All About Assault

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.

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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 no 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.

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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 .

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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.

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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 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.

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