THE OFFENCE OF ASSAULT
An “assault” is a criminal act that involves the apprehension of injury, instillation or threat of fear by which a person intentionally or recklessness, causes another to apprehend immediate unwanted physical contact or personal violence. Assault does not involve physical contact, where in comparison, battery is the actual infliction of harm or bodily contact.
The elements of finding assault
Apprehension of imminent harm
The concept what is considered “immediate” was discussed in Barton v Armstrong  2 NSWR 451 at 455 where it was held that if a threat produces an immediate fear or apprehension of physical violence, such an act may be considered assault. The test is whether the act would produce apprehension in the mind of a reasonable person.
Intention to cause apprehension
There must be intention to deliberately interfere with the personal right of another in way that causes harm. The test is whether a reasonable person in the position of the complainant would, on reasonable grounds, believe they are in danger or that violence was intended.
Recklessness is where the complainant might anticipate that he or she might cause the complainant to fear for their safety, however went on the took that risk.
Different types of assault
There are 5 different types of assault:
- Common assault;
- Unlawful wounding;
- Assault causing bodily harm (battery);
- Assault causing serious bodily harm (aggravated assault); and
- Sexual assault
Common assault e.g. shove, push
Words, without an act, do not constitute an assault. For example, if a persons states that “I am going to short you” and does not have a gun or cannot reasonably carry out the threat, this may not be considered assault. However, if such a threat was accompanied by the person holding a gun, an assault will occur if the complainant reasonably feared for their safety. Under section 61 of the Crimes Act 1900 (NSW), a person who assaults, although not causing actual bodily harm, shall be liable for imprisonment for two years.
Unlawful wounding e.g. swelling or bruising
A person who has intent to wound any person or cause grievous bodily harm is guilty of an offence and is liable for up to 25 years imprisonment (Crimes Act 1900 (NSW) section 33).
Assault causing bodily harm (battery) e.g. bleeding or wounding to the outer layer of skin
A person who assaults another person and causes actual bodily harm, is liable to five years of imprisonment (Crimes Act 1900 (NSW) section 59).
Assault causing serious bodily harm (aggravated assault) e.g. substantial disfigurement or harm to victim’s life
Under section 4 of the Crimes Act 1900 (NSW), grievous bodily harm includes:
- the destruction of the foetus of a pregnant woman,
- any permanent or serious disfiguring of the person, and
- any grievous bodily disease
A person who causes grievous bodily harm and is reckless as to causing actual bodily harm to any other person is guilty of an offence is may face up to 10 years of imprisonment and if in company, may face up to 14 years of imprisonment (Crimes Act 1900 (NSW) section 35(1)(2)).
A person who reckless who wounds and is reckless in causing actual bodily harm is guilty of an offence and may face up to 7 years imprisonment and if in company, may face 10 years imprisonment (Crimes Act 1900 (NSW) section 35(3)(4)).
Sexual assault e.g. sexual intercourse
Under section 61HA of the Crimes Act 1900 (NSW), sexual intercourse means sexual connection occasioned by penetration to the genitalia or the anus of any person, introduction of the penis of a person into the mouth of another, cunnilingus, or continuation of sexual intercourse of all the above.
Under section 61I of the Crimes Act 1900 (NSW), any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years. A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity (Crimes Act 1900 (NSW) section 61HE(2)).