LWZ114 Lecture Notes - Lecture 8: Absolute Liability, Abh, Assault Occasioning Actual Bodily Harm
NON-FATAL OFFENCES AGAINST THE PERSON
COMMON ASSAULT
S39(1): A person convicted of common assault is liable to be imprisoned for up to 2 years, or 3 years where the victim
was a family member of the offender at the time of commission of the offence.
S39(2): ‘Family member of the offender’ means:
(a) a spouse or former spouse of the offender;
(b) a child of whom the offender, spouse or former spouse of the offender is the parent or guardian;
(c) a child who normally or regularly resides with the offender, spouse or former spouse of the offender.
[Note: ‘spouse’ is a person of the opposite sex cohabiting with D as husband or wife defacto of D]
❖ Assault by threat of force is any act committed intentionally or recklessly which puts another person in
apprehension of immediate and unlawful personal violence.
❖ Assault by use of force is the intentional or reckless causing of unlawful force to be applied to the body of another
without consent.
PHYSICAL ELEMENTS
Threat of force
R v McNamara: Assault involves a positive act that creates in the victim an apprehension of immediate violence.
Positive act
❖ Traditionally, some form of positive act (eg. a gesture) is required.
❖ Barton v Armstrong: Mere words can amount to assault under certain circumstances.
➢ *D phoned V & threatened them with violence.
➢ The words are seen in terms of a pattern of intimidatory conduct → not mere words, but a positive act.
❖ R v Ireland: Where the making of silent phone calls caused V to apprehend immediate personal violence, D is guilty
of assault.
Victim’s state of mind: Apprehension of violence
❖ Brady v Schatzel: Apprehension of violence may exist without fear.
❖ Uncertain whether the apprehension must be reasonable.
➢ Barton v Armstrong (NSW SC) requires reasonableness.
➢ MacPherson v Beath (SA SC) does not require it.
Threat of immediate violence
❖ Knight: The threat must be of immediate violence, not future violence.
❖ Zanker v Vartzokas: A threat of imminent violence will suffice.
➢ *V accepted lift from D.
➢ *D threatened future violence and accelerated the car.
➢ Since D was imprisoned & could not escape, the threat was of imminent violence → assault.
❖ Rozsa v Samuals: A conditional threat will suffice if the defendant had no right to impose the condition.
❖ Police v Greaves
➢ *D threatened to stab 2 policemen if they came any nearer.
➢ *Police did not fear imminent attack.
➢ D had no right to impose the condition + Police apprehended immediate violence → D assaulted police.
Empty threats
❖ R v Everingham: The defendant does not have to be able to carry out his threat.
➢ D pointed a toy pistol at V → guilty of assault.
Use of force
❖ Physical element is the unlawful application of force on another’s body.
❖ Use of force may be lawful if:
➢ It is part of ordinary social activity (Boughey v R);
➢ It is exercised in a lawful power of arrest (reasonable force allowed);
➢ It is used in self-defence;
➢ It is used reasonably and moderately to chastise children;
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Document Summary
S39(1): a person convicted of common assault is liable to be imprisoned for up to 2 years, or 3 years where the victim was a family member of the offender at the time of commission of the offence. [note: spouse" is a person of the opposite sex cohabiting with d as husband or wife defacto of d] Assault by threat of force is any act committed intentionally or recklessly which puts another person in apprehension of immediate and unlawful personal violence. Assault by use of force is the intentional or reckless causing of unlawful force to be applied to the body of another without consent. R v mcnamara: assault involves a positive act that creates in the victim an apprehension of immediate violence. Traditionally, some form of positive act (eg. a gesture) is required. Barton v armstrong: mere words can amount to assault under certain circumstances. *d phoned v & threatened them with violence.
