Assault (1 and 2 Limb: Battery at Common Law)
WRITE: Assault (misdemeanor) is defined in s245(1) CC and created and punished in s335 CC and can be split
into two limbs, Battery and Assault at common law, and is punishable by 3 years imprisonment unless
aggravated. Can be summarily held at election of DPP: s552A(b).
Has [accused] committed assault (1 Limb)?
1. Has [accused] committed an actual application of force to another?
WRITE: The application of force is a very low test to be determined subjectively: Davies v Bennett. Here, in
accordance with s245 (1), [accused] has [struck, touched, moved, applied force] to [victim]. Intention is not
required but will be taken into account by the court: Burton v Davies. Here, [accused] did/didn’t [intend/act
recklessly] compare to cases.
N.B. S245(1) “applies force” includes the applying heat, light electrical force, gas, odour, or any other substance
or thing whatever if applied in such a degree as to cause injury of personal discomfort.
• Victim’s knowledge/awareness is irrelevant: Boughey (asleep)
• The application of force can be through a medium: Fagan (car dragged person)
• Intention as afterthought: Fagan (drove over foot, but then intentionally delayed moving car = assault)
• Recklessness: Venna (kicking legs aimlessly, despite claim only to jump, not to kick policemen =
2. Directly or indirectly:
WRITE: Here there has been a direct/indirect application of force to the [victim] because [apply to facts].
• Used dog as a weapon and threat: Croft
3. Without consent?
WRITE: Onus is on the pros. to prove that the assault was unlawful: s246 (1). Consent may be express, implied
or tacit: Kimmorley v Atherton. Consent is not a prima facie excuse however as even consent acts may be
unlawful: s246(2); Lergesner v Carroll. Here, [apply to facts].
N.B. can excuse by lawful authority. E.g. police arresting, preventing breach of peace, acting in self-defence,
imposition of domestic discipline. And also by accident: s23 (no control & everyday occurance)
Consent negated if:
1. Degree of force exceeded that which victim consented: Lergesner v Carroll (Punch up); Raabe (fence
paling) Whether can consent to Bodily Harm.
Must look at: Q of Fact;1) What the person has consented to? 2) Degree of force used exceeds that?
2. Consent obtained by fraud: Donovan
3. Force applied in “common intercourse of life”: Horan v Ferguson (teach patted students bottoms to
hurry them along)
4. Consent need not be express: Kimmorley v Atherton (Girl photographed in Myer, apart from her “initial
pulling back” she had given no indication whatsoever to either man that she objected to being kissed, her
actions clearly belied any indication of objection on her behalf)
5. Sporting cases – only consent to contact within the rules and usages of the game: McNamara v
Duncan (AFL player injured by intentional blow to the head inflicted for the purpose of causing harm) Also Re Lenfield: spear tackle held outside tolerated as part of game, particularly when by older, taller,
and heavier player than would be expected to participate; no implied consent.
6. Public Policy: R v Brown (Despite consent, held guilty to protect people from cults of violence and
corruption of young men, and worried about serious injuries if continued).
Conclusion to assault (1 Limb):t
WRITE: In conclusion [accused] has/hasn’t committed assault under the 1 limb as defined in s254 (1) CC.
Has [accused] committed assault (2 Limb)?
1. Has [accused] threatened or attempted to threaten [victim]?
WRITE: Intention is an element of s4 attempt and this is transferred to the 2 limb of s245: Hall v Fonceca.
Additionally there must be an expectation of apprehension in the victim’s mind: Boughey. Here there has been,
N.B. Must be an expectation of apprehension in the victim’s mind: Hall v Fonceca (Hockey players have
argument, one struck other with stick, victim must be aware of the threat, therefore asleep not count).
2. Has [accused] given any bodily act or gesture?
WRITE: There must be a bodily act or gesture, and words alone will not suffice: Fogden v Wade. Here, …
• Where words accompanying the gesture carry a threat of a conditional nature, there may still be an
assault: Rozsa v Samuels (taxi driver held knife and threatened to cut other to little bits).
• However if words made it clear that the threat would not be carried out then not assault: Tuberville
• Fogden v Wade: walking behind girl and making indecent suggestions did not amount to assault (words
alone); no assault,.
• Dale: person went into shop with ruler under jacket, which they made look like a gun, and said “this is
a stickup” ruler under jacket was gesture; assault,.
3. [Accused] has an actual or apparent present ability to effect purpose?
If accused had present ability:
Here there is little difficulty as [accused] by having [facts] clearly has the present ability to effect purpose.
If accused has apparent ability:
Here this case is similar to Everingham has [acc