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.
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repealed, with the court now taking any aggravating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).
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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.
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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.
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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.
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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 no 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.
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Battery
Batter 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 Sam Bloggs (the accused) on (date) at (place) in the State
of New South Wales did assault Bill Bloggs (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 Bill Bloggs
(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.
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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.
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Ian Hunter.
