LW205 Criminal Law and

Procedure I - 2022
Non Fatal offences against the person
Colvin and Malimali
Wednesday, 1st June 2022
 Charlie and Isoa
Week 10

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 Materials
• Moodle materials:
– PowerPoint slides (these ones)
– Lecture Recording from Emalus Campus
• Legislation
– Crimes Decree 2009
• Cases
– Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 (QBD)
– Secretary (1996) 5 NTLR 96
– Ireland [1998] AC 147
• Textbooks
– Colvin and Malimali Chapter 6 – Assaults, Injuries and Harm
– Herring, Criminal Law: Text, Cases and Materials (6ed and 7ed)
Chapter 6 Non Fatal, Non Sexual offences
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 A few areas of concern
• Learn to read YOUR LEGISLATION. GO back and read
your notes from LW113

• Learn how to read the full CITATION of a case and

how to write the full citation.
• Every offence is based on the LAW so start with the
Law, whether it be the Penal Code, Crimes Act,
Criminal Offences Act etc.
• Every offence has an ACTUS REUS and a MENS REA,
which means that every case has PHYSICAL
ELEMENTS and a MENTAL ELEMENT.
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 And most concerning
• DO NOT QUOTE A CASE IF YOU DO
NOT KNOW THE FACTS!!

SO
• READ THE FACTS OF THE CASES THAT
YOU CITE OR REFER TO!!

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 CHOOSE YOUR WORDS

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 MIXED MESSAGES

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 Speak & Write CLEARLY
• Identify the prohibited act. That means you need to
go to the Penal Code, Crimes Act etc and identify the
section of the law that creates the offence e.g. the
section that makes theft a theft or assault an
assault;
• Identify the ELEMENTS of the Offence
• All elements have an Actus Reus and Mens Rea
• If there is a specific section on that Mens Rea eg
INTENTION in Fiji – you go to the section and discuss
it
• Apply the the law to the FACTS or SCENARIO
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 FOLLOW the PROCESS
• There is a process to everything
• There are steps to doing everything
• If you follow the STEPS, you will be OK
• Law is generally logical SO you need to think
and write logically and sequentially

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 RECAP
(BUILDING MUSCLE
MEMORY)

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 What does an offence constitute?

ACTUS REUS MENS REA

• ACTUS REI (PLURAL) • MENTAL element of offence

• THE 4 MENS REA:

• CONDUCT element of offence
1) INTENTION
• ‘CONDUCT’ IS:
(I) COMMISSION of act i.e. person does an
2) RECKLESSNESS
overt physical act, e.g., stabbing someone;
steals someone’s Iphone 13; etc.
3) NEGLIGENCE
(II) OMMISSION i.e. person fails to do
something when under a duty to act 4) KNOWLEDGE

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COMMISSION
• Accused does an overt
physical act.
• Most crimes are done by
commission.
• Examples - Murder; Rape and
other sexual offences;
Assault; Theft and Robbery;
Fraud and Conversion; Money
Laundering; etc.
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Actus Reus
OMMISSION
• See Fiji Crimes Act 44 of 2009, ss.17(a)-(b)
17. An omission to perform an act can only be a physical element if-
(a)the law creating the offence makes if so; or
(b)the law creating the offence impliedly provides that the offence is committed
by an omission to perform an act that by law there is a duty to perform.
• Duty to act may arise pursuant to legislation – e.g. Road Traffic Act 1988 (UK),s.6
– driver fails to provide breath sample when required to do so by law commits
an offence.
• Examples:
(1)Manslaughter by gross negligence See Adomako [1995] 1 AC 171 (HL)
(2)Defendant creates a dangerous situation and fails to act to prevent harm
resulting – R v. Miller [1983] 2 AC 161 (HL)
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 The 4 mens rea
REMINDER/RE-CAP

1) Intention

2) Recklessness

3) Negligence

4) Knowledge

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 Types of Manslaughter
Manslaughter
Unlawful killing that is not murder

Involuntary Voluntary
Unlawful killing without Elements of murder are present
elements of murder • Eg causing death + Intent to cause
death

But offence reduced because of

partial excusing defence
Unlawful Act Gross • provocation
Negligence • diminished responsibility (some
jurisdictions only)

NOTE: Distinction has nothing to do with the ‘principle of voluntariness’ (i.e. the principle that
criminal liability can only be imposed for an act or omission directed by a conscious mind c/f a
seizure while driving which results in harm to a 3 rd party)
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 Reminder on ‘act or omission’
• Most crimes are done by ‘commission’ of an
act
• An omission/failure to act will be a physical
element if:
– Law creating the offence makes it so; or
– It is implicit that there is a legal duty to perform an
act
– CA s17

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 Recap of Week 9
(Actus reus and mens rea for murder)
1. Act of provocation (sudden)
2. (a) Loss of self-control
(i) actual loss of self-control (evidence); OR
(ii) objective loss of self-control (more common)
a. Gravity/severity of provocation
b. sufficient for ordinary person to lose SC
(iii) before passion cools
The Case of Green

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 So… quick summary
• Once there is evidence capable of supporting
a finding of provocation, the Prosecution has
to prove BRD that the Accused was not acting
under Provocation
• Onus – on the State/Crown/Prosecution
• Standard – BRD that there was no provocation

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 Summary…
• The law provides that an [act/omission] causing death is an act
[done/omitted] under provocation where —
• 1. The [act/omission] is the result of a loss of self-control on
the part of [the accused] that was induced by any conduct of
[the deceased] (including grossly insulting words or gestures)
towards or affecting [the accused]; and
• 2. That conduct of [the deceased] was such that it could have
induced an ordinary person in the position of [the accused] to
have so far lost self-control as to have formed an intent to kill,
or to inflict grievous bodily harm upon, [the deceased],
whether the conduct of [the deceased] occurred immediately
before the [act/omission] causing death, or at any
previous time.
(Criminal Trial Courts Bench Book)
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 And…
• Don’t forget….if a person swears at you and
you are provoked to the extent of retaliation,
is a knife sufficient or too much?
• How about a stick?
• How about a slap?

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Is there a
Death? Yes Homicide Recklessness
as to causing
Not
Murder
Death?
No
Was there Intention to
No Conduct by D? cause Death? Aware of Unlawful Act
Yes
substantial risk No Manslaughter
of result?
Did D intend Intended
No conduct? Result? No Yes
Yes Yes
Unjustifiable Gross Negligence
Did Conduct Yes No Manslaughter
Cause death? to take risk?

Substantial
No Contribution?
Yes
Murder Was there a
suicide pact? Yes
Act with Settled
Was there a Was there a No intention of Yes
Yes Yes No dying?
Novus Actus? No sudden Act of
provocation?
No
Actual loss of Complicacy in
No self control? Suicide
Not Murder or
Manslaughter Yes
Would Ordinary
Person lose self
Yes Manslaughter
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control? 20
 Lecture Overview
• Assault based offences
– Common assault
– Aggravated assault
• Direct v indirect force
• Assault and self-defence
• Consent to harm and mistaken belief in
consent
• Injury based offences
• Overlap of offences
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 Learning Outcomes
• At the successful completion of this Topic you will be able to:
– Demonstrate an understanding of the difference between assaults
involving threats and attempts and assaults involving the
application of actual force.
– Explain the mens rea and actus reus for assault and aggravated
assault.
– Identify the situations in which consent may be a defence to the
charge of assault and when the exceptions to the offence of assault
apply at common law.
– Explain the meaning of aggravated assault.
• Identify the offences that are aggravated assaults in the region
• Identify the offences that do not have assault as an element
– Explain the mens rea and actus rea for wounding, doing Grievous
Bodily Harm, Offences with intent to do GBH and Robbery.

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 ASSAULTS AND
INJURIES

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 Non-Fatal Offences against the Person
• Most jurisdictions have a range of offences of two
types
– Assault-based offences
• Eg. common assault; aggravated assaults
• Assault = application or threat of force (violence)
• May or may not result in injury
– Injury-based offences
• Eg. unlawfully causing GBH, unlawful wounding
• May involve an assault
• Alternatively may be caused by criminal negligence
• Offences often overlap, so that prosecutor has
discretion re: which to charge
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 Assault Based Offences
• Common assault: offence everywhere
– Eg. I hit you, push you, kick you, bite you, slap you
– spit at you????
• Aggravated assaults with increased penalties: (vary
by jurisdiction)
– Examples in some jurisdictions
• Assault occasioning (causing) bodily harm (e.g. punch breaks
nose)
• Indecent assault
• Assault on a police officer (higher penalty)
• Assault on an old person/a child/a female
• Assault with intent to commit a crime
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 Assault
• "At common law, an assault is an act by which a
person intentionally
or recklessly causes another to apprehend immediate
and unlawful
personal violence and a battery is an act by which a
person
intentionally or recklessly inflicts personal violence
upon another.
However, the term 'assault', is now, in both ordinary
legal usage and
in statutes, regularly used to cover both assault and
battery."
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 From R v Brown [1994] 1 AC 212 (HL)

• In Rex v. Donovan [1934] 2 K.B. 498 Swift J.

delivering the judgment
of the Court of Criminal Appeal said, at p. 509:
"' . . . bodily harm' has its ordinary meaning and
includes any hurt or
injury calculated to interfere with the health or
comfort of the
prosecutor. Such hurt or injury need not be
permanent, but must, no
doubt, be more than merely transient and trifling.”
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 From R v Brown [1994] 1 AC 212 (HL)
• To constitute a wound for the purposes of the section the
whole skin
must be broken and not merely the outer layer called the
epidermis or the
cuticles; see J.J.C. (a minor) v. Eisenhower [1983] 3 All E.R.
230.

• "Grievous bodily harm" means simply bodily harm that is

really
serious and it has been said that it is undesirable to attempt
a further
definition; see Director of Public Prosecution v. Smith [1961]
A.C. 290.
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 From R v Brown [1994] 1 AC 212 (HL)
the words "unlawfully" means that the accused
had no lawful excuse such as self defence.

The word "maliciously" means no more

than intentionally for present purposes; see Reg.
v. Mowatt [1968] 1 Q.B.
421.

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 Assault & Battery
• Common law
– Battery = intentional (or reckless) application of force
– Assault = attempt or threat to apply force
– Common law distinction retained in tort law (distinction
discussed in Herring)
• Criminal law statutes
– Some American-based statutes retain distinction
• Pohnpei s 5-133; Kosrae s 13-302; Yap 209-210
– Distinction abolished in English law-based statutes +
Marshalls s 211
• Only the term ‘assault’ is used
• Covers application of force as well as attempts and threats

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 Definitions of Assault (1)
• At COMMON LAW
• R v Ireland [1998] AC 147, (HOL) per Lord Steyn:
– “…the two forms which an assault may take. The first is battery, which
involves the unlawful application of force by the defendant to the victim…
– The second form of assault is an act causing the victim to apprehend an
imminent application of force…” (eg. threatening gesture)
– But assault by threatening words (or silence) as well as by act is included:
Ireland [1998] AC 147
The HOL had to consider whether the making of silent telephone calls causing
psychiatric injury is capable of constituting an assault under section 47
– Typically intentional, although recklessness is recognised as a form of men
rea as well:
• Venna [1976] QB 421
– Mere negligent contact not an assault
• What is application of force? Punch, laying of a hand? Why? Consider types of assault.
Intentional unwelcome physical contact, or indirect contact.’

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• In Fiji the common law definition applies
(because the offence definitions in the Crimes
Act 2009 do not define ‘assault’)
– Also in Solomons/Kiribati/Tuvalu/Vanuatu/Niue

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 Definitions of Assault (2)
• Samoa s 2; Cooks s 2; Tokelau s 15
– "Assault" means the act of intentionally (not recklessness) applying
or attempting to apply force to the person of another, directly
or indirectly, or threatening by any act or gesture to apply such
force to the person of another, if the person making the threat
has, or causes the other to believe on reasonable grounds that
he or she has, present ability to effect his or her purpose… (threat
must be real, in Samoa, no assault by words alone as in Ireland)
• (Contrast words only v words and accompanying physical gesture (‘the
smiling assassin’) also email/text)
• Nauru s 245: Similar but does no include word
‘intentionally’ –intention or recklessness is implied
• Tokelau s 15(2): ‘….anything said or done” (deals with
phone/email)
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 Definitions of Assault (3)
• Tonga s 112
– Every person who wilfully and without lawful justification
• (a) strikes at or actually hits another person with his hand or with anything held
therein, or
• (b) seizes or tears the clothes of another person, or
• (c) pushes, kicks or butts another person, or
• (d) spits or throws liquid or any substance on or at another person, or
• (e) sets a dog on another person,
– is guilty of an offence…
– Attempting any offence is an offence
– But no assault by threat
• Pohnpei 5-134, Kosrae 13.303, Yap 210
– Every person who shall unlawfully strike, beat, wound, or otherwise do
bodily harm to another… (no bodily harm no assault?)
– See also offering or attempting under Pohnpei 5-135; Kosrae 13.302; Yap 209

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 Definitions of Assault (4)
• Marshalls §211.1. Assault
• Very unusual definition
– A person is guilty of assault if the person
• (a) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another; or
• (b) negligently causes bodily injury to another with a
deadly weapon.
– Applies only to bodily injury
– Includes negligently causing bodily injury
– Excludes assault by threat

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 Definitions of Assault (5)
• Nauru s 78
• (1) A person (the ‘defendant’) commits an offence if:
• (a) the defendant intentionally:
– (i) engages in conduct that results in a direct or indirect application of force to
another person; or
– (ii) makes physical contact (directly or indirectly) with another person knowing that
the person might reasonably object to the contact in the circumstances (whether or
not the person was aware of the contact at the time); or Crimes Act 2016
– (iii) makes a threat to another person of a direct or indirect application of force that:
• (A) the defendant intends the other person to apprehend; and
• (B) the other person believes on reasonable grounds is able to be carried out by
the defendant; and
• (b) the other person does not consent, or consents because of a
dishonest representation by the defendant, to the conduct,
contact or threat.

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 Indirect Force
• Assault by projectiles included
• Triggers for the release of force included
• There can be battery even if there is a delay between D’s
action and the force applied
– See DPP v K [1990] 1 All ER 331 (DC): He was a 15 year old school
boy placed acid in hand-drier; acid splashed on another schoolboy
who used the drier
• charged with Assault Occasioning Actual Bodily Harm
• ‘not me, it was the victim who assaulted himself by turning the hand-drier
on’
• Court said ‘don’t be silly’ you caused the acid to be there
• Consider causation principles
– ‘but for’
– Crimes Decree ‘significant contribution’
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 Assault & Self-Defence
• Many of the leading cases on meaning of assault involve claims for self-
defence
• Assault as the trigger for self-defence
– When can you use SD? Actual imminent threat of harm? Fear of harm? Pre-
emptive strike?
• Some jurisdictions use assault as trigger for SD (timing issue at time of application of
force)
– Traditional view at common law that self-defence required an assault
• See also Samoa s 17: “A person unlawfully assaulted…”; Cooks ss 50-51: “Everyone who is
assaulted…”; Nauru ss 271-272
• But might still permit some threats, continuing assaults and excused assaults
– Some modern formulations do not require an assault
• Vanuatu s 23: refers to “an act dictated by the immediate necessity of defence…”. See also
Marshalls s 3.04
• Fiji s 42(2) on Self Defence: does not impose any special requirement
– Note: where an assault is not legally required, its absence can still be taken into
account in determining whether the force used was necessary

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 Bolea v Regina [2013] SBCA 15; SICA CRAC 18 of 2013 (8 November 2013)

• [33] Section 17 of the Penal Code provides that:

Subject to any express provisions in this Code, or any other law in operation
in the Solomon Islands, criminal responsibility for the use of force and the
defence of personal property shall be determined according to the principles
of English common law.
•
[34] In Palmer v The Queen [1971] AC 814 at 831-832, Lord Morris of Borth-y-
Gest articulated self-defence as follows:
It is both good law and good sense that a man who is attacked may defend
himself. It is both good law and good sense that he may do, but may only do,
what is reasonably necessary. But everything will depend upon the particular
facts and circumstances... It may in some cases be only sensible and clearly
possible to take some simple avoiding action. Some attacks may be serious
and dangerous. Others may not be. If there is some relatively minor attack it
would not be common sense to permit some action of retaliation which was
wholly out of proportion to the necessities of the situation...

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 Bolea v Regina
• Further:

If there has been an attack so that self-defence is reasonably necessary, it will be recognised that
a person defending himself cannot weigh to a nicety the exact measure of his defensive action. If
the jury thought that that in a moment of unexpected anguish a person attacked had only done
what he honestly and instinctively thought necessary, that would be the most potent evidence
that only reasonable defensive action had been taken... the defence of self-defence, where the
evidence makes its raising possible, will only fail if the prosecution show beyond doubt that what
the accused did was not by way of self-defence... The defence of self-defence either succeeds so
as to result in an acquittal or it is disproved, in which case as a defence it is rejected.

[35] In Zecevic v Director of Public Prosecutions [1987] HCA 26, the joint judgments of Wilson,
Dawson and Toohey JJ, following the Privy Council’s in Palmer at 831-832, recognised:
The question to be asked in the end is quite simple. It is whether the accused believed upon
reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief
and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the
matter, then he is entitled to an acquittal. 

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 Bolea v Regina

• [36] And in The State v Li Jun CAV oo17 of 2007 at [46]:

The test in Zecevic is not wholly objective. It is belief of the
accused, based on the circumstances as he or she perceives
them to be, which has to be reasonable. The test is not
what a reasonable person in the accused’s position would
have done: R v Conlon (1993) 69 A Crim R 92, 99, per Hunt
CJ at CL; R v Hawes (1994) 35 NSWLR 294, 304 per Hunt CJ
at CL, with whom Simpson and Bruce JJ agreed. It follows
that where self-defence is an issue, account must be taken
of the personal characteristics of the accused which might
affect his appreciation of the gravity of the threat which he
faced and as to reasonableness of his or her response to
the threat: R v Conlon, 99.
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 Bolea v Regina
• Good discussion on Provocation and Self
Defence
• ALL SHOULD READ IT as it is very easy reading
and will help you understand the principles

State v Li Jun [2008] FJSC 18; CAV0017.2007S

(13 October 2008) – Guess who argued Li Jun?

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 Threats of Future Violence
• In principle threats of future violence can be assaults
– Must be fear of ‘imminent’ harm
– cf. “I will get you after school” v “I will beat you up next week”
• Samoa s 2; Cooks s 2
– "Assault" means …threatening by any act or gesture to apply
such force to the person of another, if the person making the
threat has, or causes the other to believe on reasonable
grounds that he or she has, present ability to effect his or her
purpose…
– See also Nauru s 78(1)(a)(iii)
– Assault by threat included at common law
• However, threats excluded under Marshalls s 211; Tonga s112;
Pohnpei 5-134

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 R v Secretary (1996) 5 NTLR 96
Facts
– Mr S is a pig of a man
– History of violence
– On the day of the killing, they had driven to a place called Yarralin. On the way back he assaulted the accused, verbally
abused her and threatened to kill her.
– The deceased’s driving was dangerous; speeding and driving off and on the road. He stopped the car several times and left
the vehicle. At one stage the accused and her sister tried to drive away but failed.
– He assaults her again at home, tells him to get him some water and said “I’m going to sleep and when I wake up I’m
going to kill you”
– She goes and gets a gun and kills him while he sleeps
– She claims SD

Issue
– Was she responding to an assault (was a condition for raising SD in NT)
– Code said must be a ‘present ability to effect the purpose’

Held
– Yes she was responding to an assault
– When does an assault occur? - “The reference…to ‘present ability’ means in this context, an ability, based on the
known facts as present at the time of the making of the threat, to effect a purpose at the time the purpose is to be
put into effect.”
– But was she responding to an assault when the offence occurred (he was sleeping! 2:1 yes.
– How long does it continue? - “an assault is a continuing one so long as the threat remains and the factors relevant to
the apparent ability to carry out the threat in the sense explained have not changed.”

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 Q of SD in Secretary
Consequently, the elements of self-defence where the
application of force will kill or is likely to kill or cause grievous
harm which are relevant to this case are:
1. the accused must be acting in defence of herself from an
assault by the deceased;
2. the assault must have caused the accused reasonable
apprehension that death or grievous harm will result to her;
3. the force used to defend herself must not be unnecessary
force.
Mr Wild’s contention was that as the deceased was asleep at
the time the accused shot the deceased, the accused could not
have been acting in defence of herself from an assault by the
deceased.
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 Fagan v Metropolitan Police Commissioner
[1969] 1 QB 439 (QBD)
Facts
– Appellant asked to pull over by police
– Pulled up and car wheel was on Policeman’s foot
– Officer said ‘get off you are on my foot’
– Fagan says ‘go away’ (or words to that effect)
– Eventually moved car after request was repeated
– Issue
– D argued no coincidence of actus reus and mens rea
Held
– It is a continuing assault actus reus was continuing
– Unable to establish whether coming to rest on foot was deliberate or
accidental, but satisfied BRD that appellant ‘knowingly, provocatively
and unnecessarily’ allowed wheel to remain on foot.
– Guilty of assault
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 R v Venna (Henson George) [1975] 3 W.L.R. 737

Facts:
• The defendant caused disturbance to the people and police arrested him under the 
Public Order Act 1936. However, the defendant struggled violently on his arrest and eventually, 
fractured the hand of a police officer. Hence, he was convicted after following the direction to
the jury that recklessness in the use of force was considered to be  sufficient to sustain a
conviction of assault. 

Issue:
• The main issue in R v Venna (Henson George) [1975] 3 W.L.R. 737 is:
• The issue was if the reckless use of force could amount to the conviction of assault?

Held:
• Yes. Reckless use of force was sufficient to satisfy the element of Mens Rea in a criminal assault.
Reference:
[1976] Q.B. 421, [1975] 3 W.L.R. 737, [1975] 3 All E.R. 788
[1975] 7 WLUK 158, (1975) 61 Cr. App. R. 310, [1975] Crim. L.R. 701
(1975) 119 S.J. 679, [1975] C.L.Y. 504
 

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 R v Venna [1976] QB 421
•  A youth was resisting arrest and fell to the ground. He kicked a
police officer who was trying to pick him up, fracturing the
policeman’s hand. He was convicted of occasioning actual
bodily harm. His appeal was dismissed on the grounds that
recklessness was a sufficient mental element to form the
necessary intent of a criminal assault. An injury inflicted
recklessly constituted the offence of assault occasioning actual
bodily harm. Judge said that he couldn’t understand why the
crown put forward recklessness as opposed to intent (which
there clearly was). Nevertheless, in many cases the dividing line
between intent and recklessness is barely perceptible and
furthermore they see no reason why one who risks injuring
another person should not be made liable (there being no
parliamentary guidance on the matter). 
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ASSAULT BASED OFFENCES
 Assault Based Offences in Fiji
• Division 5 – Assaults
– S 274 – common assault
– S 275 – Assault causing actual bodily harm
– S 277 – serious assaults
– S 258 – Grievous harm
• Other provisions with assault
– S 209 – Assault with intent to commit rape
– S 210 – Sexual assaults
– S 212 – indecent assault
– s 132 (4) – assault in the course of piracy with intent to
kill
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 Common Assault
• S 274 – Common Assault
– (1) A person commits a summary offence if he or
she unlawfully assaults another person.
– Penalty — Imprisonment for 1 year.
– (2) The offence under sub-section (1) is to be
applied if the assault is not committed in
circumstances for which a more serious offence is
provided for in this Act.

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Assault Causing Actual Bodily Harm
• S 275 Assault causing actual bodily harm
– A person commits a summary offence if he or she commits an assault
occasioning actual bodily harm.
– Penalty — Imprisonment for 5 years.
• Physical element assault
– (actual or threatened violence)
• Fault Element?
– Must have intended (or possibly been reckless as to assault), but no need to
intend bodily harm
• The incidental harm is an aggravating factor ‘bad luck’
– S 23. CA
• (2) If the law creating the offence does not specify a fault element for a physical element
that consists of a circumstance or a result, recklessness is the fault element for that
physical element.
• in Fiji, foreseeability of risk of causing actual bodily harm is arguable
– Solomons/Kiribati/Tuvalu: defence of accident can be available, s 9 + Nauru s 23

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 Definition of Harm
• Fiji s 4
– "harm"
• means any bodily hurt, disease or disorder (including harm to a person’s mental health)
whether permanent or temporary, and includes unconsciousness, pain, disfigurement,
infection with a disease and physical contact with a person that the person might reasonably
object to in the circumstances (whether or not the person was aware of it at the time)
– “harm to a person’s mental health”
• includes significant psychological harm, but does not include mere ordinary emotional
reactions such as those of only distress, grief, fear or anger
– (I threaten you and you are scared of me)
– But note that s 275 requires “actual bodily harm”
• Other jurisdictions
– Note definition in Tonga s 107 (but no offence of AOBH in Tonga)
– Solomons/Kiribati/Tuvalu s 4: "harm" means any bodily hurt, disease or disorder
whether permanent or temporary
– Nauru s 1: “bodily harm” means any bodily injury which interferes with health or
comfort (bruise?)

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 Serious Assaults
• S 277 Serious assaults
– A person commits a summary offence if he or she—
• (a) assaults any person with intent to commit an indictable offence, or to resist
or prevent the lawful apprehension or detention of himself, herself or of any
other person for any offence; or
• (b) assaults, resists or wilfully obstructs any police officer in the due execution
of his or her duty, or any person acting in aid of such an officer; or
• (c) assaults any person in pursuance of any unlawful combination or
conspiracy to raise the rate of wages, or respecting any trade, business or
manufacture or respecting any person concerned or employed by it; or
• (d) assaults, resists or obstructs any person—
– (i) engaged in lawful execution of court process; or in
– (ii) making a lawful distress, with intent to rescue any property lawfully taken under such
distress; or
• (e) assaults any person on account of any act done by him or her in the
execution of any duty imposed by law.
– Penalty - Imprisonment for 5 years.
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 The problem of Consent
• The CD does not discuss consent in relation to assault (lots of
references in relation to indecent assault and rape)
• Consent as defence at common law
– Lack of consent is not specified as an element of the actus reus
– But is often viewed as an implied element (making the use of force
unlawful’)
– Consent can be express (“can I …”) or implied:
• Touching to engage attention (e.g. see a friend)
– Collins v Wilcock [1984] 3 All ER 374 (see Herring)
• Jostling in crowds
• Displays of affection
• Sexual interaction (often implied)
• Contact sports (what are you consenting to?)
• Note that there may be consent to some degree of force, but not to the
degree actually used eg. Ice Hockey

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 Consent obtained by Fraud
• Does any deception invalidate consent?
– Or must lies be really big lies?
– Most commonly an issue for sexual assaults
• Consider re sexual assaults

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 Consent to Bodily Harm?
• Common law rule
• R v Brown [1994] 1 AC 212:
– A person can consent to bodily harm as an incident of a lawful activity e.g.
surgery and “ ritual circumcision, tattooing, ear-piercing and violent sports
including boxing”
– But such lawful activities do not involve sado-masochistic practices
– Facts
• Sado-masochistic practices (branding)
• Fully consensual (no complaint by any of the accused)
• Following police investigation, police pressed charges
– Held
• Consent is a defence to the infliction of bodily harm in the course of some lawful
activity, but ought not to be extended to sadomasochistic encounters.
• Lord Mustill, dissenting;
• 'these consensual private acts are [not] offences against the existing law of violence'
• Lord Slynn found no compelling reasons for creating criminal liability.

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 Consent in Sports?
• What about Boxing?
• What about MMA?

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 Brown
In cases where life and limb are exposed to no
serious danger in the common course of things, I
think that consent is a defence to a charge
of assault, even when considerable force is used, as,
for instance,
In cases of wrestling, single-stick, sparring with
gloves, football and the like; but in all cases the
question whether consent does or does not
take from the application of force to another its
illegal character, is a question of degree depending
upon circumstances.
04/09/2023 LW205 - 2017 59
 Consent in Fiji
• S266 CD
– Consent of the person injured by him or her to use force is
criminally responsible for any excess, according to the nature
and quality of the act which constitutes the excess.
• s267 CD
– Notwithstanding anything contained in section 266, consent
by a person to the causing of his or her own death or his or
her own maim does not affect the criminal responsibility of
any person who causes the death or maiming.
• S(4) CD
– “maim” means the destruction or permanent disabling of any
external or internal organ, member or sense. (c/f van Gogh
and ear piercing)
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 Consent in the Region
– Nauru s 245 (Queensland Criminal Code)
• Assault must occur without consent or with consent obtained by fraud
• Solomons s 236; Kiribati/Tuvalu s 229
– Consent does not affect the criminal responsibility of a person who causes
death or maiming
– Fiji/Solomons/Kiribati/Tuvalu s 4: "maim" means the destruction or
permanent disabling of any external or internal organ, member or sense
– Presumably person can consent to bodily harm not involving maiming
• Vanuatu s 7(1):
– “It shall be no defence to any charge that the victim prior to the criminal act
has expressed his consent to it, if the purpose of the act was to inflict serious
physical or mental injury incompatible with the well-being of the victim.”
– Presumably person can consent to bodily harm involving lesser injury
• Other jurisdictions
– Common law applies

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 ‘Honest’ Mistaken Belief in Consent (1)
• Fiji, Samoa, Cooks, Niue, Tokelau, Tonga, Pohnpei, Yap
– Subjective mistaken belief in consent is a defence to assault, even
if it is objectively unreasonable.
– Intention (or perhaps recklessness) re lack of consent implied as
mens rea of the offence
– Mistake can negative mens rea, whether or not reasonable
• Solomons/Kiribati/Tuvalu s10; Vanuatu s 12; Nauru s 24
– Mistaken belief in consent can provide a defence
– Mistake must be reasonable
– Solomons etc s 10: ‘A person who does or omits to do an act under
an honest and reasonable, but mistaken, belief in the existence of
any state of things is not criminally responsible for the act or
omission to any greater extent than if the real state of things had
been such as the person believed to exist.’
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 ‘Honest’ Mistaken Belief in Consent (2)
• Fiji s 34
– (1) A person is not criminally responsible for an
offence that has a physical element for which there
is a fault element other than negligence if—
– (a) at the time of the conduct constituting the physical
element, the person is under a mistaken belief about, or is
ignorant of, facts; and
– (b) the existence of that mistaken belief or ignorance negates
any fault element applying to that physical element.
• (2) In determining whether a person was under a
mistaken belief about facts, or was ignorant of the facts,
the court may consider whether the mistaken belief or
ignorance was reasonable in the circumstances.

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INJURY BASED OFFENCES
 Injury-Based Offences (1)
• Offences where actus reus includes the
commission of an injury but not commission of
an assault
– Eg. S 261 CD unlawful wounding
– S 258 unlawfully causing GBH (defined s4)
• Note that an assault may have occurred – but it
is not a legally required element of the offence
– Offence may also be committed via criminal
negligence
• Wide variations between criminal statutes
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 Forms of Injury
• Harm
– See Slide 53
• Wound
– Common law: breaking of the skin including the underlayer
– Eg. see Da Costa [2005] QCA 385, at [3], [33]
• Grievous (bodily) harm
– Fiji/Solomons/Kiribati/Tuvalu s 4:
– “Grievous harm” means any harm which:
(a) amounts to a maim or dangerous harm; or
(b) seriously or permanently injures health or which is likely so to injure health; or
(c) extends to permanent disfigurement, or to any permanent or serious injury to any external
or internal organ, member or sense (See also Nauru s 1)
• Maim
– Fiji/Solomons/Kiribati/Tuvalu s 4: "maim" means
• the destruction or permanent disabling of any external or internal organ, member or sense
– Contrast common law: injury which interferes with fighting capacity

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 Causing Grievous Harm
• S 258 – Grievous harm
– A person commits an indictable offence (which is
triable summarily) if he or she unlawfully and
maliciously does grievous harm to another person
– Penalty – Imprisonment for 15 years
– S 4 interpretations
• “Grievous harm” means any harm which:
(a) amounts to a maim or dangerous harm; or
(b) seriously or permanently injures health or which is likely so to
injure health; or
(c) extends to permanent disfigurement, or to any permanent or
serious injury to any external or internal organ, member or sense

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 Injury-Based Offences (2)
• Fiji, Solomons, Kiribati/Tuvalu/Nauru
• Offences
– Unlawfully causing bodily harm
• Fiji s 269; Solomons s 238; Kiribati/Tuvalu s 231; Nauru s 328
– Unlawfully wounding
• Fiji s 261; Solomons s 229; Kiribati/Tuvalu s 223; Nauru s 323
– Unlawfully causing GBH
• Fiji s 258; Solomons s 226; Kiribati/Tuvalu s 220; Nauru s 320
• These offences can be committed by -
– intentional or reckless application of force (assault)
– or by criminal negligence, with actus reus not involving an assault
– No requirement of mens rea re the resulting injury, although defence of accident
may be available
• Nauru s 317
– Person who, with intent to maim, disfigure, or disable, or to do some grievous
bodily harm (1)unlawfully wounds or does any grievous bodily harm…

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 Injury-Based Offences (3)
• Offences requiring subjective mens rea
– Tonga, Niue
• Wilfully causing bodily harm
– Tonga s 107, Niue s 152,
• Wilfully causing grievous bodily harm
– Tonga s 106, Niue s 151;
• ‘Wilfully’: debates over whether it means just intentionally or includes recklessly – e.g. Lockwood [1981] Qd R 209 (must
anticipate the risk in some way)
– Samoa
• Causing bodily harm with intent s 119
• Causing grievous bodily harm with intent s 118
• wilfully causing grievous bodily harm
– Cooks
• Injuring with intent s 209
• Wounding with intent s 208
– Tokelau
• Intentionally causing bodily harm s 14(1)
• Offences not requiring subjective mens rea
– Samoa s 120
• Injuring in breach of a legal duty
– Cooks s 210, Niue s 158; Tokelau s 14(2) [not Tonga]
• Causing bodily harm/injury “in such circumstances that, if death had been caused, he would have been guilty of
manslaughter”

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 Criminal Law in Solomon Islands

GRIEVOUS HARM – s226 Penal Code

• Elements 
A. Defendant 
B. Place 
C. Date 
D. Unlawfully 
E. Grievous Harm 
F. Complainant

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 Unlawful & Mens Rea
• An act or omission is 'unlawful' unless it is
authorised, justified or excused by law. 
• The courts have consistently held that the mens
rea of every type of offence against the person
covers both actual intent and recklessness, in the
sense of taking the risk of harm ensuing with
foresight that it might happen, see R v
Spratt (1990) 91 CrAppR 362 [[1991] 2 AllER 210;
[1990] 1 WLR 1073; [1990] CrimLR 797] at page
370. 

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 Overlap of Offences
• Assault occasioning
bodily harm
• Unlawfully causing
bodily harm
• Unlawful wounding
• Unlawfully causing GBH

• What does the prosecutor do?

– Depends. Eg. if criminal negligence caused injury, then
can’t charge ‘assault causing bodily harm’ therefore it
must be an ‘injury based offence’.
– If it is an assault, does P charge with Assault causing BH or
unlawful wounding?
– Difference in penalties?
04/09/2023 LW205 - 2017 72
Cases of interest – for extra reading
• TNT Global SPA v Denfleet International Ltd [2007]
EWCA Civ 405
The Court of Appeal surveyed the many attempts made
by the courts over the years to define wilful misconduct.
The Court here cited with approval Longmore J
in  National Semiconductors (UK) Ltd v UPS Ltd[1996] 2 LL
Rep 212, who proposed that for wilful misconduct to be
proved there must be either:
 " (1) an intention to do something which the actor knows
to be wrong or (2) a reckless act in the sense that the
actor is aware that loss may result from his act and yet
does not care whether loss will result or not".
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 State v Paru (No 2 of 2021) [2021] PGNC 376; N9109 (2
September 2021)
• Pursuant to s 269(2) of the Criminal Code, where there is an unlawful and
unprovoked assault, an accused may use force likely to cause death or
grievous bodily harm if: a) the nature of the unlawful assault is such as to
cause reasonable apprehension of death or grievous bodily harm; and b)
the accused himself or herself believes on reasonable grounds that doing
so is the only way to save himself or herself (or someone else) from an
unprovoked and life threatening assault:  Tapea Kwapena v The State 
[1978] PNGLR 316 at 319; see also R v Gray (1998) A Crim R 589; R v
Messent [2011] QCA 125. 
• Where the evidence of self-defence has been fairly raised the essential
question for the purposes of s 269(2) is whether the State has negatived
beyond reasonable doubt the possibility that the accused believed on
reasonable grounds that what he or she did was reasonably necessary to
preserve him or herself from death or grievous bodily harm, and not
whether what he/she did was reasonably necessary to preserve him/her
from death or grievous bodily harm:  Kwapena (supra).

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 DOMESTIC VIOLENCE LEGISLATION
• Domestic violence legislation recently enacted in most jurisdictions,
implementing recommendation of UN Declaration on the Elimination of
Violence Against Women (1993)
• Vanuatu, Family Protection Act 2008
• Fiji, Domestic Violence Act 2009
• Marshall Islands, Domestic Violence Prevention and Protection Act 2011
• Palau, Family Protection Act 2012
• Samoa, Family Safety Act 2013
• Kiribati, Te Rau n Te Mweenga Act 2013
• Tonga, Family Protection Act 2013
• PNG, Family Protection Act 2013
• Tuvalu, Family Protection & Domestic Violence Act 2014
• Solomon Islands, Family Protection Act 2014
• Kosrae, State Family Protection Act 2014,
• Cook Islands, Family Protection and Support Act 2017
• Nauru, Domestic Violence & Family Protection Act 2017
75
 FATURES OF dv LEGISLATION

• Specific offence of domestic violence

– - Complements law of assault
– - Publicises criminality of the conduct

• Protection orders: permanent and temporary

– orders may include conditions such as that:
• the defendant must be of good behaviour towards the complainant
and any other family member named in the order;
• the defendant must not approach, contact or communicate with the
complainant;
• the defendant must not enter specified property – even the family
home. These are sometimes called ‘exclusion orders’.
Breach of order = offence
Temporary orders
- In cases where there is a fear of imminent violence, an interim or temporary
order may be made on the application of the complainant without the
defendant being heard.

76
 R v Kiriau [2020] SBMC 12; Criminal Case 12 of
2020 (4 May 2020)
• Case Authorities
• The following are case authorities used to assist in pitching the appropriate starting point and
arriving at a proper and just sentence.

• In R v Ninamu[1], the Accused pleaded guilty to the charge of Domestic violence and physical
abuse against his own dear wife. He assaulted the victim by punching her left-side cheek and as
a result caused swollen and slight laceration. The particulars of the charge stated that he
grabbed the victim’s hair and dragged her around several times. He was sentenced to 8 months
imprisonment and suspended wholly for 2 years due to strong reconciliation by Reverend
Beckily Kahui and the physical appearance of the child and victim in Court to confirm the need
of the Accused in the family and forgiveness. 

• In R v Foster[2], the accused assaulted his wife on two occasions. He pleaded guilty and was
sentenced to 6 months’ concurrent sentence to his other counts of Domestic violence and
intimidation. The accused used weapon to aid the assault on the victim. There was evidence of
reconciliation between his wife’s family and himself and that his wife desperately needs him
back in the family to support and care for their children. The court was tamed to accept that
principal of reintegration was appropriate to coincide with the need to impose deterrence
sentence.

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 Kiriau
• In Regina v Ramai[3] Mr. Ramai was charged with 2 counts of domestic violence. The facts are as follows,
for the first incident, Mr. Ramai threatened to cut the victim into pieces with a bush knife. For the
second incident, Mr. Ramai slapped the victim on the mouth and used a stone to hit the victim three
times on the shoulder. He only stopped because the victim’s sister intervened. The starting point for the
first incident was 4 months imprisonment, and for the second offence 18 months imprisonment. Taking
into account the mitigating factors including a 25% discount reduction for an early guilty plea, the Court
further reduce 4 months to consider his past clean criminal history and 6 months deduction for
reconciliation, the total sentence was 5 months imprisonment.

• I wish to adopt the sentencing guidelines provided in a New Zealand case of R v Taueki[4] where O’regan
J, in delivering the judgment of the New Zealand Court of Appeal said at para [33], pp.383-384;

• “... (a) Domestic situation: the fact that violence occurs in a domestic situation should not be seen as
reducing its seriousness. Indeed, domestic violence is a major problem in New Zealand society and, by
its very nature, one which is difficult to detect. It frequently involves violence by a man against a woman
or child, were vulnerability of the victim is a significant factor. (b) Victim’s plea: sometimes the victim of
a serious assault, particularly in a domestic situation, will ask the Court to impose a lenient sentence.
This provides something of a dilemma for a Court, but in our view the position is now clear that the
Court should not condone violent conduct even if the victim does so: there is a public interest at stake as
well as the interest of the victim: R v Clotworthy (1998) 15 CRNZ 651 at p659. That is not, however to
say that the views of the victim are to be ignored, rather it is simply to emphasize that the views of the
victim do not outweigh the public interest...”

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 Kiriau - Sentence
• Count 1, Domestic violence – Physical Abuse
contrary to section 4 (1) (a) as read with
section 58 of the Family Protection Act 2014
 – 2 years and 8 months’ imprisonment.

• Count 2, Domestic violence – Physical Abuse

contrary to section 4 (1) (a) as read with
section 58 of the Family Protection Act 2014
 – 18 months’ or 1 year and 6 months’
imprisonment.
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End