INTRODUCTION

An assault is any act which intentionally or recklessly causes another person to fear immediate and unlawful violence. Any actual striking or use of force against the person of the victim is technically a battery. However, the term battery in New South Wales is now taken over by assault. Practically, the term assault as used in the every day usage in the courts now also covers battery.

The law of assault was developed “at common law”. That is law made by judges in the making of their decisions. To commit an assault is also a tort and not just a crime. This means that a person guilty of an assault can be sued by the victim in the civil courts for damages. Further, assault was once only able to be dealt with by indictment, that is before a judge with a jury. This is no longer the case.

Statutory offences for assault have now been created by the NSW Crimes Act. The statutes have not changed the definition of assault as pronounced by the common law, but the statutes have created different types of assault and they have, most importantly, declared maximum penalties that can be imposed by the courts and for the mode of trial. At common law no penalty was prescribed as a maximum, so the penalty was left open to the trial court. Further, with the statutory offences, an accused charged with assault can be dealt with either summarily in the Local Court or by indictment in the District Court before a judge and jury. This is now rare as most of the cases of assault are dealt with summarily in the Local Court before a magistrate sitting alone. 

Categories of Assault

The legislators have now created different categories of assault. In addition to assault itself, offences include Assault Occasioning Actual Bodily Harm, Assaulting Police or Peace Officers, Assault with Intent to Commit a Felony, Maliciously Inflicting Grievous Bodily Harm, Malicious Wounding, Sexual Assault, up to and including murder. There was before the 1988 amendments to the legislation aggravated common assault, such as Assault Female; the aggravation being the fact that the victim was a female. These offences were repealed, with the court now taking any aggravating circumstances into account at the sentencing stage as to what penalty should be imposed. 

Defences

There are a number of defences that are available to an accused person who is charged with an assault. These include, Self Defence, Defence of Another, Defence of Property, Affecting a Lawful Arrest and Removing a Trespasser from Land (using only force that is reasonable in the circumstances). 

Burden of Proof

As assaults are criminal offences the burden of proof falls upon the prosecution to prove the case beyond reasonable doubt. This also includes the defence of Self Defence as the Crown must disprove Self Defence beyond reasonable doubt. In any offence where the onus falls upon the accused to prove a defence, such as for example removing a trespasser, then the accused will bear that onus on the balance of probabilities. 

DEFINITIONS

Malicious: Every act done of malice, whether against an individual or any corporate body or number of individuals, or done without malice but with indifference to human life or suffering, or with intent to injure some person or persons, or corporate body, in property or otherwise, and in any such case without lawful cause or excuse, or done recklessly or wantonly, shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.

Actual Bodily Harm: Includes any hurt or injury calculated to interfere with the health or comfort of the victim.

Grievous Bodily Harm: Is referred to by the courts as, "A really serious injury". This definition has been expanded on by the Crimes Act to include any permanent or serious disfiguring of the person.

Wound: A wound consists of an injury involving a breaking through the whole skin, including the outer and inner layer of skin. 

LAW OF ASSAULT

An assault is any act which intentionally or recklessly causes another person to fear immediate and unlawful violence.

Any actual striking or the use of force against the person of the victim is a battery. The offence used to be referred to as "Assault and Battery". However, now in NSW due to the way the legislators have created the offences of assault in the Crimes Act the term assault also covers battery.

Assault, or Common Assault as it is often referred to, is still defined at common law. That is the definition of what an assault is, is taken from judgments given from judges in the courts. The effect of creating a section in the Crimes Act for assault means a maximum penalty can be imposed and a mode of trial determined with certainty. At common law the offence could only be dealt with by a trial before a judge and jury. Now that the offence has been placed in the Crimes Act the offence can, and nearly always is, dealt with summarily in a Local Court before a Magistrate. This is faster and cheaper.

If the crime of assault is dealt with on indictment and the accused is convicted, it is open to the court to impose a maximum sentence of imprisonment for two years. If the matter is dealt with in the Local Court in a summary manner, then the maximum penalty is a fine of $2,200.00 or imprisonment of 12 months or both.

All assaults are crimes. As such the burden of proof lies upon the Crown to prove its case beyond reasonable doubt in every case. The accused need not prove or do anything. If the Crown cannot prove its case then the charge laid against the accused would be dismissed. 

Words only and Assault

Words alone do not amount to an assault. So a person could threaten to kill someone else and this would not attract criminal liability for assault. It may, however, be grounds for the other person to rely upon to obtain an Apprehended Violence Order. If made over the phone or internet, it would amount to an offence under the telecommunications law. However, it would not amount to assault. There is no such law relating to verbal assault. For such words to amount to an assault there must be some corresponding physical action by the accused.

The words, taken with the physical action, may then amount to an assault. For the offence to be made out in these circumstances the accused must be able to carry out the threat immediately. So if the accused, who is in Sydney, rang a person who is in Broken Hill and threatened to shoot them, then this would not amount to an offence. The reason for this is that the threat could not be carried out immediately after the threat had been made. However, if the threat, made over the phone from one house to a house next door and the gun was being pointed out of a window by the accused, then this would amount to an assault because the threat is able to be carried out immediately upon the making of the threat.

In a street situation, again a threat by an accused to belt a person not accompanied with any physical action would not be an assault even though the victim may apprehend that violence. However, if the accused held his fists up in a boxing pose while he said the words and was in the near presence of the victim, then the assault would be complete. 

Battery

Battery is the use of force to the person of the victim. This could take the form of a punch, a push, hitting with a weapon or implement to the person of the victim. As stated above battery need no longer be charged. It is sufficient if the Crown now just simply alleges an assault. This charge of assault would include any threat and then the action that amounts to the battery.

Normally when the Crown alleges an assault they will use the indictment:

"That A.B. (the accused) on (date) at (place) in the State of New South Wales did assault C.D. (the victim)."

When a battery is alleged the Crown may add the following words to the indictment:

"and did beat and otherwise ill treat the said C.D. (victim)"

Those words only have the effect of indicating to the accused that the alleged assault includes an act of battery. It should be noted that there is no obligation upon the Crown to include those words if they allege a battery and so the failure to include those words would not amount to a defence to an accused person. 

Recklessly

As indicated above, an assault can be committed intentionally or recklessly. For an assault to be committed recklessly the Crown need not prove that the accused intended to assault the victim. It is a high degree of recklessness that the Crown is required to prove for the offence where intention is not alleged. The level that is required is that the assault was a probable consequence of the action of the accused. For example, the driving of a truck through a wall of a hotel knowing that there were people inside the hotel. Mere negligence or carelessness is not enough to make out the crime.

The mere bumping into a person accidentally on the footpath, even though it caused the application of force to the person of the other pedestrian, is not an assault. This is because there was no intention to bump into the person and there was not the sufficient degree of recklessness that is required to amount to an assault. 

Assault Occasioning Actual Bodily Harm

This is an aggravated form of assault. What is alleged here is that the accused is guilty of assault, (which must be proved by the Crown) and that as a result of that assault the victim suffered actual bodily harm. It is incumbent upon the Crown to prove that the actual bodily harm was caused by the assault.

There is no need for the Crown to prove that the accused intended to cause actual bodily harm to the victim. It is sufficient that the Crown is able to prove that the assault occurred and that the victim suffered the actual bodily harm. So the only intention required by the accused is that to commit assault.

The maximum penalty upon indictment for this offence is 5 years penal servitude. If the matter is dealt with summarily before a magistrate in a Local Court the maximum penalty is a fine of $5,500.00 or 2 years imprisonment or both. 

Malicious Wounding or Maliciously Inflicting Grievous Bodily Harm

These offences are in effect a more serious assault. However, it should be noted that there is no reference to the definition of assault. To have committed these offences what is required is an act of malice that causes the wound or the grievous bodily harm. Such an act would, however, in the ordinary course constitute an assault as well.

For these offences to be proved the Crown must prove malice to the criminal standard. The definition of malice is codified in the Crimes Act and a copy of the definition is in the definitions sheet. It should be noted here that malice does include recklessness in the same way that a reckless action can constitute an assault.

As with Assault Occasioning Actual Bodily Harm the wound or bodily harm must relate to the action of the accused. If this causal link is missing between the injury and the act of the accused then the offence has not occurred.

The wound must be such that it breaks both the inner and outer layers of the skin. If there is no bleeding it will not be possible to show that there was a wound. This, however, would not prevent a charge of Assault Occasioning Actual Bodily Harm from being successfully prosecuted by the Crown as the injury to the skin would amount to bodily harm.

This charge is generally charged in incidents such as when a person has been stabbed or hit with a weapon or object that has caused the wound. There may in these circumstances be other more serious offences that can be charged such as attempted murder if the evidence was strong enough to show an intention to kill.

Also, with Maliciously Inflicting Grievous Bodily Harm the Crown must prove that the injury to the victim amounted to Grievous Bodily Harm. So if the victim was hit over the head with an iron bar and it caused a fracture to his skull, then this would amount to Grievous Bodily Harm.

The harm need not be caused by the use of a weapon. It could be caused by the use of fists or by a kick to the victim. As long as the act was malicious and the injury was sufficient to show Grievous Bodily Harm then the offence could be proved.

The maximum penalties for these offences are penal servitude for 7 years. If dealt with summarily before a magistrate the maximum penalty is imprisonment for 2 years and a fine of $11,000.00 or both.

There is also an aggravated form of this offence where if the accused wounds or inflicts grievous bodily harm to the victim with the intention of inflicting grievous bodily harm or preventing lawful apprehension the accused is guilty of an offence. This offence also includes shooting at a person or attempting to discharge any kind of loaded firearm at any person. This offence carries a penalty of penal servitude of 25 years.

The intention required here would be shown by the Crown from the actions or comments made by the accused. Firing a gun at a person causing that person to suffer grievous bodily harm, will show intention in and of itself to cause the grievous bodily harm.

The Crimes Act also creates an offence for maliciously causing a dog to inflict grievous bodily harm or actual bodily harm. The maximum penalty here is penal servitude for 7 years. 

Causing Injury by Fear

It can amount to assault, assault occasions actual bodily harm, inflicting grievous bodily harm or even murder to cause a person to fear imminent violence if then the victim becomes injured as a result of attempting to escape.

An example of this is where the attacker places the victim in fear of being killed or suffering grievous bodily harm and the victim in an attempt to escape such violence jumps over the balcony of a unit. If the victim is killed in the fall the accused could be guilty of the murder, or if the victim suffers serious injury the accused could be convicted of maliciously inflicting grievous bodily harm . 

Other Offences

The Crimes Act also creates offences for Assaulting Police Officers in the Execution of their Duty. In such cases the Crown must prove that the officer was in the execution of his duty. So if the constable was on a shift and was acting unlawfully when assaulted, then the Crown would not be able to prove the officer was acting in accordance with his duty.

If the constable was off-duty, saw an offence and took action and in doing so was assaulted, the accused could still be convicted of the offence. The constable should identify his office, but, if that was not possible the accused would not be entitled to an acquittal because of that reason alone. Further, the accused does not need to intend to assault an officer, it is sufficient that the accused commits the act of assault, the fact that the victim was a constable would then be enough to prove the offence.

There are also offences for assaulting prison officers and other peace officers. These offences do generally have higher penalties to show that they are aggravated forms of assault. 

DEFENCES TO ASSAULT

There are a number of defences available to assault. They include:

• Self defence;
• Defence of another;
• Defence of property;
• Removal of a trespasser;
• Lawful arrest; and
• Execution of process.

Strictly, self defence is not a defence. Self defence is an issue that needs to be disproved by the Crown beyond reasonable doubt. Normally a defence will apply once the Crown has proved its case to excuse the actions of the accused. However, if the Crown cannot disprove self defence then the accused is entitled to an acquittal.

The test for self defence has both subjective and objective requirements. Firstly, the court needs to consider the incident from the point of view of the accused. Did he/she do what he/she thought was necessary in the circumstances (considering the danger faced), and was that reasonable.

The court recognises that an accused does not have the time when the incident occurred to precisely determine the exact amount of force that is required to be applied. This is only reasonable when a person has to make a split second decision as to what force he or she should apply to defend his or herself.

However, it would not be reasonable to shoot a person who is threatening to slap the accused. Nor would it be reasonable to shoot a person who after the initial assault is fleeing from the accused. This objective part of the test is what the jury will need to assess to determine whether the accused's actions were reasonable in the circumstances.

Further, self defence cannot amount to retribution. If an accused was assaulted by another person, then while defending him or herself, continued to fight the original attacker to the point that he or she becomes the aggressor, then self defence will not apply. The reason is that the victim did not do what was needed in the circumstances, but went beyond what was needed to defend themselves.

Even though the accused need not prove self defence, the accused must, as a matter of law, raise self defence as an issue in the hearing. If this is not done then the Crown will not have to prove that self defence was not disproved beyond reasonable doubt.

The same principles apply to the accused person acting in the defence of another. This is allowed as long as the accused only does what is reasonable in the circumstances to defend that other person.

A person can do what is reasonable to protect possessions. It is justified to use reasonable force to reclaim property from a thief, or to remove a trespasser from your property. Again, the force used must be reasonable in the circumstances. This reasonableness will be judged based on the facts of the case at hand.

A police officer or other person who lawfully arrests a person has a defence if charged with assault. The act of arrest does involve an assault upon the person arrested. This act will be justified by the court as long as any force that was used was reasonable in the circumstances. The same principle applies to a process server to serves a person with a summons or statement of claim for court proceedings. The placing of the process into the hand of the other person will not amount to an assault.

The overall theme of the defences to assault is reasonableness. Self defence does not allow the original victim, if he or she is able to defend the attack, to then proceed to beat the original aggressor. Once what is required to be done in defence has been done, then the person defending himself must not use further force. It should be noted though, if the accused went further in such circumstances, then the fact he was attacked by the other person would be material used in mitigation when deciding what an appropriate penalty in the particular case might be. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.