Published on 22/04/2007

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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Ability to execute threat

R v Everingham (1949) - The defendant was convicted of assault when he presented a toy pistol at a taxi driver one night. The driver was unaware that it was a toy.

It was held that this was clearly an assault, as it is an assault to point an unloaded or toy gun if apprehension of imminent unlawful contact is created.

Imminence

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.

(3) Conditional threats

* Conditional threats are capable of forming the basis of a charge of assault.
* The requirement of imminent infliction of physical harm is the ultimate factor in determining liability.

Turbervell v Savadge (1669) - The defendant attempted to justify an assault upon the victim as being in self-defence when it was proved that the victim placed his hand on his sword saying ‘were it not assize time, I would not take such language from you’.

It was held that these words clearly indicated that, despite the gesture, the victim did not intend to use his sword to attack the defendant.

The defendant was unable to rely upon this defence for self-defence.

Hence a gesture which could otherwise constitute an assault will not be an assault if it is accompanied by words which indicate, notwithstanding the gesture, the man making the apparent threat does not intend to use force.

“When the threat to strike is explained by words showing that it is not the intention of the party to strike, this is not an assault” [Rozsa v Samuels]

Police v Greaves [1964] - The defendant told the victim, a police officer, he would stab him if he came any closer. Although there was no occasion for the victim to suppose a threat of imminent attack, the threat nevertheless constituted an assault.

The defendant subjected the victim to intimidation by threatening to apply force in the event of non-compliance by the victim to a condition that the defendant had NO right to impose.

Hence conditional threats must always be considered in the light of whether the defendant had a right to impose that condition.

Rozsa v Samuels [1969] - The defendant, a taxi driver, placed his taxi at the head of a queue of taxis, and in front of a taxi driven by the victim. The victim remonstrated which the defendant and told the defendant he would punch him in the head. The defendant then reached under the dashboard of his taxi and got hold of a table knife and said “I will cut you to bits if you try”. The defendant made a movement to get out of the taxi which was frustrated by the victim slamming the door of the taxi.

- The defendant was convicted of assault and appealed.

- It was held that although the defendant may have had a right to impose the threat, what he did was beyond the ordinary bounds of self control. The appellant’s threat to use violence was a threat to use more force than would have been considered reasonable in the circumstances - conviction upheld.

“...there is an exception to the general rule when the threat to strike is made with a deadly weapon, in which case the law does not allow the case to be qualified by the imposition of a condition even though it is one that the party had the right to impose....”

Battery

(4) Absence of consent

* AR requires application of force against V’s person> a mere omission cannot amount to an assault, let alone battery. Fagan (1969)

* Mere touching CAN amount to assault Collins v Wilcock (1984)

Consent

* The application of force is unlawful unless V has consented>> Prosecution must prove that V did not, expressly or impliedly, consent to the assault. Clarence (1988)

*“The term assault of itself involves a notion of want of consent. An assault with consent is no assault at all.” Schloss V Maguire (1897)

* accidental pushing, non-hostile acts such as patting>> implied consent

* Consent may be vitiated - eg duress as force would be assault

* At common law, consent of V is not a defence to assault occasioning ABH - R v Brown [1993] - the appellants belonged to a group of sado-masochistic homosexuals who over a 10-year period from 1978 willing participated in the commission of acts of violence against each other, including genital torture, from the sexual pleasure which it engendered in the giving and receiving of pain. The passive partner or victim in each case consented to the acts being committed and suffered no permanent injury. Activities took place at a number of private locations.

Appellants were convicted of assault occasioning actual bodily harm, and unlawful wounding. The trial judge ruled that the consent of the victim afforded no defence to the charges. The defendants appealed, and the appeals were dismissed.

It was held that a victim could not consent in law to the infliction of a degree of harm which in itself is harmful such as actual bodily harm.

The ‘Report of the Committee on Homosexual offences and Prostitution’ was examined in the case. It declared that the function of criminal law in relation to homosexual behaviour

“is to preserve public order and decency, to protect the citizen from what is offensive or injurious, and to provide sufficient safeguards against exploitation and corruption of others......”

- It was also held that sado-masochism was “not only concerned with sex......but also concerned with violence.”

R v Coney (1882) - Two men fought with each other in a ring formed by ropes, in the presence of a large crowd. Amongst the crowd were the defendants. It did not appear that the defendants took any active part in the management of the fight, or that they said or did anything.

The defendants were convicted of assault, as being principles in the second degree. This conviction was quashed on appeal.

“.....mere voluntary presence at a fight, does not as a matter of law necessarily render persons so present guilty of an assault as aiding and abetting in such a fight....”

It was also held that prize-fighting in public is unlawful and actual bodily harm or serious bodily harm in the course of the fight is unlawful, not withstanding the consent of the protagonists

“ When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is NO defence to the person who inflicts the injury, if the injury is of such nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as the person injured.”

“......whatever may be effect of a consent in a suit between party and party, it is not in the power of any man to give effectual consent to that which amounts to, or has direct tendency to create, a breach of peace...”

Exemptions against the rule against consent to ABH

Based on public and social interest and approval> eg surgery, boxing, football

In Pallante v Stadiums P/L (1976) - D relieved from criminal liability so long as;

- keeps within the recognised and reasonable rules of the game

- application of force by D against V must be in a sporting spirit , and not due to hostility or anger

- the application of force by D must be no more than is ordinarily and reasonably to be contemplated as incidental to the game

Re Jewell and Crimes Compensation Tribunal [1987] - The victim was harmed during an Australian Rules Match, when a player broke the rules of the game. The victim suffered brain damage and sought compensation.

A test of reasonableness was carried out and it was held that every player should expect there to be some breach of rules in the game.

“A player cannot expect, not is he entitled to expect, that every player will play strictly according to the rules.”

In addition in ‘AG’s Reference (No. 6 of 1980)’, it was held that nothing in regards to fights is “intended to cast doubt on the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.”

AG’s Reference (No. 6 of 1980) [1981] - Two men quarrelled with bare fists.

The court held that most fights will be unlawful regardless of consent.

“...it is not in the public interest that people should try to cause or should cause each other bodily harm for no reason. Minor struggles are another matter, So, in our judgement, it is immaterial whether the act occurs in public or private; it is an assault if actual bodily harm is intended and/or caused. This means most fights will be unlawful regardless of consent.”

Coincidence of Actus Reus and Mens Rea

The actus reus and mens rea of the offence must occur at the same time.

Fagan v Metropolitan Police Commissioner [1989] - This case stresses the importance of contemporaniety of the actus reus and mens rea requirements. This case relied on the notion of a ‘continuing act’, and held that as the defendant possessed the mens rea at one stage in the continuing act, he could be held liable.

“Both elements of the actus reus and mens rea must be present at the same time, but one may be superimposed on the other”

“There was an act constituting a battery which at it’s inception was not criminal because there was no element of intention but which became criminal from the moment the intention was formed to produce the apprehension which was flowing from the continuing act.”

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Aggravated Assault

(1) Assault with further specific intent

These offences require that the defendant not only had the necessary mens rea for common assault, but either intended

1. Some greater level of harm eg, assault with the intent to kill or inflict actual bodily harm, s 27 OR

2. The assault be part of another crime eg, assault with attempt to resist lawful arrest. S 58

(2) Assault on victims with special status

Assaults on victims of specially protected status are regarded as more serious and deserving of higher penalties.

Examples include wives, children, wards, apprentices, servants and insane people [s44 Crimes Act 1900 (NSW)] AND police officers and other officials [s58, Crimes Act 1900 (NSW)

- Police officers

R v Reynhoudt (1962) - The defendant was convicted of assaulting a member of the police force in the execution of his duty.

It was held that it is not necessary that the accused be aware that the victim is a police officer. It was held that the offence of assault extended to:

“assaults on members of the police force committed in ignorance of the victim’s membership to that force but recklessly or indifferently and without regard to whether the victim was a member of the police force or not” [@ 395]

However it is submitted that the following statement of Dixon CJ (dissenting), with whom Kitto J agreed, accords more with the principle.

“The offence is an aggravated assault, aggravated by the fact that the person assaulted is a policeman and is in the execution of his duty. That is a compound offence and I think that the guilty mind should go to the elements of which it is composed.”

In addition an aggravated offence is only commuted if the officer is acting in the execution of his duty.

McArdle v Wallace [1964] - a policeman was held not to be acting in the course of his duty where, having entered a cafe to make inquiries concerning stolen property. He refused to leave when told to do so by the owner.

* Determining what falls in the scope of a police officer’s duty may often prove difficult.

R v Waterfield [1964] - the Court of Criminal Appeal said: “In the judgement of this court it would be difficult....to reduce within specific limits the general terms in which the duties of the police constables have been expressed. In most cases, it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with a person’s liberty or property.

If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of the powers associated with the duty.”

R v K (1993) - the Federal Court of Australia stated: “A police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his function as a police officer, and continuos to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty...”

Lindey v Rutter (1980) - the court further stated that the idea of acting in the execution of a police officer’s duty should be construed broadly to protect the performance of all police duties and to apply whenever the police officer is doing something which can fairly and reasonably be regarded as carrying out his or her duty.

(3) Assault with particular injuries

* Where assaults cause actual injury to the victim, the penalty may be higher.

Assault occasioning actual bodily harm

* Under s59 Crimes Act 1900 (NSW)

* This offence is nothing more than a common assault which happens to cause bodily harm. Thus the mens rea for the offence is same as that for a common assault. Zanker v Vartzokas (1988)

* Actual bodily harm ~ is defined in ‘R v Donovan’ [1934] as:

“any hurt or injury calculated to interfere with the health or comfort of the victim. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifling.” [@ 509]

- It is a question of fact for the jury to determine whether an injury amounts to actual bodily harm.

* GBH- s 35
* Actus reus

- GBH= “really serious bodily harm” (Perks (1986) - juries decision

‘inflicting’ - directly or indirectly applying force to V. ‘Causing’ > D committed and act or omission that substantially caused V to suffer GBH. Causation needs to be established for both.

* Mens res-s33> Prosecution must establish

1. inflicting GHB maliciously S 5> defines ‘malice’ as acting with indifference to human life or suffering, or intent to injure some person, without lawful cause or excuse, or acting recklessly or wantonly. >>thus sufficient simply to intend to injure - R v Stokes and Difford (1990)

Maliciously ~ includes “intentionally” and “recklessly” [R v Cuunningham [1957]

2. intending to inflict GBH Coleman (1990)- thus the requirement of malice is largely redundant

Wounding

* defined in ‘R v Devine (1982):

Actus Reus

* “an injury which breaks the skin and penetrates below the epidermis (exterior layer) into the dermis (interior layer). Penetration of the dermis will cause bleeding, and consequently evidence of free bleeding will suffice to prove a wound was inflicted.” Vallance (1961)

Mens Rea

* same as those for GBH

(4) Assaults in combination with other offences

* These are also aggravated assaults.

* For example - Robbery: assault plus larceny [s94-98 Crimes Act 1900 (NSW)]

- Abducting: Assault plus false imprisonment [89-90A (NSW)]

(5) Stalking and intimidation

* Stalking is defined as following or otherwise showing repeated unwanted attention to another in circumstances which arouse reasonable fear or apprehension in the person being stalked.

* It is defined in the s562A Crimes Act 1900 (NSW) as “following of a person about or watching or frequenting of the vicinity of or an approach to a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity.”

* The offence is incorporated into s562AB Crimes Act 1900 (NSW)

For the offence to be committed it must be established that the accused acted 1. with the intention of causing physical or mental harms to the victim

2. with the intention of arousing apprehension of fear in the victim for his or her own safety or that of any other person,

3. AND that the course of conduct engaged in actually did have that result.

Defences

* A defendant will NOT be liable for assault if the defendant’s resort is lawful eg. self defence.

* Force is lawful where:

1. The law recognises the situation as one where force can lawfully be resorted to eg, self defence or playing sport.

2. The decision to use force is reasonable from an objective viewpoint.

3. The quantum of force is reasonable from an objective viewpoint

4. The defendant believes that the use and quantum of force is reasonable ie. from a subjective viewpoint.

* The defence of provocation may also be available as a defence to an assault. However there is a general agreement that provocation cannot be pleaded to charges of assaults which do not involve and intent to murder or kill. Hence, provocation cannot be raised as a defence to a charge of wounding with intent to inflict grievous bodily harm - Helmhout (1980)