There’s a fine line between unauthorised touching which can amount to an assault and the realities of day-to-day life, where there may be no way to avoid physical contact with other people in our crowded streets and footpaths, in long queues or on public transport.
So, what does the law say?
The offence of common assault
In situations of non-sexual touching that is not consensual, the most likely criminal offence that could apply is known as common assault.
This is an offence under section 61 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 2 years’ imprisonment.
The Act does not define what may amount to a common assault, let alone contain a list or explanation of conduct with suffice.
It merely states, ‘Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.’
What is a common assault?
For guidance, we therefore need to look at decisions made by the courts.
The offence of assault was defined in R v Burstow; R v Ireland  1 AC 14 as “any act — and not a mere omission to act — by which a person intentionally — or recklessly — causes another to apprehend immediate and unlawful violence”.
An assault does not actually have to involve physical contact, and physical contact is not an element of the offence. All that is required is some act, or conduct, on behalf of the accused, which induces the ‘apprehension of injury or the instillation of fear or fright’ in another.
For example, if a person raises their hand at you in a menacing fashion and that causes you to fear that you are about to be hit, then that is assault.
Historically, the offences that are now encompassed as common assault in NSW were divided between ‘assault’ and ‘battery’, with the latter offence involving the actual use of violence.
Does all non-consensual touching amount to assault?
Not all unwanted contact constitutes an assault. The common law has long held that normal social interactions, even uninvited, such as bumping into another person in a busy street, would not constitute an assault, unless accompanied by ‘hostile intent’ on behalf of the assailant.
The High Court of Australia in Boughey v The Queen (1986) 161 CLR 10 explained the concept as follows:
“It has never, however, been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary general ingredient of an unlawful battery.
Where the existence of hostility or hostile intent may be of decisive importance is in a case which would otherwise be of the kind which s.182(3) excludes from “assault” for the purposes of the Code in that hostility or hostile intent may convert what would otherwise be unobjectionable as an ordinary incident of social intercourse into battery at common law or an assault for the purposes of the Code.
Apart from such cases, however, the absence of such hostility or hostile intent towards the person to whom force is applied neither precludes the intentional application of force to the person of another from constituting battery at common law or assault under the Code nor, of itself, constitutes a justification or excuse for it.”
Do you have to intend to induce fear?
The mental element (or mens rea) of assault does not necessarily require the prosecution to prove that you intended to induce the apprehension of immediate and unlawful violence.
A person only needs to be reckless: to have realised that the other person might fear that he or she would be subjected to immediate and unlawful force, but to have acted anyway.
The same goes for assaults using actual violence: the prosecution don’t need to prove you intended to assault a person, only that you realised that your act may cause you to make contact with them, and that you did so anyway.
What about contact sports?
Participants who willingly take part in sports that involve physical contact impliedly consent to some physical violence and the risk of injury that follows.
This is true to an extent: levels of violence within the rules of the game and the parameters of the sport are accepted as not being assaults, however where the degree and nature of violence goes beyond those rules and accepted parameters, then an assailant can be found to have committed an assault.
Can someone consent to any level of violence?
The short answer is no, but the dividing line is unclear. It has been held that a person cannot consent to the infliction upon himself or herself a degree of harm which is itself unlawful. The issue is what degree of harm is unlawful?
In the English decision of R v Donovan (1934) 2K.B. 498 it was held that:
“If an act is unlawful in the sense of being in itself a criminal act, it is plain that it cannot be rendered lawful because the person to whose detriment it is done consents to it. No person can licence another to commit a crime.”
So far as the criminal law is concerned, therefore, where the act charged is in itself unlawful, it can never be necessary to prove absence of consent on the part of the person wronged in order to obtain the conviction of the wrongdoer.
There are, however, many acts in themselves harmless and lawful which become unlawful only if they are done without the consent of the person affected.
What is, in one case, an innocent act of familiarity or affection, may, in another, be an assault, for no other reason than that, in the. one case there is consent, and in the other, consent is absent.
As a general rule, although it is a rule to which there are well-established exceptions, it is an unlawful act to beat another person with such a degree of violence that the infliction of bodily harm is a probable consequence, and when such an act is proved, consent is immaterial.”
It is the degree of injury sustained, usually involving serious harm- such a broken-bones, if the degree of violence used was such that the infliction of bodily harm was a probable consequence, which will make a violent act, consented to by the victim, an unlawful assault.
In a nutshell
So, the bottom line is that not all touching for which there is no consent amounts to an assault – day-to-day life can bring us into physical contact with others whether we mean it or not, and accidentally bumping into someone otherwise making content unintentionally and without recklessness does not amount to an assault offence in New South Wales.
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