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Assault
- By Student at Law
- Published 22/04/2007
- Sydney Uni 2006
-
Rating:
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.”
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
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.”
Continued on page 3