The offence of Assault O.A.B.H is set below:
CRIMES ACT 1900 – SECT 59
59 Assault occasioning actual bodily harm
(1) Whosoever assaults anyperson, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.
(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
The elements of this offence are the same as for assault however, with the addition that actual bodily harm is occasioned note, there is no requirement of the section that the harm be intended. The offence is established if the accused intentionally or recklessly assaulted the complainant and actual bodily harm results (see Coulter v R (1987) 61 ALJR 537 and R v Williams (1990) 50 A Crim R 213).
As to what will constitute actual bodily harm – as actual bodily harm is not defined within the Crimes Act 1900 (NSW) the terms are to be given there ordinary meaning. In McIntyre v R [2009] NSWCCA 305 (18 December 2009) His Honour, Johnson J (whom the other justices agreed, Blanch & Macfarlan JJ) notes that:
The term “actual bodily harm” is not defined in the Crimes Act 1900. The phrase “bodily harm” has been said to include any hurt or injury calculated to interfere with the health or comfort of the victim: R v Overall (1993) 71 A Crim R 170 at 178.
It need not be permanent, but must be more than merely transient or trifling – it is something less than “grievous bodily harm”, which requires really serious physical injury, and “wounding”, which requires breaking of the skin: R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715 at page 4).
The distinction between grievous bodily harm and actual bodily harm involves an assessment of the degree of harm done, with one being more serious than the other: R v Overall at 173-174. Bruises and scratches to a victim are typical examples of injuries that are capable of amounting to actual bodily harm: R v Cameron [1983] 2 NSWLR 66 at 67.
If a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm: Li v R [2005] NSWCCA 442 at [45].
Hence, actual bodily harm is any injury that is not transient or trifling and can include bruises and scratches.
