Common Assault

Common assault can be divided into two types:

1. Assault not involving physical contact (psychic assault) 2. Assault involving actual physical contact (battery)

Both psychic assault and battery are charged under s 61.

PSYCHIC ASSAULT

Actus Reus Mens Rea

a) Voluntary threatened application of unlawful contact (Ryan)

Accused intentionally or recklessly (Edwards v b) Apprehension by victim of imminent Police) creates an apprehension by victim of unlawful contact (Barton v Armstrong) unlawful contact (Zanker)

c) Conduct of accused caused the victim to fear imminent unlawful contact

INTRODUCTION 1. Common assault is charged under s 61 of the Crimes Act 1900 (NSW) (‘Crimes Act’) 2. Psychic assault is an assault in which a person intentionally recklessly causes another person to apprehend the application of imminent unlawful force (Darby) 3. The prosecution must prove all the elements of the offence beyond a reasonable doubt (‘BRD’) (Woolmington)

ACTUS REUS An assault, whether by way of application of force or apprehension of imminent unlawful contact must be committed by a voluntary act and not an omission and must be without the consent of the victim (Fagan).

VOLUNTARINESS

1. The first actus reus requirement is voluntariness (Ryan) 1.1. The prosecution is entitled to presume that the acts of the accused were voluntary (Falconer) 1.2. There is no indication that the accused’s conduct was not voluntary

APPREHENSION OF IMMINENT UNLAWFUL CONTACT

1. For a psychic assault the victim must be put in fear of imminent unlawful contact (Barton v Armstrong) 2. The victim must be aware of the accused’s action (Pemble) 3. The victim’s mental state is assessed subjectively; it does not depend upon what a reasonable person would have apprehended but is concerned with the actual state of mind of the victim and whether the act(s) of the accused caused the victim to be put in fear of imminent unlawful contact

Conditional threats

• Conditional threats raise the question of imminence • A conditional threat may constitute an assault where the accused has no right to impose the condition (Police v Greaves) • It is important to distinguish between conditional threats and hypothetical threats o A conditional threat is where the threat is made with a condition precedent which indicates that there is no intention to affect the threat so long as the condition is complied with (Rozsa v Samuels) o A hypothetical threat is a threat of force negated by words (Savage) • When a threat of force is explained by words indicating that it is not the intention of the party to affect any unlawful contact, this is not an assault (State v Myerfield) • However, when a threat of force is made with a condition wherein the threat will not be carried out so long as the condition is complied with, an assault may have been committed (Rozsa v Samuels) • A conditional threat will only amount to an assault where the condition is one which the party has no legal right to impose (Rozsa v Samuels)

CAUSATION

1. The conduct of the accused must have caused the victim to apprehend imminent unlawful contact 1.1. The prosecution is required to prove a causal connection between the conduct of the accused and the victim’s state of mind 2. The act(s) of the accused need not be the only cause (Pagett) 3. So long as the accused’s act(s) was a substantial and operating cause of the victim apprehending imminent unlawful contact the element of causation will be satisfied (Royall) 4. Where the accused has the requisite mens rea it is immaterial that their conduct caused the victim to apprehend imminent unlawful contact in a way different from what the accused had precisely intended (Royall)

Transferred malice

• The doctrine of transferred malice applies in the context of assault where the accused intends to create an apprehension of imminent unlawful contact but causes a victim other than who the accuse intended to be put in fear of imminent unlawful contact • It is immaterial that the victim of the assault is not the individual that the accused intended, so long as the accused the apprehension of imminent unlawful contact

MENS REA 1. The mens rea for a psychic assault is the intentional or reckless creation of an apprehension of imminent unlawful contact by the victim (Edwards v Police) 2. The accused need not intend to or even be able to fulfil the threat to be guilty of assault so long as he/she intentionally or recklessly created the requisite apprehension of imminent unlawful contact (R v Everingham)

Recklessness

• Where recklessness is relied on, the prosecution must prove foresight of the possibility of the apprehension of imminent unlawful contact (i.e. advertent recklessness) (Coleman) • Whether the accused recognised the possibility of the apprehension of imminent unlawful contact must be judged subjectively (MacPherson) • The accused is not judged according to what an ordinary and reasonable person would have foreseen (MacPherson)

TEMPORAL COINCIDENCE 1. For an assault to be committed the actus reus and the mens rea must coincide, or, be present at the same time (Fagan) 2. The mens rea does not necessarily need to be present at the time of the commencement of the actus reus but can be superimposed onto an existing and continuing act (Fagan) 2.1. “If the act, as distinct from the results thereof, is a continuing act there is a continuing threat to inflict unlawful force” 3. A subsequent inception of the mens rea cannot convert an act which has been completed without mens rea into an assault (Fagan)

BATTERY

Actus Reus Mens Rea

a) Voluntary threatened application of unlawful contact (Ryan)

Accused intentionally or recklessly (Edwards v b) Without consent of victim Police) applied unlawful contact against the victim’s person (R v Venna)

c) Act of accused caused the unlawful contact

INTRODUCTION 1. Common assault is charged under s 61 of the Crimes Act 1900 (NSW) (‘Crimes Act’) 2. Battery is an assault involving actual physical contact (Darby) 3. The prosecution must prove all the elements of the offence beyond a reasonable doubt (‘BRD’) (Woolmington)

VOLUNTARINESS

APPLICATION OF UNLAWFUL CONTACT

1. The slightest application of force can amount to an assault (Collins v Wilcock) 1.1. The application of force is not unlawful where it occurs in the course of ordinary social interaction due to the existence of implied consent (DPP v JWH) 2. It is irrelevant that the contact was not inflicted directly by the body of the accused but rather through the medium of some weapon or instrument (Fagan) 3. It is unnecessary that the intentional application of force be accompanied by hostility (Boughey) 3.1. However evidence of a hostile intent can convert an act which would otherwise not be criminal into an assault (Reeves) 3.2. For example, accidentally bumping into someone would not be an assault, but doing so deliberately may be converted into an assault due to the hostile intent

WITHOUT CONSENT

1. Common assault requires the absence of consent from the victim (Bonora) 1.1. The presence of consent is a defence to common assault which can exonerate an accused 2. There is an implied consent in various contexts such as in the course of ordinary social intercourse (DPP v JWH) 2.1. Force is not unlawful where there is an implied consent and no assault will have been committed

CAUSATION

1. The accused’s act must have caused the unlawful contact 1.1. The prosecution is required to prove a causal connection between the conduct of the accused and the application of unlawful contact 2. The act(s) of the accused need not be the only cause (Pagett) 3. So long as the accused’s act(s) was a substantial and operating cause of the unlawful contact the element of causation will be satisfied (Royall) 4. It is immaterial that the conduct of the accused caused the unlawful application of force in a way other than what the accused intended, so long as there is a sufficient causal connection between the accused’s act(s) and the unlawful application of force (Royall)

Transferred malice

• The doctrine of transferred malice applies in the context of assault where the accused intends the application of unlawful contact but causes the force to be inflicted on a victim other than who the accused intended to assault • It is immaterial that the victim of the assault is not the individual that the accused intended, so long as the accused caused the application of unlawful force

MENS REA 1. The mens rea for common assault involving physical contact is an intention to effect unlawful contact 2. Recklessness is also capable of constituting the mens rea for common assault (Edwards v Police)

RECKLESSNESS

• Where recklessness is relied on, the prosecution must prove foresight of the possibility of inflicting physical contact (i.e. advertent recklessness) (Coleman) • Whether the accused recognised the possibility of inflicting physical contact must be judged subjectively (MacPherson) • The accused is not judged according to what an ordinary and reasonable person would have foreseen (MacPherson)

TEMPORAL COINCIDENCE 1. For an assault to be committed the actus reus and mens rea must coincide, or, be present at the same time (Fagan) 2. The mens rea does not necessarily need to be present at the time of the commencement of the actus reus but can be superimposed onto an existing and continuing act (Fagan) 2.1. “If the assault involves a battery and that battery continues there is a continuing act of assault” 3. A subsequent inception of the mens rea cannot convert an act which has been completed without mens rea into an assault (Fagan)