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Assault and Sexual Assault: Types, Elements, and Legal Consequences, Lecture notes of Law

University of StirlingLaw

An in-depth analysis of assault and sexual assault, two varied areas of law. It covers common assault, compound assault, and harm offenses. Common assault includes the intentional or reckless application of force to another person without consent or the threat of such force. Common assault offenses include assault by force and assault by threat of force. The document also discusses the legal implications of self-defense and the use of weapons. Compound assaults include assaults causing particular injuries, assaults with specific intent, assaults on certain victims, and assaults in specific circumstances. case studies and legal definitions to clarify the concepts.

What you will learn

  • What are the elements of assault by force and assault by threat of force?
  • What is the difference between common assault and compound assault?
  • What are some examples of compound assaults and what additional elements must be proven?

Typology: Lecture notes

2021/2022

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Assault and sexual assault
- Varied area of law – essentially split into “common assault” and
“compound/aggravated assault” and “harm offences”
- Common assault – actual force, or the threat of force
- Compound assault – assault plus something else (e.g. assault occasioning
particular injuries, assaults with specific intent, assault on certain persons, etc
etc). Must prove assault plus the additional element.
- Harm offences – e.g. offences where either grievous bodily harm or wounding
has occurred. Unlike compound assaults, these offences do not need proof of
assault plus the additional element, they only need proof of the GBH or
wounding (even though in reality it is most likely that an assault has occurred
which has inflicted the GBH or wounding).
Common Assault
Crimes Act 1900 (NSW)
Division 9Common assaults
61 Common assault prosecuted by indictment
Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for
two years.
- The Crimes Act 1900 does not provide a definition for “assault”, so the
definition comes from common law. Common assault can be broken into two
categories:
oThe intentional or perhaps reckless application of force to the body of
another person without consent (historically called battery)
oIntentional or perhaps reckless conduct which puts another person in
apprehension of immediate and unlawful personal violence
(historically called assault).
-Darby v DPP (NSW) (2004) 61 NSWLR 558 per Giles JA: ”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… [I]n common parlance the
infliction of unlawful force is spoken of as an assault. This usage has crept
into the law, as a convenient abbreviation… and in legislation.”
Assault by force
Physical element (actus reus):
- The merest physical contact may be sufficient.
oCollins v Wilcock [1984] 3 All ER 374: Police officer (P) approached
a woman (D) she believed to be a prostitute; when D went to walk
away, the police officer grabbed D’s arm to stop her walking away, D
turned and scratched police officer, who charged D with assaulting a
police officer. However, court held that since P was not exercising any
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Assault and sexual assault

  • Varied area of law – essentially split into “common assault” and “compound/aggravated assault” and “harm offences”
  • Common assault – actual force, or the threat of force
  • Compound assault – assault plus something else (e.g. assault occasioning particular injuries, assaults with specific intent, assault on certain persons, etc etc). Must prove assault plus the additional element.
  • Harm offences – e.g. offences where either grievous bodily harm or wounding has occurred. Unlike compound assaults, these offences do not need proof of assault plus the additional element, they only need proof of the GBH or wounding (even though in reality it is most likely that an assault has occurred which has inflicted the GBH or wounding). Common Assault Crimes Act 1900 (NSW) Division 9Common assaults 61 Common assault prosecuted by indictment Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.
  • The Crimes Act 1900 does not provide a definition for “assault”, so the definition comes from common law. Common assault can be broken into two categories: o The intentional or perhaps reckless application of force to the body of another person without consent (historically called battery) o Intentional or perhaps reckless conduct which puts another person in apprehension of immediate and unlawful personal violence (historically called assault).
  • Darby v DPP (NSW) (2004) 61 NSWLR 558 per Giles JA: ”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… [I]n common parlance the infliction of unlawful force is spoken of as an assault. This usage has crept into the law, as a convenient abbreviation… and in legislation.” Assault by force Physical element (actus reus):
  • The merest physical contact may be sufficient. o Collins v Wilcock [1984] 3 All ER 374: Police officer (P) approached a woman (D) she believed to be a prostitute; when D went to walk away, the police officer grabbed D’s arm to stop her walking away, D turned and scratched police officer, who charged D with assaulting a police officer. However, court held that since P was not exercising any

lawful right to come into contact with D, P had first committed battery against D, negativing D’s later conduct. Goff LJ said the slightest touching will constitute battery, although he also said there is an exception for contact which is generally acceptable in everyday life.

  • There must be a positive act. An omission will not be enough to constitute an assault. o Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439: Accused accidentally drove onto police officer’s foot, but then refused to drive off it. Question was whether this was assault : Did actus reus and mens rea match up, as intention only came about after accused was on the foot? Did the actus reus finish once he had driven onto the foot, making his refusal to drive off an omission, or was there a continuing act?  James J: “To constitute the offence of assault, some intentional act must have been performed: a mere omission to act cannot amount to an assault.”
  • The act does not need to be hostile. o Boughey v R (1986) 161 CLR 10 per Mason, Wilson and Dean JJ: “It has never… been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary general ingredient of an unlawful battery.”
  • Generally the positive act will be direct, but it does not need to be direct. o R v Martin (1881) 8 QBD 54: D placed iron bar over exit of a theatre and then shouted fire. Several people were severely injured. o DPP v K [1990] 1 WLR 1067: A minor placed acid into a hot air hand drier in the boys toilets at school. Someone turned it on acid splashed on them. o Gibbon v Pepper (1695) 2 Salk 637: Horse bolted and ran over someone – however the D (who had been riding the horse) was found not guilty because it was an accident, so D not directly at fault.
  • There must be no consent. Consent will negative common assault. There are situations in everyday life where consent may not be expressed but it is implied. o Collins v Wilcock [1984] 3 All ER 374 per Goff LJ: “... most of the physical contacts of ordinary life are not actionable because they are impliedly consented to by all who move in society and so expose themselves to the risk of bodily contact. So nobody can complain of the jostling which is inevitable from his presence in, for example, a supermarket, an underground station or a busy street: not can a person who attends a party complain if his hand is seized in friendship, or even if his back is (within reason) slapped.” o Boughey v R (1986) 161 CLR 10: A person is thought to have given implied consent to “commonplace intentional but non-hostile acts such as patting another on the shoulder to attract attention or pushing between others to alight from a crowded bus” o Pallante v Stadiums [1976] VR 331: Notion that within a sporting context, implied consent can negative assault – if it occurs within the rules and intendment of the game. This case focused on whether boxing was illegal and if the blows inflicted by boxers amounts to

constituted by a silent phone call. Lord Steyne observed that the silent caller “intends by his silence to cause fear and he is so understood. The victim is assailed by the uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller’s arrival at her door may be imminent. She may fear the possibility of immediate personal violence.” o Can a conditional threat be sufficient? It depends on the conditionality.  Rozsa v Samuels [1969] SASR 205: P taxi driver threatened to punch D. D took knife and conditionally threatened P, saying “If you try it, I’ll cut you to bits”. While this was conditional, it was still held to be assault from D – because the accused created fear of imminent violence, and didn’t have the right to impose such a condition with unlawful threats.  Tuberville v Savage [1669] EWHC KB J25: 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." The court held that a conditional threatening statement, without an imminent threat of harm, does not constitute an assault. o Can a threat continue while the person who made the threats is asleep?  R v Secretary (1996) 5 NTLR 96: The deceased threatened to kill the accused before falling asleep, so the accused killed the deceased while he slept. Accused used defence of self-defence

  • but for this to be open there had to be an ongoing act of assault, as the threat and the self-defence need to be contemporaneous. Held that the deceased possessed both the ability and will to kill the accused, and that this threat (and hence the act of assault) continued even when he was asleep – hence the defence of self-defence was open to the accused. Assault can continue while asleep as long as nothing changes between the time the threat is made and the point in time when the threat is to be carried out. o Spitting? DPP v JWH (unreported, NSWSC, 17 October 1997) : Accused spat at two police officers – hit the shirt of one officer and the face of another. Hulme J: Act of spitting does constitute battery.
  • The victim must apprehend the threat of force - the state of mind of victim o Pemble (1971) 124 CLR 107: D carried a loaded gun, which accidentally discharged as he came behind his former lover in an attempt to frighten her so that she would return to him. D unable to be convicted of assault, as the victim was unaware that the D was threatening her with a rifle, and hence did not feel fear. D was however convicted of manslaughter on other grounds, however Barwick CJ and Windeyer held that the accused had committed attempted assault. o Everingham (1949) 66 WN (NSW) 22: D convicted of assault when he presented a toy pistol at a taxi driver. The driver was unaware that it was a toy. It was held that it was an assault to point an unloaded or toy gun if apprehension of imminent unlawful contact is created. o Generally the position is that the victim need not fear the imminent bodily harm, they only need to apprehend it. However, it is argued that

there is a lack of certainty on this point.  Brady v Schatzel [1911] St R Qd 206: D pointed a gun at the victim (a police officer). V did not try to protect himself – said he was not afraid of D shooting him. However, it was held nonetheless that D had committed assault – as there was still an apprehension of immediate violence.  Barton v Armstrong [1969] 2 NSWR 451: Taylor J: “Threats which put a reasonable person in fear or apprehension of physical violence can constitute assault, although the victim did not know when that physical violence may be affected... While plaintiff may be given an alternative to the suffering of physical harm he might nevertheless entertain a real fear that he would suffer physical violence.”  MacPherson v Brown (1975) 12 SASR 184: Zelling J – victim must either fear or apprehend immediate physical violence.  Ryan v Kuhl [1979] VR 315: D and V were in neighbouring cubicles in a public toilet. D thrust a knife through a hole in partition between the cubicles to stop V from annoying him. V testified the knife did not frighten him, as he realised that as long as he remained in the cubicle, D could not harm him with the knife. It was held that as the D’s conduct did not cause fear of harm in the victim, there could be no charge of assault. o Has been suggested that the victim’s apprehension of violence must be reasonable: Brady v Schatzel [1911] St R Qd 206 and Barton v Armstrong [1969] 2 NSWR 451. o Note the different offences of stalking and intimidation: Crimes (Domestic and Personal Violence) Act 2007.

  • Must be an apprehension of immediate violence. However, the definition of ‘immediate’ does not necessarily mean instantaneous, and has been broadened out in certain cases. o General rule (outlined in Knight (1988) 35 A Crim R 314 ) – the threat must raise expectation or apprehension of immediate (imminent) bodily harm; threats of future violence or future bodily harm will not normally be sufficient to establish assault.  Therefore, as Knight established, telephone calls will not normally be sufficiently immediate for criminal liability in assault – although Barton v Armstrong indicates this is not always the case, and that there might be assault if the accused has some form of power of the victim and is in a position to carry out the threats. o In some cases, the application of the concept of immediacy has been given a wide interpretation – the notion of an “immediate and continuing threat”. A present fear of future harm, therefore, may be sufficient, especially in situations where the victim cannot get away.  See R v Secretary (1996) 5 NTLR 96 above, where it was held that assault continued even though the man who made the threats had gone to sleep. Notion of continuing threat.  Zanker v Vartzokas (1988) 34 A Crim R 11: Woman accepted lift from D, who offered her money for sex. She refused. He

o Crimes Act 1900 s 59A: Assault during public disorder o Crimes Act 1900 s 60E: Assaults at schools

  • Assaults with a sexual component o Crimes Act 1900 Division 10
  • With each compound assault, it is necessary for the prosecution to prove the elements on assault, as well as something additional. Assaults with further specific intent Crimes Act 1900 (NSW) 58 Assault with intent to commit a serious indictable offence on certain officers Whosoever: assaults any person with intent to commit a serious indictable offence, or assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence, shall be liable to imprisonment for 5 years.
  • Crimes with further specific intent have an additional mens rea element but not actus reus. Assault occasioning actual bodily harm Crimes Act 1900 (NSW) 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years. (2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
  • In addition to assault, there is the physical element of actual bodily harm. o In addition to common assault, there are three main ‘harm’ elements: actual bodily harm, grievous bodily harm and wounding. GBH and wounding will be dealt with in ‘Harm Offences’ o Actual bodily harm defined in Donovan [1934] 2 KB 498 , a case where the accused beat a 17 year old girl with a cane for the purposes of sexual gratification, apparently with her consent. Court held that in cases of actual bodily harm, consent is irrelevant, and defined actual bodily harm. Swift J: “[B]odily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.”  Actual bodily harm may include psychiatric injury. In Chan- Fook [1994] 2 All ER 552 Court of Appeal held the “phrase