Assault Occasioning Actual Bodily Harm

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 yeasrs 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 reclkessly assaulted the victim and "actual boidly harm" was occassioned: R v Williams (1990) 50 A Crim R 213.

Other Sources:

• Sentecing Bench Book: Assault Occasioning Actual Bodily Harm

Cases:

• Coulter v R [1988] HCA 3

• R v Baugh [1999] NSWCCA 131

• McIntyre v R [2009] NSWCCA 305

• Shu Qiang LI v R [2005] NSWCCA 442 (Re psychological harm at [45])

• Markou v R [2012] NSWCCA 64 (Re in-company)

Exstracted 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.