LLB 130 Lecture Notes - Lecture 5: Grievous Bodily Harm, Indictable Offence, Syphilis
Week 5 – Assault
Patterns of victimisation – CB 585
Assault is a high volume offence
• 62,130 recorded incidents of assaults in 2015
• 30,660 non domestic assaults
• 29,001 DV assaults
• 2,469 assault police
• about 40% reported as alcohol related
• 48,370 charges finalised in all NSW courts in 2015
• 21, 992 for common assault (60% of these for DV)
• 90% of charges in Local Court, 8% in Childrens Court
The common law originally contained two separate offences: assault and battery
s 61 Common Assault
Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable
to imprisonment for two years
Usually dealt with summarily in Local Court
Elements of assault
• Unlawful physical contacts
• Act creating apprehension of imminent unlawful physical contact
AR 1: Physical contact
• There must be a voluntary act
• Need not cause harm or injury
• Appliatio of foe ithout the othe pesos oset epess/iplied the
circumstance)
AR 2: Apprehension of Violence
• Where D creates in V an apprehension of imminent (immediate) unlawful contact
• Ofte ko as pshi assault
• Requires a positive act (Fagan)
• Meaning of imminence – Knight (CB 594); Zanker v Vartzokas (CB 596)
MR for Assault
MR = intention or recklessness – MacPherson v Brown
An assault whether by way of application or force or apprehension of immediate violence
must be committed by an act not an omission, and must be without the consent of the
victim
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Apprehension of immediate infliction of force
Knight (1988) 35 A Crim R 314 (CB 594)
• Found guilty of assault on bus driver, his appeal was dismissed
• Knight then called the magistrate, judge and police; threatened and made abusive
phone called
• He ast foud guilt of assault o these people, eause of the lak of iedia
in their apprehension of unlawful physical contact
• The violence must be apprehended in the extreme near future to constitute assault
Zanker v Vartzokas (1988) 34 A Crim R 11 (CB 596)
• A young woman accepted a lift from a cab driver
• He offered money for sexual favours, she refused and demanded to be let out
• He sped up to k/h ad said I goig to take ou to ates house. He ill
eall fi ou up
• Held: the unlawful imprisonment meant that her apprehension of violence remained
iiet eause she ouldt esape o leave; therefore this constituted assault
The victims apprehension
The iti ust e put i fea of iiet ulaful otat… It aot ou uless o util
the iti is aae of the auseds atios Pemble v R (1971) 124 CLR 107)
Conditional threats
Where a person threatens to inflict violence only if certain circumstances occur
e.g. ou oe o ou life – Police v Greaves [1964] NZLR 295
Spitting
Held to be assault in DPP v JWH – charged with the assault of two police officers at Mt
Druitt police station. As he entered the charging dock, he turned and spat saliva in the
direction of Constable Harris, some of it falling on his face and some falling on Constable
Gaiges ak
Acts not omissions – Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439
• Appellant was reversing motor car when Police Constable Morris directed him to
drive the car to the kerbside to park. At first he was too far from the kerb so Morris
asked him to park closer and indicated a precise spot. The appellant drove forward
ad stopped ith a heel o Mois foot. Mois said Get off, ou ae o foot
the appellat said Fuk ou, ou a ait. Mois asked seeal ties fo hi to
move the car off his foot. The appellant reluctantly slowly reversed off his foot
• In doubt as to whether mounting the car was deliberate or accidental, however
satisfied eod easoale dout that the appellat koigl, ad ueessail
allowed the vehicle to remain on his foot after being asked to get the car off his
foot
• During the continuing act, it is said that the appellant formed the necessary intention
to constitute the element of mens rea and once that element was added to the
continuing act, an assault took place
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• It was held that there was no difference in principle between the action of stepping
onto a persons toe and maintaining the position and the action of driving a car onto
a pesos foot ad sittig i the a hilst the positio is aitaied. To ostitute
the offence of an assault some intentional act must have been performed. We would
dismiss the appeal
Thabo Meli:
• A group of men beat a man repeatedly with the intention of killing him
• The thought he as dead he ast ad the et ad the hi off a liff,
intending to dispose of the body, and he then died as a result of exposure
• They argued that when he actually died, there was no intention because they
thought he was dead
• Judge held it was a continuing act, rather than separate events
• The defendants had an intention to kill the person generally; it doest atte that
they thought he was already dead when they did the final act
Mens rea
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. Recklessness will suffice
Debelle J in Edwards v Police (1998) 71 SASR 493:
2) the mens rea of such an assault is the defendants intention to produce that expectation
[imminent unlawful violence] in the victims mind
3) there is an alternative possibility of a reckless assault, where the defendant, whilst not
desiring to cause such fear, realises that his or her conduct may do so, and persists with it
(at 495)
Recklessness → the prosecution must prove foresight of the possibility of inflicting physical
contact or apprehension of imminent unlawful contact
MacPherson v Brown (1975) 12 SASR 184 (CB 599)
• Student was convicted of assault of a lecturer during a protest in which the lecturer
was prevented from passing a group of students who caused him to fear for his
personal safety
• A agistate held that the defedat ought to hae ko that his odut ould
have given reasonable grounds for apprehending an infliction of physical force
Coincidence between actus reus and mens rea
Actus reus and mens rea must coincide
For a assault iolig a otiuig at, the es ea doest hae to e peset at the
time of commencement of the actus reus but can be superimposed into an existing act
(Fagan)
Harm terminology
• Actual bodily harm (ABH)
• Grievous bodily harm (GBH)
• Wounding
• Note: oasioig = ause: Zanker
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Document Summary
The common law originally contained two separate offences: assault and battery s 61 common assault. Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. Elements of assault: unlawful physical contacts, act creating apprehension of imminent unlawful physical contact. Ar 1: physical contact: there must be a voluntary act, need not cause harm or injury, appli(cid:272)atio(cid:374) of fo(cid:396)(cid:272)e (cid:449)ithout the othe(cid:396) pe(cid:396)so(cid:374)(cid:859)s (cid:272)o(cid:374)se(cid:374)t (cid:894)e(cid:454)p(cid:396)ess/i(cid:373)plied(cid:895) (cid:894)the circumstance) Mr = intention or recklessness macpherson v brown. An assault whether by way of application or force or apprehension of immediate violence must be committed by an act not an omission, and must be without the consent of the victim. He (cid:449)ill (cid:396)eall(cid:455) fi(cid:454) (cid:455)ou up(cid:863: held: the unlawful imprisonment meant that her apprehension of violence remained i(cid:373)(cid:373)i(cid:374)e(cid:374)t (cid:271)e(cid:272)ause she (cid:272)ould(cid:374)(cid:859)t es(cid:272)ape o(cid:396) leave; therefore this constituted assault.
