Based in Australia Qld

Scenario 1

One Saturday evening, David 'Evil' Keneval (38 years old) was enjoying himself at a BBQ at his neighbour's house. After a few beers 'Evil' decided to enter into a conversation with his neighbour, Jack Green. Keneval and Green began by talking about football however the conversation turned to the question of refugees. The conversation quickly became very heated as Keneval's father was a refugee and Green was a 'bogan' and extremely racist. Green finally lost his temper and yelled to Keneval "you and your lot should go back to where you came from".

Keneval then lost his temper and retaliated by smashing the top off his VB stubby bottle and struck Green once to the right side of face with the jagged edges of the broken stubby bottle. The police and an ambulance were called. Green suffered from a large laceration to his right cheek requiring 80 stitches ($1,500 in medical expenses) and was unable to return to work for two months ($8,000 lost wages). He was further devastated when his girlfriend left him due to the hideous injury to his face.

The police subsequently charged Keneval with 1 x Wounding pursuant to s.323(1) of the Criminal Code which states:

(1)A person who unlawfully wounds anyone else commits a misdemeanour.

Maximum penalty - 7 years imprisonment.

Based on the above scenario answer the following question.

Judge Brown heard a matter, similar to Keneval's two months ago in the matter of R v Jones (2015). In this matter the Judge stated the following:

....Mr Jones, I have taken into consideration all of the mitigating factors, especially your background as a refugee and English as your second language when sentencing you today. However, you still lost your temper and assaulted a man using a beer bottle which resulted in serious injuries to the victim.

This is unacceptable in our society and requires an appropriate punishment. As such I am sentencing you to 3 years imprisonment, wholly suspended....

Q1. Compare and contrast the terms an act of 'battery' under the law of torts and the act of assault under the criminal law?

Q2. Compare and contrast the differences between any civil actions Green may pursue and the criminal proceedings instigated by police (outline how civil cases are different from criminal including the onus of proof required for both civil and criminal law).

a)Which party initiates the proceedings and why?

b)Who has the burden/onus of proof?

c)What the standard of proof is for each matter?