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 Non-sexual assault |
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Author: Robert Wilson
of
5th Floor Wentworth Chambers
This is an extract from Lawbook Company's Nutshell: Criminal Law by Robert Wilson (Sydney: LBC, 1999, 4th ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject.
Intentional interferences with a person, not amounting to homicides, may constitute various types of crime depending upon the circumstances in each case. The most common type of crime involved is that of assault. Note that some forms of statutory crime may be quite distinct from assault, e.g., acts causing a grievous disease (Crimes Act 1900 (NSW.), s. 36), malicious infliction of grievous bodily harm (Salisbury (1976) Vic.) and the crime of resisting or obstructing arrest. Even though on the facts these may also be assaults, these crimes do not require proof of assault.
The crime of assault is divided into common and aggravated assault in all jurisdictions. Common assault is an act committed intentionally (and possibly, at common law only, recklessly) which causes another person to apprehend immediate and unlawful violence. If force is actually applied the assault becomes a battery, however slight the force. It is perhaps more correct to say that if force is actually applied the assault involves a battery as the term assault is now applied to both situations, i.e., to those where there is a mere threat and also to situations where force is actually applied. The crime is described as an assault even if a battery does occur.
Mere words cannot constitute an assault. However, words could, in the circumstances, create a reasonable apprehension of immediate physical violence, then the offence of assault is capable of being made out; Masters v Watts (unreported, Supreme Court NSW 27.8.92); Barton (1960) NSWR . This is the position under the Codes, in Tasmania by express provision.
This description of common assault applies generally in all jurisdictions. Note at common law, and in Tasmania, there cannot be an assault by threatening if the person threatened is unaware of the threat; Pemble (1971) CLR. But under the other Codes such conduct may amount to an assault.
Robert Wilson
BA LLM
Barrister
Wentworth Chambers
1999
March, 2001
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