Assaults: Definition: s 222 A person who strikes, touches, or moves, or otherwise applies force of any kind to the person

n of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault. The term applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever, if applied in such a degree as to cause injury or personal discomfort. s 223: An assault is unlawful & constitutes an offence unless it is authorised or justified or excused by law. The application of force by one person to another may be unlawful, although it is done with the consent of that other person.

2 orms of Assault: An actual application of force without consent: Strike, touch or move or otherwise apply force to the person of another irectly or indirectly !ithout consent, or with consent obtained by fraud. A threat or attempt to apply force: Attempt or threat to apply force irectly or indirectly !ithout consent !here the "threatener" has an "actual or apparent present ability" to effect the purpose. Application of force: The merest touching is sufficient for an assault. The application of force does not need to be hostile & does not necessarily involve the accused directly touching the victim. The force can be applied indirectly #e.g. by putting acid in a hand dryer so that it gets expelled onto the victim$ %% v & '())*+ ( !,- (*./0 Application of intangible things #heat, light, gas etc0 amount to assault provided that they are applied to such a degree as to cause injury or personal discomfort to the victim . 1o need to prove touching is 2hostile3$ !oughey #()4., 56A from Tas0$ acts: The appellant, r 7oughey, claimed that he introduced the deceased #his partner0 to certain unconventional sexual activities. uring sexual intercourse r 7oughey employed one of these techni8ues in which he applied pressure to his partner3s carotid artery as a way of increasing sexual pleasure and making her more 9assertive:. She died; he went to court on a murder charge. "ssue$ Tasmanian version of 2 angerous Act <urder3 #our s=/)#(0#c00 re8uires proof that A killed in the course of committing an unlawful act #here, said to be an assault0 which he knew was likely to cause death. Decision: hostility is not an element of assault.

#hreatened or attempted application of force: There must be a bodily act or gesture which indicates an actual or present ability to apply the force. The victim need not be scared, but they $%&# A''()*)+D force being applied, see !rady v &chat,el '()((+ St - >d =*.$ acts: The appellant was convicted of common assault. She was the mother of a boy who the respondent #a police officer0 was 8uestioning outside their house. The appellant told the boy to go inside and went and got a rifle. She appeared to load it and then pointed the mu??le at the respondent and said@9This is my law for you bastards. If the lot of you dont clear out of this, I will put something in your bloody arses "ssue: The appellant claimed the rifle was not loaded #therefore she could not actually effect her purpose0 Decision: The respondent claimed not to be scared A this did not matter. As long as the respondent anticipated the application of force. Bf, in fact the rifle was not loaded A the justices, on the evidence could find that she pretended that it was, and so had 9apparently: a present ability to effect her purpose. #he -uestion is whether the accused has the intention to cause the victim to apprehend the application of force, not whether the victim intends to apply force .ords alone cannot amount to assault, there must be a bodily act or gesture #however they can constitute threats0 Cor e.g. where threats are made by the accused by telephone, there can be no assault under the 6odes. 5owever, words may indicate that the threat will not be carried out & so the accompanying bodily act may not amount to assault, where words negate the gesture$ #urberville v &avage #(..)0 4. D- .4E$ A, hand on sword, said to F$ 9Bf it were not Assi?es time, B would not take such language from you.: 5owever, making a threat conditional on the victim doing something, can amount to assault. (o,sa v &amuels '().)+ SAS- =*G$ conditional threats are usually sufficiently immediate acts: The accused #a taxi driver0, parked his vehicle at the head of the 8ueue of taxis, whereupon a driver of one of the other taxis approached the accused & threatened to punch him if he did not move his vehicle. The accused produced a knife, saying$ 9B"ll cut you to bits if you try it" Decision: 5e was charged with assault. The situation would be different if the words of the accused made it clear that the threat would not be carried out. The re8uirement for a present ability does not necessarily mean that the threat must be of immediate violence. ( v &ecretary #()).0 4. A 6rim - (()$ #where some assaults are regarded as continuing/ acts: Secretary was subject to longHterm abuse by her partner. In the night in 8uestion after physically & verbally abusing Secretary he threatened her with further abuse after he had a sleep. Secretary claimed that she believed he really was going to kill her & her life

would soon end. She then went & got a gun, loaded it & shot him while he was asleep. She claimed to act in selfHdefence, a defence which re8uired finding that she had been assaulted. "ssue: 0ould there be an actual or apparent present ability to effect the purpose when the person making the threat was asleep1 Decision: 5eld that the assault could continue while the person making the threat was asleep. !here a person threatens to apply force, the point in time in which the ability to carry out the threat is assessed, is the point in time at which the person threatens to carry the threat out. #he assault continues as long as the threat remains 2 nothing changes the ability of the person to carry out the threat. .ithout consent: <ust prove there was no consent on the part of the victim. 6onsent can be expressed, implied or tacit. !oughey v ( #()4.0 (.( 6,- (*$ 0onsent may be implied to normal, everyday contact such as "commonplace, intentional but nonHhostile acts such as patting another on the shoulder to attract attention, or pushing between others to alight from a crowded bus". 3immorley v Atherton '()/(+; acts: A approached F at her work at a shop and asked to take photos of her. 5e took her to a bed in the shop and proceeded to take photos of her lying on the bed. uring the taking of photos A embraced and kissed her. F showed$ 9@no sign of fear, distress or compulsion. Rather does one detect the calm and poised approach of one seemingly well versed in the way such matters are dealt with in the modern visual media of communication. Decision: 5eld to be implied consent to the kissing. 0onsent is implied in sporting situations: as long as the harm is inflicted within the rules and the contact is an accepted part of the game. 6onnolly J in (abbe$ 9@it has always been accepted that participation in manly sports was no offence so that the consent, express or implied, of the participants was an answer to a charge of assault.: 4ou impliedly consent to contact within the rules of the game even where that may result in gbh 5 'allante v &tadiums 6789:, ;ic< =bo>ing/? acts: %allante suffered injuries which affected his eyesight during a boxing match. "ssue: !hat degree of harm does a person consent to when they engage in sporting activityK Decision: 6onsent to the infliction of physical violence during a game or sporting contest will relieve the person of liability for assault provided that the violence is inflicted within the spirit & intendment of the rules of the game, & provided that the game or sport is lawful 2 not seriously dangerous to life. A person is taken to consent to such infliction of force as can ordinarily 2 reasonably be contemplated as part of the sport in -uestion. $c+amara v Duncan #()/)0 #AC,0$ "where there is no consent" acts 2 Decision: Strike to the side of the head with a raised elbow when victim did not have the ball was an act not done in the ordinary and legitimate course of

football. Bt was contrary to the rules and done with the intention of causing injury. Therefore accused was liable for assault. $edical treatment is also impliedly consented to, technically grievous bodily harm is regularly inflicted during consensual surgical procedures. @ord $ustill in Bland: 95ow is it that@a doctor can with immunity perform on a consenting patient an act which would be a very serious crime if done by someone elseK The answer must be that bodily invasion in the course of medical treatment stand completely outside the criminal law. (abbe #()4E, >u0$ acts: A injured F #fatherHinHlaw0 in a fight which he claimed was consensual. 5e appealed against his conviction for assault occasioning bodily harm. Decision: 5eld that consent to a fight is not consent to the use of force causing whatever kind of bodily harm results. #he application of e>cessive force to that consented to is unlawful. Appeal dismissed as there was sufficient evidence to establish that there was no consent on the facts 7ut the 8uestion of whether bodily harm can be consented to was left open. @ergesner v 0arroll #())(, >66A0$ #'recedent in .A/ acts: A injured F after F had said 9let3s settle it right here and now: after a heated discussion about mangoes. A convicted of assault doing bodily harm. 5e appealed on the basis that F had consented. Decision: Appeal allowed; therefore you can consent to bodily harm, but not to A!* or wounding. 5eld that each case needs to be decided on its own facts, essentially whether the degree of violence e>ceeded that which the person assaulted consented to. *owever consent is irrelevant where the force does gbh or results in wounding.

"ntention: =common assault/ The 6ode does not mention any mental element in relation to assault. 5owever courts have read in intention as an element of an assault A ie. the intention to apply force or to cause the F to apprehend the application of force #Hall v Fonceca0. At common law the assault must be committed intentionally or recklessly. *all v onceca '()4L+ !A- L*)$ acts: 7oth the appellant #plaintiff0 and the respondent #defendant0 were members of 5arle8uins 5ockey 6lub and were arguing over the finances of the club. The appellant became abusive and the respondent told him to 9watch it: and poked the appellant at which point the appellant raised his left arm. The respondent apprehended that the appellant was about to strike him, and struck the appellant in anticipation. The appellant struck his head on the floor and suffered a brain haemorrhage. Decision: (elied on the common law in holding that assault does re-uire an intention to apply the force or to make the victim think that the threat will be carried out. 5eld that an intention to apply force or to create an apprehension of force is an element of all assaults A those involving threats of force A1 those involving application of force. %nlawfully: s ==L$ An assault will not be unlawful where it is authorised, justified or excused by law.

 !here the act is unwilled #s =LA0, acting in selfHdefence #s =E40 or provoked #s =E.0. The presence of consent foes not necessarily mean that the application of force was lawful #s ==L second paragraph0. !odily *arm: s 7 efined in s ( as a bodily injury which interferes with health or comfort. efined in s (#E0#a0 as including a disease which interferes with health or comfort. @ergesner v 0arroll '())*+ A 6rim - G($ 5eld that bodily harm can include a black eye or blood nose. &cratchard v ( #()4/0 =/ A 6rim - (L.$ acts: Appellant grabbed the victim & placed him in a headlock. Fictim said he was in the headlock for about L or E minutes & that it hurt his neck. "ssue: 0an pain amount to bodily injury1 Decision: +B Cor this offence there must be a bodily injury & this injury must interfere with health of comfort. The word hurt can be used to describe an injury which may amount to a bodily injury, but it can also be used to describe pain. .hile a bodily injury may cause pain, the sensation of pain alone does not mean there has been a bodily injury. <ental harm can be included in, s.(#E0#a0 A #causing a person to have a disease which interferes with health or comfort Therefore a psychiatric condition such as %ost Traumatic Stress isorder could be included in this. A needs to CdoD !*. There is therefore a re-uirement of causation. Krakouer has clarified the test as being one of substantial or significant contribution to the harm. "ntention =assault with intent/: s 379A <ust have intent to$ #a0 commit or facilitate a crime #b0 do grievous bodily harm #c0resist or prevent the lawful arrest or detention of any person. &erious Assault: s 37E #assault on a certain class of people0 6overs assaults on public officers who are performing a function of their office, or on account of their performance of such a function, as well as assaults on any person on account of them aiding a public officer. 6overs assaults on a range of people performing a public service such as; public transport drivers, ambulance officers, fire officers, health workers, & court security officers. !here a person mistakenly believes that a person is not a person of the category covered by s L(4, they may be able to raise the excuse of mistake of fact$ s =E. Thus a person who honestly & reasonably believes that the person they assault is not a public officer, will be treated as if the person assaulted is not a public officer. They will be liable for common assault instead of serious assault. Assault offences: &%$$A(4

0ommon Assault: s 373 'hysical element: Application of force !ithout consent I 7odily act of gesture indicating a threat or attempt to apply force !ith actual or present ability !ithout consent $ental element: Authority F *all v onceca Bntention to apply force I Bntention to make victim apprehend application of force. Assault occasioning bodily harm: s 379 6ommon assault but with extra physical element of bodily harm. !odily *arm: authority F s 7, e>tended in s 7=G/=a/ s 7: Any bodily injury with interferes with health or comfort. s 7=G/=a/: 6ause a disease which interferes with health or comfort. &erious assault: s 37E 6ommon assault but with extra physical element of assault on a public officer or other person performing certain public functions. Authority F ss 7 2 37E Assault with intent: s 379A 6ommon assault but with extra mental element of intent. s L(/A #a0 Assaults another with intent to commit or facilitate the commission of a crime. #b0 assaults another with intent to do A!* to any person. #c0assaults another with intent to resist or prevent the lawful arrest or detention of any person.

0ircumstances of aggravation: Applies to assaults under s 379 2 379A 6ircumstances include$ s 227=7/=d/ #a0 the offender is in a family 2 domestic relationship with the victim of the offence; #b0 a child was present when the offence was committed, #c06onduct of the offender committing the offence constituted a breach of an order made or registered under the Restraining Orders Act 1997 or to which that Act applies; or #d0 the victim is of or over the age of :H years. 0ircumstances of racial aggravation means$ s EH" #a0 immediately before or during or immediately after the commission of the offence, the offender demonstrates hostility towards the victim based, in whole or part, on the victim being a member of a racial group, or #b0 the offence is motivated, in whole or part, by hostility towards persons as members of a racial group.

%nlawful assault causing death #oneHpunch kill0$ s 22E Assaults on aircraft crew: s 37EA Any person who unlawfully assaults a member of the crew of an aircraft, or threatens with violence a member of the crew of an aircraft, & it interferes with the performance of that aircraft members duties, or their ability to perform those duties.

$andatory sentencing: 0riminal 0ode Amendment Act +o 27 of 2HH8 "ntroduced mandatory sentencing in relation to s289 =doing gbh/ and s37E =serious assault/? "f done in prescribed circumstances then mandatory custodial sentence will be imposed? !"rescribed circumstances are defined to include where the victim is a public officer who is performing a function of his office and is a police officer, a prison officer or a security officer. Bn relation to persons aged (. but not yet (4, the offender must be sentenced to a custodial or detention term of at least L months. Bn relation to persons aged (4 years or over the offender must be sentenced to a minimum custodial sentence of (= months #s=)/0 or . months #sL(40. +one of these sentences can be suspended.