LAW EXTENSION COMMITTEE
CRIMINAL LAW AND PROCEDURE
LECTURE 4
ASSAULT; SEXUAL ASSAULT; AND INDECENT ASSAULT
ASSAULT
Offences against the person not involving death (murder/manslaughter); or attempted murder; or sexual assault; or indecent assault are contained in Divisions 6; 7; 8; 8A;
8B and 9 of the Crimes Act 1900 (ss 32-61). The core offences are assault and aggravated assault (of which there are various offences, depending upon the seriousness of the injury to the victim, or the occupation of the victim such as police and law enforcement officers (Sections 60AA-60C) or students/teachers at school
(Sections 60D-60E).
The basis offence of common assault is contained in Section 61 of the Crimes Act.
The elements of assault are not defined in Section 61, but derive from the common law. Section 61 is a relatively minor offence, with a maximum penalty of two (2) years. However, if a more serious injury is caused to the victim, the offences rise in severity of penalty: e.g.:
Assault Occasioning Actual Bodily Harm (Section 59) 5 years (or 7 years if in company)
Reckless Grievous Bodily Harm or Wounding (Section 35) 7 to 14 years (depending upon whether it involves wounding or grievous bodily harm, or is in company)
Wounding or Grievous Bodily Harm With Intent (Section 33) 25 years
TYPES OF ASSAULT
There are two types of assault:
1.
Physical assault (where there is unlawful physical contact or physical injury to the victim). In the older cases (and in the law of tort) this is referred to as
“battery” (although there is no offence of “battery” in the Crimes Act)
2.
Psychic assault (where words or actions cause the victim to apprehend immediate unlawful physical contact is about to occur). In the older cases
(and in the law of tort) this is referred to as “assault”)
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ELEMENTS OF ASSAULT
Fagan v Commissioner of Metropolitan Police (1969) where the Defendant drove his vehicle onto the foot of a police offer without realising at first that the police officer’s foot was under the wheel. When he did realise, he took a considerable amount of time to move the vehicle off the police officer’s foot. James J:
Although an assault must involve a physical act beyond “mere inaction or inactivity”, must look at the whole transaction to see if it involves a “continuing act”. The elements are:

Any act which intentionally or recklessly;

Causes another to apprehend immediate and unlawful physical violence; or

Causes unlawful force to another.
PSYCHIC ASSAULT-ACTUS REUS-WHAT IS ‘IMMEDIATE’ PHYSICAL
VIOLENCE/CONTACT
Must look at the words in the context of the physical acts. In Zanker v Vatzokas
(1988), the Defendant had unlawfully imprisoned the victim in his car, and said “I am going to take you to my mate’s house. He will really fix you up”. In the context of the physical actions of the Defendant, the words created an apprehension of immediate physical violence.
There is a fine line between words constituting the threat of future violence which are too vague to be sufficiently immediate, and which are immediate because of the context in which they are said and the relationship between the Defendant and the victim: e.g.
Knight (1988) where the Defendant made threats to a police officer; a Magistrate; and a District Court judge over the telephone, but according to Lee J with whom
Carruthers and Loveday JJ agreed):
“…the evidence in the present case went no further than to merely show that threats had been made to the various callers and serious threats they were. But as to there being any evidence that those threats were threats of immediate violence it is clear that they were not. They were threats which may have been executed at any time, if at all”.
Mostyn (2004) where a husband had violently assaulted his wife in a farmhouse. The victim ran into a shed and hid. The Defendant was armed with a rifle and a gun. The
Defendant called out insulting words and said “Come out, come out wherever you are” and “I’m hunting”. McColl JA (with whom Howie JA and Studdert JA agreed):
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“The authorities are clear that a threat to strike a person even at such a distance as to make contact impossible may constitute an assault if it instils a fear of immediate violence in the mind of the hearer”.
Barton v Armstrong (1969) where the Defendant, a former business partner of the
Plaintiff, made threats of violence over the telephone against the Plaintiff and his family. Armstrong J refused to strike out the Statement of Claim seeking damages for assault, holding that it was arguable that threats made over the telephone could constitute an assault.
ACTUS REUS-PHYSICAL ACT-SILENT TELEPHONE CALLS
A silent telephone call (or series of silent telephone calls) can be an act which intentionally causes a person to apprehend immediate physical violence; or causes the victim to suffer a psychological injury: Ireland (1997)
ACTUS REUS-UNLAWFUL PHYSICAL VIOLENCE/CONTACT/INJURY
A psychiatric condition/illness is the equivalent of a physical injury, so a victim who suffers a psychiatric condition/illness as a result of a series of silent telephone calls can constitute an assault: Ireland (1997)
Physical contact of only a minor degree, if it is unlawful, is sufficient to constitute assault: Collins v Wilcock (1984) where a police officer unlawfully grabbed the arm of a woman to prevent her from leaving so that the police officer could question her.
However, there are exceptions to this principle to “allow for the exigencies of everyday life” such as shaking hands, or accidently bumping into someone on a busy train or bus.
ACTUS REUS-PSYCHIC ASSAULT-CONDITIONAL THREATS
Can conditional threats constitute an assault? Yes, if conditional threat is unlawful or threatened response (self defence) is not proportionate to the original threat ( Rosza v
Samuels (1969) SASR 205, where a taxi driver threatened to “Cut to bits” another taxi driver with a knife.
ACTUS REUS-ABSENCE OF CONSENT TO THE PHYSICAL CONTACT
Usually, if physical violence is consented to, it is not unlawful. In respect of some types of activity, public policy means that the physical contact is unlawful (i.e.an assault), despite the victim apparently having ‘consented’ to it (or the prosecution being unable to prove that there was no consent)
Brown (1993) involved men engaging in sado masochistic practices, which were videotaped. The prosecution tendered evidence of the videotapes, but did not call any evidence from victims stating that they did not consent to the physical contact, or that
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they were drugged. By a 3-2 majority, English House of Lords held that there could be no ‘consent’ to the unlawful physical contact.
Lord Templeman:
“The evidence discloses that the practices of the appellants were unpredictably dangerous and degrading to body and mind and were developed with increasing barbarity and taught to persons whose consents were dubious or worthless…In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty…I am not prepared to invent a defence of consent for sado-masochistic encounters which breed and glorify cruelty…”
Lord Mustill (dissenting):
“…these are questions of private morality; that the standards of by which they fall to be judged are not those of the criminal law…the state should interfere with the rights of an individual to live his or her life as he or she may chose no more than is necessary to ensure a proper balance between the special interests of the individual and the general interests of the individuals who together comprise the populace at large”.
ACTUS REUS-PSYCHIC ASSAULT-DOES THE VICTIM HAVE TO ‘FEAR’
IMMEDIATE UNLAWFUL VIOLENCE, OR MERELY ‘APPREHEND’
IMMEDIATE UNLAWFUL VIOLENCE? (i.e. DOES THE VICTIM HAVE TO
BE SCARED?)
Conflicting authorities on whether it is necessary that the victim is put in fear.e.g.
Ryan v Kuhl (1979) VR 315, where the Defendant placed the blade of a small pocket knife in a small hole in a wall of a toilet cubicle, and annoyed the person in the cubicle. The victim told police he was never frightened or put in fear. Victorian
Supreme Court held that there could be no assault, as victim never feared for his safety.
Brady v Schatzel; Ex Parte Brady (1911) St R Qd 206, where Defendant was an elderly woman who threatened to shoot a police officer if he set foot on her property.
Police officer gave evidence he was not frightened of the Defendant. Queensland
Supreme Court held that it was irrelevant that the victim was not frightened, it was sufficient if he apprehended immediate unlawful violence.
MacPherson v Brown (1975) 12 SASR 184 per Zelling J:
“…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
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intention or ability to inflict the unlawful contact which he had induced the victim to expect.”
ASSAULT-MENS REA
The mens rea of assault is:

Intention; or

Recklessness
The concept of intention to causing unlawful physical contact/violence, or to cause another to apprehend immediate unlawful physical contact/violence is not controversial. However, the concept of recklessness is more complex, depending upon whether the offence in question is common assault (Section 61); Assault
Occasioning Actual Bodily Harm (Section 59); Reckless Grievous Bodily
Harm/Wounding (Section 35) or Grievous Bodily Harm/Wounding with Intent
(Section 33).
Recklessness is subjective (i.e. what was in the mind of the Defendant, not a reasonable person), and involves advertence to the consequence of the physical act being performed.
Venna (1976) QB 421 where the Defendant was struggling with a group of police officers who were trying to arrest him. The Defendant was lying on the ground, and lashing out with his legs. He struck the hand of a police officer, breaking a bone in the hand. English Court of Appeal upheld the conviction of assault. James LJ:
“…the element of mens rea in the offence of battery is satisfied by proof that the defendant intentionally or recklessly applied force to the person of another…In many cases, the line between intention and recklessness is barely distinguishable. This is such a case.”
MacPherson v Brown (1975) where a group of protesting university students surrounded a university lecturer, shouting abuse; waving placards, and preventing him from moving for a period of 10-15 minutes. Bray CJ:
“…the word “reckless” should be confined to action where the relevant consequences are adverted to, even if not desired…”
Williams (1990) 50 A Crim R 213 where the Defendant bit part of the ear off the victim in a pub brawl in Narrandera. Badgery-Parker J (with whom Gleeson CJ and
Wood J agreed):
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“…the concept of recklessness is no more than is conveyed by the ordinary meaning of the word…It involves no more than the foresight of the possibility of harmful consequence”.
MENS REA-RECKLESSNESS-ASSAULT OCCASIONING ACTUAL BODILY
HARM-SECTION 59
“Actual Bodily Harm” is not defined in the Crimes Act. The definition at common law is “any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury must be more than merely transient or trifling” (R v
Donovan [1934] 2 KB 498. In other words, an injury more than a very minor injury
(or threat of violence) which is common assault under Section 61, but less than grievous bodily harm (very serious injury) under Section 33 or 35.
In respect of assault occasioning actual bodily harm, the defendant only has to intend or be reckless as to the infliction of unlawful physical contact. The defendant does not have to intend or be reckless in respect of the degree of injury suffered (i.e. in respect of recklessness, the Defendant does not have to realise that an injury more than merely transient or trifling may be the result of the unlawful physical contact-per
Williams (1990); Percali (1986) 42 SASR 46.
Psychiatric injury, depending upon its severity, can constitute actual bodily harm:
Ireland (1997)
MENS REA-RECKLESSNESS-RECKLESS INFLICTION OF GRIEVOUS
BODILY HARM OR WOUNDING-SECTION 35 CRIMES ACT
Unlike recklessness in respect of the offences of common assault (Section 61) an assault occasioning actual bodily harm, reckless infliction of grievous bodily harm or wounding (Section 35) requires that the Defendant must realise that there is a real possibility his or her act will cause the victim very serious injury or wounding, not merely that there is a real possibility that he victim will suffer unlawful physical violence/contact: per Blackwell (2011), where the Defendant ‘glassed’ the victim in the face at pub in Sydney. Beazley JA (with whom James J agreed):
“…the jury should have been directed in terms that if the appellant was to be found guilty on the alternative count, they had to be satisfied that he realised that by thrusting the glass into Mr Ward’s face, it was possible that grievous bodily harm, that is really serious injury, would be inflicted and yet went ahead and acted”.
Grievous bodily harm is defined at common law as “very serious injury” or “really serious injury” (
Smith (1961); Blackwell (2011)). It is defined in Section 4 of the
Crimes Act as including the destruction of a foetus of a pregnant woman; any permanent or serious disfiguring; and any grievous bodily disease.
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Wounding involves the breaking of both (inner and outer) layers of the skin
( Shepherd [2003] NSWCCA 351).
MENS REA-THE OFFENCE OF UNLAWFULLY OR NEGLIGENTLY
CAUSING GRIEVIOUS BODILY HARM-SECTION 54 CRIMES ACT
Section 54 is a relatively minor offence, with a maximum penalty of 2 years. What is the mens rea when the assault involves acting negligently? R v D (1984) 3 NSWLR
29. Same test as criminal negligence which causes death i.e. the test in Nydam
(1977) involving a very high degree of negligence which warrants criminal punishment.
DEFENCES TO ASSAULT
Self Defence is a defence to assault. The scope of the defence of self defence will be discussed later in the course.
PSYCHIC ASSAULT-ALTERNATIVE OFFENCES INVOLVING STALKING,
HARRASSMENT, INTIMIDATION
The difficulty of proving that the acts of the Defendant cause the victim to apprehend immediate unlawful physical violence/contact has resulted in separate offences dealing with stalking and harassment in the Crimes (Domestic and Personal
Violence) Act 2007 . The major offence is that of Stalking or Intimidation with Intent to Cause Fear or Physical or Mental Harm in Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 . This Act also contains provisions dealing with apprehended domestic violence orders; and apprehended personal violence orders
(which are civil, not criminal, orders. However, the breach of such orders is a criminal offence).
SEXUAL OFFENCES (SEXUAL ASSAULT, INDECENT ASSAULT)
SEXUAL ASSAULT
There are two main categories of sexual assault:

Sexual Assault (Section 61I Crimes Act)

Aggravated Sexual Assaults (Sections 61J; 61JA; 66A; 66B; 66C; 66D; 66EA;
73; 78A).
There are also offences of Attempted Sexual Assault (Section 61P); and Assault with
Intent to Have Sexual Intercourse (Section 61K). The Crimes Act also contains
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offences in respect of sexual servitude (Sections 80B-80F) and incitement to commit sexual offence (Section 80G).
Examples of aggravating factors include:

The age of the victim;

The sexual assault being in company;

The infliction of actual bodily harm on the victim;

The victim having a serious physical disability; or cognitive impairment;
 The victim’s liberty being deprived;

The victim being under the authority of the offender.
Sexual assault is a very serious offence. Depending upon whether or not the offence involves aggravation or not, the maximum penalty ranges from 14-20 years.
The offence has a common law basis (the offence of rape), but has been significantly modified by statute since 1981, the most recent major amendments involving the introduction of Section 61HA of the Act on 1 January 2008.
ELEMENTS OF SEXUAL ASSAULT
The elements of sexual assault are:
Actus Reus

Sexual intercourse (defined by Section 61H)

Without consent of the victim (the issue of consent from the perspective of the victim and the offender being dealt with by Section 61HA)
Mens Rea

Knowledge that the victim does not consent; or

Recklessness as to whether the victim consents; or

No reasonable basis for believing that the victim consents (objective test introduced by Section 61HA)
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ACTUS REUS-DEFINITION OF SEXUAL INTERCOURSE
Section 61H defines sexual intercourse. The definition is wide, and includes penetration of the sexual organs; penetration of the anus; and oral sex. The definition is gender neutral.
Continuation of sexual intercourse which is at first consensual, but consent is withdrawn, falls within the definition in Section 61H (Section 61H (1) (d))
The physical act of sexual intercourse (e.g. penetration) must be voluntary and intentional as distinct from accidental (per R v AJS (2005)12 VR 563)
ACTUS REUS-WITHOUT CONSENT OF THE VICTIM
Consent to sexual intercourse must be “freely and voluntarily given” (Section 61HA
(2)). This replicates the position at common law. The failure of the victim to physically resist, or tell the offender to stop, does not mean that consent has been freely and voluntarily given ( Wilkes and Briant (1965) VR 475). A trial judge instructing a jury that a wife can consent to sexual intercourse with his wife after
“rougher than usual handling” would confuse the jury into believing that consent does not necessarily have to be freely and voluntarily given ( Question of Law (No 1 of
1993 ) (1993) 59 SASR 214). However, the NSW Court of Criminal Appeal in
Mueller (2005) pointed out that the trial judge must direct the jury as to what consent being “freely and voluntarily given” means in the context of the evidence of the particular case.
Section 61HA(4) sets out things which negate the ‘consent’ of the victim:

The victim does not have the capacity to consent because of age or cognitive incapacity;

The victim does not have the opportunity to consent because asleep or unconscious;

Threats of force or terror (against the victim, or against a third person)

Unlawfully detained.
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Further, Section 61HA(5) sets out circumstances where ‘mistake’ vitiates (i.e. negates) consent:

Mistaken belief as to the identity of the person;

Mistaken belief as to being married;

Mistaken belief the sexual intercourse is for medical or hygienic purposes.
The provisions in Section 61HA(5) alter the common law position regarding ‘mistake’ vitiating consent. At common law, mistake would only vitiate consent if there was a mistake as to the identity of the person (e.g. Gallienne (1963), where the victim consented to sexual intercourse in the dark, believing the person who got into bed with her was her husband. When she realised it was not her husband, she immediately screamed out and pushed the Defendant away) or the nature of the act (e.g. Williams
(1923) where the victim was a young girl who did not have any understanding of what sexual intercourse was, and was told by the Defendant who was her music teacher, that it was an exercise to improve her breathing). A mistaken belief that the
Defendant was married to the victim ( Papadimitriopoulos (1959)) or the penetration of the sexual organs was necessary for a medical examination ( Mobilo (1990)) was not sufficient to vitiate consent.
ACTUS REUS-FACTORS RELEVANT TO ESTABLISHING THAT
CONSENT TO SEXUAL INTERCOURSE WAS NOT FREELY AND
VOLUNTARILY GIVEN
Section 61HA(5) states that grounds upon which it may be established that consent was not freely and voluntary given include:

The victim was substantially intoxicated;

Intimidatory or coercive conduct towards the victim that does not involve a threat of force;

Abuse of a position of authority or trust
Situations where consent was not freely and voluntarily given:
Clark (1998) where the victim was a male prisoner who consented to sex with the
Defendant because the Defendant told the victim he would protect him from a group of prisoners who wanted to harm the victim, but only if the victim would have sex with him (although the appeal succeeded on other grounds);
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Chant and Madden (1998), where the victim was heavily intoxicated with alcohol and drugs (although the NSW Court of Criminal Appeal pointed out that the trial judge when directing the jury must “…identify the point at which disinhibit ion gave way to a lack of real consent” per Wood CJ at CL);
Dean (2006) where the victim was asleep. However, the NSW Court of Criminal
Appeal reiterated that the onus is on the prosecution to prove beyond a reasonable doubt that the victim did not consent because she was asleep.
However, a “threat” which was a non-violent threat was held not to result in consent not being freely and voluntarily given in Aiken (2005), where the Defendant told the victim he would not report her for shoplifting if she would masturbate him. However,
Section 61HA(6)(b) now refers to non-violent threats or coercion ( Aiken involved the previous Section 61R). It is a question of fact as to whether the non-violent threat or coercion was sufficient to mean that consent was not freely and voluntarily given.
SEXUAL ASSAULT-MENS REA
The mens rea for sexual assault is:

The Defendant knew the victim did not consent (subjective test); or

The Defendant was reckless as to whether the victim consented (subjective test); or

The Defendant had no reasonable grounds for believing the victim consented
(objective test).
The position of the common law was that the mens rea of sexual assault is subjective, not objective ( DPP v Morgan , where the Defendants argued they honestly believed the victim was consenting, because they were told by the husband of the victim that she enjoyed ‘rough’ sex, and the more she protested, the more she was enjoying the experience. DPP v Morgan was applied in NSW in McEwan (1979)).
MENS REA-RECKLESSNESS
There are two types of recklessness in sexual assault:

Advertant recklessness, where the Defendant realises that there is a real possibility the victim does not consent, but continues anyway;

Non-advertant recklessness, where the Defendant does not consider at all whether or not the victim is consenting
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The concept of advertant and non-advertant recklessness was discussed in detail by
Kirby J in Tolmie (1995). The approach of Kirby J in Tolmie was followed by the
NSW Court of Criminal Appeal in Mueller (2005). In Banditt (2005) the High Court rejected the argument that the only type of recklessness was advertant recklessness, and held that the concept of recklessness can be expressed by the trial judge to the jury using various formulations, such as “indifference as to whether or not there is consent”; “determination to have intercourse with the person whether or not that person is consenting”, and “awareness of the possibility of the absence of consent and proceeding anyway”.
Recklessness in circumstances where the victim gave evidence that she was asleep when the sexual intercourse commenced has been considered by the High Court in R v Getachew (2012) HCA 10 (28 March 2012). Getachew involved Sections 36,
37AA and 38 of the Crimes Act 1958 (Vic). In respect of the element of recklessness, where sexual intercourse occurred “while being aware that the person is not consenting or might not be consenting; or while not giving any thought to whether the person is consenting or might not be consenting” the mental element of recklessness was established. The legislation also contained a provision that a person could not consent while unconscious. The High Court (French CJ, Hayne, Crennan, Kiefel and
Bell JJ) held (at paras [27]-[28]):
“For present purposes, it is enough to notice that, if an accused asserted, or gave evidence at trial, that he or she thought or "believed" the complainant was consenting, the prosecution may yet demonstrate to the requisite standard either that the accused was aware that the complainant might not be consenting or that the asserted belief was not held. It is to be recalled that, since the 2007 Act, the fault element of rape has been identified as the accused being aware that the complainant was not or might not be consenting or the accused not giving any thought to whether the complainant was not or might not be consenting. The reference to an accused's awareness that the complainant might not be consenting is, of course, important. An accused's belief that the complainant may have been consenting, even probably was consenting, is no answer to a charge of rape. It is no answer because each of those forms of belief demonstrates that the accused was aware that the complainant might not be consenting or, at least, did not turn his or her mind to whether the complainant might not be consenting…But neither s 37AA nor any other relevant provision of the
Crimes
Act required that an accused who asserted a belief in consent nonetheless must be taken to have been aware that the complainant was not or might not be consenting if the accused was aware that the relevant s 36 circumstance – here, the complainant being asleep – did exist or might exist. If evidence was led or an assertion was made that the accused believed that the complainant was consenting, demonstration that the accused knew that the complainant was or might be asleep did not require the conclusion that the accused was aware that the complainant was not or might not be consenting. In such a case, s 37AA required the judge to direct the jury to take account of the asserted belief of the accused in deciding whether the accused was aware that the complainant was not or might not be consenting.”
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SEXUAL ASSAULT AND THE ISSUE OF INTOXICATION
The intoxication of the victim can be taken into account in respect of whether or not consent was freely and voluntarily given (Section 61HA(6)(a));
The self-induced intoxication of the Defendant cannot be taken into account in respect of whether or not the Defendant has the mens rea for sexual assault (Section
61HA(3))
INDECENT ASSAULT
Section 61L Crimes Act- Indecent assault
Section 61M Crimes Act-Aggravated indecent assault
Section 61N Crimes Act-Act of indecency towards another person (does not involve an assault)
Mens rea of indecent assault (recklessness). Fitzgerald v Kennard (1995) 38
NSWLR 184. The concept of recklessness for the offence of indecent assault involves both advertant and non-advertant recklessness (i.e. the Defendant knows there is a real possibility the victim does not consent to the touching, or does not consider at all whether the victim consents to the touching)
Definition of “indecency”
R v Harkin (1989) 38 A Crim R per Lee J (“contrary to the ordinary standards of morality of respectable people in the community”). However, indecency must have a sexual connotation. If there is no sexual connotation by reason of the part of the body involved, then “in order to be an indecent assault, it must be accompanied by some intention of the assailant to obtain sexual gratification…”
An act which is not indecent may become indecent by reason of the circumstances in which it is committed (e.g. Gillard (1999), where a married couple invited a teenage girl to watch them have sexual intercourse).
In respect of Section 61N, “towards” another person means in the immediate presence of another person, or if the victim is not in the immediate presence of the victim, with the intention that the victim see the indecent act ( Barrass (2005), where the
Defendant fondled himself at a while sitting in his car at a set of traffic lights, while a busload of schoolgirls was next to his car).
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