What
occasions actual bodily harm ?
( Criminal Law , Australia , N.S.W. )
( From : lawsociety.com.au )
By DARAIUS SHROFF
March , 2004
Daraius Shroff is a solicitor with the Directorate of Public Prosecutions. The author wishes to acknowledge and thank John Cline and Kiru Kirupaidasan of the DPP Office. The views advanced in the article are his own and not those of the DPP.
THE ELEMENTS THAT CONSTITUTE the charge of assault occasioning actual bodily harm (s.59 Crimes Act NSW, penalty: five years) are more serious and critical than those which relate to injury or harm consequent on common assault (s.61 Crimes Act NSW, penalty: two years) but less than grievous bodily harm, which is maliciously inflicted (s.35 Crimes Act NSW, penalty: seven years). However, the assessment of the degree of harm inflicted has always been a matter of factual determination based on the extent of the injuries and the intent of the offender.
In a recent case before the British High Court (T v DPP),1 Justice Maurice Kay was of the view that a loss of consciousness, though transient in this instance, was not trifling and that an impairment of the victim’s sensory functions fell within the ambit of actual bodily harm. The words actual bodily harm are not legally defined and are to be given their literal application. The rationale that a loss of consciousness amounted to actual bodily harm was manifest in that the harm inflicted, though momentary and not indicative of any visible injury, would cross the threshold of bodily harm to incorporate harm to the mind and include pain and unconsciousness.
Whether such a determination would be upheld in the Australian jurisdiction is a matter of conjecture, as the case has to be distinguished against the long-standing test in Donovan.2 The test refers to “any hurt or injury calculated to interfere with the health or comfort of the victim and which is more than merely transient and trifling”.
This may be thought to set the threshold very low for an offence carrying a penalty of five years imprisonment. However, in the appeal case of Hampton,3 it was argued that the judge at first instance had taken into account factors which were not part of the elements of a charge of assault occasioning bodily harm, but of the more serious charge of malicious wounding, with a prescribed higher penalty of seven years. Here, however, the Court of Criminal Appeal held that the use by the trial judge of reference to “stab wounds”, “objective seriousness” and “inflicted on the victim” did not preclude a court having regard to the fact that the harm may be grievous so long as it did not have regard to the question of malice.
This is a departure from the differentiation made by Dunford J in Lardner,4 where bodily harm which need not be permanent but more than transient or trifling, was distinguished from grievous bodily harm, requiring really serious injury and wounding (requiring a breaking of the skin). It is not the case that actual bodily harm is not capable of including psychiatric injury, but this was said not to include states of mind which were not themselves evidence of some identifiable clinical condition.
The nature of the harm inflicted is a matter of degree, which can be assessed in a continuum from a low to a high level of seriousness. In Hampton, it was stated that a court is not to be emasculated in delineating the nature of the harm suffered in offending the principle of De Simoni5 by adherence to elements other than those salient to the offence charged.
As was stated in Overall,6 the fact that “a judge recites facts does not mean that in assessing his sentence he took them into account. It is proper that a sentencing judge correctly state the circumstances of the case”. This is, however, always subject to the qualification that the court determines the matter on the basis of the charge laid.
The principle laid down by the High Court in Pierce7 is that the sentence imposed in relation to a singular count, where there is a multiplicity, must relate to that count and not to another. It is imperative to establish the nexus between the infliction of the harm and the harm sustained, thereby to distinguish aspects of the one incident. In Bloomfield,8 though the injuries were of a most serious nature, the act by which these were inflicted was limited to a single blow, even though one of considerable force. The sentence was commensurately reduced on appeal.
In the British case T v DPP, although the victim suffered a bloody nose and swelling round the eyes, it could not be proved that either of these injuries were caused by the defendant’s kick, rather than by an earlier punch by an unidentified youth. The fact that an assault which leaves no indelible and permanent mark cannot be construed as actual bodily harm, whereas a loss of consciousness though momentary can be, puts into issue the fine line which distinguishes assault occasioning bodily harm from common assault.
There is no necessity to prove specific intent on a charge of assault occasioning actual bodily harm. In the British case, as the other assailant was unidentified, no person could be charged with the defendant on a basis of a common purpose to inflict harm, or to have had a reasonable contemplation of the resultant harm. The NSW legislature has sought to introduce an amendment (s.59(2) Crimes Act) which expressly prescribes an aggravated offence by virtue of inflicting the assault “in company” with a higher penalty of seven years, which brings the offence into line with that of malicious wounding.
The nature of assault is intrinsic to any crime of violence. However, the nature and extent of the injuries sustained, the intent of the perpetrator and the degree of violence will be determinative of the charge to be laid and its adjudication by the court.
Endnotes
1. R (on the application of T) v
Director of Public Prosecutions [2003] EWHC 266 (Admin).
2. R vDonovan
[1934] 2 KB 498 at 509.
3. R v Hampton [1999] NSWCCA 341 at pp.5-12.
4. R v Lardner NSWCCA
10/9/98 at p.7.
5. R v De Simoni
[1980-1981] 147 CLR at 383.
6. R v Overall [1998]
71 A. Crim. R. 170 at 174.
7. Pierce v R [1998] HCA at 57.
8. R v Bloomfield
NSWCCA 15/7/98.
