What is the crime of "assault"?
Assault refers to an act which either intentionally or recklessly causes another person to apprehend immediate and unlawful violence.
The Crimes Act 1900 (NSW) outlines the different kinds of assault in which a person can be charged with. The types of assault offences are varied and depend upon the nature of the alleged incident. As such the possible sentencing consequences each type of offence may attract is different.
Elements of Assault
In order to successfully meet the elements of a common assault the prosecution must prove beyond reasonable doubt that the accused:
1. Intentionally or recklessly raised in the mind of the victim fear of immediate violence; and
2. That the accused intended to cause said fear in the victim; or
3. That despite not intending to cause fear the accused knew their actions would cause fear in the victim.
Types of Assault
Section 61 of the Crimes Act 1900 (NSW) defines common assault as follows: "whoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years."
Section 59 of the Crimes Act 1900 (NSW) provides that "whoever assaults any person and thereby causes actual bodily harm, shall be liable to imprisonment for 5 years." Actual bodily harm refers to any injury or damage to the victim, whether that injury/damage is temporary or permanent. However, said injury/damage must be more than "transient and trifling" (R v Donovan  2 KB 498)
Section 33 of the Crimes Act 1900 (NSW) provides that it is an offence when a person intentionally wounds or causes GBH. Section 35 of the Crimes Act 1900 (NSW) provides that wounding or causing such GBH is also an offence when a result of a reckless act.
GBH is defined as including:
• 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 the GBH includes a reference to causing a person to contract a grievous bodily disease.
Case law further adds to this definition providing that the injury must be a serious in nature but is not required to be permanent or have long-lasting or life threatening consequences. Wounding refers to a breaking or cutting of the interior layer of the skin. Merely breaking the outer layer of the skin is insufficient (R v Smith (1837) 8 Carrington and Payne 173).
Assault on particular classes of victim
The Crimes Act 1900 (NSW) provides for specific offences in relation to assault on certain members of the community. For example:
• Assault on officers (sheriffs, bailiffs etc) and police officers (section 58/60 of the Crimes Act 1900 (NSW)) and other law enforcement officers (section 60A of the Crimes Act 1900 (NSW)) and connected persons (section 60B of the Crimes Act 1900 (NSW));
• Assault on school students or staff members of a school (section 60E of the Crimes Act 1900 (NSW));
• Assault on persons preserving wreck (section 57 of the Crimes Act 1900 (NSW));
• Assault on a member of the clergy in the execution of duty; (section 56 of Crimes Act 1900 (NSW)); and
• Assault during public disorder (section 59A of the Crimes Act 1900 (NSW)).
The defence of lawful correction refers to the circumstance whereby a parent is disciplining their child in circumstances that would otherwise constitute an assault. The level of force use by the parent will be viewed in the circumstances of the situation and must be reasonable.
Should the alleged victim have consented to the conduct of the accused, then there was no assault and the charges will be dismissed. However, the consent argument is subject to conditions in that it does not apply in circumstances such as a consensual fight with intent to inflict actual bodily harm.
Defences for assault
Section 418(1) of the Crimes Act 1900 (NSW) provides that a party will not be held responsible for an offence should it be considered that their actions were carried out in self-defence. Section 418(2) of the Crimes Act 1900 (NSW) provides the circumstances whereby the accused believes their conduct was necessary in order to:
• Defend themselves or another person; or
• To prevent or terminate the unlawful deprivation of his/her liberty or the liberty or another person; or
• To protect property from unlawful taking, destruction, damage or interference; or
• To prevent criminal trespass to any land or premises or to remove a person committing such criminal trespass.
Once self-defence has been raised as a genuine issue the onus falls to the prosecution to prove beyond reasonable doubt that you were not acting in self-defence.
R v Katarzynski  NSWSC 613 provides that the two questions to be considered by the court when self-defence is raised are as follows:
1. Is there a reasonable possibility that the accused believed that his/her conduct was necessary in order defence himself/herself;
2. If there was, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them?
When considering question 1 the court considers the subjective characteristics of the accused at the time of the offence.
In consideration of question 2 the court objectively reviews the proportionality of the accused act.