ASSAULT
ASSAULT
Assault is fear or apprehension of immediate/unlawful contact (Darby)
Battery is the actual application of force without consent, lawful excuse or justification
At common law, an assault is any act committed intentionally or recklessly, that causes another person to apprehend immediate or unlawful violence. If force is actually applied, directly or indirectly, and unlawfully, without the consent of the person assaulted, the assault becomes a battery, however slight the force (Fagan)
Both assault and battery are often described as ‘assault’ and the use of the word in offences within the Crimes Act includes both forms of assault. However, a distinction remains (Darby v DPP (NSW) (2004)) and battery can be committed without assault, for instance, when A strikes B from behind without warning and assault can be committed without battery.
ACTUS REUS
Common or simple assault – it is our base offence,
Aggravated assault – s 61 offence- so a common offence with the presence of aggravated circumstances/ factors usually e.g. injury or nature of victim. For example it is an aggravating factor if the victim is a police, is a child.
The Conduct Element (actus reus) of Assault
The actus reus is the unlawful contact in applying force to another, or the act of creating fear of immediate unlawful contact.
Fear per say is not required and mere anticipation of an assault is sufficient (Brady v Schatzel; Ex parte Brady (1911).
Assault cannot be committed unless or until the victim is aware of the accused‟s actions (Pemble v R (1971)
Touching an individual’s clothes is regarded as touching the person (R v Day and R v Thomas).
Spitting at and contacting the person of another with spittle is a sufficient application of force to constitute a battery/assault (DPP v JWH).
A mere omission to act cannot constitute an assault unless it is part of a continuing act (Fagan).
In relation to the use of threats, the victim must be (Knight; Zanker v Vartzokas):
1. Put in fear, and
Assault is fear or apprehension of immediate/unlawful contact (Darby)
Battery is the actual application of force without consent, lawful excuse or justification
At common law, an assault is any act committed intentionally or recklessly, that causes another person to apprehend immediate or unlawful violence. If force is actually applied, directly or indirectly, and unlawfully, without the consent of the person assaulted, the assault becomes a battery, however slight the force (Fagan)
Both assault and battery are often described as ‘assault’ and the use of the word in offences within the Crimes Act includes both forms of assault. However, a distinction remains (Darby v DPP (NSW) (2004)) and battery can be committed without assault, for instance, when A strikes B from behind without warning and assault can be committed without battery.
ACTUS REUS
Common or simple assault – it is our base offence,
Aggravated assault – s 61 offence- so a common offence with the presence of aggravated circumstances/ factors usually e.g. injury or nature of victim. For example it is an aggravating factor if the victim is a police, is a child.
The Conduct Element (actus reus) of Assault
The actus reus is the unlawful contact in applying force to another, or the act of creating fear of immediate unlawful contact.
Fear per say is not required and mere anticipation of an assault is sufficient (Brady v Schatzel; Ex parte Brady (1911).
Assault cannot be committed unless or until the victim is aware of the accused‟s actions (Pemble v R (1971)
Touching an individual’s clothes is regarded as touching the person (R v Day and R v Thomas).
Spitting at and contacting the person of another with spittle is a sufficient application of force to constitute a battery/assault (DPP v JWH).
A mere omission to act cannot constitute an assault unless it is part of a continuing act (Fagan).
In relation to the use of threats, the victim must be (Knight; Zanker v Vartzokas):
1. Put in fear, and