ASSAULT OCCASSIONING ACTUAL BODILY HARM (AOABH)

The Law

Section 59(1) of the Crimes Act NSW provides for the offence of Assault occasioning actual bodily harm, in that:

Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

Note: In the Local Court where this offence is generally heard the maximum imprisonment time is two (2) years.

Elements of the offence are:

1. Physical element: -

There must be actual bodily harm

As to “actual bodily harm”, the term “bodily harm” is to be given its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury need not be permanent but must be more than merely transient and trifling: R v Donovan [1934] 2 KB 498;  R v Brown [1993] 2 WLR 556 at 559. 

Moreover, the phrase “actual bodily harm” can include psychiatric injury but does not include emotions such as fear or panic nor states of mind that were not themselves evidence of some identifiable clinical condition: R v Chan-Fook [1994]1 WLR 691 at 696; R v Lardner (NSWCCA, 10 September 1998, unreported, BC9804715)

2. Mental element:-

Is satisfied if the accused intentionally or recklessly assaults the victim and actual bodily harm results (R v Williams (1990) 50 A Crim R 213 at 220-2).

In order to establish the offence, it is not necessary for the prosecution to prove a specific intent to cause actual bodily harm: Coulter v R (1987) 61 ALJR 537  

The guidelines for this offence states: -

An injury is caused or inflicted recklessly if the accused realised that actual bodily harm may possibly be caused/inflicted upon a victim by the accused actions, yet the accused went ahead and acted as he did.

The accused cannot be found to have acted recklessly unless the Police/Crown proves that the accused actually thought about the consequences of his/her act and at least realised the possibility of actual bodily harm occurring.

There are four elements which constitute an assault. They are:

1. A striking, touching or application of force by the accused to another person that resulted in bodily harm; 
2. That such conduct of the accused was without the consent of the other person;
3. That such conduct was intentional or reckless in the sense that the accused realised that the other person might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen;
4. That such conduct be without lawful excuse.

The Police must be able to satisfy beyond reasonable doubt of each of the four elements, before a conviction of AOABH can be made out.

If you or someone you know is charged with AOABH contact Rep-Revive Criminal & Employment Lawyers on (02) 9198 1996 for a free intial consultation. There are defences available and you need not go it alone.