Actus Reus: Apprehension or Application of Violence
Articles on HIV/AIDS and the Criminal Law
Mens Rea: intention, recklessness or negligence
Aggravated Assaults and Mens Rea
Other Non Fatal Offences: wounding or inflicting grievous bodily harm
In this section, we will review the ingredients of assault and other non-fatal offences. The NSW law is a mixture of statutory provisions and the common law. The offences examined range in seriousness from the least serious type of assault (common assault) to the most serious (malicious infliction of grievous bodily harm).
In the NSW the offence of common assault is found in section 61 of the Crimes Act 1900. The basic offence of assault is described as "common assault". The prefix common is used to distinguish this basic type of assault from other aggravated types of assault. An example of an aggravated assault is the offence of assaulting a police officer in the execution of his or her duty which carries a more heavy penalty. Note the interesting empirical data about assault and conviction rates in BFW 784.
You can see that section 61 does not contains a definition of either the actus reus or mens rea of the offence. In order to determine the actus and mens rea of assault we must consider the common law. Many of the cases on the Course Outline will be familiar to you from your study of Torts. The basic elements of criminal assault are fundamentally the same as the civil tort of assault and battery.
The first important point to note about the actus reus of criminal assault is that the law draws a distinction drawn between assault and battery. Assault, strictly speaking, is defined as causing another person to apprehend the application of immediate or imminent unlawful force. The essence of assault is apprehension of violence, in other words, being placed in fear of personal violence. Assault does not require actual physical contact. Battery, on the other hand, is defined as applying unlawful force to the body of another person. However, in the modern law the courts and legislature use the term "assault" in a generic sense to describe both types of conduct.
The New South Wales Court of Appeal decision in Knight (1988) 35 A Crim R 314 affirms this common law distinction between assault and battery: see Supplementary Materials. The defendant had made a number of threatening and abusive phone calls to a police officer, a magistrate and a judge. The evidence at trial showed that the calls were made from an unknown address and from some distance away. The defendant was charged and convicted of common assault contrary to Section 61 of the NSW Crimes Act 1900. Lee J referred to Fagan, the case of the defendant who parked his car on the police officer's foot. We considered Fagan in the context of omissions and concurrence. In Fagan, the English Court of Appeal defined the actus reus of assault as "causing another person to apprehend immediate and unlawful person violence". As Lee J points out "the expression is apprehend immediate violence not immediately apprehend violence". The person must believe that personal violence will occur imminently. In the next paragraph Lee J also affirms the common law distinction between assault and battery, referring to Collins v Wilcock [1984] 79 Cr App R 229.
The Requirement of Imminence
The difficulty for the Court in Knight was the lack of authority on whether threats over the telephone could amount to an assault. The problem with a telephone threat is whether the violence threatened is sufficiently imminent - the law requires the defendant's conduct to cause the victim to apprehend imminent or immediate violence. Clearly imminence is a question of degree. As a matter of law, Lee J held that a telephone threat is capable of constituting an assault if the threats were of imminent or immediate violence. However, in this case, there was no evidence that the threats were threats of immediate violence, which is the essence of assault. As Lee J concluded, "they were threats which may have been executed at any time, if at all". In the course of the judgment, Lee J referred to the earlier decision of Barton v Armstrong [1969] 2 NSWLR 451. Barton was a civil case, in which a telephone threat was held to be an assault. Lee J distinguished Barton because in that case, the defendant threatened serious violence if the plaintiff did not sign the deed. The violence threatened was sufficiently imminent to constitute an assault.
Knight illustrates the difficulty in proving imminence where the defendant is making a threat of violence from a remote location. The requirement of imminence means that it may be difficult to prove that obscene phone calls or "poison pen" letters constitute a threat of immediate violence. The imminence issue in assault was raised in an English decision concerning the legality of picketing during the Miners Strike in England in 1985: Thomas v NUM [1985] 2 All ER 1. The defendants in this civil action were striking miners who hurled abuse at miners returning to work, shouting "scab" and making threatening gestures. The employers sought a civil injunction to restrain that behaviour, and the question arose whether the picketers' threats of violence were sufficiently imminent to constitute the tort of assault. The judge held there was no evidence of tortious assault because the miners returning to work were in vehicles and the picket were being held back from the vehicles. In this situation even the most violent of threats could not constitute an assault.
In some cases, the courts have been prepared to stretch the concept of imminence. The South Australian case Zanker v Vartzokas (1988) is a good example of stretching the requirement of imminence, BFW 786. The defendant offered the victim a lift in his van. Once she got in, he propostioned her, offering her money to have sex. She rejected his offer and asked him to stop the car. He continued driving and said "I am going to take you to my mate's house. He will really fix you up". She jumped out of the moving car and was injured. The defendant was charged with assault causing actual bodily harm. He was convicted and appeal. The defence argued that his action did not constitute an assault. The appeal considered whether his behaviour caused the woman to apprehend an imminent or immediate threat of personal violence. Would threat to apply force to the victim sometime in the future suffice?
White J reviewed the authorities and referred to an earlier decision MacPherson v Brown (1975) BFW 793, an interesting case concerning an assault by students on a lecturer during a student protest. White J affirmed the dissenting minority view of Zelling J in MacPherson. Zelling J had held that the fear of physical harm need not be immediate - it sufficed that the threat operating on the victim's mind was of a "continuing nature". White J affirmed Zelling J, BFW 788. So it is an assault to cause a person to fear "relatively immediate imminent violence" and it suffices if that fear is of a continuing nature. Later on in the judgment White J stresses the fact that the victim was being unlawfully imprisoned by the defendant. White J refers to her vulnerability in his conclusion BFW 789.
Conditional Threats
Immediacy or imminence is also a problem where the defendant's threat of violence is a conditional threat. This matter was raised specifically in the South Australian case of Rozsa v Samuels [1969] SASR 205, refer to Supplementary Materials p 32. The defendant was a taxi driver. The defendant jumped the queue at a taxi rank. Drummond, another taxi driver at the rank, objected to this defendant's blatant queue-jumping and angrily threatened that he would punch the defendant in the head. The defendant produced a knife and said "I will cut you to bits if you try it". The defendant was convicted of assault.
The question on appeal was whether the defendant's conditional threat to use force constitute an assault. The Court held that the mere fact that the threat is conditional does not prevent it constituting one of the elements necessary to establish assault. The Supreme Court pointed out that the common law drew a distinction between two types of conditional threat:
The question has also arisen whether words alone can constitute an assault. The general view at common law is that words alone cannot constitute an assault. Assault requires some action, there must be some threatening or menacing conduct. The early common law commentators took the view that words alone could not suffice for assault: Hawkins, writing in 1824, noted in his Pleas of the Crown that "...no words whatsoever can amount to an assault". The Codes of Tasmania, Western Australia and Queensland expressly contain provisions to this effect. However, it has been strongly urged by some commentators, including Professor Glanville Williams, that threatening words alone should be capable of constituting an assault. The position in Australia has not been authoritatively determined. The decision in Knight that telephone threats can constitute an assault seems to contradict the view that words alone cannot amount to an assault. However, the NSW Court of Appeal expressly reserved judgment on this issue, refer to S at p. 35.
A number of question have arisen over the victim's state of mind. Under the common law, the defendant's actions must cause the victim to apprehend imminent personal violence. it logically follows that where the victim is unaware of the defendant's threat, an assault does not occur. This point is illustrated in the High Court decision of Pemble, (1971) 124 CLR 107, BFW 485.. The defendant crept up behind his girlfriend with a loaded gun. The gun went off and she was killed. He was charged with manslaughter by unlawful and dangerous act. The question arose whether his conduct, prior to the gun's discharge, was unlawful. The High Court had to consider whether creeping up behind an unsuspecting victim with a loaded gun is an assault. The majority of the High Court held that this conduct could not be an assault because the victim was not aware of the loaded gun being pointed at her. See Manslaughter.
Conversely, there is authority that pointing an unloaded gun, or even a harmless imitation, can constitute an assault if the victim believes that the gun is loaded, and appreciated imminent personal violence. The authority for this proposition is a New South Wales decision Everingham, (1949) 66 WN (NSW) 122: BWW at 49 where the defendant pointed a toy gun at a taxi driver. The Court of Criminal Appeal held that this behaviour constituted as clear a case of assault as one can well imagine.
Finally, there is some speculation whether it will be an assault if the victim's belief of imminent personal violence is an unreasonable belief. The authorities on this issue are equivocal. A purely subjective approach to the victim's state of mind is consistent with the policy of taking your victim as you find them. However, there is some civil authority which suggests that the apprehension of violence must be reasonable. Barton v Armstrong [1969] 2 NSWR 451 at 455, discussed in Zanker at BFW 788, held that the defendant's conduct must be capable of making a reasonable person appreciate the application of immediate force. However, the decision of the Supreme Court of South Australia in MacPherson v Beath (1975) 12 SASR 174 left the matter open. In that case, Bray CJ stated that "the reasonableness of the apprehension may or may not be necessary". Fisse, Howards Criminal Law (1990), p 153, supports a reasonableness requirement.
One final point about the victim's state of mind has arises: must the victim be in fear? The common law requires that the defendant must cause the other person to apprehend (believe or be aware) that the application of personal violence is imminent. Some judges and academics have formulated this as a requirement that the victim to "fear" the application of force. This formulation is misleading because it suggests that the victim must be fearful or afraid? The proper view is that the common law does not require the victim to be scared or frightened in order for an assault to be committed. Fisse, Howards Criminal Law, op cit, supports this view, p153. As the textbook points out, to require fear on the part of the victim would mean that an attacker's culpability would turn on the bravery and courage of the victim.
There is now an offence inserted into the Crimes Act 1900 (NSW) in 1991 to deal conduct which causes a person to be infected with a life threatening disease, see BFW 824. The problem was first addressed in England in the 19th century in a case called Clarence (1888). Clarence established that infecting another person with a life-threatening disease was neither amounted to an assault nor an infliction of grievous bodily harm. In 1990, there were a number of assaults and robberies with HIV-infected syringes (a prisoner in NSW attacked a guard with an HIV-infected syringe and was charged with administering a poison contrary to section 39 of the Crimes Act 1900. The prisoner died shortly after committal. Under the common law, it must be doubtful whether this conduct is properly regarded as a poisoning offence. In New South Wales, to resolve the uncertainty over whether this conduct would be covered by assault or inflicting GBH, Parliament enacted a new offence: Causing Grievous Bodily Disease, s 36 of the Crimes Act 1900. There are clearly some definitional problems with the offence. The use of maliciously in the section is confusing. Maliciously does not mean with malice or evil intent. Maliciously is a legal term of art, and is defined in section 5 of the Crimes Act. The section is confused and ambiguous. The High Court has held that maliciously encompasses both intention and recklessness. If you examine section 36, the final sentence of the offence appears to limit the mens rea to intention to cause another person to contract the disease. The offence appears to contain an internal contradiction. The better view is that intention to cause infection with a grievous bodily disease is required. This is consistent with the purpose of the provision, which is aimed to deal with HIV assaults and robberies. It is also consistent with the principle of statutory interpretation that penal provision are construed narrowly in favour of the defendant. The problems with using the criminal law to deal with this behaviour are review in the articles below.
What is the mens rea for assault? The courts have grappled with the question whether the mens rea for assault is restricted to subjective states of mind (such as intention or recklessness) or may be satisfied, in the alternative, by an objective standard (such as negligence). In the 1960s there was some uncertainty over the scope of mens rea of assault. In the English decision of Fagan [1969] 1 QB 439, BFW 797, see Concurrence the Queen's Bench Divisional Court left the question open whether recklessness sufficed as an alternative mental state for assault. In that case, the Divisional Court held that "An assault is any act which intentionally, or possibly recklessly, causes another person to apprehend immediate and unlawful personal violence".
The uncertainty in the law was resolved in the subsequent English Court of Appeal decision Venna (1975) 3 WLR 737, BFW at 56. The case concerned the assault of a police officer by the defendant. A police officer arrested the defendant. The defendant resisted the arrest and in the ensuing struggle between the defendant and the police officer, the defendant lashed out and kicked the police officer in the hand, breaking a bone in the police officer's wrist. The defendant was charged and convicted of assault occasioning actual bodily harm. The trial judge had directed that recklessness was sufficient. On appeal, the defendant argued that assault requires intention, and that by lashing out with his leg he had not intended to cause actual bodily harm. The Court of Appeal held that "In our view, the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another".
This dicta in Venna has been approved in Australia in the New South Wales decision of Williams (1990) 50 A Crim R 213, New South Wales Court of Criminal Appeal. The defendant in the course of a fight bit off a part of another man's ear. The defendant was charged with malicious wounding and assault occasioning actual bodily harm. He was acquitted of the wounding charge but convicted of assault occasioning actual bodily harm. The defendant appealed, arguing that the trial judge had misdirected the jury on the issue of mens rea, in particular that the judge had failed to direct the jury on the meaning of recklessness. The Court of Criminal Appeal took the ordinary meaning approach to recklessness. The other judges concurred with the speech of Badgery-Parker J:
"The word reckless is a word well-known in ordinary speech and a person is said to be reckless who acts without regard to the possible consequences of the act in question. In most contexts the law gives to the word the same meaning that it has in ordinary speech." at 222
Further on in the judgment, Badgery-Parker J gives some further clarification of the ordinary meaning of recklessness. He pointed out that recklessness involves no more than foresight of the possibility of harmful consequences.
The "ordinary meaning" approach to recklessness applied in Williams can be criticised on two grounds. The first criticism relates to the suggestion by the Court of Criminal Appeal that ordinary and legal meanings of recklessness are similar. This is not true. The ordinary meaning of recklessness, which is the ordinary dictionary definition of the term, is "acting without care or acting carelessly". Without a clear direction to the jury that recklessness is a subjective state of mind, the jury are liable to confuse recklessness with negligence and depart from subjective mens rea. The second difficulty with the "ordinary meaning" approach to recklessness is that the term, without further elaboration, does not indicate the precise degree of foresight. In Australia, the courts have developed two levels of foresight for recklessness. For murder, the High Court held that recklessness means foresight of probability, not foresight of possibility. This point was authoritatively decided in the High Court in Crabbe. For crimes other than murder, it would appear that foresight of possibility suffices. This view is supported by the NSW decision of Coleman, (1990) 19 NSWLR 467, BFW 795, see Sexual Offences below. The case dealt with the offence of assault with intent to have sexual intercourse. The Court of Criminal Appeal held that for crimes other than murder, the jury should be directed that a lower level of foresight suffices: foresight of possibility.
The principal danger with the ordinary meaning approach to recklessness in Williams is that the jury will confuse objective and subjective standards. Common assault is a crime of mens rea which is not satisfied by an objective fault standard like criminal negligence. The defendant cannot be guilty of assault because he or she ought to have foreseen that the conduct would cause the harm to the other person. The authority for this point is the decision of the Supreme Court of South Australia in MacPherson v Brown. (1975) 12 SASR 184, BFW 793. In that case the magistrate had said that recklessness for assault covered not only the case where the defendant knows, but where he ought to have known, that the victim may be put in fear. On appeal to the Supreme Court, Bray CJ described this direction as yet another illustration of the "persistent heresy of objective guilt". In his view the term reckless should be confined to cases where the accused foresees the risk of harm but do not necessarily intend that harm. He rejected that there was any common law crime of causing injury by criminal negligence. This is the position at common law. It is possible for Parliament to depart from the mens rea requirement and to create an offence of cause injury by criminal negligence:
"It is contrary to fundamental principles and the whole tenor of modern thought to judge a man in a criminal court, except under statutory compulsion, not by his actual intention, knowledge or foresight, but by what a reasonable and prudent man would have intended, known or foreseen in the circumstances".
There is some uncertainty whether hostility is an element of the offence of assault. This question rarely is litigated, though it did arise in a civil case which considered the legality of professional boxing: Pallante v Stadiums (no. 1), refer to BWW at p. 72. Pallante a civil case of negligence. The Plaintiff was a boxer who sustained serious physical injury in the course of a boxing match organised by the Defendant. The Defendant raised as a defence that the boxing match was unlawful at common law, and since the plaintiff had been engaged in an unlawful fight he could not maintain the action. The argument was considered by McInerney J of the Supreme Court of Victoria.
McInerney J held that there were two difficulties in applying the concept of an assault to boxing namely: (i) the lack of intent on the part of the defendant, and (ii) the plaintiff's (victim's) consent (Consent and Public Policy). There is some dicta in Pallante which suggested that the defendant's conduct had to be accompanied by a hostile or angry intent. In McInerney J's view, there is no assault where the boxing is a friendly competition, in his words where the boxing is conducted in "no spirit of animosity". There are two problems with this view. First, it presupposes that professional boxing matches can be conducted in a friendly spirit. This is a rosy tinted view of boxing which ignores the anger and animosity both in and out of the ring. It ignores the likes of Mike Tyson. The second problem with this approach is that McInerney J cites no authority directly supporting a requirement of hostility for assault. In my view, assault does not require hostility. Hostility is motive, and motive is generally irrelevant to the criminal law. The proper approach is not to view hostility as an element of the offence. Rather, hostility simply operates as a limit on the defence of consent. In the context of boxing, a person consents only to blows delivered without hostility, as McInerney J said in "no spirit of animosity". Blows delivered with hostility are outside the scope of the game, and therefore consent no longer operates as a defence: see Consent and Public Policy.
In NSW, Parliament has done this for the offence of causing GBH contrary to s.54 in Crimes Act 1900 (NSW). The standard of negligence applied for the offence is not the civil standard. The meaning of criminal negligence has been considered in the context of manslaughter. We have already reviewed the decision of Nydam, where the Supreme Court of Victoria defined criminal negligence as a great falling short of the standard of care expected from the reasonable person, and involves a high risk of death or serious bodily injury. This definition of criminal negligence was applied to s.54 in R v D [1984] 3 NSWLR 29, see discussion in BFW 823.
There are a number of offences where the assault is regarded as more serious or aggravated (the penalty is higher) because of the status of the victim or the level of harm caused. See BFW 819. The question for the courts is whether the mens rea must extend to the circumstance of aggravation: ie must the defendant know that the person assaulted is a police officer or intend to cause bodily harm.
In Reynhoudt (1962) 107 CLR 381, the majority of the High Court held that the defendant need not know that the person assault was a police officer acting the course of his or her duty. Menzies J held that the issue was essential one of statutory construction and that the term "knowingly" should not be implied into the Act. This view was supported by
"the aim of the legislation, which it may be inferred was to give policemen (sic), whether in uniform or in plain clothes, protection and freedom from interference in the discharge of their dangerous duties by imposing an additional penalty upon persons assaulting them who cannot excuse their conduct by proving honest mistake upon reasonable grounds" BFW 821.
Read Dixon CJ's dissent. This creation of an serious assault offence based on strict liability is contentious.
Would your answer be any different in light of the High Court decision in He Kaw Teh?
Are there any countervailing policy arguments which oppose the creation of this type of offence?
Should we make it a more serious offence for a person to be assaulted by a police officer, in order to discourage the illegitimate use of force by the police? See the empirical data on the difficulties in sustaining a prosecution where the assault is alleged against police, BFW 785.
Another type of aggravated assault is assault occasioning actual bodily harm which is found in s 59 of the Crimes Act. What is the mens rea of the offence of assault occasioning actual bodily harm? The authorities are clear that the mens rea for this offence need only relate to the common assault and not the bodily harm which follows from the assault. So the defendant need not have the intent to cause actual bodily harm. Venna is good authority for this proposition, and this aspect of decision was approved in the NSW decision of Williams, see above. Consider the following example. X gives Y a push, and Y falls over and suffers cuts and bruises. The proper charge is not common assault, but the more serious offence of assault occasioning actual bodily harm. All that the prosecution must prove is that X committed a battery (which is any physical contact without consent) and that battery was intentional or reckless. The prosecution need not prove that X intended to cause actual bodily harm.
Apart from battery, common assault includes causing another to apprehend the imminent application of force. This type of assault arose in Zanker v Vartzokas, BFW 786. The defendant caused the victim to apprehend the imminent application of force, and her fear caused her to jump out of the moving car. He was charged with assault occasioning actual bodily harm. The South Australian Court of Criminal Appeal held that the mens rea of the offence was intentionally or recklessly causing the woman to apprehend the imminent application of force. The mens rea of the offence did not have to relate to the actual bodily harm which flowed from the common assault.
There are two types of wounding or GBH offence contained in sections 33 and 35 of the Crimes Act 1900 respectively. The actus reus for both offences is the same. Wounding or grievous bodily harm. A partial definition of grievous bodily harm is found in section 4. The definition is not exhaustive. The approach in the recent cases is that the jury should give grievous bodily harm its ordinary meaning. This approach can be criticised as giving the jury too much power and could lead juries on similar facts coming to different conclusions. There is some dicta in the High Court decision of Pemble, op cit, on the meaning of grievous bodily harm. The High Court held that grievous bodily harm means at least serious bodily injury.
The more serious of the two offences is section 33 which requires the wounding or infliction of GBH to occur with intent to do grievous bodily harm. Recklessness does not suffice for this offence. Section 35 is the less serious charge. For this offence the wounding or infliction of grievous bodily harm need not be accompanied by intent. Recklessness suffices. If we apply the distinction suggested in Coleman, recklessness in cases other than murder means foresight of the possibility of wounding or grievous bodily harm.