Introduction to Assault

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Assault refers to either the crime of putting another person in fear of an unlawful contact, or the actual application of force without a lawful excuse. It is catergosied into many different types of assault, which can be broadly separated into common assaults and aggravated assaults.

This article mainly deals with common assault. the principles governing common assault are as follows (:s 61):

  • Actus reus: either of the following:
    1. Traditional assault - an act or words causing the apprehension of imminent unlawful contact (ie, a threat).
      • The threat must have caused an imminent and immediate harm; generalised threats of future conduct will not suffice: Knight.
      • If, however, the circumstances are such that the threats are capable of creating an immediate and continuing fear, they will constitute assault: Zanker v Vartzokas.
    2. Battery - the application of force without consent or lawful excuse.
      • Must be a positive act, cannot be an omission. However, can be a continuing act: Fagan v Metropolitan Police Commissioner.[1]
      • No need for a strong force or any sort of injury - just the occurrence of an unlawful contact: Wilson.[2]
      • Toucing a person's clothes counts as touching the person: DPP v JWH.[3]
      • Spitting counts as sufficient application of force for the purposes of assault: DPP v JWH.[4]
      • 'Defences' - application of force will not constitute assault if:
        1. There is a lawful excuse.
        2. There was consent on behalf of the victim.
          • However, consent is immaterial in unlawful situations or situations which the degree of harm is very severe: Brown.
  • Mens rea: intention or recklessness to create an apprehension of immediate harm (traditional assault) or apply force (battery): MacPherson v Brown.
  • Maximum penalties:
    • If tried on indictment: 2 years imprisonment.
    • If tried summarily: 1 year imprisonment.

This article is a topic within the subject Criminal Laws.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 646-669.

Introduction

[5] In the criminal law, the crime of 'assault' now incorporates both the original common-law offence of assault as well as the offence of battery. The old common-law definitions were as follows:

  • Assault: the crime of putting another person in fear or apprehension of an unlawful contact (threatening someone with unwanted contact).
  • Battery: the actual application of force without consent or lawful excuse.

In modern criminal law these two offences are often simply described as assault.[6]

Assault comes in a variety of forms depending on other contexts. This will be discussed below.

Social Context

[7] The circumstances of the situation determine whether the conduct is an assault and what category it falls into.

  • For example, a very minor contact, causing no physical injury, may constitute an assault if the actor possesses a certain state of mind (such as the intention to frighten), whereas a serious injury may be caused without the actor being criminally liable if the 'victim' has consented (such as in the context of sport or surgery).
  • The law reflects a social ambivalence towards the use of violence, where it may be condoned or ignored in the domestic sphere and even encouraged on the sporting field.
  • Significant rises in the reporting of domestic violence reflect a concerted program of public education, police training and the establishment of support services as well as legislative changes to police powers and bail.

Legal Categories

[8] There are a number of different ways in which assault is categorised under the criminal law.

  • A broad way of categorising assaults is into “common (or 'simple') assaults” and “aggravated assaults”.
    • Common assaults are charged under s 61 of the Crimes Act but are ordinarily dealt with summarily by a Local Court.
      • The prosecuting authority may elect otherwise, as assault is a Table 2 offence under the Criminal Procedure Act 1986.
      • There is a large measure of discretion available to police, including the choice not to proceed with charges.
    • “Aggravated assault” is a term used to cover a range of assault offences regarded as more serious because of the presence of additional factors (ie, a common assault plus another factor). They are more likely to be dealt with on indictment.
      • Aggravated assaults are often further categorised, for example, according to the consequence of the assault (degree of harm). This includes:
        • Assault occasioning actual bodily harm.
        • Assault occasioning grievous s bodily harm.
        • Assault occasioning wounding.

Sections 32-61 deal with most assault offences. They have often been amended and have a high degree of overlap. It has been noted that “Common law assault... extend[s] to... the merest application of any degree of force at all. On the other hand, the criminalisation of acts which endanger the lives and safety of other tends to be covered patchily and by very specific categories...”[9]

Actual bodily harm (ABH)

Assault occasioning ABH is dealt with in s 59 of the Crimes Act. The legislation doesn't actually define actual bodily harm, so it is defined by case law:

  • The case law suggests that the expression should be interpreted as the ordinary meaning of the words, as stated in Donovan,[10] that “bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health of or comfort of the prosecutor. Such hurt or injury need not be permanent but must, no doubt, be more than mere transient or trifling".
  • According to Chan-Fook,[11] the phrase “actual bodily harm” is “capable of including psychiatric injury. But does not include mere emotions such as fear or distress or panic....” and the condition must be an identifiable clinical one. Expert evidence should be called; the jury should not be left to infer psychiatric injury from the general facts of the case.
  • This was applied in Lardner,[12] where the psychologist’s references to “nervous shock” were held to be merely emotions.
  • In Ireland and Burstow,[13] bodily harm was held to include recognisable psychiatric illness, such as severe depressive illness and anxiety disorder.

Grievous bodily harm (GBH)

Assault occasioning GBH replaced the older common law terms of “maim” and “mayhem”. GBH is defined in s 4 of the Crimes Act as:

“the destruction (other than in the course of a medical procedure) of the foetus of a 
 pregnant woman... any permanent or serious disfiguring  of the person... any 
 grievous bodily disease.” 

The words convey their ordinary meaning, “grievous” meaning “really serious”.

  • In Hauoi,[14] it was held that the harm does not need to be permanent or long lasting or life-threatening but the injury does need to be a really serious one.
  • In King,[15] the death of a foetus was held to amount to GBH to the mother.

Wounding

Wounding is dealt with in s 33 or s 35 of the Crimes Act. Wounding requires an incision or puncture in the skin. According to Shepherd,[16] a wound is the infliction of an injury which breaks the continuity of the skin:

  • “‘Wounds’ is an injury involving the breaking or cutting of the interior layer of skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient... a split lip... inflicted by a punch is a “wounding” only in the most technical sense".

Assault in the Courts

[17] Common assault was the second most commonly prosecuted offence in the Local Court in 2007 (7.5% of cases).[18]

  • A further 3.6% of cases involved charges of assault occasioning actual bodily harm and 2% of cases involved assaulting an officer.
  • The most common penalty for these offences was a good behaviour bond and imprisonment was a less frequent outcome.
  • Malicious wounding or the infliction of grievous bodily harm was the fourth most commonly prosecuted offence in the District and Supreme Courts (4.3% of cases) in 2002.[19] A higher proportion of these cases resulted in imprisonment.

The Elements of Assault

Actus Reus

[20] The actus reus of assault is an application of force or an act causing the apprehension of imminent unlawful contact. Issues about whether the threat of harm is sufficiently imminent and whether a conditional threat may satisfy the actus reus requirement are discussed below.

This issue arose in Knight:

  • Threats need to be imminent and immediate; generalised threats of future conduct will not suffice.

And in Zanker v Vartzokas:

  • Facts: a woman accepted a lift from the accused, who made sexual offers to her and she then asked to be let out. Instead, he began accelerating and told her his friend is going to 'fix her up'. Fearing for her safety, she jumped out of the moving car, suffering injuries.
  • Held: The feared physical harm did not have to be immediate as long as there is a "present and continuing fear". “The threat could operate immediately on the victim’s mind but in a continuing way so long as the unlawful imprisonment - holding her in the van against her will - continued”.

All in all, it appears that the threats do need to constitute an immediate threat as opposed to future conduct, unless those threats are capable of creating an immediate and continuing fear.

The prosecution of assault charges against people who make nuisance phone calls is made difficult by the requirement that the threat cause a fear of imminent or immediate violence. The problem was addressed in NSW by the creation of a stalking offence in 1993.[21] Assault can be constituted by silent phone calls in appropriate circumstances under English law.[22]

Spitting

[23] Spitting was held to be an assault in DPP v JWH,[24] where the defendant spat in on a police officer’s face and another’s clothing.

  • Touching a person's clothes (including spitting on them) constitutes touching/assaulting that person.
  • The defendant was guilty of the offence of battery and assault, giving the term “assault” its wider meaning.

Omissions

[25] Omissions constituting assault arose in Fagan v Metropolitan Police Commissioner:[26]

  • Facts: The defendant was reversing a car when a police officer asked him to drive the car forwards. The defendant drove onto the police officer’s foot who told him to move it off. The defendant said “fuck you, you can wait” and turned off the engine. The officer repeated several times to get off his foot before the defendant reluctantly did so.
  • Held: A mere omission cannot constitute an assault, the accused must have committed a positive act. However, a continuing act can constitute an assault. In this case, it is unclear whether the mounting of the wheel onto the officer’s foot was accidental (which means there is no mens rea) but it is definitely clear that the accused “knowingly, provocatively and unnecessarily” allowed it remain there, which constitutes mens rea. Since the act was a continuing one, it is not necessary that the mens rea be present at the start of the actus reus; “it can be superimposed upon an existing act”.

Mens Rea

[27] The mens rea of simple assault is generally constituted by the intention to effect an unlawful contact, or to create an apprehension of imminent unlawful contact in the mind of the other person.

The question of whether recklessness can constitute mens rea instead of intention, and whether a subjective or objective test should be used, was considered in MacPherson v Brown:

  • Recklessness in criminal law should be confined to where the consequences are considered even if not desired (ie, a subjective test, the usual recklessness dealt with in Crime & the Criminal Process), rather than those that 'ought to have been known' (ie, objective test of the ordinary/reasonable person).

Consent to Harm

[28] Another issue is whether a person can be said to consent to the harm intentionally inflicted upon them. There is considerable uncertainty in the common law as to the circumstances under which consent may make an assault lawful.

USG notes: the cases discussed below are from England.

This was discussed in Brown:

  • In lawful situations (such as sports, surgery etc), consent to an assault will absolve the accused from criminal responsibility.
  • However, consent is immaterial in unlawful situations or situations which the degree of harm is very severe.

Three of the co-accused in Brown appealed to the European Courts of Human Rights. However, the court upheld the right of the state to interfere with the activities which involve physical harm, including sexual conduct and said that the level of harm to be tolerated was a matter for the state.

Another case which dealt with these issues was Wilson:[29]

  • Facts: a husband branded (with a hot knife) his initials on his wife's buttocks (with her consent). The doctor reported it and the husband was convicted of assault.
  • Held: Brown is not authority for the proposition that consent is no defence to a situation where actual bodily harm is deliberately inflicted - that judgement pertained only to sadomasochistic encounters. “Consensual activity between husband and wife, in the privacy of the matrimonial home, is not, in our judgement, normally a proper matter for criminal investigation, let alone criminal prosecution...”. The conviction was quashed.

See the Textbook pp. 663-4 for theoretical sources, including discussion of the inconsistencies between Brown and Wilson, and further English cases.

Consent to Medical Treatment

[30] Medical treatment is only lawful where the procedure has been consented to by the patient (or some other person authorised to provide consent such as a parent or guardian) or when the circumstances make the procurement of consent impractical (such as in an emergency).

  • The difficult concept of “informed consent” has developed, which requires that the patient’s consent be freely given after an explanation of the basic nature and risks of the procedure.
  • In practice such matters are usually brought in civil suits for damages rather than criminal charges.

This was discussed in Marion’s Case:

  • The rationale for exceptions to unlawful violence “appears to rest in the idea that some harms involve public,[31] not just personal interests.”

The relationship between consent under the criminal and the doctrine of informed consent was considered in Richardson:[32]

  • Facts: a dentist continued to treat patients after being suspended from practicing, and was convicted for assault because the 'fraud' vitiated the informed consent of the patients.
  • Held: "only a mistake as to the nature of the act or the identity of the person doing it vitiates consent". In any case, this was an issue for civil and not criminal law, so the conviction was quashed.

Concern about the introduction of the practice of female circumcision by some cultural groups in Australia prompted the enactment of the Crimes (Female Genital Mutilation) Amendment Act 1994. Consent to such procedures is expressly not a defence. Surgical operations (including gender reassignment) which are necessary for “medical welfare” of the person are exempt when performed by medical practioner’s or “authorised professionals”.

Acceptable Violence

The judgement in Brown raises the general issue of violence which is tolerated both socially and legally.

The Chastisement of Children

[33] Corporal punishment (beatings) was reintroduced into NSW State schools in 1989. Under the Greiner government’s “Fair Discipline Code”, individual State schools had the option of adopting or rejecting the use of corporal punishment and parents could veto the use in respect of their children by notifying the school principal each year.

  • In 1995, Legislation was passed to try and eradicate corporal punishment from the schools.
  • The banning of corporal punishment was recommended in 1997 in a report jointly prepared by the Australian Law Reform Commission and the Human Rights and Equal Opportunities Commission,[34] noting the increasing evidence that “corporal punishment has adverse long term effects on some children, teaches some that problems are best resolved by violence and does not lead to improved discipline compared with alternative methods of implementing self-control and responsible behaviour.”

Under the common law, parents are entitled to use reasonable and moderate force to chastise their children. In the year 2000, s 61AA was inserted into the Crimes Act, codifying the defence of lawful correction.

  • It incorporates the requirement of reasonableness but confines the level of force to exclude force applied to the head or neck or to any part of the body if it lasts for more than a short period.

This was discussed in A v united Kingdom:

  • Facts: a nine-year-old child had been beaten by his stepfather with a garden cane which had been applied with considerable force on more than one occasion. The stepfather was acquitted and the child appealed to the European Court of Human Rights, contending that the state had failed to protect him in violation of the Convention for the Protection of Human Rights and Freedoms.
  • Held: the beating reached the level of severity to fall within the scope of the convention and recommended that English law be amended, noting that “children and other vulnerable individuals, in particular, are entitled to state protection, in the form of effective deterrence, against such serious breaches of personal integrity.”

At the time of the publication of the Textbook, 22 European countries had completely outlawed the use of corporal punishment on children, as has New Zealand in 2007. See pp. 667-9 for theory sources.

Violence in Sport

[35] In recent years, both civil and criminal charges have been brought in relation to injuries sustained on the sporting field.

This was discussed in Billinghurst:[36]

  • Facts: alleged assault during a rugby match.
  • Held: rugby was a game of physical contact necessarily involving the use of force and that players are deemed to consent to force of “a kind which could reasonably be expected to happen during the game”. However, “there must obviously be cases which cross the line.”

And in Re Jewell:[37]

  • Facts: the victim received a forearm to the head during an AFL game. He suffered brain damage and applied for compensation on the basis that he was a victim of crime.
  • Held: The claim was dismissed; “players of Australian Rules contemplate that the game will be played in circumstances where there will be numerous breaches of the rules and accept within reasonable limits this fact.” The test applied should be one of reasonableness; the court allowed that he may have been entitled to compensation if he had been deliberately punched.

And also Stanley:[38]

  • Facts: Stanley (NRL player) had intentionally struck the opposing player with his elbow and had acted recklessly within the context of the charge.
  • Held: “[A] participant in a game of rugby league does not consent to being injured during the course of the game by an act which is not done in the legitimate pursuit of the objectives of the game.” “Players are not to be taken as consenting to the malicious use of violence intended or recklessly to cause grievous bodily harm".

In Watherson v Woolven,[39] the Court noted that such matters are generally better left to sporting tribunals than the courts except in extreme cases.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. [1969] 1 QB 439.
  2. [1997] QB 47.
  3. (unreported, NSWSC, 17 October 1997).
  4. (unreported, NSWSC, 17 October 1997).
  5. Textbook, pp. 466-468.
  6. However, in Darby v DPP (2004) 61 NSWLR 558, Giles JA noted that there can be battery without assault such as where the victim is struck from behind without warning, and that the distinction must be recognised even though it is more easily understood by philologists (who study linguistics in ancient texts) than the ordinary citizen.
  7. Textbook, p. 646.
  8. Textbook, p. 646.
  9. The Model Criminal Code Committee (Model Criminal Code, Chapter 5: Fatal Offences Against the Person, Report (1998) at 2).
  10. [1934] 2 KB 498, 509.
  11. [1994] 2 All ER 552.
  12. (unreported, NSWCCA, 10 September 1998).
  13. [1998] AC 147.
  14. [2008] NSWCCA 209.
  15. [2003] NSWCCA 399.
  16. [2003] NSWCCA 351.
  17. Textbook, pp. Textbook pp 648-9.
  18. Judicial Commission of NSW, “Common Offences in the Local Courts 2007” (2008) 37 Sentencing Trends and Issues 1.
  19. Judicial Commission of NSW, “Common Offences and the Use of Imprisonment in the District and Supreme Courts in 2002” (2004) 30 Sentencing Trends and Issues 1.
  20. Textbook, pp. 649–52.
  21. s 13 of the Crimes (Domestic and Personal Violence) Act 2007.
  22. Ireland v Burstow [1997] 4 All ER 225.
  23. Textbook, pp. 653-4.
  24. (unreported, NSWSC, 17 October 1997).
  25. Textbook, pp. 654-5.
  26. [1969] 1 QB 439.
  27. Textbook, pp. 655-6.
  28. Textbook, pp. 656 – 65.
  29. [1997] QB 47.
  30. Textbook, pp. 664-5.
  31. (1992) 175 CLR 218.
  32. (1998) 43 BMLR 21.
  33. Textbook, pp. 665-8.
  34. Seen and heard: priority for children in the legal system in Australia, Report 84.
  35. Textbook, pp. 668-9.
  36. [19878] Crim LR 553.
  37. (1987) 1 VAR 370 (Vic AAT).
  38. (unreported, NSWCCA, 7 April 1995).
  39. (unreported, SASC, 21 October 1987).
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