It has been reported that two men are facing assault charges arising from an incident on John Street in Cabramatta yesterday, during which they allegedly attacked a driver over a claim to a parking spot.

The incident, which was filmed by members of the public, shows two men approach the driver side of a green Hyundai sedan which is on the roadway, before one of them hunches down towards the driver and appears to gesture for him to leave.

The sedan nevertheless proceeds into what appears to be a parking space, before one of the men – wearing a hood – is seen to punch through the driver side window and strike towards the driver several times. The man then attempts to pull the driver out of the car window.

The sedan then veers back into the roadway, before it stops and is approached by the two men. The car then reverses at speed and appears to collide with the front of a white van, before driving off.

Police report that they arrested two men, aged 51 and 43, over the alleged assault against the 22-year old driver.

They charged the younger alleged assailant with assault occasioning actual bodily harm for striking the driver and causing a piece of metal to enter his eye. He was refused police bail and will appear in Fairfield Local Court today.

They charged the older man with common assault and intentionally or recklessly destroying or damaging property. He is scheduled to appear in the same court this coming Wednesday.

The driver was admitted to Sydney Eye Hospital where he underwent surgery.

What is assault occasioning actual bodily harm?

Assault occasioning actual bodily harm, or AOABH, is an offence under section 59 of the Act which carries a maximum penalty of five years’ imprisonment, or seven years if committed in the company of another person.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. The defendant committed an act of violence towards another person,
  2. The act caused physical injuries to the other person which amounted to actual bodily harm,
  3. The act was intentional or reckless, and
  4. The act was without lawful excuse.

Actual bodily harm’ (ABH) is that which is more than ‘transient or trifling’; in other words, more than slight harm – such as minor redness or passing scratches – which quickly subside; Donovan [1934] 2 KB 498.

Examples may include bruises or lasting scratches or swelling; McIntyre v Regina (2009) 198 A Crim R 549 at para [44], cuts and other injuries which are less than ‘very serious’, or grievous.

Transient emotions, feelings or states of mind do not amount to ABH unless there is evidence of very serious psychological harm, or psychiatric injury; Li v R [2005] NSWCCA 442 at [45]; Chan Fook (1994) 1 WLR 689.

What is a common assault?

A common assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence, or strikes, touches or applies force to another, without legal justification. It cannot be a mere omission.

There does not need to be an intention or power to use violence; it is enough for the other person to believe on reasonable grounds that there is an imminent danger of it.

What does the prosecution have to prove?

To establish the offence of common assault, the prosecution must prove beyond reasonable doubt reasonable doubt that:

  1. The defendant committed an act which caused another to apprehend immediate and unlawful violence, or struck, touched or applied force to the other person,
  2. The other person did not consent to the conduct,
  3. The conduct was intentional or reckless,
  4. The conduct was without lawful excuse.

The defendant must be acquitted if the prosecution is unable to prove any of the elements to the required standard.

Examples of common assault

The following types of conduct may amount to a common assault:

  • Striking another person without causing any, or any significant, injuries,
  • Threatening immediate violence in such a way the other person believes the threat will be carried through; for example, saying ‘I’m gonna punch you in the face’ while raising a fist and/or moving towards the other person and/or displaying a threatening or angry demeanour,
  • Striking at a person with a fist or object, whether or not contact is made,
  • Throwing an object towards a person, whether or not contact is made,
  • Pushing an animal or other conveyance that the other person is on and thereby causing the other person to fall off.

Case study

In the case of Zanker v Vartzokas (1988) 34 A Crim R 11, a young woman accepted a lift from a man in a van. While travelling, the driver offered the woman money in exchange for sexual favours. The woman refused.

The driver began steadily accelerating and the woman demanded to be let out of the vehicle. The man then stated, “I’m going to take you to my mate’s house. He will really fix you up.”

The woman jumped out of the van while it was travelling at a speed of approximately 60km/h, and was injured.

The court found that the man’s actions were sufficient to constitute an assault because “so long as she was imprisoned by the defendant… [a] present fear of relatively immediate imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual violence was to occur”.

What are the defences to assault charges?

There are a range of legal defences to assault charges which, if raised by the defence and not refuted beyond a reasonable doubt by the prosecution, will lead to an acquittal.

These include:

Self-defence the most frequently used defence to common assault charges.

The defence is embodied in section 418 of the Crimes Act 1900 (NSW) which provides that:

“A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.”

As outlined, the defendant’s conduct must have been both necessary to defend him or herself, another person/s or property, and reasonable as he or she saw the situation.

Duress is where a person is forced into committing a crime.

A person will be acting in duress where his or her actions were performed as a result of implied or express threats of death or really serious injury.

The threats must be such that person of the same maturity and sex as the defendant, and in the same position, would have given in to them.

The defendant will have a defence of duress if three questions are answered in the affirmative:

  1. Were there threats which drove the defendant to genuinely believe he or she would soon be killed or seriously harmed if the assault was not committed?
  2. Would the threats have driven a reasonable person to act in that way?
  3. Could the defendant have avoided committing the assault by escaping from the threats without damage to him or herself?

There is an overlap between the defences of duress and necessity, in so far as they both involve breaking the law to avoid even more serious consequences.

The defendant will have a defence of necessity if the following three factors are present:

  1. The assault was necessary, or reasonably believed necessary, to avoid or prevent death or serious injury;
  2. Avoidance or prevention of death or serious injury was the reason for committing the assault;
  3. The assault, viewed objectively, was reasonable and proportionate, having regard to the avoidance or prevention of danger or death.

An example might be pushing people out of the way to escape from an assailant.

A defence to common assault is that the other person consented to the conduct.

Examples include implied consent in sport, surgery and medical treatment.

In the context of sport, players can only consent to assault and injury within the rules of the game – for example, tackling another player in a footy game will not be an assault. However, the use of excessive and unnecessary violence may still amount to an assault.

In terms of surgery and other medical treatment, the procedure must be within the contemplation of the patient – anything beyond this case expose the practitioner to criminal liability.

Exigencies of everyday life

In addition, a person will not be guilty of assault if the physical contact was accidental or an acceptable part of daily life.