8. ASSAULT, WOUNDING & GBH OFFENCES

Question 1

Common assault (statute)

Answer 1

s 61 crimes act
Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

Question 2

common assault physical actus reus cases:

Answer 2

fagan: assault can’t be committed by omission
Barton: excludes incidents that are part of every day contact
DPP v JWH: spitting counts as common assault

Question 3

actus reus components for psychic assault: apprehension

Answer 3

V must apprehend the violence
1) Telephone calls may be sufficient depending on circumstances and the degree of
immediacy: Barton v Armstrong
Nb. if found not immediate enough can still be prosecuted for intimidation / stalking under s 13 of the C(DPV) Act

Question 4

cases for actus reus psychic assault

Answer 4

Conduct means words, gestures, acts, threatening words will be sufficient (Knight). Omission
rarely sufficient (Fagan).

Question 5

what are the two types of actus reus for common assault?

Answer 5

1) physical: application of force to another person w/o consent
2) psychic: conduct causes apprehension of immediate unlawful violence

Question 6

actus reus components for psychic assault: immediacy requirement

Answer 6

• Must be an immediate —–fear of violence in literal sense, imminent & immediate threats, not generalized threats of future conduct – Knight
–• Fear must be a present fear of physical harm in due course within the parameters of the incident of unlawful imprisonment, however the feared physical harm didn’t have to be immediate. A threat can operate immediately on the V’s mind in a continuing way so long as the unlawful imprisonment situation continued -Macpherson v Brown

Question 7

Greaves principle

Answer 7

• Conditional threat is sufficient to constitute an assault if accused couldn’t lawfully impose the condition

Question 8

common assault can’t occur unless

Answer 8

• can’t occur unless or until V is aware of accused’s actions – Pemble

Question 9

doesthe apprehension of immediate application of unlawful force(knight) have to be reasonable?

Answer 9

• reasonableness of apprehension may/may not be necessary, if someone is exceptionally timid known to D, then the unreasonableness of fear may not prevent conviction - Macpherson v Beath

Question 10

mens rea for common assault

Answer 10

1) Intention (HKT) or

2) advertent recklessness (subjective test) – MacPher¬son v Brown

Question 11

what is the mens rea requirement for recklessness (common assault)

Answer 11

Subjective test of whether D themselves foresaw possibility of harm but carried on anyway (i.e., only advertant recklessness): Macpherson v Brown; Coleman; Blackwell

Question 12

what is the mens rea requirement for intent (common assault)

Answer 12

Prosecution must prove that accused’s purpose was to bring about the consequences, i.e., that they had specific intent: HKT

Question 13

what is the standard required for advertent recklessness (common assault)?

Answer 13

Subjective test of whether D themselves foresaw possibility of harm but carried on anyway (i.e., only advertant recklessness): Macpherson v Brown; Coleman; Blackwell
–> • Must be foresight of the possibility of causing actus reus of the actual not just ‘some physical injury’ – Blackwell v R

Question 14

temporal coincidence requirement

Answer 14

o for an assault to be committed both elements of AR & MR must be present at the same time - Fagan

It isn’t necessary that mens rea be present at inception of actus reus, can be superimposed upon an existing act. (Fagan)
• But, subsequent inception of mens rea can’t convert an act completed w/o mens rea into an assault

Question 15

what is the distinction btw assault & battery

Answer 15

-Darby v DPP
o Assault: act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him
o Battery: the actual infliction of unlawful force. There can be assault w/o battery and battery w/o assault… the distinction remains and must be recognised. (majority court accepted this distinction

Question 16

assault where no physical contact

Answer 16

Edwards v Police
o Actus reus: act of D raising in the mind of the victim, the fear of immediate violence to him or her, that is to say the fear of any unlawful physical contact
o Mens rea: D’s intention to produce that expectation in the V’s mind.

Question 17

what actus reus requirement is discussed in knight and zanker?

Answer 17

• Must be an immediate fear of violence in literal sense, imminent & immediate threats, not generalized threats of future conduct – Knight
must be a present fear of relatively immediate, imminent violence - Zanker

Question 18

what did Knight say about Barton V Armstrong (party signed deed after being threatened with violence if he didn’t)

Answer 18

Taylor J: determining how immediate does the fear of physical violence caused by a threat have to be? Depends on the circumstances. Here, the fear of immediate violence wasn’t always necessary & that the word ‘immediate’ could be stretched to perhaps cover future events,
Here, court rejected Taylor J’s argument, held that it must be an immediate fear of violence in its literal sense. Threats need to be imminent & immediate; generalised threats of future conduct won’t suffice

Question 19

common assault: does the V’s apprehension have to be reasonable?

Answer 19

• reasonableness of apprehension may/may not be necessary, if someone is exceptionally timid known to D, then the unreasonableness of fear may not prevent conviction

Question 20

must the crown prove that the accused intended to apply unlawful force (etc) to the complainant or is it enough to prove recklessness?

Answer 20

can prove intent or advertant recklessness (subjective test)

Question 21

with regards to mens rea for common assault what does Mcpherson v Brown say?

Answer 21

• Reckless inadvertence to consequences of conduct on D’s part isn’t enough, need actual knowledge that conduct may give rise to apprehension of violence.
the accused foresaw the possibility that the act would create an apprehension of immediate bodily harm in
the victim (Fagan, MacPherson v Brown)

Question 22

where the Crown alleges advertent recklessness what level of foresight must it prove the accused had?

Answer 22

standard is foresight of the possibility of the actus reus (Coleman)

Question 23

s59 crimes act

Answer 23

1. Assault occasioning actual bodily harm –

Question 24

– CA s 33

Answer 24

1) Wounding or GBH with intent

Question 25

– (CA s35)

Answer 25

2) Reckless GBH or wounding

Question 26

(CA s54)–

Answer 26

Causing GBH

Question 27

what does ABH mean?

Answer 27

• bodily harm has its ordinary meaning & includes any hurt or injury calculated to interfere w. the health/comfort of the prosecutor. Such hurt/injury need not be permanent but must be more than merely transient & trifling. - Donovan

Question 28

requisite mens rea for ABH

Answer 28

: same as common assault; no need to prove specific intent for s59 offence, only have to prove that accused intentionally/recklessly assaulted V & that ABH was occasioned as a result – Coulter

Question 29

what is wounding?

Answer 29

• Wound is an injury involving the breaking or cutting of the interior layer of the skin (dermins) and the breaking of the outer layer (epidermis) isn’t sufficient - R v Smith

• A wounding is generally assumed to be ‘the infliction of an injury which breaks the continuity of the skin - R v Shepherd
• can be inflicted by a fist - R v Bullock

Question 30

what is GBH?

Answer 30

s4

(i) Destruction of a foetus (outside of a medical operation)
(ii) Permanent or serious disfiguring
(iii) Grievous bodily disease

GBH doesn’t require that the injuries are permanent/consequences are long lasting or life threatening but does require that the injury is a really serious one - Haoui (also gives heaps of egs about GBH)

• GBH means what the words convey in their ordinary & natural meaning. Bodily harm need no explanation & grievous means no more & no less than really serious -DPP v Smith

Question 31

mens rea for GBH

Answer 31

• 33(1)(b) Causing GBH with intent to cause GBH

* 33(2)(b) causing GBH with intent to resist or prevent lawful arrest

Question 32

mens rea for wounding

Answer 32

s 33(1) wounding with intent to cause GBH (recklessness not sufficient) 
s33(2)(a) ) Wounding with intent to resist/prevent lawful arrest

Question 33

to establish reckless GBH/wounding what level of foresight must Crown prove?

Answer 33

a realisation on the part of accused that the particular kind of harm done (that is, some physical harm but not necessarily the degree of harm in fact so done) might be inflicted (possibly) yet he went ahead & acted

Question 34

what type of harm must the crown prove the accused foresaw for reckless GBH/wounding?

Answer 34

Must be foresight of the possibility of causing actus reus of the actual not just ‘some physical injury’ – Blackwell v R[CD1]
• Where the charge refers to the harm inflicted as GBH, Crown must prove that accused at least foresaw the possibility of the infliction of GBH resulting from his/her intentional act

Question 35

unlawful or negligent act or omission causing GBH (s54)

Answer 35

Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.

Question 36

where crown alleges there was a negligent act or omission what level of negligence must it prove?

Answer 36

a) Standard of negligence is same as that in manslaughter by criminal negligence (R v D 1984 – objective test: such a great falling short of the standard of care which a RP would have exercised, involving such a risk as to warrant criminal punishment-Nydam)

Question 37

what did Johnson J state in Haoui?

Answer 37

there is no bright-line test for determining whether a particular injury… constitutes GBH’

Question 38

what were the uncertainties arising btw members of NSWCCA in Haoui and Swan?

Answer 38

Haoui: Judges disagreed as to whether specific injuries amounted to GBH. here accused was found guilty of dangerous driving occasioning GBH contrary to s52A(3)(b) of the CA appealed on a no. grounds including that the injury didn’t amount to GBH.

Question 39

what factors are taken into account when assessing whether it was open to the jury to find that the Crown had proved BRD that the complainant had sustained ‘really serious injury’?

Answer 39

only the injury itself and its direct physical effects, not its personal, social and economic consequences, can be taken into account in deciding whether an injury amounts to really serious bodily injury.- Swan

Question 40

what is the offence created by s13?

Answer 40

Stalking or intimidation with intent to cause fear of physical or mental harm (5yrs/or50 penalty units)

Question 41

facts of Fagan

Answer 41

was in car, police officer asked him to move car, unlcear as to whether intended but was rolled onto foot.

Question 42

outcome in Fagan

Answer 42

Here, the crime was not an omission to move the car; rather, it constituted a continual act of battery. The offence was not complete until the moment Fagan realised that he had driven onto the foot of the officer and, in deciding not to cease this continuous act, formed an intent amounting to the mens rea for common assault. Since both mens rea and actus reus were present, an assault had been committed, and Fagan’s conviction was upheld.

Question 43

issue in Fagan

Answer 43

sole issue being whether the facts proved by the prosecution amounted in law to the crime of assault

Question 44

Bonora

Answer 44

Absence of consent from victim is required for assault (referred to as an unlawful act: there must be no lawful justification for it) – Bonora

Question 45

facts in Knight

Answer 45

involved in incidence of assualt on bus, then left threatening calls to police officer, magistrate & daughter & trial judge.

Question 46

issue in knight

Answer 46

whether the evidence of the threats was sufficient to constitute assault
(No evidence to indicate that recipients of calls were ever in any danger of immediate violence. )

Question 47

outcome in knight

Answer 47

held that it must be an immediate fear of violence in its literal sense. Threats need to be imminent & immediate; generalised threats of future conduct won’t suffice
Convictions were quashed, held that there wasn’t any evidence for such conviction as there was no evidence pointing to the fear being immediate.
–rejected Barton v Armstrong notion that ‘immediate’ could be stretched to cover future events

Question 48

facts in barton v armstrong

Answer 48

party signed deed after being threatened with violence if he didn’t.
determining how immediate does the fear of physical violence caused by a threat have to be? Depends on the circumstances. Here, the fear of immediate violence wasn’t always necessary & that the word ‘immediate’ could be stretched to perhaps cover future events,

Question 49

facts in zanker

Answer 49

woman accepted lift, was offered money for sexual favours, wasn’t allowed to leave car, eventually ended up jumping from it at moving speed after he made several threats alluding to sexual assault.

Question 50

issue in zanker

Answer 50

How immediate must violence be after threat which creates the fear?
Can a threat continue over time?

Question 51

outcome in zanker

Answer 51

—Here, there was a continuing fear in the mind of the victim, the utterance having as much effect in an hour or so as it has at the moment of utterance
Distinguished from Barton v Armstrong bc here violence threatened was more immediate & likely.
Here, there was a continuing fear in the mind of the victim, the utterance having as much effect in an hour or so as it has at the moment of utterance
Distinguished from Barton v Armstrong bc here violence threatened was more immediate & likely.
—-cited Macpherson v Brown (1975): unlawful imprisonment & assault are separate offences, unlawful imprisonment didn’t necessarily imply an assault (can only be guilty of unlawful imprisonment & assault if all the elements of the crime of assault accompanied the unlawful imprisonment)
Fear had to be a present fear of physical harm in due course within the parameters of the incident of unlawful imprisonment - but the feared physical harm didn’t have to be immediate. The threat could operate immediately on the victim’s mind but in a continuing way so long as the unlawful imprisonment situation continued

Question 52

facts in macpherson v brown

Answer 52

Student was convicted for assaulting a lecturer at Flinders uni during a protest regarding alleged CIA links of a recently appointed senior administrator where they took over the admin building.
The lecturer was surrounded by students who prevented him from passing through the group, causing him to fear for his personal safety. No physical contact was made & he could pass after about 15 min

Question 53

issue in mcpherson v brown

Answer 53

Here the special magistrate at trial had assumed that recklessness could be made out on the basis of what the D ought to have foreseen rather than what the D actually foresaw issue was Application of objective standards and recklessness to assault.

Question 54

outcome in mcpherson v brown

Answer 54

Mere reckless inadvertence to the consequences of conduct on the defendant’s part is not sufficient to create liability for trespass, there must be an actual knowledge that conduct may give rise to an apprehension of violence, i.e. recklessness was not sufficient.

Held that special magistrate was wrong when he said that if a D charged with assault indulges in conduct which he ought to know may harm or give cause for belief of imminent harm the necessary intention is there. Actual knowledge is necessary. 
If it didn’t occur to the appellant that Gibbs would be/was likely to be frightened then he can’t have acted with the foresight that Gibbs would be frightened, with the doubt expressed by the special magistrate indicating he wasn’t satisfied BRD that the appellant was guilty of an assault by recklessness in the limited & proper term. 
Appeal allowed (unless other argument about false imprisonment was sound)

Question 55

facts in pemble

Answer 55

pointed rifle at back w/o her knowledge.

Question 56

outcome in pemble

Answer 56

Menzie J held that D hadn’t committed assault as V was unaware. It can make no difference if the threatener in fact is quite unable to carry out the threat, provided the victim does not know this, but believes that the threat is about to be implemented.

Question 57

facts in r v coleman

Answer 57

Case regarding malicious infliction of actual bodily harm to have sexual intercourse with flat mate and second charge of having sexual intercourse with Scott knowing he wasn’t consenting.
Appellant argued that verdicts for guilty of the first charge & not guilty for the second charge were inconsistent.

Question 58

issue in r v coleman

Answer 58

The accused’s contemplation of the probable consequence of death is required for murder bc it has to be comparable with an intention to kill or to do GBH. such a test of probable consequences isn’t required in relation to lesser crimes

Outcome: appeal was refused. Judge rejected (see 471-472, 476) the appellant’s argument that realisation of the possibility of injury was insufficient and that the accused had to realise the probability or likelihood of injury in order to have acted recklessly for the purpose of malice.

Question 59

facts in aubrey

Answer 59

had unprotected sexual intercourse knowing he had aids and gave it to the unassuming partner.
Appellant had conceded that he knew there was a real possibility that he could infect the complainant by having unprotected sexual intercourse. Was also no suggestion that the unprotected sexual intercourse could be considered anything other than reckless as to the possibility of risk.

Question 60

outcome in aubrey

Answer 60

affirmed coleman case

Question 61

blackwell v r

Answer 61

policeman off duty went out drinking, guy tried to hit on offduty policewoman, police officer offduty steps in and V Ward was later was hit in face with a glass causing severe injuries resulting in loss of his left eye.

Question 62

issue in blackwell v r

Answer 62

Issue in question was what is the relevant consequence? Is it foresight for the possibility of some relevant harm or foresight of possibility of GBH?

Question 63

outcome in blackwell v r

Answer 63

there must be a foresight of the possibility of something. The recklessness must cause GBH, not just ‘some physical injury’. There’s a difference of btw an intention to inflict some harm & reckless as to whether GBH would be inflicted

Question 64

swan facts

Answer 64

V was brutally attacked at front of his house, fracturing L3 vertebrae, V had said he was in excruciating pain and could hardly walk for the weeks following, however, his doctor who treated him on the night of the incident said that the injury was minor & that Dewey didn’t require any further treatment.
2. Swan was charged with recklessly inflicting GBH in company and appealed the charge.

Question 65

issue in swan

Answer 65

whether the jury’s conclusion, essential to its verdict, that Mr Dewey suffered “grievous bodily harm” was unreasonable or could not be supported by the evidence.

Question 66

outcome in swan

Answer 66

the jury’s verdict was unreasonable because it must have entertained a reasonable doubt on the evidence that Mr Dewey’s injury amounted to GBH. The Court stated that ”GBH” means “really serious bodily injury” and that the injury to Mr Dewey’s back didn’t satisfy this definition.
subbed in conviction for ABH instead (“Actual bodily harm” means any hurt or injury that interferes with the health or comfort of a person. Such an injury does not need to be permanent, but it must have more than a fleeting or trivial effect upon the victim. )

Question 67

facts in r v shepherd (issues over unclear what amounts to a wounding for the purposes of ‘malicious wounding’ under s 35 of the act. )

Answer 67

Appellant was involved in a brawl at a cafe. Shepherd had been drinking during the day and went to the cafe to order dim sims, but didn’t have enough money. Was refused credit and shouted angrily at the counter attendant.
He left and came back with another person who produced a knife. There was an altercation and V was bashed with baseball bat and stabbed with the knife.

Question 68

outcome in r v shepherd

Answer 68

Kirby: A wounding is generally assumed to be ‘the infliction of an injury which breaks the continuity of the skin’ - R v Newman
Wound is an injury involving the breaking or cutting of the interior layer of the skin (dermins) and the breaking of the outer layer (epidermis) isn’t sufficient - R v Smith
A wound may be inflicted by a fist, no weapon/instrument need be used - R v Bullock (but a split lip from a punch is wounding only in the most technical sense)

Question 69

• McIlwraith v R facts

Answer 69

The appellant appeared from an alcove under the complainant’s house wearing a blue ski suit that belonged to the complainant’s father in law which was usually stored at the premises. The applicant was also wearing a beanie and a 4 dark shirt. The appellant had a tomahawk in his hand. He approached the complainant who ran down the side passage into the house next door. The appellant followed him. The complainant went into the laundry and a hear glass smash and someone enter the laundry. The appellant tried to gain access to the premises. The appellant was then seen to leave the premises and return to the complainants’ home. The police arrived and discovered the appellant lying partly under a bed and a doona in the main bedroom.

Question 70

issue in McIlwraith v R

Answer 70

interpretation of s13