Assault

7.1.2 Legal categories

Textbook definition

Assault putting someone else in apprehended fear of unlawful contact

Battery physical contact without consent, lawful excuse or justification

Darby v DPP (NSW) (2004) 61 NSWLR 558, [71] (Giles JA):

Assault intentionally or recklessly causing someone else to apprehended immediate

unlawful force
Battery inflicting unlawful force

Simple or common assault

Crimes Act 1900 (NSW) s 61

Summary proceedings in Local Court, unless prosecutor elects otherwise
Common law assault infliction of any force

Aggravated assault

Actual bodily harm

o Donovan [1934] 2 KB 498, 509
ordinary meaning
hurt or injury calculated in interfere with health or comfort
does not need to be permanent
must be more than transient and trifling
o Chan-Fook [1994] 2 All ER 552, 559 (Hobhouse LJ) (EngCA)
includes psychiatric injury
but not fear, distress, panic
must be identifiable clinical condition
o Chan-Fook, applied in Lardner (unreported, NSWCCA, 10 September 1998)
Grievous bodily harm
o Crimes Act 1900 (NSW) s 4
destroying foetus (except medically)
permanent or serious disfigurement
grievous bodily disease
o DPP v Smith [1961] AC 290 (Viscount Kilmuir)
grievous bodily harm has ordinary meaning
bodily harm does not need to be explained
grievous means really serious
o Haoui [2008] NSWCCA 209

does not need to be permanent, long lasting, or life threatening

must be really serious

Wounding
o Shepherd [2003] NSWCCA 351, [31]-[32] (Kirby J; Meagher JA and Shaw J
agreeing)
breaking the inner layer of skin (dermis), not outer layer (epidermis)

7.2 Elements of assault

7.2.1 Actus reus
Actus reus

application of force; or
act causing victim to apprehend immediate infliction of force

Knight (1988) 35 A Crim R 314, 315-318 (NSWCCA) (Lee J)

must be threats of immediate violence

threats which may be executed at any time insufficient

Barton v Armstrong [1969] 2 NSWR 451, 454-455 (Taylor J)

threats via phone may be sufficient

Zanker v Vartzokas (1988) 34 A Crim R 11, 11-18 (White J) (SASC)

feared physical harm does not need to be immediate

present fear of relatively immediate imminent violence
in this case, kept alive by continuing profess toward house where feared sexual
violence would occur

Stalking

Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13

7.2.1.2 Spitting
DPP v JWH (unreported, NSWSC, 17 October 1997) (Hulme J)

Spitting can be assault

Touching clothes can be assault

7.2.1.3 Omissions
Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, 439 (James J) (QB)

Omission cannot be assault

Continuing act may be assault (e.g. driving on police officers foot and not leaving)

7.2.2 Mens rea

Mens rea

Intention to effect unlawful contract; or

Intention to create apprehension of imminent unlawful contact

MacPherson v Brown (1975) 12 SASR 184, 188-189 (Bray CJ) (FC)

Cannot be reckless

7.3 Consent to harm

Brown [1994] 1 AC 212 (HL)

Generally, consent is a defence.

However, the court may reject the defence on a case-by-case basis for policy reasons

(e.g. duelling)
The majority held that the defence should be rejected for sadomasochistic activities.

Wilson [1997] QB 47

Brown did not hold that consent could never be a defence. Instead, Brown held that

consent was not a defence for sadomasochistic activities.

Wilson held that the defence applies to a wife who wanted her husband to burn his
initials onto her body.

Aitken [1992] 4 All ER 54

Defence applied to horseplay.

Emmet, The Times, 15 October 1999 (CA)

Defence did not apply to sexual activities that caused actual bodily harm.

7.3.1 Consent to medical treatment

Patients or authorised people (e.g. parents or guardians) may give express consent.
Consent may be implied in emergencies.
Consent must be informed the nature and risks of the procedure must be explained
Consent must be given freely not under duress

Female genital mutilation

Crimes Act 1900 (NSW) s 45

Maximum penalty 7 years imprisonment
Consent not a defence (s 45(5))
In contrast, male circumcision is lawful, and covered by Medicare

7.4 Acceptable violence

7.4.1 Chastisement of children

Corporal punishment cannot be used in government schools (Education Act 1990

(NSW) s 35(2A)) and nongovernment schools (s 47(f)).

The Crimes Act 1900 (NSW) s 61AA provides a defence of lawful correction.

(1) In criminal proceedings brought against a person arising out of the application of
physical force to a child, it is a defence that the force was applied for the purpose of the
punishment of the child, but only if:
(a) the physical force was applied by the parent of the child or by a person acting
for a parent of the child, and
(b) the application of that physical force was reasonable having regard to the age,
health, maturity or other characteristics of the child, the nature of the alleged
misbehaviour or other circumstances.
(2) The application of physical force, unless that force could reasonably be considered
trivial or negligible in all the circumstances, is not reasonable if the force is applied:
(a) to any part of the head or neck of the child, or
(b) to any other part of the body of the child in such a way as to be likely to cause
harm to the child that lasts for more than a short period.
(3) Subsection (2) does not limit the circumstances in which the application of physical

force is not reasonable.

(4) This section does not derogate from or affect any defence at common law (other than to
modify the defence of lawful correction).
(5) Nothing in this section alters the common law concerning the management, control or
restraint of a child by means of physical contact or force for purposes other than
punishment.

7.4.2 Sport

Billinghurst [1978] Crim LR 553

o consents to force reasonably expected in sport
Re Jewell (1987) 1 VAR 370, 370-372 (Vic AAT)
o breaching rules is not necessarily outside consent
o rules are relevant but not decisive
o test = reasonableness, having regard to rules, and risks accepted by reasonable
players
Waterston v Woolven (unreported, SASC, 21 October 1987)
o defendant has evidentiary burden of proving victim consented
Stanley (unreported, NSWCCA, 7 April 1995)
o (Hunt CJ) no consent to acts not done in legitimate pursuit of objects of the
game
o (Levine J) does not consent to malicious violence, or reckless grievous bodily
injury

7.5 Aggravated assault

7.5.1 Assault with further specific intent
Prosecution must prove further specific intent.

Crimes Act ss 27-29 assault with intent to commit murder

Crimes Act ss 33-33B assault with intent to do grievous bodily harm, or resist lawful

arrest
Crimes Act ss 37-38, 58 assault with intent to commit indictable offence

7.5.2 Assaults causing particular injuries

Crimes Act s 35 reckless wounding or causing grievous bodily harm

Crimes Act s 59 assault occasioning actual bodily harm
Crimes Act s 35(1) recklessly causing grievous bodily harm in company (maximum
penalty: 14 years imprisonment)

Crimes Act s 54 negligent infliction of grievous bodily harm (maximum penalty: 2

years imprisonment)
o D [1984] 3 NSWLR 29 (NSWCCA) level of negligence = gross negligence
Crimes Act s 35 malicious infliction of GBH

7.5.3 Causing a disease

Causing a disease is included in the definition of grievous bodily harm (s 4), and may

be dealt with under all general GBH offences.

Common law definition of recklessness applies.
Second reading speech not caring about whether disease is passed on
Coleman (1990) 19 NSWLR 467 recklessness = accuseds realisation that particular

kind of harm might be inflicted

Policy discourages testing? wilful blindness?
Public Health Act 1991 (NSW) (since changed to Public Health Act 2010 (NSW))
o s 11 offence to fail to take reasonable precautions against spreading a
scheduled medical condition in a public place
Sch 1 medical conditions include HIV/AIDS, hepatitis C, chlamydia,
syphilis, gonorrhoea
ignorance of condition is defence
o s 13 offence of sexual intercourse with people knowing they have sexually
transmissible medical condition (fine of 50 penalty units)
o s 13(1) offence of sexual intercourse before informing others of risk of
contracting
o s 13(2) offence of owning or occupying building knowingly permitting
prostitutes to have sexual intercourse and, in doing so, commits s 13(1)

7.5.4 Assaults using offensive weapon or dangerous

substances

Crimes Act s 4 offensive weapon or instrument includes:

o Dangerous weapon
o Anything made or adapted for offensive purposes
o Anything used, intended for use, or threatened to be used, for offensive

purposes, regardless of whether ordinarily used for offensive purposes or is

capable of harm
Crimes Act ss 33-33B crimes involving offensive weapons
Crimes Act s 38 use of chloroform, laudanum, or other stupefying or over-powering

drug or thing
Crimes Act ss 39-41A use of poison or other destructive or noxious thing to cause

injury
Crimes Act ss 46-48, 55 use of explosive or corrosive substance to cause injury

Crimes Act s 49 setting traps

Crimes Act s 35A maliciously causing dog to inflict grievous bodily harm (max: 7
years), or actual bodily harm (max: 5 years)
o Crimes Act s 35A(4) may be caused by omission or affirmative act
Crimes Act s 49A rock throwing
o (1)(a) intentionally throws object at, or drops object on, vehicle or vessel on
road, railway or navigable waters
o (1)(b) person in vehicle or vessel
o (1)(c) risks safety of any person
Crimes Act s 38A spiking drink or food
o (2)(a) causing someone else to consumer drink or food
(i) with intoxicating substance that other person is unaware of
(ii) with more intoxicating substance that other person would
reasonably expect
o (2)(b) intends harm from consumption
o Max penalty = 100 penalty units / 2 years imprisonment

7.5.5 Assaults on victims of special status

Assault on children at time of birth (s 42)

Exposing or abandoning child under age of two (s 43)
Assault or (or neglect to provide necessaries for) wives, apprentices, servants, insane

people (s 44)
Assault on clergy engaged in duties (s 56)
Assault on persons endeavouring to preserve vessel in distress (s 57)
Assault or threaten crew member of aircraft or vessel while on board (s 206)

7.5.5.1 Law enforcement officials

Crimes Act s 58 assault, resist or wilfully obstruct officer while in execution of duty
o Applies to constables, special constables, customs officers, prison officers,
sheriffs officers, bailiffs, or anyone aiding such officers
o Max penalty = 5 years
o Table 2 offence under Criminal Procedural Act 1986 if dealt summarily,

max penalty = 2 years

Crimes Act Div 8A
o law enforcement officer includes ICAC Commissioner, officer of Police
Integrity Commission, staff of NSW Crime Commission, correctional staff,
probation and parole officers, DPP solicitors, Crown prosecutors
o Assault, stalk, harass or intimidate police officer while executing duty (s 60)
o Assault, stalk, harass or intimidate law enforcement officer other than police (s
60A)

o Assault, stalk, harass, intimidate third pary with whom law enforcement
officer has domestic relationship (s 60B)
Max penalty = 5 years
ss 60, 60A + actual bodily harm = 7 years
ss 60, 60A + wounding or GBH = 12 years
o summary offence resist, hinder, incite person to assault, resist or hinder,
police executing duty (s 546C)
max penalty = 12 months/10 penalty units/both
o indictable offence wounding or inflicting GBH with intent to resist/prevent
lawful arrest/detention of anyone (s 33)
o ss 33A, 33B indictable offences use, attempted use of firmarm, or
threatened use of offensive weapon, or threat to injury person or property, with
intent or prevent lawful arrest or detention
Lawful execution of duty

Lawful authority
Valid warrant of apprehension
Reasonable grounds to suspend offence (LEPRA s 99)
Noordhof v Barlett (1986) 31 A Crim R 417 no warrant of apprehension, not
executing duty

Knowledge of police? No (Reynhoudt).

No need for knowledge of police executing duty (per Menzies J; Taylor and Owen
agreeing)

Intimidating police officer (Crimes Act s 60)

Meller v Low [2000] NSWSC 75 (Simpson ) police officer must actually be

intimidated
Manton [2002] NSWCCA 316 police officer does not need to be so intimidated that
it influenced or deterred some action in course of duty

7.5.5.2 Assault on public justice officials and other related

persons

Crimes Act s 332 threatning or causing injury or detriment to witnesses, jurors,

judicial officers, or public justice officials (max: 10 years)

s 326 threatning or causing injury or detriment to person on account of anything
lawfully done as witness, juror, judicial officer or public justice official in, or in
connection with, any judicial proceedings (max: 10 years)
o Orcher [1999] NSWCA 356

police officer is public justice official

arresting officer not connected to judicial proceedings arrest is

necessary preliminary, but not part of, judicial proceedings

connection close connection with judicial proceedings; impinge
conduct of public justice official with respect to proper conduct of
judicial proceeding

7.5.6 Assault in particular circumstances

7.5.6.1 Assault at schools

Crimes Act s 60E assault, stalk, harass, intimidate school student or staff when
attending school
o Max: 5 years
o + actual bodily harm = 7 years
o + GBH = 12 years

7.5.6.2 Assault during public disorder

Crimes Act s 59A

o (1) large-scale public disorder, but no actual bodily harm = 5 years
o (2) large-scale public disorder + ABH = 7 years