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Assault

Contents
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Assault vs. battery...................................................................................................1


Common assault......................................................................................................1
Actus reus................................................................................................................1
Mens rea..................................................................................................................2
Consent....................................................................................................................2
Lawful correction of children..................................................................................3
Aggravated assault..................................................................................................4
Apprehended violence orders (AVOs)....................................................................9
Stalking and intimidation......................................................................................11

1 Assault vs. battery

Assault causing apprehension of unlawful contact (Darby)1


Battery unlawful contact (Darby)2

2 Common assault

Common assault any unlawful contact (Crimes Act s 61) (Max: 2 years)
Aggravated assault aggravated by injury, intent, weapons, or special victims

3 Actus reus
(1) Causing apprehension of immediate imminent violence; or
(2) Unlawful contact.

Knight3 The threatened violence must be immediate.


Barton v Armstrong4 Threats via phone may be sufficient.
Zanker v Vartzokas5 The threatened violence must be relatively immediate
imminent.

1 Darby v DPP (NSW) (2004) 61 NSWLR 558, [71] (Giles JA).


2 Ibid.
3 Knight (1988) 35 A Crim R 314, 315-318 (Lee J) (NSWCCA).
4 Barton v Armstrong [1969] 2 NSWR 451, 454-455 (Taylor J).
5 Zanker v Vartzokas (1988) 34 A Crim R 11, 11-18 (White J) (SASC).

Assault

4 Mens rea

JWH6 Spitting can constitute assault.


Fagan7 Omissions cannot constitute assault, but continuing acts can.
Stalking Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13.

4 Mens rea
Intention or advertent (not inadvertent) reckless (MacPherson v Brown):8
(1) To create apprehension of immediate imminent violence; or
(2) To effect unlawful contact.

5 Consent
Consent is generally a defence, but the court can deny the defence for policy grounds.

Brown9 Consent did not apply to sadomasochism.


Wilson10 Consent applied to a wife who wanted her husbands name burned onto her.
Aitken11 Consent applied to horseplay.
Emmet12 Consent did not apply sexual activities that caused actual bodily harm.

Consent to medical treatment

Consent may be given expressed by the patient or an authorised person (e.g.

guardian).
Consent may be implied in emergencies.
Consent must be informed (the nature and risks of the procedure must be explained).
Consent must be given freely (not under coercion).

6 DPP v JWH (unreported, NSWSC, 17 October 1997) (Hulme J).


7 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, 439 (James J) (QB).
8 MacPherson v Brown (1975) 12 SASR 184, 188-189 (Bray CJ) (FC).
9 Brown [1994] 1 AC 212 (HL).
10 Wilson [1997] QB 47.
11 Aitken [1992] 4 All ER 54.
12 Emmet, The Times, 15 October 1999 (CA).

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4 Mens rea

Female genital mutilation

Crimes Act s 45
Max penalty: 7 years.
Consent is not a defence (Crimes Act s 45(5)).

Sport

Billinghurst13 Sports players consent to reasonably expected force.


Jewell14 Rules are relevant but not decisive. Players may consent to breaches of

rules.
Watersonv v Woolven15 Defendants have evidentiary burdens of proving consent.
Stanley16 Players do not consent to acts that do not legitimately pursue the games
objects.

6 Lawful correction of children


Crimes Act s 61AA
(1) In criminal proceedings brought against a person arising out of the application of
physical force to a child, it is a defence that the force was applied for the purpose of
the punishment of the child, but only if:
(a) the physical force was applied by the parent of the child or by a person acting for a
parent of the child, and
(b) the application of that physical force was reasonable having regard to the age,
health, maturity or other characteristics of the child, the nature of the alleged
misbehaviour or other circumstances.
(2) The application of physical force, unless that force could reasonably be considered
trivial or negligible in all the circumstances, is not reasonable if the force is applied:
(a) to any part of the head or neck of the child, or
(b) to any other part of the body of the child in such a way as to be likely to cause harm
to the child that lasts for more than a short period.
13 Billinghurst [1978] Crim LR 553.
14 Re Jewell (1987) 1 VAR 370, 370-372 (Vic AAT).
15 Waterston v Woolven (unreported, SASC, 21 October 1987).
16 Stanley (unreported, NSWCCA, 7 April 1995).

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(3) Subsection (2) does not limit the circumstances in which the application of physical
force is not reasonable.
(4) This section does not derogate from or affect any defence at common law (other
than to modify the defence of lawful correction).
(5) Nothing in this section alters the common law concerning the management, control
or restraint of a child by means of physical contact or force for purposes other than
punishment.

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7 Aggravated assault
7.1 Causing injury
Actual bodily harm (ABH)
Donovan17

ABH has ordinary meaning.


It means hurt/injury that interferes with health/comfort.
It does not need to be permanent.
It must be more than transient and trifling.

Chan-Fook,18
applied in
Lardner19

ABH includes psychiatric injury.


It must be a clinical condition.
It does not include fear, distress, or panic.

Grievous bodily harm (GBH)


Crimes Act s 4

Destroying a foetus (except medically)


Permanent or serious disfigurement
Grievous bodily disease

Smith20

GBH has ordinary meaning.


Bodily harm does not need to be explained.
Grievous means really serious.

Haoui21

GBH must be really serious.


It does not need to be permanent, long lasting, or life threatening.

17 Donovan [1934] 2 KB 498, 509.


18 Chan-Fook [1994] 2 All ER 552, 559 (Hobhouse LJ) (EngCA).
19 Lardner (unreported, NSWCCA, 10 September 1998).
20 DPP v Smith [1961] AC 290 (Viscount Kilmuir).
21 Haoui [2008] NSWCCA 209.

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Disease

Common law definition of recklessness applies.


Coleman Recklessness means realising that the kind of harm might be inflicted.

Second reading speech Recklessness means not caring about whether disease is
inflicted.

Public Health Act 2010 (NSW)


o s 52 Failing to take reasonable precautions against spreading a scheduled
medical condition in a public place (Max: 100 penalty, or 6 months, or both).
Ignorance of condition is a defence (s 52(2)). Conditions include HIV/AIDS,
hepatitis C, chlamydia, syphilis, gonorrhoea (Sch 1).
o s 79(1) Sexual intercourse with people knowing they have a sexually
transmissible medical condition, without warning of risk (Max: 50 penalty units).
o s 79(2) Owning or occupying building, knowingly permitting prostitutes, who
commit offence under s 79(1) (Max: 50 penalty units).

Wounding

Shepherd22 Wounding means breaking inner layer of skin (dermis), not outer layer
(epidermis).

Offences

Assault occasioning ABH (s 59)


Reckless wounding or causing GBH (s 35)
Recklessly causing GBH in company (s 35(1))
Negligent infliction of GBH (s 54) (D:23 must be grossly negligent)

7.2 Further specific intent


The prosecution must prove the further specific intent:

Assault with intent to commit murder (ss 27-29)


Assault with intent to do GBH, or resist lawful arrest (ss 33-33B)

22 Shepherd [2003] NSWCCA 351, [31]-[32] (Kirby J; Meagher JA and Shaw J agreeing).
23 D [1984] 3 NSWLR 29 (NSWCCA).

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Assault with intent to commit indictable offence (ss 37-38, 58)

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7.3 Offensive weapons or dangerous substances


Crimes Act
s4

Description
Offensive weapon or instrument includes:
(a) Dangerous weapons,
(b) Anything made or adapted for offensive purposes,

s 33-33B
s 38
s 39-41A
s 46-38, 55
s 49
s 35A
s 49A(1)

(c) Anything used, intended to use, or threatened to be used, for


offensive purposes, regardless of whether it is ordinarily used for
offensive purposes or is capable of harm.
Offences with offensive weapons
Using chloroform, laudanum, or other stupefying or over-powering drug or
thing
Using poison or other destructive or noxious thing to cause injury
Using explosive or corrosive substances to cause injury
Setting traps
Maliciously causing a dog to inflict ABH (5 years), or GBH (7 years)
Rock throwing:
(a) Accused must intentionally throw or drop object on vehicle or vessel
on road, railway or navigable waters.
(b) There must be someone in the vehicle or vessel.

s 38A(2)

(c) The accused must risk the safety of any person.


(a) Spiking drink or food, with:
(i) An intoxicating substance, of which the other person is unaware;
(ii) More of an intoxicating substance than the other person would
reasonably expect.
(b) And intending to cause harm from consumption.
Max penalty: 100 penalty units, or 2 years.

7.4 Special victims

Assault on children at time of birth (s 42)


Exposing or abandoning child under two (s 43)
Assault, or neglect to provide necessaries for, wives, apprentices, servants, or insane people (s

44)
Assault on clergy engaged in duties (s 56)
Assault on people trying to preserve vessel in distress (s 57)
Assault, or threaten, crew member of aircraft or vessel, while in board (s 206)

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Law enforcement officials


Lawful execution of duty
Lawful execution of duty will often turn on:

Whether there was a valid warrant of apprehension (Noordhof v Barlett);24 or


Whether there were reasonable grounds to suspect an offence (LEPRA s 99).25

Knowledge of police?

The accused does not need to know that the victim was a police officer (Reynhoudt).26

Offences
Crimes Act
s 58

s 60

Description
Assault, resist, or wilfully obstruct officer while executing duty:

Applies to constables, special constables, customs officers, prison


officers, sheriffs officers, bailiffs, or anyone aiding such officers.

Maximum penalty: 5 years.

If dealt summarily: 2 years.

Assault, stalk, harass or intimidate police officer while executing duty

Meller v Low27 Police officer must actually be intimidated.

Manton28 Intimidation does not need to influence police action.

(1) Causing no ABH (5 years)


(1A) During a public disorder, causing no ABH (7 years)
(2) Causing ABH (7 years)
(2A) During a public order, causing ABH (7 years)
(3) Recklessly wounds or causes GBH (12 years)
s 60A

Assault, stalk, harass or intimidate law enforcement officer other than police

24 Noordhof v Barlett (1986) 31 A Crim R 417.


25 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99.
26 Reynhoudt (1961) 107 CLR 381, 402-403 (Menzies J; Taylor and Owen JJ agreeing).
27 Meller v Low [2000] NSWSC 75 (Simpson J).
28 Manton [2002] NSWCCA 316.

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Law enforcement officer includes ICAC Commissioner, Police


Integrity Commission officers, NSW Crime Commission staff,
correctional staff, probation and parole officers, DPP solicitors, and
Crown prosecutors (s 60AA).
Assault, stalk, harass or intimidate third party, with whom law enforcement
officer has domestic relationship

s 60B

s 546
s 33
s 33A, 33B

Maximum penalty: 5 years.


With ABH: 7 years.
With wounding or GBH: 12 years.

Summary offence of resist; hinder; or incite person to assault, resist


hinder; police executing duty (12 months, 10 penalty units, or both)
Indictable offence of wounding, or inflicting GBH, with intent to resist
prevent lawful arrest or detention of anyone
Use, or attempted use, of firearm; or threatened use of offensive weapon;
threat or injury to person or property; with intent to prevent lawful arrest
detention

or
or
or
or

Public justice officials


s 323

Threatening or causing injury or detriment to witnesses, jurors, judicial officers,


or public justice officials (10 years)

s 326

Threatening or causing injury or detriment to anyone on account of anything


lawfully done as witness, juror, judicial officer, or public justice official in, or in
connection with, any judicial proceedings (10 years).

Orcher

Police officers are public justice officials.


Arresting officers are not connected to judicial proceedings.
The connection must so close that the offence affects the judicial
proceedings.

7.5 Special circumstances


Assault at schools
Assault, stalk, harass, intimidate school students or staff when attending school (s 60E):

Maximum penalty: 5 years


With ABH: 7 years
With GBH: 12 years

Assault during public disorder


Crimes Act s 59A:

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(1) Assault during a large-scale public disorder, without ABH (5 years)


(2) Assault during a large-scale public disorder, with ABH (7 years).

8 Apprehended violence orders (AVOs)


Crimes (Domestic and Personal Violence) Act 2007 (NSW)
16 Court may make apprehended domestic violence order
(1) A court may, on application, make an apprehended domestic violence order if it is
satisfied on the balance of probabilities that a person who has or has had a domestic
relationship with another person has reasonable grounds to fear and in fact fears:
(a) the commission by the other person of a personal violence offence against the person,
or
(b) the engagement of the other person in conduct in which the other person:
(i) intimidates the person or a person with whom the person has a domestic
relationship, or
(ii) stalks the person,
being conduct that, in the opinion of the court, is sufficient to warrant the making of
the order.
(2) Despite subsection (1), it is not necessary for the court to be satisfied that the person for
whose protection the order would be made in fact fears that such an offence will be
committed, or that such conduct will be engaged in, if:
(a) the person is a child, or
(b) the person is, in the opinion of the court, suffering from an appreciably below
average general intelligence function, or
(c) in the opinion of the court:
(i) the person has been subjected at any time to conduct by the defendant
amounting to a personal violence offence, and
(ii) there is a reasonable likelihood that the defendant may commit a personal
violence offence against the person, and
(iii)

the making of the order is necessary in the circumstances to protect the


person from further violence.

(3) For the purposes of this section, conduct may amount to intimidation of a person even
though:
(a) it does not involve actual or threatened violence to the person, or
(b) it consists only of actual or threatened damage to property belonging to, in the
possession of or used by the person.

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Other provisions
s5

Domestic relationship includes spouses, de facto spouses, intimate personal


relationships, people who live or have lived in the same residence, dependents,
relatives, and same sex relationships.

s 35

The following can be prohibited or restricted: approaching the protected person


(including their residence or workplace), or possessing firearms. The maximum
penalty for contravention is 2 years, or 50 penalty units, or both.

s 36

All AVOs prohibit intimidating and stalking, and extend to other people with whom
protected people have domestic relationships.

s 39

An AVO must be made when a defendant is guilty of a domestic violence offence.

s 27

A provisional order must be made when domestic violence proceedings begin.

s 11

A domestic violence offence includes personal violence offences committed against


people in a domestic relationship.

s 14

Police must give reasons in writing if they do not charge alleged breaches.

s 22

Interim orders may be made if necessary or appropriate.

s 25

Police may make telephone applications for provisional orders to immediately


protect a person, or prevent substantial damage to that persons property.

s 45

The names of children involved in proceedings cannot be published.

s 97

External protection orders (e.g. from another State or Territory, or NZ) may be
registered, and will have the same effect as NSW AVOs.

Apprehended domestic violence orders (ADVOs) (s 16) vs.


apprehended personal violence orders (APVOs) (s 18)

Courts may refuse APVOs if frivolous, vexatious, without substance, or without

reasonable prospects of success, or if alternative dispute resolution would be better (s


53).
APVOs complaints may have adverse cost orders (s 99), although ADVOs may if

frivolous or vexatious.
The address of people protected under ADVOs cannot be disclosed (s 43).

9 Stalking and intimidation


Crimes (Domestic and Personal Violence) Act 2007 (NSW)

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s 13(1)

A person who stalks or intimidates another person with the intention of causing
the other person to fear physical or mental harm is guilty of an offence.
(Maximum penalty: 5 years, 50 penalty units, or both.)

s 8(1)

"stalking" includes the following of a person about or the watching or


frequenting of the vicinity of, or an approach to, a persons place of residence,
business or work or any place that a person frequents for the purposes of any
social or leisure activity.

s 7(1)

intimidating means:
(a) conduct amounting to harassment or molestation of the person, or
(b) an approach made to the person by any means (including by telephone,
telephone text messaging, e-mailing and other technologically assisted
means) that causes the person to fear for his or her safety, or
(c) any conduct that causes a reasonable apprehension of injury to a person or to
a person with whom he or she has a domestic relationship, or of violence or
damage to any person or property.

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