
Published by Geoff Harrison | 24 February 2024
The offence of Assault Occasioning Actual Bodily Harm is set out in s59 of the Crimes Act 1900. The maximum penalty is 5 years imprisonment or alternatively, 7 years imprisonment if the offence is committed in company. The offence of assault occasioning actual bodily harm in company was considered in Markou.
As to what constitutes "actual bodily harm" it is not defined within the Crimes Act however, as noted by MacFarlan JA in Markou at [17]:
The generally accepted judicial explanation of the meaning of the expression "bodily harm" is that given in R v Donovan [1934] 2 KB 498:
"... we think that 'bodily harm' has its ordinary meaning and includes any hurt or injury calculated to interfere with
the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more
than merely transient and trifling" (at 509); see also for example Overall v R (1993) 71 A Crim R 170 at 178
and R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330 at 332.
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. Serious psychological harm, going beyond merely transient emotions, feelings and states of mind, has also been held that it would likely amount to actual bodily harm: Li v R [2005] NSWCCA 442 at [45].
The prosecution does not need to prove an intention to cause "actual bodily harm" merely that the accused intentionally or recklessly assaulted the victim and "actual bodily harm" was occasioned: R v Williams (1990) 50 A Crim R 213.
The meaning of the expression "in company" was explained as follows by von Doussa J in the context of a charge of assault with intent to rob:
"The true meaning of the provision emerges from the authorities just cited. A person commits a robbery, or an assault with intent, in company where that person participates in the robbery or assault together with another or others in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim; it is sufficient that the accused and one or more other participants be physically present for the common purpose of robbing, or assaulting with intent, and of physically participating if required" (R v Brougham (1986) 43 SASR 187 at 191).
After referring to Brougham and other cases, Kirby J in R v Button [2002] NSWCCA 159; 54 NSWLR 455 summarised the law in this area as follows:
"[120] What emerges from these cases? A number of propositions can be stated:
First, the statutory definition (s 61J(2)(c)) requires that the offender be 'in the company of another person or persons'.
Secondly, the accused and such person, or persons, must share a common purpose (either to rob or as here, sexually assault).
Thirdly, the cases appear to assume that each participant is physically present.
Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough.
Fifthly, the perspective of the victim (being confronted by the combined force or strength or two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be 'in company', even if the victim was unaware of the other person."
Other Sources:
Cases:
Shu Qiang LI v R [2005] NSWCCA 442 (Re psychological harm at [45])
Markou v R [2012] NSWCCA 64 (Re in-company)
R v Button; R v Griffen [2002] NSWCCA 159 (see at [120] re in-company)
Extracted Legislation:
CRIMES ACT 1900 - SECT 59
Assault occasioning actual bodily harm
(1) Whosoever assaults any person, 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.
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