A closer look at assault laws
The issue of assault has received wide media attention of late and although ‘assault’ may be seen as a catchall term relating to the offence, there are a number of different layers to assault laws that this piece will broadly cover.
What is assault?
Bray CJ in MacPherson v Beath (1975) 12 SASR 174 outlined three principles in relation to assault, which are (at 177):
“1. The actus reus of an assault where there is no actual physical contact is an act of the defendant raising in the mind of the victim, the fear of immediate violence to him, that is to say, the fear of any unlawful physical contact.
2. The mens rea of such an assault is the defendant’s intention to produce that expectation in the victim’s mind.
3. There is the alternative possibility of a reckless assault, where the defendant, whilst not desiring to cause such fear, realises that his contact may do so and persists with it.”
All jurisdictions in Australia have assault laws on the books, such as s 31 of the Crimes Act 1958 (Vic) which states that a person who:
- assaults or threatens to assault another person with intent to commit an indictable offence; or
- assaults or threatens to assault, resists or intentionally obstructs— a member of the police force in the due execution of duty; or a protective services officer in the due execution of duty; or a person acting in aid of a member of the police force or in aid of a protective services officer knowing that the member, officer or person is such a member, officer or person; or assaults or threatens to assault a person with intent to resist or prevent the lawful apprehension or detention of a person is guilty of an indictable offence;
- "assault" means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is without lawful excuse; and with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen);
- "application of force" includes application of heat, light, electric current or any other form of energy; and application of matter in solid, liquid or gaseous form.
Generally speaking, common law assault and battery may be distinguished, as Giles JA in Darby v DPP (NSW) (2004) 61 NSWLR 558; 150 A Crim R 314 (NSW CA) said (at 328 ):
“In the criminal law there is an equivalent distinction between the common law offences of assault and battery...An assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force. There can be an assault without a battery; and there can be a battery without an assault...”
Assault: Occasioning (actual) bodily harm
In Wayne v Boldiston (1992) 62 A Crim R 1, Mildren J said (at 7-8):
“In the end result, I consider that question of whether the injury amounts to “bodily harm” is one of degree, which can only be decided by reference to the facts in each case. In determining this question, it is necessary to focus on the injury and its immediate consequences. The fact that the victim has been left with only a cosmetic disability is irrelevant if the immediate consequences of the injury interfered with her health. It is relevant also to consider the nature of any treatment received and whether any part of the body was unable to perform its function fully, either as a result of pain or otherwise and there may well be other relevant matters.”
Looking to the code jurisdictions of Queensland and Western Australia, bodily harm in s 1 “means any bodily injury which interferes with health or comfort”.