Criminal Law

The law relating to assault occasioning actual bodily harm

Published in: July 2017

 Assault occasioning (actual) bodily harm is an offence in all Australian jurisdictions. There are a number of elements associated with the offence which this piece will explore.

The law

Using s 59 of the Crimes Act 1900 (NSW) as our example, assault occasioning actual bodily harm is defined as:

  • whosoever assaults any person and thereby occasions actual bodily harm;
  • a person is guilty of an offence if they assault any person and thereby occasions actual bodily harm in the company of another person or persons.

It should be noted that the offence in s 18 of the Crimes Act 1958 (VIC) is referred to as causing injury intentionally or recklessly.

The definition

In R v Donovan [1934] 2 KB 498; All ER 207; 25 Cr App R 1 (at 509; 212; 13), Swift J in the Court of Criminal Appeal said the following in relation to bodily harm:

“”[B]odily 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 or trifling.”

If we turn to the code jurisdictions such as Queensland and Western Australia, bodily harm “means any bodily injury which interferes with health or comfort.”

In Wayne v Boldiston (1992) 85 NTR 8; 108 FLR 252; 62 A Crim R 1, Mildren J observed that when assessing bodily harm, it is a matter of degree and can only be judged on the facts of each case:

“In the end result, I consider that the question of whether the injury amounts to “bodily harm” is one of degree, which can only be decided by reference to the facts in each case. In determining this question, it is necessary to focus on the injury and its immediate consequences. The fact that the victim has been left with only a cosmetic disability is irrelevant to the immediate consequences of the injury interfered temporarily with her health. It is relevant also to consider the nature of any treatment received and whether any part of the body was unable to perform its function fully, either as a result of pain or otherwise and there may well be other relevant matters.”

Some people may be wondering if psychological harm can also include bodily harm, and the judgment in McIntyre v The Queen (2009) 198 A Crim R 549; [2009] NSWCCA 305 at [45] may send some light:

“[I]f a victim has been psychologically injured in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm.” 

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