Assault

Non-Sexual Assault

DEFINITION

“An assault is any attempt to offer with force and violence to do a corporal hurt to another, whether from malice or wantonness; as by striking at him, or even by holding up one’s fist at him in a threatening or insulting manner, or with such other circumstances as denote at the time an intention, coupled with a present ability of using actual violence against his person.......Where the injury is actually inflicted, it amounts to a battery......But if the occasion were merely accidental and undesigned, or if it were lawful.....; it is not assault or battery in the law.” [1 East Pleas of the Crown 406]

Types of Assaults

(1)  Common Assault

* The common law doctrine of assaults exist s61 Crimes Act 1900 (NSW).
* The current concept of common assault incorporates 2 offences of assault:

1. Psychic assault - where the defendant puts the victim in the fear of imminent physical harm
2. Battery assault - where the defendant applies unlawful physical force against the victim

NOTE:  The term battery has almost become obsolete, however for purposes of analysis, the components of each offence are marked.

(2)  Aggravated Assault

* Aggravated assaults are contained in ss27-60 Crimes Act 1900 (NSW)
* These assaults are considered aggravated due to the presence of addition or aggravating factors, and are punished more severely than common assault offences.  Aggravated assaults include:

1.   Assault with a further specific intent
2.   Assault on victims with special status
3.   Assaults with particular injuries
4.   Assaults in combination with other offences

Common Assault
Mens Rea

The mens rea for common assault is intent or recklessness:

-  To create and apprehension of imminent unlawful contact (psychic)
-   To effect an unlawful contact (battery)

R v Venna [1975] - (reckless assault) The defendant was involved in a struggle with police officers who were attempting to arrest him.  The defendant fell to the ground and lashed out wildly which his legs, and resulted in kicking the hand of one of the police officer, fracturing a bone.  The defendant claimed that he was kicking out in attempt to get up off the ground and that he did not intend to kick the police officer.

- The defendant was charged, inter alia, with assault occasioning actual bodily harm as he had lashed out his feet “reckless as to who was there, not caring one iota as to whether he kicked somebody”.

- Conviction was upheld, and it was stated that:

“.......the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another..”

1. Reckless

Coleman (1990) - (reckless assault) The defendant was charged with maliciously inflicting actual bodily harm with intent to have sexual intercourse.  The trial judge directed the jury that an act was done recklessly if the accused realised the possibility that injury might result but nevertheless proceeded to act.

- On appeal, it was suggested that a standard of possibility rather than probability for reckless assault was sufficient.

“The contemplation by the accused of probable consequence of death is required for murder because it has to be comparable with an intention to kill or to inflict grievous bodily harm.  Such a test of probable consequence is by no means required in relation to lesser crimes as a matter of law, logic or of common sense.”

- It was also stated that “the possibility test is always accepted for the common law crime of rape.”
 
Subjective

MacPherson v Brown (1975) - The victim was surrounded by 30 students, including the defendant.  The victim requested the group several times to be let through, later saying that he as in fear of physical danger from the group.  The confrontation lasted for 15 minutes.

The trial judge held that while he doubted that the defendant was aware that the victim would be frightened by his conduct, the defendant had been reckless and ought to have known that the victim would be frightened by his conduct.
The defendant was found guilty of assault.

On appeal, this conviction was overturned and it was stressed that the defendant must subjectively recognise the riskiness of the his own behaviour.  The defendant is NOT to be judged by an objective standard of what a reasonable person would have foreseen.

“It is contrary to the fundamental principles and the whole tenor of modern thought, to judge a man in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or foresight, but by what a reasonable, prudent man would have intended, known or foreseen in the circumstances.”

2. Intentionally

R v Lamb [1967] - The defendant pointed a partly loaded revolver at his friend.  Two chambers of the revolver’s cylinder contained bullets, but neither bullet was in the chamber opposite the barrel.  The defendant and the victim did not understand the way a revolver worked, and thought there was no danger and treated the matter as a joke.  The defendant pointed the gun at the victim and shot it killing the victim.

The defendant was convicted and appealed

It was held that an assault is not established by proof of a deliberate act which gives rise to consequences which are not intended.  Hence, as the defendant was treating a matter as a joke there was no technical assault.

Hostility

R v Boughey (1986) - The defendant was a doctor who, for sexual arousal of his partner, applied manual pressure to her carotid arteries.  He had not intended to cause her injury, but to increase her sexual excitement for the purpose of sexual activities they were engaged in at the time.  The defendant was charged with murder when this practice resulted in her death.  He argued he intended no injury.

It was held that it was unnecessary that the intentional application of force be accompanied by hostility.

NOTE:  a common assault can NOT be committed negligently.

Actus Reus

* To establish the actus reus of common assault, the defendant must;

Act so as to induce a fear in the victim that the victim is about to be physically
harmed.  The threat must be imminent, ie, fear of imminent unlawful contact [Ryan v Kuhl] (psychic)

Apply force against the victim (battery)

(1)  Application of force or threatened application of force

Fagan v Metropolitan Police Commissioner [1969] - The defendant reversed his car onto a police officer’s foot.  The defendant then turned off that car engine, and only reluctantly, after several requests reversed it off the police officer’s foot.

There was doubt as to whether the defendant intentionally parked the car on the officer’s foot, but it was BRD that the defendant allowed the car to remain unnecessarily on the victim’s foot.

It was held, that a mere omission cannot amount to a assault, such as an omission of the defendant to remove his car of the victims foot.  HOWEVER, it was held that in Fagan’s case, the defendant acted by switching off the car and maintaining the wheel of the car in that position, and this constituted the actus reus of the offence.

The omission in this case “could not in law be an assault, nor could it in law provide necessary mens rea to convert that original act of mounting the foot into an assault.......To constitute the offence of assault, some intentional act must have been preformed; a mere omission to act cannot amount to an assault.”

R v Knight (1988) - The defendant was convicted of assault under s261 Crimes Act 1900 (NSW) following threatening and abusive telephone calls to a police officer, a magistrate and a judge.

Apart from the telephone calls, which were traced to the defendant at a considerable distance from the targets, there was no evidence of assault as the defendant made threats to the future rather than threats of imminent harm.

The defendant’s conviction was quashed.

However it was held, given the circumstances, a threat of violence made over the phone could be a threat of immediate violence, and hence could amount to assault.

Neal (1982) - The defendant and another man of his community went to the house of the victim and swore and spat at him.  The defendant told the victim to ‘get off the reserve ‘ and that all whites should get off the reserve.  He also called out to some youths who were on the roadway to ‘come up’, however they did not.

On appeal, the magistrate accepted that there was no violence involved however stated that spitting amounted to an assault which could be compared to no other as “so degrading, humiliating, insulting or sickening.”

The magistrate also held that there was a “grave possibility of violence” due to the defendant, his companion and the youths nearby.

The defendant was convicted of assault for this offence, and the appeal was dismissed.

State of mind of victim

Zanker v Vartzokas (1988) - The victim accepted a lift home from the defendant.  The defendant started the car and offered her money for sexual favours, she refused his offer, and he persisted.  She repeatedly demanded that he stop, and the defendant accelerated the car.  He said ‘I am going to take you to my mate’s house, he will really fix you up’.  The van was travelling at 60km/hr, the victim was put in such fear that she opened the van door and leapt out resulting in some bodily injury.

It was held that the victim was in immediate and continuing fear so long as she was imprisoned by the defendant, and her fear was explicit.

The defendant was found guilty of assault occasioning actual bodily harm, and it made no difference if the defendant foresaw that the victim would jump out of the car and injure herself.

Hence, a defendant may be charged with an assault occasioning bodily harm, if the defendant’s psychic assault causes the victim to act in such a way as to inflict actual bodily harm on his/herself à the general test to be satisfied in these cases is whether the victim’s action, although voluntary, will not rupture the chain of causation ie, if the victim’s action was reasonably predictable and not a perverse reaction to the defendant’s threats.

NOTE: Whether these cases may constitute an aggravated assault depends on the mens rea of the offence.

(2)  State of mind of the victim

* Authority - Barton v Armstrong [1969] 2 NSWLR 451 ~ This was a civil case in which the victim pleaded that the defendant, a person of authority of whom he was generally in fear, rang him and threatened him with serious violence.  The victim feared this threat and alleged that is was an assault.

It was held that threats over a telephone could put a reasonable person in fear of later physical violence and that this can constitute an assault although the victim does not know exactly or even approximately when that physical violence may be applied.

Taylor J also explained that he believed that apprehended harm did not need to be perceived by the victim as imminent.

“threats which put a reasonable person in fear of physical violence have always been abhorrent to the law as an interference with person freedom and integrity, and the right of a person to be free from fear of insult.  If the threat produces the fear or apprehension of physical violence then I am of the opinion that the law is breached, although the victim does not know when that physical violence may be breached.”

1. In addition, an assault can occur where a defendant threatens physical harm unless the plaintiff does what the defendant requires him to do, ie, conditional threats.

Ryan v Kuhl [1979] - The defendant and the victim were in neighbouring cubicles in a public toilet.  The accused thrust a carving knife through a hole in the partition between the cubicles in order to stop the victim from annoying him.  The victim testified that the knife did not frighten him, as he realised that as long as he remained in the cubicle, the accused could not harm him with the knife.

It was held that as the defendant’s conduct did not cause fear of harm in the victim, there could be NO charge of assault.

Hence the victim must be put in fear of imminent unlawful contact.

Pemble v R (1971) - The defendant was charged with murder when he shot the victim who was his former lover.  The defendant carried a loaded gun, which accidentally discharged as he came behind her in an attempt to frighten her so that she would return to him.

The defendant would be unable to be convicted of assault, as the victim was unaware that the defendant was threatening her with a rifle, and hence did not feel fear.

The defendant was however convicted of manslaughter on other grounds, however Barwick CJ and Windeyer held that the accused had committed attempted assault.

Brady v Schatzel [1911] - The defendant pointed a gun at the victim, however the victim did not try and protect himself as he did not think the accused would fire it.

However, the defendant was held guilty of assault as the accused’s liability would vary according to whether his or her chosen victim was timid or courageous.

This judgement has been found to conflict with the principle that the defendant must take the victim as he or she finds them.

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