SAMPLE NOTES WEEK 6: ASSAULT E East, A Treatise of the Pleas of the Crown, Vol 1, p 406, defined the common law offence of assault; ‘an assault is any attempt or offer with force and violence to do a corporal hurt to another, whether from malice of wantonness, as by striking him, or even by holding up one’s fist at him in a threatening manner, or with such other circumstances as denote at the time an intention, coupled with a present ability of using actual violence against the person. Where the injury us actually inflicted, it amounts to a batter (which includes an assault) and this, however small it may be, as by spitting in a man’s face, or any way touching him in anger without any lawful occasion. But if the occasion were merely accidental or undersigned, or if it were lawful… it is no assault or battery in the law”. In New South Wales, the penalty for assault is prescribes in statutes; Crimes Act 1900 (NSW) s 61. However, the definition continues to be found at common law. COMMON ASSAULT Common assault is the most basic kind of assault, and can be tried either on indictment or summarily. Historically, there was a distinction between assault and battery. This is no longer the case and the term ‘assault’ merges them. The current concept3 of common assault incorporates two historical offences of assault: (a) (Psychic) Assault: where the defendant intentionally or recklessly put the victim in fear or imminent unlawful contact or physical harm- R v McNamara (1954) VLR 291. Recklessness- Subjective. (b) Battery: where the defendant intentionally or recklessly applies unlawful physical force or contact against the victim- R v Venna (1976) QB 421, Fagan v Metropolitan Police Commissioner (1969) 1 QB 439. Recklessness- Subjective The defendant will generally be charged with assault whether they committed a (psychic) assault or a battery. AGGRAVATED ASSAULT- SPECIFIC INTENT Categories- - Further specific intent - Injury - Victim - Weapon or instrument - Dangerous substances - In company Specific Intent To murder- ss 27-30 To commit indictable offence- ss 33B, 58 To resist or prevent apprehension- s 33B, 58 Injury Actual Bodily Harm- s 59(1) Wounding- s33- intent to do GBH. Wounding is a puncture, GBH- s33 (with specific intent), s35(2)- reckless, 254- negligent SAMPLE NOTES Victim Police officer- ss58, 60 Law Enforcement Official- s60A Child (at birth)- s42 Member of clergy- s56 School staff or student- s60E Weapon/Instrument Ss33, 33A, 33B Dangerous Substance s38, 39, 41… In Company S35(1) Mens Rea The mens rea for assault is specified at common law. The mens rea of common assault is intentionally or recklessly; (a) creating an apprehension of imminent unlawful contact (b) effecting unlawful contact Intentional Assault It is clear from MacPherson v Brown (1975) 12 SASR 184; s 20 (SA), that assault can be committed intentionally. It is unnecessary that the intentional application of force be accompanied by hostility; Boughey v R (1986) 65 ALR 609- D was a doctor who applied manual pressure to V’s carotid arteries intending to increase the victim’s sexual excitement for the purpose of sexual activity. When the victim died due to D’s actions, he was charged with murder. He argues no intent to injure her, however it was held that hostile intent is not an ingredient to the offence of battery at common law where for is intentionally applied to the victim. Reckless Assault An assault can be committed where the defendant knows his conduct would possibly (a) give the victim reasonable grounds for apprehending imminent unlawful contact (psychic) (b) effect unlawful contact (battery) The authorities have made it clear that the standard for reckless assault is that of “possibility” rather than “probability”- MacPherson v Brown (1975) 12 SASR 184, Coleman v R (1990) NSWLR 467. R v Venna (1976)- the defendant lashed out at police officers seeking to arrest him, resulting in the defendant fracturing one police officer’s hand. He was charged with assault occasioning actual bodily harm. He stated that he had not intended to hit the victim, but was kicking in an attempt to get off the ground. It was held that if he recognised the possibility of unlawful contact he has the mens rea for assault. He was found guilty. RECKLESS ASSAULT MUST BE SUBJECTIVE MacPherson v Brown (1975) stresses that the defendant is not to be judged by an objective standard of what a reasonable person would have foreseen. In this case, the SAMPLE NOTES trial judge held that, while he doubted that the defendant was aware that the victim would be frightened by his conduct, he had been reckless and ought to have known that his conduct would give reasonable grounds for creating that fear. He was found guilty of assault. On appeal, the trial judge’s decision was overturned. Brad CJ (at 188) stated “it is contrary to fundamental principles… to judge a man… not by his actual intention, knowledge, or foresight, but by what a reasonable prudent man would have intended, known or foreseen in the circumstances.” Negligence A common assault cannot be committed negligently. However, sections have been introduced to cover cases where the defendant has negligently cause an injurt (s 54 NSW). In these cases, the prosecution must prove the level of negligence was criminal- R v D (1984) 3 NSWLR 29. Actus Reus The actus reus for assault is also specified at common law; The defendant must; (a) Act so as to create an apprehension of imminent unlawful contact (psychic assault) (b) Apply unlawful contact against the person of another (battery) Psychic Assault Positive Act Must be a positive act. An omission to act does not constitute an assault- Fagan v Metropolitan Police Commissioner (1969). The use of words has also been held to constitute a positive act in all common law jurisdictions- Tout v R (1987), R v Knight (1988 35 A Crim R 314. State of Mind of the Victim- Apprehension of Harm The victim must have been put in the fear of imminent unlawful contact As a consequence, the victim must be aware of the threat. If they are unconscious of asleep, then a psychic assault cannot be committed. In Pemble v R (1971) 124 CLR 107 the victim was unaware that the defendant was pointing a rifle at her back. Menzies J therefore held that the defendant had not committed an assault. It has been suggested that the victim’s fear must be reasonable in the sense that a reasonable person would have also been in fear- Barton v Armstrong. Questions are more likely to arise around whether the defendant had the necessary mens rea to create the apprehension of imminent unlawful contact rather than if the victim’s fear was reasonable. If the victim’s fear is unreasonable, and the defendant has no knowledge of this timidity, then clearly the accused will not have the mens rea. Accused takes the victim as they find them (whether timid or robust)- Ryan v Kuhl Ability to Execute Threat The defendant does not need to be able to execute the threat, as the essence of the offence is the effect that is created in the victim’s mind. Thus, where the defendant points a toy gun at the victim which the victim believes to be real, he can be convicted with assault- R v Everingham (1949) SAMPLE NOTES Imminence of Harm At common law, the victim must apprehend “imminent” or “immediate” unlawful violence, threats of future violence should not amount to an assault- R v Knight (1988). “Immediate and Continuing Fear” The requirement of immediacy can cause some issues. However, the courts have used the concept of ‘immediate and continuing fear’ to interpret the requirement of imminence in a way which is sympathetic to the plight of the victim. Zanker v Vartzokas (1988)- the victim accepted a life from the defendant. During the trip the accused offered her money for sexual activity to which she declined; he persisted. She demanded to be let out of the car but he sped up, even when she threatened to jump out. The defendant then said, “I am going to take you to my mate’s house. He will really fix you up”. She felt so much fear that she opened the door and jumped out resulting in some injuries. The magistrate dismissed the case due to lack of imminence in the threats. White J allowed the appeal, holding that the concept of a continuing threat should be applied. Threats made over the Telephone In Barton v Armstrong (1969) 2 NSWR 451, the defendant made threats over the phone, and it was held that he could be found guilty of assault provided that the threats were sufficient to ground a fear or imminent violence in the victim’s mind- Taylor J (at 455)- “if the threat produces the fear or apprehension of physical violence, then I am of the opinion that the law is breached, although the victim does not know when that physical violence may be breached.” Silent Phone Calls: Threatening phone calls have caused problems for courts in assessing imminence of threats that may be made appreciable distances away. R v Ireland; R v Burstow- silence can amount to assault. Conditional Threats Conditional threats are threats where the defendant imposes some condition upon the victim, which if the victim does not meet, he will inflict some violence. This raises the issue of imminence, because if the victim meets the requirements, there would be no need to apprehend imminent unlawful contact. The requirement of imminent infliction of physical harm is the ultimate factor in determining liability The courts have approached conditional threats in two ways - Looking at the words of the threat - Considering whether the defendant had the right to impose the condition Infliction of Harm as a Result of Psychic Assault The accused can be charged with an assault occasioning actual bodily harm if his psychic assault causes the victim to act in such a way as to inflict actual bodily harm.