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Whether it is reasonable for the complainant to be frightened is not a element of this section. Generally speaking egg shell skull principles apply. As long as it is proven beyond reasonable doubt that the complainant was frightened, that limb of the section is satisfied.Quote:
Originally Posted by steven
Whether the discharge was sufficiently close, on the proper reading of the section, is a separate issue that needs to be proven by the prosecution.
It might not be an 'element' of the section however it would be relevant in the case. If, from an objective view, the fear is completely irrational then it would be chucked out. Unless the defendant has shown a serious case of gross negligence then this type of charge wouldn't be pursued.Quote:
Originally Posted by Ultimitsu
Also the distance would relate directly to the reason for the shooting in my opinion, one shot shooting a sick cow is different to 100s of rounds shooting clays.
"so as to" indicates a requirement for intent, a deliberate act designed to endanger, annoy or frighten....
Reasonable cause does not prohibit recreational use as being a legitimate activity.... and whether you think the egg-shell defence is available or not, the judge will have to determine whether the person was in fact frightened, or annoyed. Part of that is a general understanding that they were entitled to be so, the the egg-shell sensitivity issue will certainly come into his deliberations.
It clearly ties back to reasonableness, and considering the intent of the statute overall - it was not designed to protect the supersensitive.
The point however is that this can fall either side of a judges bad day, and making your point is generally risky.
Whether someone is frightened is a matter of fact. i.e. did that happen. whether it was reasonable for that to happen is a matter of value judgement. The section does not involve that value judgement, but involves that matter of fact.Quote:
Originally Posted by Savage1
If the judge thinks it was not possible for the complainant to have been frightened, then the prosecution has not proven this fact, accordingly no conviction.
If the judge thinks most persons in the complainant would not have been frightened (your unreasonable to be frightened point) but accepts that he was frightened nevertheless, then this element of the charge is satisfied.
Actually it does not. "so as to" means the defendant's actions resulted in that outcome. intention to that outcome is not required. but intention to discharge firearm must be proven.Quote:
Originally Posted by Sidney
This view was confirmed in Rose v Police and Dreaden v Police. both old 90s cases.
In Dreaden, the judge said :"My conclusion is that the prosecution must show that someone was in fact frightened, although at least in the context of this case it need not go further and point to any positive evidence of intention in that regard."
Reasonable cause does not prohibit recreational use as being a legitimate activity....
No, it does not. But my point is that reasonable cause is far more restrictive than reasonable use. reasonable use is just that, reasonable use. Reasonable cause is something that is almost rightous, to overcome or justify the harm done to the complainant.
and whether you think the egg-shell defence is available or not, the judge will have to determine whether the person was in fact frightened, or annoyed. Part of that is a general understanding that they were entitled to be so, the the egg-shell sensitivity issue will certainly come into his deliberations.
Egg-shell is not a defence, in fact it is a counter-defence. it is saying just defendant is liable even if the victim is extra sensitive.
It clearly ties back to reasonableness, and considering the intent of the statute overall - it was not designed to protect the supersensitive.
See my post above.
I haven't bothered to read either of your cases, so I will limit myself to the information that you have provided.
You fail to identify the what context of that specific case might be. Clearly the judge in your quote does not rule out other cases requiring exactly that. The facts in Dreaden might well establish a lower level of accountability in either recklessness or carelessness, but again that is not specified in your response.
Secondly the judge does not define the meaning of that particular phrase "so as to", which at first glance appears to indicate both knowledge and awareness of outcome. It also implies intent, and unless there is specific disqualification of that meaning what you have quoted is not the end of the matter.
Reasonable cause - is grammatically correct for the sentence structure. You couldn't put "use" into that sentence and make sense. "Cause" is not compulsion in this context, and is simply a requirement for objectively considered choice. As such it is subject to review by others, and is not simply a matter of what the individual thinks is OK. And yes that may be balanced against the effect as you indicated, but objective evaluation of one and not the other is inconsistent as pointed out below.
As you may well know, a counter defence is actually a defence in general understanding, and yes I accept that super sensitivity is not a recognised defence in law for someone charged with this offence. But as a principle it is well established in determining effect in subjective response to accident, incident or claim for injury. To suggest that it bears no relevance to subjective response in this type of offence seems not only counter intuitive, it is also inconsistent with general legal principles. It has not been established that an objective evaluation of the complainants response is not applicable in what you have shown.
You are welcome to show where that has been established, but Dreaden doesn't in what you have shown here...
If you are saying I have not correctly formed the Ratio Decidendi from these two cases, isnt the onus on you to identify the correct ratio and my exact error? Here you are essentially saying you have not read these cases but I am (probably) wrong nevertheless.Quote:
Originally Posted by Sidney
Unless and until you can prove "so as to" carries that intention burden, you are stuck with the Dreaden dictum.Quote:
Originally Posted by Sidney
Yes...? I am not sure if this passage is intended to rebut my previous posts and if so which part.Quote:
Originally Posted by Sidney
I do not know that to be the case at all.Quote:
Originally Posted by Sidney
You will have to elaborate on this point. I am only aware of one area of law where Egg Shell is recognised as a possible defence - that is private nuisance. Would you kindly explain how and in what other areas of law "it is well established in determining effect in subjective response to accident, incident or claim for injury."Quote:
Originally Posted by Sidney
I have made no such suggestion. Let me repeat my position:Quote:
Originally Posted by Sidney
- As a defendant, you would logically argue that a normal person in the complainant's shoe would not have been scared, therefore the judge should draw the conclusion that this complainant was not in fact scared. If the judge accepts this submission and finds, as a matter of fact, the complainant was not scared, the charge fails.
- However, as a defendant you may not argue that because a normal person in the complainant's shoe would not have been scared, this complainant was being unreasonable if he was scared. As long as the judge finds that the complainant was scared, regardless whether it was reasonable or not (i.e. whether he was a egg shell skull or not), this part of the charge is satisfied.
I am not sure how else to state this position more clearly.
The quoted passage from Dreaden simply says intention to scare is not required. That passage does not deal with reasonableness of being scared.Quote:
Originally Posted by Sidney
No I am saying you haven't made your case... don't bother quoting latin at me, I know just as much as you do, if not more. The wider audience are already unimpressed with this argument already, and latin will finish them off.
Dreadon as you quoted it, does not bind other cases in applying the need for intention to be established. The judge say specifically that in the quote that you made. Again you fail to qualify the context or the facts in argument - it is possible that the judge brought in other levels of accountability, recklessness or carelessness but you do not specify. You made the argument - I just questioned it - you need to back it up..
Egg shell sensitivity? What about mental injury? The most obvious area? Do you think that the mental effect of being frightened might have some relationship to that area of law in allowing a judge to determine the merit of the complainants case?
This law cannot be applied in the absense of knowledge, absence of intent, abcense of recklessness or carelessness. If it was that would lead to inequitable outcome. All I am asking you to do is to clarify what is required to establish this offence and what you have quoted from Dreadon does not do that. This is not a strict liability offence.