Apart from drink driving and traffic offences, it is the circumstances surrounding conflict between human beings that most often brings the community into contact with the criminal justice system.

The simple fact is that history shows on a regular basis that individuals and even governments resort to violence or intimidation to attempt to resolve differences or to express frustration at some perceived wrong doing against them.

There is not much we can do about governments other than voting them out. We are fortunate in this country to be able to do just that. However, the criminal justice system in New South Wales provides for how a member of the community will be dealt with if they use violence, threats or intimidation.

What is an assault?

The law in this area dates back to the origins of our legal system in England several hundred years ago.

The case of Tuberville v Savage [1669] EWHC KB J25 is a famous English decision on the requirements for what constitutes assault. The court held that a conditional threatening statement without an imminent threat of harm does not constitute an assault. Savage had made some insulting comments to Tuberville.

In response, Tuberville grabbed the handle of his sword and stated, "If it were not assize-time, I would not take such language from you." Savage responded with force, causing Tuberville to lose his eye. Tuberville brought an action for assault, battery, and wounding. The point of this is to make it clear that to this very day, courts in New South Wales are still considering these types of issues. Albeit without swords being involved.

You have probably heard the term assault and battery. Battery involves the use of physical force against the victim. In our system, the concept of battery still exists however it is not really referred to due to the modern definition of assault.

Assault can constitute either action that:

  • assault- putting the victim in fear of imminent physical harm or,
  • applying physical harm to the person of the victim (a battery).

To be found guilty of assault, the prosecution have to prove the defendant used physical force against another person that was unlawful. In our society, there are some circumstances where a person will come into physical contact with another (sometimes causing pain) such as a doctor or dentist.

Here, there is a necessity for the physical force and a lawful purpose for it. The person that the force is being used against will be consenting, despite the pain.

Other circumstances where physical force would not be unlawful would be during sporting events where the force is within the rules. So, for example, if a professional footballer tackles another player during the course of the game causing the tackled player to sustain a broken bone, the tackle would not be unlawful if it was within the rules of the game and the tackled player was a willing participant.

However, if the player making the tackle does something outside the rules and as a result the other player is injured, then in theory, there would be unlawful force and an assault.

The physical action leading to the use of force must be either intentional (rather than accidental) or reckless.

Can mere words constitute an assault?

Yes. Words alone used either face to face or over the telephone may constitute assault but there must be a threat of violence which can be immediately be carried out.

As a general rule it is not necessary for the prosecution to establish physical force used was done with hostile intent. If, for example, the defendant punches the victim in the face, then there is no question that it was hostile.

However if there is a minor infliction of force the existence of a hostile intent may convert it into an assault.

Does the use of force have to be without the victim's consent?

Consent is a defense to assault where the force used is not struck in anger, but not where the force used was likely or intended to cause actual bodily harm. Playing sport does not involve some broad consent to being assaulted. Spitting on someone constitutes a battery and as such, an assault.

Types of assault

  • Common Assault

Common assault is an offence which carries a maximum penalty of 2 years imprisonment. This involves the least amount of injury (or no injury at all) upon the victim. It is a Table 2 offence.

  • Actual Bodily Harm

Assault occasioning actual bodily harm is the next most serious type of assault charge.

For a person to be guilty of this offence, it must be proven beyond reasonable doubt that the harm done to the victim as a result of the unlawful force was more than transient and trifling, but need not be permanent: It is not necessary to prove intent to inflict actual bodily harm.

Emotional harm does will suffice unless there is evidence of psychiatric harm.

Assault occasioning actual bodily harm carries 5 years, and 7 years imprisonment if in company. It is a Table 2 offence.

  • Grievous bodily harm

Short of murder or attempted murder, the most serious class of assault offence is grievous bodily harm. Grievous bodily harm means bodily harm of a really serious kind.

There are two further categories of grievous bodily harm, being recklessly or maliciously inflict grievous bodily harm and inflict grievous bodily harm with intent to do so.

Intention to inflict grievous bodily harm and then doing so is the most serious of this type of offence. The penalties for recklessly inflicting grievous bodily harm is (10) years imprisonment or, (14) years if in company.

The more serious offence of inflicting grievous bodily harm with intent to do so inflict or resist arrest / prevent the apprehension of any person carries a maximum of 25 years imprisonment.

  • Wounding

This is another class of serious assault. The injury may well be really serious and the person charged with grievous bodily harm but a person can still be charged with wounding.

For there to be a wounding there must be a breaking or cutting of the 2 layers of the skin. It need not be as a result of a stabbing.

The penalty is (7) years imprisonment, or if in company (10) years.

  • Assault Police

For the offence of assaulting, stalking, or intimidating a police officer, in the execution of his or her duty, where no actual bodily harm is inflicted, the maximum penalty is (5) years.

For the offence of assaulting a police officer, while in the execution of his or her duty, and inflicting actual bodily harm, the maximum penalty is (5) years.

For the offence of maliciously wounding or inflicting grievous bodily harm on a police officer while in the execution of his or her duties, the maximum penalty is (12) years.

Generally these offences only apply if the victim was a police officer while the officer was in the course of execution of his duty. However, these offences apply if the officer was not on duty, but the assault was committed in consequence of or in retaliation for actions of the police officer in the execution of his/her duty, or because the victim was a police officer.

The prosecution must generally prove beyond a reasonable doubt that the officer was acting in the lawful execution of their duty.

It is not necessary that the prosecution prove the defendant knew that the victim was a policeman. This is the state of the law currently although it has been the subject of some criticism in the High Court.

  • Intimidation of a police officer

Intimidating a police officer in the lawful execution of his or her duty is also an offence carrying (5) years. In order to prove that a person has intimidated a police officer it is necessary for the prosecution to prove beyond a reasonable doubt either that the person's conduct has induced fear in the police officer or affected the way in which the officer has gone about their duties.

  • Resist or Hinder Police

It is an offence to resist or wilfully obstruct a police officer in the execution of his/her duty. This offence carries a maximum penalty of 5 years imprisonment.

It is an offence to resist or hinder a police officer in the execution of his or her duty. The offence of resisting or hindering a police officer in the execution of his/her duty carries a penalty of 12 months imprisonment or $1100.

  • Self defence

The Crimes Act 1900 provides that a defence to a charge of assault (or the more serious versions) is self defence. This applies to defence of ones self or another person but not property. Once self defence is raised by the defence, it is not for them to prove their innocence based upon the claim of self defence. Rather, it is for the prosecution to negative the claim of self defence; beyond a reasonable doubt.

Contact Sharon Ramsden on sramsden@marsdens.net.au or phone (02) 4626 5077.