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)