole cause
of the harm or substantially contributes to the harm;
If a victim suffers serious harm as a result of multiple acts of harm and
those acts occur in the course of the same incident, or together constitute a
single course of conduct, a person who commits any of the acts causing harm is
taken to cause serious harm even though the harm caused by the act might not,
if considered in isolation, amount to serious harm.
"harm" means physical or mental harm (whether temporary or permanent);
"lesser offence", in relation to an offence against this Division,
means—
(a) in
relation to an aggravated offence—the basic offence or some other
offence against this Division for which a lesser maximum penalty is
prescribed;
(b) in
any other case—some other offence against this Division for which a
lesser maximum penalty is prescribed;
"mental harm" means psychological harm and does not include emotional
reactions such as distress, grief, fear or anger unless they result in
psychological harm;
"physical harm" includes—
(a)
unconsciousness;
(b)
pain;
(c)
disfigurement;
(d)
infection with a disease;
"recklessly"—a person is reckless in causing harm or serious harm to
another if the person—
(a) is
aware of a substantial risk that his or her conduct could result in harm or
serious harm (as the case requires); and
(b)
engages in the conduct despite the risk and without adequate justification;
"serious harm" means—
(a) harm
that endangers a person's life; or
(b) harm
that consists of, or results in, serious and protracted impairment of a
physical or mental function; or
(c) harm
that consists of, or results in, serious disfigurement.
22—Conduct falling outside the ambit of this Division
(1) This Division does
not apply to the conduct of a person who causes harm to another if the victim
lawfully consented to the act causing the harm.
(2) A lawful consent
given on behalf of a person who is not of full age and capacity by a parent or
guardian will be taken to be the consent of the person for whom the consent
was given.
(3) A person may
consent to harm (including serious harm) if the nature of the harm and the
purpose for which it is inflicted fall within limits that are generally
accepted in the community.
Examples—
1 A person may (within the limits referred to
above) consent to harm that has a religious purpose (eg male circumcision but
not female genital mutilation).
2 A person may (within the limits referred to
above) consent to harm that has a genuine therapeutic purpose (eg a person
with 2 healthy kidneys may consent to donate 1 for the purpose of
transplantation to someone with kidney disease).
3 A person may (within the limits referred to
above) consent to harm for the purpose of controlling fertility (eg a
vasectomy or tubal ligation).
4 A participant in a sporting or recreational
activity may (within the limits referred to above) consent to harm arising
from a risk inherent in the nature of the activity (eg a boxer may accept the
risk of being knocked unconscious in the course of a boxing match and, hence,
consent to that harm if it in fact ensues).
(4) If a defendant's
conduct lies within the limits of what would be generally accepted in the
community as normal incidents of social interaction or community life, this
Division does not apply to the conduct unless it is established that the
defendant intended to cause harm.
(5) If the defendant's
conduct caused only mental harm, this Division does not apply to the
defendant's conduct unless—
(a) the
defendant's conduct gave rise to a situation in which the victim's life or
physical safety was endangered and the mental harm arose out of that
situation; or
(b) the
defendant's primary purpose was to cause such harm.
Examples—
1 An examiner fails a student in an examination
knowing that the student has been diagnosed with schizophrenia and that
failure to pass is likely to precipitate a schizophrenic episode. The student
in fact suffers such an episode.
2 An employer legally terminates an employee's
employment knowing that the employee suffers from a mental illness and that
the termination is likely to exacerbate the mental illness. The employee in
fact suffers an exacerbation of the mental illness.
In both the above examples, it is not sufficient for the prosecution to prove
that the defendant acted intentionally knowing that harm would inevitably,
probably or possibly result from his or her act. It would be necessary for the
prosecution to establish that the defendant wanted to cause harm and that
desire was the sole or a significant motivation for the defendant's conduct.
23—Causing serious harm
(1) A person who
causes serious harm to another, intending to cause serious harm, is guilty of
an offence.
Maximum penalty:
(a) for
a basic offence—imprisonment for 20 years;
(b) for
an aggravated offence—imprisonment for 25 years.
(2) If, however, the
victim in a particular case suffers such serious harm that a penalty exceeding
the maximum prescribed in subsection (1) is warranted, the court may, on
application by the Director of Public Prosecutions, impose a penalty exceeding
the prescribed maximum.
(3) A person who
causes serious harm to another, and is reckless in doing so, is guilty of an
offence.
Maximum penalty:
(a) for
a basic offence—imprisonment for 15 years;
(b) for
an aggravated offence—imprisonment for 19 years.
24—Causing harm
(1) A person who
causes harm to another, intending to cause harm, is guilty of an offence.
Maximum penalty:
(a) for
a basic offence—imprisonment for 10 years;
(b) for
an aggravated offence—imprisonment for 13 years.
(2) A person who
causes harm to another, and is reckless in doing so, is guilty of an offence.
Maximum penalty:
(a) for
a basic offence—imprisonment for 5 years;
(b) for
an aggravated offence—imprisonment for 7 years.
25—Alternative verdicts
If —
(a) a
jury is not satisfied beyond reasonable doubt that a charge of an offence
against this Division has been established; but
(b) the
Judge has instructed the jury that it is open to the jury on the evidence to
find the defendant guilty of a specified lesser offence or any 1 of a number
of specified lesser offences; and
(c) the
jury is satisfied beyond reasonable doubt that the specified lesser offence,
or a particular 1 of the specified lesser offences, has been established,
the jury may return a verdict that the defendant is not guilty of the offence
charged but is guilty of the lesser offence.