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Assault (Non Sexual) Notes

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2. Assault (Non-Sexual)

Context of assault Common assault: physical and fault elements

• Assault by threat of force

• assault using force Aggravated / compound assaults

• Assaults causing particular injures -- assault occasioning bodily harm

• Assaults with specific intent -- assault with intent

• Assault on certain persons -- assault against police officer

• Other Assaults Consent Harm Offences

Crimes Act 1900 (NSW) s 4 Grievous bodily harm" includes:

• the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and

• any permanent or serious disfiguring of the person, and

• any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).


Common assault

• All common assaults are charged under s 61 of the Crimes Act 1900, but ordinarily will be dealt with summarily by a Local Court (unless the prosecuting authority elects otherwise as a Table 2 offence under the Criminal Procedure Act (1986)

• Thus, the consent of the accused person is not required for the charge to be heard summarily.

• The most common penalty for common assault, assault occasioning ABH and assault officer was a good behaviour bond: see 7.1.3 Assault in the Courts Aggravated assault

• The term "aggravated assault" covers a range of assault offences regarded as more serious because the presence of additional or aggravating factors.

• Aggravated assault are somewhat more likely to be dealt with on indictment.

• The common law divides injuries (short of death) into three basic categories for the purpose of aggravated assault:

• Actual bodily harm (ABH)
‣ Bodily 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: Donovan [1934] 2 KB 498
‣ Bodily harm includes recognisable psychiatric illness: Ireland and Burstow [1998] AC 147

• Grievous bodily harm (GBH)

• Wounding

• Requires an incision or puncture in the skin.

• Wounds is an injury involving the breaking or cutting of the interior layer of the skin (dermis) and the breaking of the outer layer (epidermis) is not sufficient: R v Smith (1837) Consent is a defence to common assault, but not aggravated assault: Brown [1994]

Common Assault An assault is an act which intentionally -- or possibly / recklessly -- causes another person to apprehend immediate and unlawful violence ... and the actual intended use of unlawful force to another person without his or her consent: Fagan v Metropolitan Police Commissioner [1969]

• Battery: actual application of force without consent, lawful excuse or justification -->Assault by force

• Assault: putting another person in fear or apprehension of an unlawful contact, i.e., threatening someone with unwanted physical contact -->Assault by threat of force
★Common assault can occur either through the use of force or the threat of force.
★Legislation: s 61 of Crimes Act 1900 (NSW)

Assault by Force

Assault by Threat of Force

Actus Reus

The application of force to the body of another person (without consent).

Conduct which puts another person in apprehension of immediate and unlawful personal violence.

Mens Rea

Intending to use unlawful force on another person or being reckless as to the use of such force: MacPherson v Brown (1975)

Intentionally or recklessly putting another person in fear of immediate and unlawful violence MacPherson v Brown (1975)


2. Assault (Non-Sexual)

Assault by Force

1. The defendant placed an iron bar across the exit of a theatre and then shouted fire.

2. Several people were severely injured. He was charged under s.20 OAPA 1861.

3. He contended that the word inflict required the direct application of force. Held, indirect application of force was sufficient for a conviction under s.20. Similar cases:

• Queen v Jacob (1978) - electrical trap

• DPP v K [1990] 1 WLR 1067 - acid in hand dryer

• Gibbon v Pepper (1695) 2 Salk 637 - causing horse to run someone over

1. The defendant had a brief relationship with a woman.

2. She ended the relationship and he could not accept her decision and embarked on a campaign of harassment against her over a period of 8 months.

3. He made silent telephone calls, abusive telephone calls, he appeared at her house, took photos of her, distributed offensive cards to her neighbours and hate mail.

4. As a result she suffered a severe depressive illness. Two questions for the court were:

• whether psychiatric injury could amount to bodily harm under the OAPA 1861

• whether a person could be liable under s. 20 where there was no direct or indirect application of physical force on a person. Held,

• Psychiatric injury could amount to bodily harm.

• The word 'inflict' in s.20 simply means cause.There was thus no requirement that physical force is directly or indirectly applied.

1. The defendant, a taxi driver, placed his taxi at the head of a queue of taxis, and in front of a taxi driven by the victim.

2. The victim remonstrated which the defendant and told the defendant he would punch him in the head.

3. The defendant then reached under the dashboard of his taxi and got hold of a table knife and said "I will cut you to bits if you try".

4. The defendant made a movement to get out of the taxi which was frustrated by the victim slamming the door of the taxi. Held, although the defendant may have had a right to impose the threat, what he did was beyond the ordinary bounds of self control. The appellant's threat to use violence was a threat to use more force than would have been considered reasonable in the circumstances conviction of assault upheld.

Physical Element (Actus reus)

• Mere physical contact may be sufficient

• The force does not need to be violent or hostile and it can be a mere touch: Collin v Wilcock (1984)

• Direct application of force is not necessary: Martin (1881) 8 QBD 54

• No consent

• Implied consent may be inferred in our daily life:

• 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: Collin v Wilcock (1984)

• 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": Boughey v R (1986)

• Relevance of sporting context - within rules and intendment of game: Pallante v Stadiums [1976]

• Surgery, medical treatment. Mental Element (Mens rea)

• A common assault is committed either intentionally or recklessly: R v Spratt (1991)

• Intention: Subjective test: the accused means to perform the conduct, i.e., she / he means to commit the act creating the apprehension of immediate and unlawful violence or means to use force on the victim..

• Recklessness:

• s 4A of Crimes Act 1900 (NSW): recklessness be established by proof of intention and knowledge.

• Subjective test: did the accused foresee the act of force or the act that created an apprehension of immediate bodily harm: Fagan v Metropolitan Police Commissioner [1969]

• Degree of foresight required: weight of authorities favour possibility rather than probability: i.e., sufficient if the accused foresaw the possibility that force might be inflicted or that apprehension of immediate unlawful contact would be accused: MacPherson v Brown (1975) Assault by Threat of Force

Physical Element (Actus reus) Conduct which puts another person in apprehension of immediate and unlawful personal violence. What constitute a threat of force?

• An omission is rarely sufficient to constitute an assault, therefore, positive act is necessary: Fagan v Metropolitan Police Commissioner [1969]

• Threatening words can be sufficient: Knight (1988)

• Threatening words over a telephone can mount to common assault: Barton v Armstrong [1969];

• Even a silent telephone call is sufficient to constitute an assault: R v Burstow [1998]

• A conditional threat that is unlawful constitutes an assault: Rozsa v Samuels [1969]

• However, on the other hand, a conditional threat that the party had a right to impose which is lawful, is not an assault: Bronitt and McSherry

• Another situation is that it is impossible to satisfy the condition:

• A threat will continue while a person asleep: R v Secretary (1996) The victim's apprehension of violence (i.e., the state of mind of the victim)

• At common law, the act must have raised in the victim an apprehension of immediate bodily harm: Pemble 1971 2

2. Assault (Non-Sexual)

• The victim's apprehension may exist even when the accused could not actually carry out the threat: Everingham (1949)

• It is not necessary for a plaintiff to fear about the assault: MacPherson v Brown (1975); Brady v Schatzel (1911)

• Sometimes, situation may be different if it was only that the victim just did not know what had happened, not he knew everything that had happened however did not fear about what had happened: Ryan v Kuhl (1979);

• Has been suggested that victim's fear must be reasonable: Brady v Schatzel (1911) Barton v Armstong (1969)

• Offence of stalking and intimidation: s13(4) Crimes (Domestic and Personal Violence) Act 2007 The requirement of immediacy of threat

• General rule: threat must raise expectation or apprehension of immediate (imminent) bodily harm; threat of future violence / bodily harm will not normally be sufficient to establish assault: Knight (1988)
➡Thus, telephone calls will not normally be sufficiently immediate for criminal liability, unless accused has some form of power over the victim and is in a position to carry out the threats: Knight 1988
➡in this way, Knight limits Barton v Armstrong (1969) to this kind of specific factual situation.
★However, the exceptions lies in the concept of 'immediate and continuing threat', that is to say, in some circumstances the question of immediacy has been given a wide interpretation:
➡ therefore, a present fear of a future harm may be sufficient, especially in situations were victim cannot get away (false imprisonment): Zanker v Vartzokas (1988) Mental Element (Mens Rea)

• Intentionally or recklessly putting another person in fear of immediate and unlawful violence: MacPherson v Brown 1975

• Recklessness requires the accused to foresee unlawful force as causing an apprehension of violence. However, it is unclear what degree of foresight is required of the accused.
‣ Some authorities require that the accused foresaw the possibility that force would be inflicted: MacPherson v Brown 1975, Coleman (1990)
‣ Others require that the accused foresaw the probability that force would be inflicted: Coleman (1990) What Constitute a threat of force?

1. Plaintiff was coerced into executing (signing) a deed (contract) by both threats of violence and to take his life.

2. Many of the threats were made over the phone and in the early hours of the morning.

3. Plaintiff was also allegedly being kept under surveillance by men hired by the defendant. Issues:

• Can threats over the telephone constitute assault?

• Does the feared violence have to be immediate?

• Can assault be found where the plaintiff has option to avoid the assault?
Held, mere words on the phone can constitute assault.

Barton v Armstrong [1969] 2 NSWR 451 Can threats over the telephone constitute assault?

• Threats uttered over the telephone are not properly characterised as mere words.
➡ Therefore, yes, threats over the telephone are capable of constituting assault.

• 'To telephone a person in early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words'. Does the feared violence have to be immediate?

• Depends on circumstance.
★ The test is whether the threat is capable of arousing an apprehension of violence.

• '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'. Can assault be found where the plaintiff has option to avoid the assault?

• Yes, it is open to the jury to find this is assault.

• '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'. Thus, threats count as assault because they affect the victim psychologically. Also, because of the advancement of technology, 'physical violence and death can be produced by acts done at a distance by people who are out of sight and be agents hired for that purpose'.


1. On 15 March 1983 there was some incident on a bus which required a Constable Rowles to attend and in due course, as a result of his enquiries, a summons was issued against the appellant, and later Local Court convicted the appellant and the decision was affirmed by the District Court.

2. During 1984, there had been many threatening and abusive telephone alls to a police officer (who inquired the appellant), a magistrate (who tired the appellant), and a judge (the appellant judge).

3. Apart from the telephone calls, which were traced to the appellant at a considerable distance from the targets, there was no evidence in relation to the assault charges. A question on appeal was whether the evidence of the threats was sufficient to constitute assault.

1. The defendant was charged with murder when he shot the victim who was his former lover.

2. The defendant carried a loaded gun, which accidentally discharged as he came behind her in an attempt to frighten her so that she would return to him.

1. The defendant was convicted of assault when he presented a toy pistol at a taxi driver one night. The driver was unaware that it was a toy. Held, that this was clearly an assault, as it is an assault to point an unloaded or toy gun if apprehension of imminent unlawful contact is created.

1. The accused had been in a de facto relationship with the deceased for 11 years.

2. For the final eight years of the relationship, the deceased had verbally, mentally and physically abused the accused and their children.

3. On 20 November 1994, the deceased had repeatedly assaulted the accused and just before falling asleep said words that may have amounted to a threat to kill or cause the accused grievous bodily harm.

4. The accused returned to the bedroom with a gun and killed the deceased.

1. The defendant and the victim were in neighbouring cubicles in a public toilet.

2. The accused thrust a carving knife through a hole in the partition between the cubicles in order to stop the victim from annoying him.

3. he victim testified that the knife did not frighten him, as he realised that as long as he remained in the cubicle, the accused could not harm him with the knife.

1. The victim was surrounded by 30 students, including the defendant.

2. The victim requested the group several times to be let through, later saying that he as in fear of physical danger from the group.

3. The confrontation lasted for 15 minutes.

4. The magistrate held that the defendant had been reckless and 'ought to have known' that his conduct could have given reasonable grounds for apprehending an infliction of physical force.

5. On appeal by the defendant. Held, the defendant must subjectively recognise the riskiness of the his own behaviour. The defendant is NOT to be judged by an objective standard of what a reasonable person would have foreseen, therefore, the appellant was entitled to an acquittal. Recklessness should be judged subjectively, not objectively.

2. Assault (Non-Sexual)

Knight (1988) 35 A Crim R 314

• An assault is an act that intentionally causes another person to apprehend immediate unlawful personal violence.

• Whether the violence offered by a threat is "immediate" depends on the circumstances. A threat of violence made over the telephone could be a threat of immediate violence in given circumstances, and thus an assault: Barton v Armstrong [1969]

• In the present case, however, the evidence merely showed that threats had been made. There was no evidence they were of immediate violence. Pemble (1971) 124 CLR 107 The defendant's intention can be inferred or foreseen by looking into all the circumstances, including the defendant's actions, age, background (education & social), emotional state, etc. (Barwick)

• The defendant would be unable to be convicted of assault, as the victim was unaware that the defendant was threatening her with a rifle, and hence did not feel fear.

• The defendant was however convicted of manslaughter on other grounds, however Barwick CJ and Windeyer held that the accused had committed attempted assault. Everingham (1949) 66 WN (NSW) 22 The victim's apprehension may exist even when the accused could not actually carry out the threat Secretary (1996) 86 A Crim R 119 Can an assault continue into a period of sleep?
Silence of code "reinforces the view that an assault is a continuing one so long as the threat remains and the factors relevant to the apparent ability to carry out the threat in the sense explained have not changed". But what if no actual or apparent ability because asleep?
If the case is one of attempted application of force, the apparent present ability to effect the purpose is to be evident at the time of the attempt; but if the case is one of the threatened application of force, then it must be evident from the facts known at the time the threat is made that at the time when the threat is to be carried out the person making the threat will then have an apparent ability to carry out the threat. Does the Victim has to be scared?
Ryan v Kuhl [1979] VR 315 It was held that as the defendant's conduct did not cause fear of harm in the victim, there could be NO charge of assault.
➡ Hence the victim must be put in fear of imminent unlawful contact. However, this case, different from the others, the victim did not fear just because he did not know what had happened, different from did not fear at all. MacPherson v Brown (1975) 12 SASR 184

• Recklessness is an unfortunate word. In one sense it means acting with foresight of the probable dangerous consequences of the act without even the desire for them... the courts sometimes use it to mean a high degree of negligence ie, a highly blameworthy degree of inadvertence to consequences, in this sense recklessness is synonymous with criminal negligence.

• Recklessness in criminal law should be confined to where the consequences are considered even if not desired (ie, a subjective test), rather than those that 'ought to have been known' (ie, objective test of the ordinary/reasonable person).

• 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 circumstance.

• "…assault includes a threat to inflict unlawful force or slight or great upon another man, coupled with the intention by the person making the threat to produce the expectation of unlawful physical contact in the mind of the victim, and that it is irrelevant, where this is material, that the person making the threat had neither the intention or ability to inflict the unlawful contact which he had induced the victim to expect." (Per Zelling J)


2. Assault (Non-Sexual)

1. Defendant was an elderly woman who threatened to shoot a police officer if he set foot on her property.

2. Police officer gave evidence he was not frightened of the Defendant.

Brady v Schatzel; Ex Parte Brady (1911) St R Qd 206 It was held that it was irrelevant that the victim was not frightened, it was sufficient if he apprehended immediate unlawful violence. The requirement of immediacy of threat

1. The victim accepted a lift home from the defendant.

2. The defendant started the car and offered her money for sexual favours, she refused his offer, and he persisted.

3. She repeatedly demanded that he stop, and the defendant accelerated the car.

4. He said 'I am going to take you to my mate's house, he will really fix you up'.

5. The van was travelling at 60km/hr, the victim was put in such fear that she opened the van door and leapt out resulting in some bodily injury.

6. On appeal by the woman. Held, The woman was put in fear of relatively immediate imminent violence which continued to have effect as the vehicle continued toward the threatened destination while she was unlawfully imprisoned and at the mercy of the accused.That was sufficient for the charge of assault to be made out. Appeal allowed.

Zanker v Vartzokas (1988) 34 A A Crim R 11 An unlawful imprisonment did not necessarily imply an assault; and that a person guilty of an unlawful imprisonment could also be guilty of assault only if all the elements of the crime of assault accompanied the unlawful imprisonment.

• The fear had to be a present fear of physical harm in due course within the parameters of the incident of unlawful imprisonment — but the feared physical harm did not have to be immediate. The threat could operate immediately on the victim's mind but in a continuing way so long as the unlawful imprisonment situation continued. The young woman was in immediate and continuing fear so long as she was imprisoned by the defendant. ..., this defendant's threat of violence was explicit, namely, that when they arrived at "his mate's house", "he will really fix you up". The threat was, it is true, to be carried out in the future but there was no indication by the defendant whether the "mate's house" was around the next corner or several or more streets away in the suburban area. A present fear of relatively immediate imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual violence was to occur. It seems to me that the fallacy in the defendant's argument is the assumption that the words had effect only at the time when they were uttered and heard whereas they were ringing presently in her ears as a continuing threat, without the necessity for repetition, second by second as they progressed towards the house. Definition of Recklessness

1. Both the appellant and the victim were heavy drinkers.

2. On 19 May 1988, the victim retired to his bedroom and was asleep when the appellant entered the room, he pulled the bedding back, he grabbed the victim's shorts and underpants which he was wearing and he ripped them down below the victim's knees.

3. He assaulted the victim with the bottle, and after the assault, the appellant climbed on top of the victim and inserted his penis into his anus and moved it in and out repeatedly.

4. In relation to a charge that an accused had maliciously inflicted actual bodily harm with intent to have sexual intercourse, the trial judge directed the jury, inter alia, that an act was done recklessly if the accused realised the possibility that injury might result but nevertheless proceeded to act.

5. On appeal, it was argued that the realisation of such a possibility of injury is insufficient; the realisation should be of the probability (or likelihood) of injury. Held, appeal dismissed.The trial judge was correct in direction.

Coleman (1990) 19 NSWLR 467

• Recklessness was a realisation by the accused of the particular kind of harm that might be inflicted.

• The contemplation by the accused of probable consequence of death is required for murder because it has to be comparable with an intention to kill or to inflict grievous bodily harm. Such a test of probable consequence is by no means required in relation to lesser crimes as a matter of law, logic or of common sense.

• The possibility test is always accepted for the common law crime of rape. Compound Assaults (Aggravated Assaults)

Assaults causing particular injuries

• s 59: Assault occasioning actual bodily harm Assaults with further specific intent

• s 58: Assault with intent

• s 61K: Assault with intent to have sexual intercourse Assaults on certain victims

• s 57 Assault on persons preserving wreck

• s 58 Assault with intent to commit a serious indictable offence on certain officers

• s 60 Assault and other actions against police officers d. Other assaults Assault in certain circumstances:

• s 59A Assault during public disorder;

• s 60E Assaults at schools Assaults with a sexual component

• Division 10 5

2. Assault (Non-Sexual)

Assault Causing Particular Injuries 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.

s 59 Assault occasioning actual bodily harm Physical Element (Actus Reus):

• Actual bodily harm
‣ Any hurt or injury calculated to interfere with the health or comfort of the victim; need not be permanent but must be more than transient and trifling: R v Donovan 1934

• Consent

• General rule there is no assault if you consent a common assault: Wilson [1996]
➡Common law position is that, if assault occasions actual bodily harm (or more), consent will not relieve your liability unless actions fall within lawfully recognised exceptions: Clarence (1888); or can otherwise be justified (eg: in the public interest, nature of the sports): R v Brown [1994]; Pallente v Stadiums Pty Ltd (No 1) [1976]
Fault Element (Mens Rea):

• As with common assault, the mens reas for aggravated assault resulting actual bodily harm are intention and recklessness.
★There is no need to prove a specific intent to cause actual bodily harm for an offence under s 59: Coulter v The Queen (1988) 164 CLR 350.
★The prosecution need only prove that the accused intentionally or recklessly assaulted the victim and that actual bodily harm was occasioned as a result: R v Bloomfield (1998) 44 NSWLR 734 Common law definition of "bodily harm"

1. D caned a girl of seventeen for purposes of sexual gratification.

2. She had consented. Held: an act, unlawful per se as being criminal, cannot be rendered lawful because the person to whose detriment it is done consents to it.

1. The five appellants were each charged with a number of counts of unlawful and malicious wounding and assault occasioning actual bodily harm under ss 20 and 48 of the Offences Against the Person Act 1861 (UK).

2. They belonged to a group of men who engaged in consensual, sadomasochistic, homosexual activities.

3. No victims had complained.

4. Charges were laid on the strength of videotapes which police had found in the course of other unrelated investigations.

5. The trial judge ruled that in the particular circumstances the prosecution did not have to prove lack of consent by the victim, the appellants pleaded guilty and were convicted.

6. However, they appealed against conviction on the basis that the judge had erred at law. Held, appeal dismissed.The appellants were guilty.

R v Donovan [1934] 2 KB 498 For this purpose we think that "bodily 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. Consent Brown [1994] 1 AC 212

• Where the infliction of injury is injurious to the public as well as to the person injured, absence of consent is not an element of assault occasioning actual bodily harm or unlawful wounding.

• Consent is a defence to the infliction of bodily harm in the course of some lawful activity, but ought not to be extended to sadomasochistic encounters. Reasoning:

• Where no actual bodily harm is caused, the consent of the person affected precludes him from complaining. There can be no conviction for the summary offence of common assault if the victim has consented to the assault. Even when violence is intentionally inflicted and results in actual bodily harm, wounding or serious bodily harm the accused is entitled to be acquitted if the injury was a foreseeable incident of a lawful activity in which the person injured was participating.

• For example: surgery involves intentional violence.

• However, where one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. ... In all the cases the questions whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances.


2. Assault (Non-Sexual)

• In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. The violence of sadomasochistic encounters involves the indulgence of cruelty by sadists and the degradation of victims. Such violence is injurious to the participants and unpredictably dangerous.

1. The appellant branded his initials on his wife's buttocks with a hot knife.

2. She had asked him to do so. Her skin became infected and she sought medical treatment from her doctor.

3. The doctor reported the matter to the police and the husband was charged with ABH under s.47 Offences Against the Person Act 1861.

4. On appeal by the appellant. Held, Appeal allowed.The wife's consent was valid.

1. The defendant had sexual intercourse with his wife knowing that he was infected with gonorrhoea.

2. He passed the infection to his wife and was convicted "unlawfully and maliciously inflicting grievous bodily harm" upon his wife, and with "an assault" upon her "occasioning actual bodily harm," under s. 47 and s.20 of the Offences Against the Person Act 1861.

3. The defendant appealed. Held, conviction was quashed.The wife had consented to sexual intercourse and therefore no technical assault or battery occurred.

Wilson [1996] 3 WLR 195

• The branding was more akin to tattooing and cosmetic enhancement rather than infliction of pain for sexual gratification.

• The court further held that consensual activity between husband and wife in the privacy of the matrimonial home was not a matter for the courts. Exceptions to GBH (where consent is a defence) Clarence (1888) 22 QBD 23 It would seem to have been always generally accepted that a husband cannot be guilty of rape upon his wife. As a consequence, the act of the defendant was not "unlawful," and he cannot be convicted of "maliciously and unlawfully inflicting grievous bodily harm" under s. 20. It was irrelevant that the wife was unaware of the infection or whether she would have removed consent had she known since at the time a wife was deemed to consent to sexual intercourse with her husband. Pallente v Stadiums Pty Ltd (No 1) [1976] VR 331 Defendant relieved from criminal liability so long as;

• keeps within the recognised and reasonable rules of the game

• application of force by defendant against victim must be in a sporting spirit , and not due to hostility or anger

• the application of force by defendant must be no more than is ordinarily and reasonably to be contemplated as incidental to the game. Assault with Further Specific Intent

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.

s 58 assault with intent to commit a serious indictable offence Physical Element (Actus reus)

• Assault, or

• Assault on certain officers, or Fault Element (Mens Rea)

• For the purpose of assault, and

• With intent to commit a serious indictable offence, or

• With intent to prevent or resist lawful apprehension or detainer Assault on Certain Victims

s 60 Assault and other actions against police officers Physical Element (Actus reus)

• Assault, throw missile at, stalk, harass, intimidate a police officer while in execution of his / her duties.

• Intimidate: need actual intimidation and means "to render timid, to inspire with fear, to overawe, to cow or to force to or deter some action by threats or violence or by inducing fear": Meller v Low [2000] NSWSC 75

• Sufficient to prove the words or acts of the accused actually caused the officer to experience fear or apprehension for his or her personal safety: R v Manton [2002] NSWCCA 316 Fault Element (Mens rea)

• For assault

• However, no need to prove that the accused was aware that the victim is a police officer: Reynhoudt (1962) 7

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