LAW EXTENSION COMMITTEE
CRIMINAL LAW AND PROCEDURE
LECTURE 4
ASSAULT; SEXUAL ASSAULT; AND INDECENT ASSAULT
ASSAULT
Offences against the person not involving death (murder/manslaughter); or attempted murder; or sexual assault; or indecent assault are contained in Divisions 6; 7; 8; 8A; 8B and 9 of the Crimes Act 1900 (ss 32-61). The core offences are assault and aggravated assault (of which there are various offences, depending upon the seriousness of the injury to the victim, or the occupation of the victim such as police and law enforcement officers (Sections 60AA-60C) or students/teachers at school (Sections 60D-60E).
The basis offence of common assault is contained in Section 61 of the Crimes Act. The elements of assault are not defined in Section 61, but derive from the common law. Section 61 is a relatively minor offence, with a maximum penalty of two (2) years. However, if a more serious injury is caused to the victim, the offences rise in severity of penalty: e.g.:
Assault Occasioning Actual Bodily Harm (Section 59) 5 years (or 7 years if in company)
Reckless Grievous Bodily Harm or Wounding (Section 35) 7 to 14 years (depending upon whether it involves wounding or grievous bodily harm, or is in company)
Wounding or Grievous Bodily Harm With Intent (Section 33) 25 years
TYPES OF ASSAULT
There are two types of assault:
- Physical assault (where there is unlawful physical contact or physical injury to the victim). In the older cases (and in the law of tort) this is referred to as “battery” (although there is no offence of “battery” in the Crimes Act)
- Psychic assault (where words or actions cause the victim to apprehend immediate unlawful physical contact is about to occur). In the older cases (and in the law of tort) this is referred to as “assault”)
ELEMENTS OF ASSAULT
Fagan v Commissioner of Metropolitan Police (1969) where the Defendant drove his vehicle onto the foot of a police offer without realising at first that the police officer’s foot was under the wheel. When he did realise, he took a considerable amount of time to move the vehicle off the police officer’s foot. James J:
Although an assault must involve a physical act beyond “mere inaction or inactivity”, must look at the whole transaction to see if it involves a “continuing act”. The elements are:
· Any act which intentionally or recklessly;
· Causes another to apprehend immediate and unlawful physical violence; or
· Causes unlawful force to another.
PSYCHIC ASSAULT-ACTUS REUS-WHAT IS ‘IMMEDIATE’ PHYSICAL VIOLENCE/CONTACT
Must look at the words in the context of the physical acts. In Zanker v Vatzokas (1988), the Defendant had unlawfully imprisoned the victim in his car, and said “I am going to take you to my mate’s house. He will really fix you up”. In the context of the physical actions of the Defendant, the words created an apprehension of immediate physical violence.
There is a fine line between words constituting the threat of future violence which are too vague to be sufficiently immediate, and which are immediate because of the context in which they are said and the relationship between the Defendant and the victim: e.g.
Knight (1988) where the Defendant made threats to a police officer; a Magistrate; and a District Court judge over the telephone, but according to Lee J with whom Carruthers and Loveday JJ agreed):
“…the evidence in the present case went no further than to merely show that threats had been made to the various callers and serious threats they were. But as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were threats which may have been executed at any time, if at all”.
Mostyn (2004) where a husband had violently assaulted his wife in a farmhouse. The victim ran into a shed and hid. The Defendant was armed with a rifle and a gun. The Defendant called out insulting words and said “Come out, come out wherever you are” and “I’m hunting”. McColl JA (with whom Howie JA and Studdert JA agreed):
“The authorities are clear that a threat to strike a person even at such a distance as to make contact impossible may constitute an assault if it instils a fear of immediate violence in the mind of the hearer”.
Barton v Armstrong (1969) where the Defendant, a former business partner of the Plaintiff, made threats of violence over the telephone against the Plaintiff and his family. Armstrong J refused to strike out the Statement of Claim seeking damages for assault, holding that it was arguable that threats made over the telephone could constitute an assault.
ACTUS REUS-PHYSICAL ACT-SILENT TELEPHONE CALLS
A silent telephone call (or series of silent telephone calls) can be an act which intentionally causes a person to apprehend immediate physical violence; or causes the victim to suffer a psychological injury: Ireland (1997)
ACTUS REUS-UNLAWFUL PHYSICAL VIOLENCE/CONTACT/INJURY
A psychiatric condition/illness is the equivalent of a physical injury, so a victim who suffers a psychiatric condition/illness as a result of a series of silent telephone calls can constitute an assault: Ireland (1997)
Physical contact of only a minor degree, if it is unlawful, is sufficient to constitute assault: Collins v Wilcock (1984) where a police officer unlawfully grabbed the arm of a woman to prevent her from leaving so that the police officer could question her. However, there are exceptions to this principle to “allow for the exigencies of everyday life” such as shaking hands, or accidently bumping into someone on a busy train or bus.
ACTUS REUS-PSYCHIC ASSAULT-CONDITIONAL THREATS
Can conditional threats constitute an assault? Yes, if conditional threat is unlawful or threatened response (self defence) is not proportionate to the original threat (Rosza v Samuels (1969) SASR 205, where a taxi driver threatened to “Cut to bits” another taxi driver with a knife.
ACTUS REUS-ABSENCE OF CONSENT TO THE PHYSICAL CONTACT
Usually, if physical violence is consented to, it is not unlawful. In respect of some types of activity, public policy means that the physical contact is unlawful (i.e.an assault), despite the victim apparently having ‘consented’ to it (or the prosecution being unable to prove that there was no consent)
Brown (1993) involved men engaging in sado masochistic practices, which were videotaped. The prosecution tendered evidence of the videotapes, but did not call any evidence from victims stating that they did not consent to the physical contact, or that they were drugged. By a 3-2 majority, English House of Lords held that there could be no ‘consent’ to the unlawful physical contact.
Lord Templeman:
“The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless…In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty…I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty…”
Lord Mustill (dissenting):
“…these are questions of private morality; that the standards of by which they fall to be judged are not those of the criminal law…the state should interfere with the rights of an individual to live his or her life as he or she may chose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large”.
ACTUS REUS-PSYCHIC ASSAULT-DOES THE VICTIM HAVE TO ‘FEAR’ IMMEDIATE UNLAWFUL VIOLENCE, OR MERELY ‘APPREHEND’ IMMEDIATE UNLAWFUL VIOLENCE? (i.e. DOES THE VICTIM HAVE TO BE SCARED?)
Conflicting authorities on whether it is necessary that the victim is put in fear.e.g.
Ryan v Kuhl (1979) VR 315, where the Defendant placed the blade of a small pocket knife in a small hole in a wall of a toilet cubicle, and annoyed the person in the cubicle. The victim told police he was never frightened or put in fear. Victorian Supreme Court held that there could be no assault, as victim never feared for his safety.
Brady v Schatzel; Ex Parte Brady (1911) St R Qd 206, where Defendant was an elderly woman who threatened to shoot a police officer if he set foot on her property. Police officer gave evidence he was not frightened of the Defendant. Queensland Supreme Court held that it was irrelevant that the victim was not frightened, it was sufficient if he apprehended immediate unlawful violence.
MacPherson v Brown (1975) 12 SASR 184 per Zelling J:
“…assault includes a threat to inflict unlawful force or slight or great upon another man, coupled with the intention by the person making the threat to produce the expectation of unlawful physical contact in the mind of the victim, and that it is irrelevant, where this is material, that the person making the threat had neither the intention or ability to inflict the unlawful contact which he had induced the victim to expect.”
ASSAULT-MENS REA
The mens rea of assault is:
· Intention; or
· Recklessness
The concept of intention to causing unlawful physical contact/violence, or to cause another to apprehend immediate unlawful physical contact/violence is not controversial. However, the concept of recklessness is more complex, depending upon whether the offence in question is common assault (Section 61); Assault Occasioning Actual Bodily Harm (Section 59); Reckless Grievous Bodily Harm/Wounding (Section 35) or Grievous Bodily Harm/Wounding with Intent (Section 33).
Recklessness is subjective (i.e. what was in the mind of the Defendant, not a reasonable person), and involves advertence to the consequence of the physical act being performed.
Venna (1976) QB 421 where the Defendant was struggling with a group of police officers who were trying to arrest him. The Defendant was lying on the ground, and lashing out with his legs. He struck the hand of a police officer, breaking a bone in the hand. English Court of Appeal upheld the conviction of assault. James LJ:
“…the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another…In many cases, the line between intention and recklessness is barely distinguishable. This is such a case.”
MacPherson v Brown (1975) where a group of protesting university students surrounded a university lecturer, shouting abuse; waving placards, and preventing him from moving for a period of 10-15 minutes. Bray CJ:
“…the word “reckless” should be confined to action where the relevant consequences are adverted to, even if not desired…”
Williams (1990) 50 A Crim R 213 where the Defendant bit part of the ear off the victim in a pub brawl in Narrandera. Badgery-Parker J (with whom Gleeson CJ and Wood J agreed):
“…the concept of recklessness is no more than is conveyed by the ordinary meaning of the word…It involves no more than the foresight of the possibility of harmful consequence”.
MENS REA-RECKLESSNESS-ASSAULT OCCASIONING ACTUAL BODILY HARM-SECTION 59
“Actual Bodily Harm” is not defined in the Crimes Act. The definition at common law is “any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury must be more than merely transient or trifling” (R v Donovan [1934] 2 KB 498. In other words, an injury more than a very minor injury (or threat of violence) which is common assault under Section 61, but less than grievous bodily harm (very serious injury) under Section 33 or 35.
In respect of assault occasioning actual bodily harm, the defendant only has to intend or be reckless as to the infliction of unlawful physical contact. The defendant does not have to intend or be reckless in respect of the degree of injury suffered (i.e. in respect of recklessness, the Defendant does not have to realise that an injury more than merely transient or trifling may be the result of the unlawful physical contact-per Williams (1990); Percali (1986) 42 SASR 46.
Psychiatric injury, depending upon its severity, can constitute actual bodily harm: Ireland (1997)
MENS REA-RECKLESSNESS-RECKLESS INFLICTION OF GRIEVOUS BODILY HARM OR WOUNDING-SECTION 35 CRIMES ACT
Unlike recklessness in respect of the offences of common assault (Section 61) an assault occasioning actual bodily harm, reckless infliction of grievous bodily harm or wounding (Section 35) required that the Defendant must realise that there is a real possibility his or her act will cause the victim very serious injury or wounding, not merely that there is a real possibility that he victim will suffer unlawful physical violence/contact: per Blackwell (2011), where the Defendant ‘glassed’ the victim in the face at pub in Sydney. Beazley JA (with whom James J agreed):
“…the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward’s face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted”.
However, Blackwell was overturned by the Crimes Amendment (Reckless Infliction of Harm) Act 2012 (which commenced on 12 June 2012) which amended Section 35 of the Crimes Act 1900 so that Section 35 now applies to: