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INTRODUCTION
An
assault is any act which intentionally
or recklessly causes another
person to fear immediate and
unlawful violence. Any actual
striking or use of force against
the person of the victim is
technically a battery. However,
the term battery has in many
jurisdictions now been taken
over by assault. Practically,
the term assault as used in
the every day usage in the courts
now also covers battery.
The law of assault was developed
“at common law”.
That is law made by judges in
the making of their decisions.
To commit an assault is also
a tort and not just a crime.
This means that a person guilty
of an assault can be sued by
the victim in the civil courts
for damages. (This has major
ramifications for Uechi-ryu
proponents who may find that
whilst the criminal case has
been dismissed, the plaintiff
may sue in the civil courts.
I will discuss civil actions
in another article, for the
legal burden on the plaintiff
is less, and chance of winning
the case higher)
Alongside the common law are
Statutory Offences. (laws written
by parliament.) Statutes have
created different types of assault
and they have, most importantly,
declared maximum penalties that
can be imposed by the courts
and for the mode of trial. At
common law no penalty was prescribed
as a maximum, so the penalty
was left open to the trial court.
Further, with the statutory
offences, an accused charged
with assault can be dealt with
either summarily in the Local
Court or by indictment in the
District Court before a judge
and jury.
Categories of Assault
The
legislators have now created
different categories of assault.
In addition to assault itself,
offences include Assault Occasioning
Actual Bodily Harm, Assaulting
Police or Peace Officers, Assault
with Intent to Commit a Felony,
Maliciously Inflicting Grievous
Bodily Harm, Malicious Wounding,
up to and including murder.
Courts tend to penalize offenders
who assault police in a stricter
way – thus a defendant
using debilitating Uechi-ryu
techniques and force against
a police officer would find
a harsher penalty.
Defenses
There
are defenses that are available
to an accused person who is
charged with an assault. These
include, Self Defense, Defense
of Another, Defense of Property,
Affecting a Lawful Arrest and
Removing a Trespasser from Land
(using only force that is reasonable
in the circumstances).
In the case of a Uechi-ryu expert,
the case of self defense springs
to mind. If we considered a
common bar room brawl, initiated
by simple argument, and alcohol
clouding judgment, a defendant
using Uechi-ryu techniques,
and causing GBH (grievous bodily
harm) by use of for example
‘shoken fist’, a
penetrating nukite, or a sokusen
kick, would be penalized heavily
by the court. The line between
self defense and excessive force
is one for the court to decide,
but often the injuries to the
victims speak louder than testimony.
A Uechi-ryu practitioner would
be well advised to stop once
he has disarmed his bar room
attacker. Similarly, a Uechi-ryu
practitioner should never instigate
the assault. His skills, if
known to the prosecutor, would
be a damning point against any
defense.
Burden
of Proof
As
assaults are criminal offences
the burden of proof falls upon
the prosecution to prove the
case beyond reasonable doubt.
This also includes the defense
of Self Defense as the Prosecutor
must disprove Self Defense beyond
reasonable doubt. In any offence
where the onus falls upon the
accused to prove a defense,
such as for example removing
a trespasser, then the accused
will bear that onus on the balance
of probabilities.
DEFINITIONS
Actual
Bodily Harm: Includes any
hurt or injury calculated to
interfere with the health or
comfort of the victim.
Grievous
Bodily Harm: Is referred
to by the courts as, "A
really serious injury".
This definition has been expanded
on by the Crimes Act to include
any permanent or serious disfiguring
of the person.
Wound:
A wound consists of an injury
involving a breaking through
the whole skin, including the
outer and inner layer of skin.
(Uechi-ryu practitioners would
be wise to use their skills
so as to not break or penetrate
the skin layer.)
LAW OF ASSAULT
An
assault is any act which intentionally
or recklessly causes another
person to fear immediate and
unlawful violence. It is important
to note that a Uechi-ryu expert
who made his skills known orally
with the intention of causing
of fear would be enough for
an arrest and court appearance.
Certain elements are needed
to complete the crime, but a
simple saying, “Don’t
mess with me, I know Uechi-ryu
Karate” would not be enough.
However a demonstration combined
with words would go a long way
to filling the elements of the
crime.
Assault,
or Common Assault as it is often
referred to, is still defined
at common law. That is the definition
of what an assault is, is taken
from judgments given from judges
in the courts. The effect of
creating a section in the various
Commonwealth Crimes Act for
assault means a maximum penalty
can be imposed and a mode of
trial determined with certainty.
All assaults are crimes. As
such the burden of proof lies
upon the Prosecution to prove
its case beyond reasonable doubt
in every case. The accused need
not prove or do anything. If
the Crown cannot prove its case
then the charge laid against
the accused would be dismissed.
Causing
Injury by Fear
It
can amount to assault, assault
occasions actual bodily harm,
inflicting grievous bodily harm
or even murder to cause a person
to fear imminent violence if
then the victim becomes injured
as a result of attempting to
escape.
An
example of this is where the
attacker places the victim in
fear of being killed or suffering
grievous bodily harm and the
victim in an attempt to escape
such violence jumps over the
balcony of a unit. If the victim
is killed in the fall the accused
could be guilty of the murder,
or if the victim suffers serious
injury the accused could be
convicted of maliciously inflicting
grievous bodily harm. This is
probably the key area that Uechi-ryu
practitioners need to be aware
of. Causing fear where the victim
is an elderly person, and who
flees but dies in that attempt
to escape, would be an easier
case for the prosecution to
win. Conversely, when the other
party is physically larger,
the Uechi-ryu practitioner,
who would argue he himself was
in fear of attack and injury,
could reverse the direction
of fear by demonstrating a modicum
of skill that would suggest
to the larger assailant, that
the assailant should decease
from any attack If the attacker
assessed the danger, and fled,
and injured himself in fleeing,
the court would have to decide
on the facts of the case, but
the Uechi-ryu expert has a stronger
defense and chance of acquittal.
DEFENSES
TO ASSAULT
There
are a number of defenses available
to assault. They include:
-
Self defense;
- Defense
of another;
- Defense
of property;
- Removal
of a trespasser;
Strictly,
self defense is not a defense.
Self defense is an issue that
needs to be disproved by the
Crown beyond reasonable doubt.
Normally a defense will apply
once the Crown has proved its
case to excuse the actions of
the accused. However, if the
Crown cannot disprove self defense
then the accused is entitled
to an acquittal.
The
test for self defense has both
subjective and objective requirements.
Firstly, the court needs to
consider the incident from the
point of view of the accused.
Did he/she do what he/she thought
was necessary in the circumstances
(considering the danger faced),
and was that reasonable.
The
court recognizes that an accused
does not have the time when
the incident occurred to precisely
determine the exact amount of
force that is required to be
applied. This is only reasonable
when a person has to make a
split second decision as to
what force he or she should
apply to defend his or herself.
However,
it would not be reasonable to
shoot a person who is threatening
to slap the accused. Nor would
it be reasonable to shoot a
person who after the initial
assault is fleeing from the
accused. This objective part
of the test is what the jury
will need to assess to determine
whether the defendant’s
actions were reasonable in the
circumstances. Similarly, it
would not be reasonable to strike
a person in the ribs or stomach
region with a shoken fist or
nukite where that other person
merely portrayed hand movements
that were meant to intimidate
the Uechi-ryu practitioner.
Further,
self defense cannot amount to
retribution. If an accused was
assaulted by another person,
then while defending him or
herself, continued to fight
the original attacker to the
point that he or she becomes
the aggressor; then self defense
will not apply. The reason is
that the victim did not do what
was needed in the circumstances,
but went beyond what was needed
to defend him or herself.
The
same principles apply to the
accused person acting in the
defense of another. This is
allowed as long as the accused
only does what is reasonable
in the circumstances to defend
that other person. A reasonable
question for the court is does
the wauke block (which indeed
could remove the threat of attack)
need to be completed with a
double strike to the throat
and lower rib?
A
person can do what is reasonable
to protect possessions. It is
justified to use reasonable
force to reclaim property from
a thief, or to remove a trespasser
from your property. Again, the
force used must be reasonable
in the circumstances. This reasonableness
will be judged based on the
facts of the case at hand. However,
courts tend to look more ‘favorably’
on those trying to protect their
property. If, for example, thugs
broke into a Uechi-ryu dojo,
and the Uechi-ryu instructor
used his skill to disarm and
subdue the gang (two or more
persons) and those persons suffered
injuries, the Uechi-ryu instructor
would have good defenses should
he be charged with assault.
However, where just one person
broke into the school, the Uechi-ryu
practitioner would have to use
no more than an amount of force
reasonable to subdue the victim.
Another
question that could be asked
here is if a shoken is the appropriate
response to defend with if your
attacker is throwing a regular
punch?
1“...Shoken is called
the tiger’s tooth. This
punch is compared to being bitten
by the teeth of the tiger. The
tissue damage caused by a shoken
punch is more intense than the
blunt result of a seiken punch.
It delivers more destructive
power than any other hand strike
because the force of the punch
is focused into a very small
area.”
The fear being, of course, that
your victim (the person you
assaulted in defense of your
property) had some congenital
defect and the application of
a reasonable Uechi-ryu counter
and defense causes the victim
to die. You cannot fall back
on the defense that the victim
had a bad heart. You must take
the other party as you find
them.
The
overall theme of the defenses
to assault is reasonableness.
Self defense does not allow
the original victim, if he or
she is able to defend the attack,
to then proceed to beat the
original aggressor. Once what
is required to be done in defense
has been done, then the person
defending himself must not use
further force. It should be
noted though, if the accused
went further in such circumstances,
then the fact he was attacked
by the other person would be
material used in mitigation
when deciding what an appropriate
penalty in the particular case
might be.
Conclusion
Any
one with Uechi-ryu skills needs
to be aware of the skill he
has – and when a situation
develops requiring him/her to
use their skills, use only enough
force to subdue the opponent
– not enough force to
cripple the opponent or cause
injury. A court would expect
a Uechi-ryu practitioner to
know how to use his skills wisely,
thus the burden becomes higher
where the court is aware of
defendant who has Uechi-ryu
skills, Of course, the law of
Commonwealth countries is not
the same as the law found in
the United States, which would
require a further in depth analyses.
This and more will be explored
in later articles.
References
1.
Dollar, A. (1996). Thrust and
strike techniques. Secrets of
Uechi Ryu Karate and the Mysteries
of Okinawa, 332.
2.
Crimes Act (1914) Australia
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