Israel Folau to fight Rugby AU sanction

No, under my paradigm he can say it, but there is still intent But his only intent was to make a joke and diffuse a tense situation. Lets take a another example when in the heated argument the husband pushes the wife - she trips, his her head and later dies. He caused, but never intended, her death. You'd have difficulty with a charge of murder but you've got him for manslaughter. No intention to kill - no murder. But in the threat with a knife example there's no intention to cause fear - but there's still assault. Due to the reckless nature of the husbands actions, not due to his intent. then recklessness is deemed as intention The way the benchbook describes: An act by the accused which intentionally, or recklessly, causes another person (the complainant) to apprehend immediate and unlawful violence. Now I'm straying from the path a little here but the dictionary.com tells me that recklessly means : utterly unconcerned about the consequences of some action; without caution; careless (usually followed by of): to be reckless of danger. and intentional means done with intention or on purpose; intended: an intentional insult. I realise that the legislature can, from time to time, absolutely torture the English language when drafting statues. But I'm having difficulty believing that they intended for reckless and intentional to mean the same thing,

No, under my paradigm he can say it, but there is still intent. Even assuming there wasn't any direct intent and he genuinely didn't mean to threaten his wife, there is still reckless intent in that any reasonable person would understand that brandishing a knife is an action likely to lead to a threat being perceived. But equally, if in fact they had been having an argument and he went to made himself a sandwich, and unaware that she had come into the room to have another go he turned around with the bread knife, he could claim no intent. She might not have felt any less threatened given her mental state, but it still isn't assault. So I'll try it myself one last way myself then...four questions: - Does a charge of assault require a demonstration of mens rea? - Is mens rea what establishes the intent to commit a crime to accompany the act? - Is recklessness one of the four mental states that constitute mens rea? - So given recklessness allows a finding of guilty in a case of assault, is it deemed as demonstrating that there is the intent accompanying an act of assault? If the answer to all is yes, then recklessness is deemed as intention. It may not be direct intent to achieve the specific result achieved, but it is still criminal intent. And when it doesn't exist, or at least can't be proven, the charge will fail. Alternatively, if one of the answers is no, then feel free to clarify. But a reference would be preferred to show which isn't true. (PS, meant to say before, enjoyed the line about polysyllabic and wrong. May need to borrow that for work purposes at some point ;) )

But assault absolutely require intent of some sort, and lack of it would be a defence. OK last example, husband and wife bad having an intense argument. He picks up a knife and brandishes it at her and says "I should just kill you now - then you wouldn't have any more worries". She is terrified and in fear of immediate and unlawful violence she flees the house and calls the police on 000. The recording of her call indicates that she is extremely shaken and upset. Is this assault ? ? Police arrive and arrest the husband he's interviewed he says that he was joking. He was trying to diffuse the situation with some humour. Never intended his wife to feel threatened in any way. I take it that under your paradigm it's not assault as there was no intention hence no mens rea .

A crime - assault - needs a criminal action (actus reus) and a criminal intent (mens rea) Assuming the action is not in question, then if there was no criminal intent act directly there must be criminal intent to act recklessly If reckless action did not require criminal intent, only the criminal act would be necessary and assault would be a strict liability offense. That is not the case. As noted, the benchbook clearly defines exactly what the Crown has to prove if they rely on recklessness. They have to prove the accused understood the action they were about to take and then took that action anyway. That understanding prior to acting establishes the criminal intent. Because crimes such as assault require proof of both criminal action and criminal intent. It is one of the most basic principles of criminal law. If you were saying that assault didn't require the direct intent to cause the specific assault, I would agree. But assault absolutely require intent of some sort, and lack of it would be a defence.

Seriously, I’m out of words of one syllable or less. OK then you'll have to be polysyllabic and wrong :) 1. You are still conflating the intent to perform a physical action with the intent to commit a crime. 2. Recklessly still has a different meaning to intentionally.

No I'm not, and stop selectively quoting out of context. What I said was if they didn't intend the specific outcome, then they do have to have recognised and intentionally proceeded to take the risk that that outcome might have occurred. It is specifically that which constitutes the criminal intent. That is what mens rea means - guilty mind; they knew what they were doing and acted. And it is why the Crown has to prove that they knew or could reasonably know, because that is what then makes the action wilful. If they didn't realise the risk, or the Crown can't prove they did, then even if their action is absolutely not in question, there was no mental element, no intent, so no recklessness and no assault. Otherwise assault would be a strict or absolute liability offence. Seriously, I'm out of words of one syllable or less.

There is a strong focus on the homophobic aspect of the post, but it is also offending to atheists. Whereas "hell" is irrelevant, I don't appreciate being lumped in with thieves and liars as if my lack of faith is something criminal. I value tolerance, many of my family and best friends are deeply religious, we get along very well as we respect our differences, they don't affect us nor impede us from enjoying each other's company. I don't proselitise them about my views, they don't prositise me. The question isn't about religious freedom. Israel is free to have his beliefs. The problem is that, for a top athlete being paid $4M, his public image is necessarily part of the deal. Much like someone sponsored by Coke can't go around promoting Pepsi, Folau can't publicly promote view contrary to the organisation that is paying him the big bucks. He can express his beliefs in private, and if the organisation's view are unacceptable to him, he's welcome to leave. There are organisations that I wouldn't work for, due to their beliefs. Finally, by Folau's logic, he himself is going to his "hell" for being a liar and an idolater. He stated publicly that he would walk away from his contract if his actions were damaging the game. Well, they are, just walk away. Become a pastor, if this is your calling.

they may not have intended the outcome Hey where getting somewhere. Reckless does not equal intentional. If recklessness was independent of intent, was reflective only of the action, The action is not the issue. The crime is the issue. Your conflating physical action with criminal intent. As I said earlier you can act negligently or carelessly or even, dare I say it, recklessly.

Words of hate, twisting the truth have spread through the social grapevine calling for ultimate penalties. What like "gays go to hell" as posted over Instagram or twitter ?

I am specifically talking about criminal intent. Assault is a mens rea offence, which holds that liability should only be imposed only someone aware of what they are doing, the consequences it may have, and can fairly be said to have chosen the behaviour and consequences. By definition, intent absolutely is an element of assault. In the instance of the assault being reckless, mens rea is held to be met if the perpetrator understood the risk and chose to proceed regardless. As the benchbook stated, "if the Crown relies upon recklessness, it is necessary to prove that the accused realised that the complainant might fear that he or she would then and there be subjected to immediate and unlawful force, but none the less went on and took that risk". I am not sure how you think someone could accidentally or unintentionally recognise a risk and then specifically go on to take that risk, but whatever. More importantly, that passage it makes it clear that, unless they can prove the accused did realise the risk before then proceeding, it wasn't reckless. The act was the same, the outcome was the same, and as you say they may not have intended the outcome, but if not then they had to have recognised and chosen the risk. If they didn't understand there was a risk before they acted, or the Crown can't prove they did, they can absolutely claim no intent to assault. If recklessness was independent of intent, was reflective only of the action, it would apply regardless of whether they understood or not.

Reference your studies Huriah.

You're still conflating intentional action with criminal intent. proceeding once you’ve recognised the risk is what makes it intentional in law. Nope it's reckless that's why it's called reckless. “The object of the amendment was to allow the Crown to rely upon an accused’s intention for the purpose of proving he or she was reckless“. The act applies to GBH (and a range of more serious offences) not common assault. Nowhere in the Crimes Amendment Bill 2007 does common assault get a mention. Although introducing the parlimentary debates it's noted that Firstly, the bill removes the archaic fault element of "maliciously" from the Crimes Act and replaces it with the more modern fault elements of "recklessly" and "intentionally" where appropriate And from the same link Consequently, an injury is caused recklessly if the accused realised that grievous bodily harm may possibly be inflicted upon the victim by his or her actions, yet he or she went ahead and acted as he or she did. Note that it doesn't say anything about intent to cause injury or that the injury must be the result of any intent. IT can be reckless action. As to your examples I'd say that you've breached s11C Summary Offences Act 1988 (NSW) more than committed assault.

I'm sure you are right and we're talking at cross-purposes, if only because assault is not hitting people. Assault is the threat of hitting people. Hitting people is battery, even if the two do get conflated a bit. I don't know how you got to the first post, but it makes me wonder whether you are even bothering to read things properly. You were scoffing at the idea that the act would effectively say intentionally twice, and I was specifically noting that your point about claiming “I didn’t intend to scare anybody” would be the consequence if they only said it once. My point specifically was that it wouldn't work, because he did act recklessly, and recklessness is still classified as an intentional action. It is defined as such, and https://www.judcom.nsw.gov.au/publications/benchbks/criminal/recklessness.html specifically notes that when they eliminated the concept of malice, "The object of the amendment was to allow the Crown to rely upon an accused’s intention for the purpose of proving he or she was reckless". So to expand on the example perhaps: - run into a crowd and actively threaten people with a knife, obvious intent and assault - run into a crowd carrying a knife, also assault as it would obviously be perceived as threatening so choosing to do so makes it intentional and reckless - run into an open empty area carrying a knife, there may be intent but there is no threat so no assault - run into a crowd carrying a knife, would normally be assault as above, but if you are demonstrably too mentally deficient to understand that it would be seen as threatening, it would not be assault...intent could not be formed and lack of intent is the defence (not that they might not lock you up anyway, mind) - run into a crowd carrying a banana, and some nervous sort thought it was a knife and felt threatened, not assault as carrying a banana would not commonly be thought of as threatening so to do so wasn't reckless. If accused of assault, you could absolutely fall back on a lack of intent as a defence. - run into a crowd carrying a banana, and some nervous sort felt threatened, and you saw that and continued on making them feel threatened, probably assault as you intentionally continued the action once you saw the effect it was having. Similarly with your examples. In themselves not assault, but if they saw that someone didn't know what was going on and was feeling threatened, then chose to carry on regardless, they might be unlucky. As you say, You can recognise a risk and then proceed negligently or carelessly. But regardless of in what spirit you do so, proceeding once you've recognised the risk is what makes it intentional in law. Equally, if you could reasonably demonstrate you were oblivious to the risk, or immediately stopped the moment the risk was realised, you could claim no intent.

It's a fascinating coincidence that this is the weekend where many people remember the crucifixion of Jesus (a historical recorded event) where the ideological leaders of the time were threatened by his words, spread hatred through the mindless mob, fired up the aggro group mentality and had an innocent man put to death for the crime of loving and speaking out against the attitudes of the day. Apart from the fact that Israel is not Jesus and an employment issue is involved there doesn't seem to be much different. Words of hate, twisting the truth have spread through the social grapevine calling for ultimate penalties.

Spruce, 1M likes for that comment, like all christians, he picks and chooses what he likes and what not.....he likes the tats and love the lollie($$$)

Hi Andy, I think I might have figured out were we are at cross purposes with intent. You are talking about an intent to do a physical act. I am talking about intent to commit a criminal offence. Take your example of run through a crowd waving a knife around as far as I know that's not a crime. Although in you might also be going armed so as to cause fear (or the NSW equivalent) But there's no crime on the statue books that's called running through a crowd waving a knife. Similarly punching somebody isn't' a crime. Look at any statue you want and I doubt punching somebody would be found anywhere. Otherwise boxing/MMA etc would be automatically illegal. There isn't a crime called shooting at somebody. Heck there are times we take people who are good at shooting other people and hang medals on them and have parades. So does a person who is running through a crowd waving a knife have an intent to run through a crowd waving a knife - probably unless they are hypnotised or summat. But does that mean they commit a criminal offence ? Not automatically - what if the guy running through the crowd waiving a knife is part of the Amazing Zumba Knife Thrower extraordinaire's act and he's warming up the crowd. What if we're on the set of Game of Thrones or a military reenactment. What if he runs to the spit roast and starts carving meat for the crowd. The intent to do the physical act isn't the issue it's the intent to commit the crime. Some crimes require intent to be there some don't. Assault is one of the ones that doesn't.

Hi Andy, Your argument still breaks down to reckless being intentional - that's not the case. IF you were right there's one simple defence to all forms of common assault in NSW and that defence is "I didn't mean to" In your running around with the knife example IF intent is necessary to prove the assault charge then all the knife wielder would have to say is "I didn't intend to scare anybody". Unfortunately his intent does not matter if he was reckless. ......that no one person was specifically threatened, it was never meant that way, so no case Yes that would be the case if intention was necessary to prove an assault charge. However as assault can also be reckless it doesn't matter if it was never meant that way. Let's take another example, you and I and Pete are discussing Folau at our local over a few drinks. I'm being an infuriating pain in the butt to the extent that you lose your cool and throw your drink in my face. Is that assault? I reckon so - you've intentionally hit me with something. BUT unfortunately in your follow through on your throw the glass slips from your grip and hits Pete in the chest. (Luckily not breaking or doing him any "harm"). Have you assaulted Pete - after all you had no intention of hitting him with anything. I'd say there's a good chance that you've recklessly assaulted him. Let's look at that benchbook again " reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen." Now in my example you'd have to realise that there was a chance, however slight, that the glass might slip and hit somebody else. But you've still carried through with your action to assault me. Even though there's no intent on your part to hit Pete with anything he's still been struck due to your reckless behavior. Hence assault recklessly and without your intent to do so. As I said earlier You can recognise a risk and then proceed negligently or carelessly rather than intentionally. And if you do that and assault somebody what is it but assault ?

Yes...you can intentionally do two or more things, you know. More than one of them might be a problem. In this case for instance, it is saying that you cannot intentionally threaten a specific person or group with a knife and mean it as a threat, and also that you cannot intentionally run through a crowd waving a knife around when you know it might be taken as threatening. If they didn't qualify and expand on "intentionally", the legal argument in the second case would be that no one person was specifically threatened, it was never meant that way, so no case. Maybe that is what you are thinking about when you say there doesn't need to be intent, but the intent is still there in knowingly choosing to behave in a threatening way (And, on the wider point about Folau, it is why I doubt he could claim no intent. He may not have intended specific offence, but it was reckless as he must have known how it would be taken after the first time and he intentionally posted anyway). And yes, not assault. Reckless and negligent are not the same thing, have different definitions in law, and I don't think there is any such thing as negligent assault.

Gee, that would be a travesty. For all the criticism Folau, Christianity and Biblical principles are getting during this debate, a fantastic, cohesive and empathetic society can be run off just 10 rules. Yet look into a lawyers office and there are hundreds of books about laws. Humanity can't get it right so maybe our justice system needs to recognise there is a better one somewhere.

Not if the contract conditions are discriminatory. ie. Nobody who 'preaches' hellfire consequences as a result of climate change is asked to shut up, even those posts are offensive to some people in society.