This article was written by Cara Maynard - Senior Associate – Canberra
Before joining the team at Armstrong Legal, Cara worked as a DNA expert preparing and giving DNA evidence in criminal trials. In this role she liaised with police, DPP and defence practitioner regarding a variety of matters including DNA transfer, deposition and recovery. Cara has reviewed and interpreted thousands of DNA profiles that were reported as intelligence to the NSW...
Assault Occasioning Actual Bodily Harm
In New South Wales, an assault that results in actual bodily harm is a more serious offence than a simple assault (also known as common assault). Assault occasioning actual bodily harm is governed by section 59 of the Crimes Act 1900 and is punishable by a maximum penalty of five years imprisonment. This article outlines the offence of assault occasioning actual bodily harm in New South Wales.
What Must Be Proven?
For a person to be found guilty of assault occasioning actual bodily harm, the prosecution must prove each of the following matters beyond a reasonable doubt:
- that the accused applied physical force to another person either by hitting, striking or some other action; and
- this was done internationally or recklessly; and
- it caused actual bodily harm to the other person; and
- it was done without lawful excuse.
An action that is done intentionally is fairly self-explanatory. For example, if a person raises their hand intending on slapping another and does so, the action would be deemed to be an intentional act. Recklessness in relation to assault refers to a state of mind where the accused foresees the possibility that they might make physical contact with another but continues anyway. An example of this is where a person throws an object during an argument and it strikes the other person causing a bruise. It may well be the case that there was no intention to hit the other person; however, the individual realised that they may strike the person and threw the object anyway.
What Is Actual Bodily Harm?
Case law defines actual bodily harm as an injury that is “more than merely transient or fleeting.” Commonly, scratches and/or bruises are deemed to amount to actual bodily harm. However, temporary redness from a slap or punch that fades within an hour would typically not meet this definition. On occasion (but rarely), serious psychological injuries have been found to fulfil the definition.
Actual bodily harm is less serious than grievous bodily harm, which involves a really serious injury such as permanent disfigurement, a broken bone or infection with a serious disease. It can cover a large array of injuries to a person, from a scratch to fractured bones (which can also on occasion amount to grievous bodily harm). The harm suffered by the complainant is one factor that is considered by the court on sentence. As a general rule, the more serious the harm inflicted, the more severe the sentence that will be imposed.
Penalty
A person found guilty of an assault occasioning bodily harm is liable to imprisonment for up to five years. However, if the assault was committed in company with another person the accused is liable to up to seven years imprisonment.
If the offence is dealt with summarily (in the Local Court), the court is subject to a jurisdictional limit on sentence of two years imprisonment and/or a fine of $5,500.
Jurisdiction
An assault occasioning actual bodily harm offence is what is known as a summary indictable offence Table 2 offence. This means that the charge will be finalised either by hearing (on a plea of not guilty) or sentence in the Local Court unless the prosecution elects for the matter to be finalised in the District Court.
It is important to note that for a Table 2 offence, the defence has no say in whether the matter remains in the Local Court or is committed to the District Court as an indictable offence for finalisation.
Defences
A person charged with this offence may rely on a number of legal defences, including the following:
- The conduct constituting the assault was not done intentionally or recklessly;
- The accused was acting with lawful excuse for example:
- They were acting in self-defence or defence of another;
- They were acting under duress – that is they were ‘forced’ to commit the offence by another person making a serious threat to them or to another person if they do not comply.
- The accused was too young and insufficiently developed to understand the nature of their actions (if the accused was under 14).
Causing Dog To Inflict Actual Bodily Harm
A separate offence involving causing a dog to inflict actual bodily harm also exists under section 35A of the Crimes Act. This offence occurs when a person has control of a dog and causes the dog to inflict actual bodily harm on a person and is reckless to the injury that may be caused by the act. This offence is also punishable by up to five years imprisonment.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.