UNIT 2

ASSAULT

DEFINITION OF ASSAULT
An assault is the illegal act of causing physical harm or unwanted physical contact to another
person, or, in some legal definitions, the threat or attempt to do so. It is both a crime and
a tort and, therefore, may result in criminal prosecution, civil liability, or both.
Additionally, assault is a criminal act in which a person intentionally causes fear of physical
harm or offensive contact to another person. Assault can be committed with or without a weapon
and can range from physical violence to threats of violence.
Assault is frequently referred to as an attempt to commit battery, which is the deliberate use of
physical force against another person. The deliberate inflicting of fear, apprehension, or terror is
another definition of assault that can be found in several legal systems. Depending on the
severity of the offense, assault may result in a fine, imprisonment, or even death
Assault
Assault covers a range of actions, from using threatening words to a severe physical attack that
leaves the victim permanently disabled.
There are three basis types of assault offence:
 common assault
 actual bodily harm (ABH)
 grievous bodily harm (GBH)/ wounding
Common assault is when a person inflicts violence on someone else or makes them think they
are going to be attacked. It does not have to involve physical violence. Threatening words or a
raised fist is enough for the crime to have been committed provided the victim thinks that they
are about to be attacked. Spitting at someone is another example.
Actual bodily harm (ABH) means the assault has caused some hurt or injury to the victim.
Physical injury does not need to be serious or permanent but must be more than “trifling” or
“transient”, which means it must at least cause minor injuries or pain or discomfort.
Psychological harm can also be covered by this offence, but this must be more than just fear or
anxiety.
Grievous bodily harm (GBH) means the assault has caused serious physical harm. It does not
have to be permanent or dangerous. For example, a broken bone would amount to GBH – in
some cases a broken bone might lead to permanent disability but, in others, it might heal without
leaving any long-term effects. GBH can also include psychiatric injury or someone passing on an
infection, for example through sexual activity.
Wounding requires that the victim’s skin is broken, either on their body or their inner skin (for
example, inside their lip) but it does not include the rupture of blood vessels so, if the injury is
just bruising, that would not amount to wounding. The injuries involved in a wounding can be
less serious than those in GBH.
The GBH or wounding must be caused either with an intent to cause some injury or with
knowledge that injury was likely. If it was committed with intent to cause GBH or wounding
then the offence is more serious. The maximum sentence for this is life imprisonment.
The offence is also more serious if the victim of the assault is an emergency worker. This
covers police, prison officers, custody officers, fire service personnel, search and rescue services
and paramedics.

ASSAULT
Section 2(1) of the Penal Code reads ‘Assault means,
a) The intentional application of force to the person of another, directly or indirectly or b) The
making of any gesture towards another in such a manner as to give him reasonable grounds to
believe that the person making the gesture is about to apply such force to his person.
The offence envisaged by this section is often referred to as assault common. Though this is
assault common, there are other specific types of assault which will be discussed later.
Section 246 of the Penal Code reads, ‘Any person who unlawfully assaults another, otherwise
than in circumstances in which he is guilty of some other offence under this Code, is guilty of the
offence termed common assault and is liable to imprisonment for a term not exceeding one year.’
From the reading of Section 2(1) of the Penal Code, for there to be an assault, there must be an
intention to apply force to another person, either directly or indirectly. A strikes B with a stick or
with a stone, this is an example of direct application of force towards the person of another.
In the case of DPP vs. K 1990 QBD, accused put acid on a hot air drier which was subsequently
used by someone else who was burned. Lord Parke J, espoused, “…the accused had just as
assaulted the next user of the machine as If he himself had switched on the machine.” The
accused was convicted of assault occasioning actual bodily harm. This case highlights the
indirect application of force to the person of another. Indirect application of force commonly
applies where some sort of secondary instrument was used.
Thus in the case of Halliday, R vs. (1889) CCR, where a man threatened his wife who jumped
from a building and injured herself, was held to have assaulted her. The making of any gesture or
any physical action that would give another person reasonable grounds to believe that the person
making the gesture is about to apply such force. This second limp of assault requires no
touching. Thus assault may be committed without actually touching, striking, or doing bodily
harm to the person of another. Assault is therefore a result crime in the sense that whether a
crime is committed depends on the victim’s reaction to the dependant’s behaviour.
In the case of Mochotoane vs. The State (HC), Botswana Criminal Appeal No 11 of 1980,
the court held that there was no assault. Corduff J, stated that the mere apprehension and fear of
being attacked physically, other than the “making of any gesture in such a manner as to give…
reasonable grounds that the person making the gesture is about to apply…force to his person” are
not relevant to a charge. It is of vital importance that the reasonable ground referred to by
Corduff J, emanate from the gesture made by the accused at the time the assault was alleged to
have been committed. Put differently, the reasonable ground should not stem from any other
reasons other than intently from the gesture itself.
In the case of Selebogo vs. The State 1987 BLR 320, the appellant took of her coat and
advanced to the complainant. She was however restrained by other people at the clinic. The court
held that while there was room for a movement to be misinterpreted, there was no doubt on
accordance by one towards another which is accompanied by words indicating the purpose of the
advance. The court further went on to state that the only reason she did not physically assault the
respondent was because she had been restrained.
The court in the case of Stephens vs. Myers [1830] 172 ER , held that the test for determining
the apprehension of fear was a reasonable one. The question to be asked is what a reasonable
man standing in the shoes of the complainant would have apprehended. Tindall C.J. espoused, “It
is not every threat, when there is no actual personal violence, that constitutes an assault, there
must in all cases, be the means of carrying the threat into effect sed quaere ”The apparent threat
must be immediate. It is said that the victim must apprehend that unlawful force is to be applied
immediately to his person. A threat to apply force sometime in the future is not an assault.
Similarly, if the assailant is very far away, this will not amount to assault unless it is clear that he
can quickly catch up. Important to note is that the threat of violence must be against the person
of another. Thus, a mere threat to destroy another person’s property will not constitute an assault.
There are times when the accused does not have the means to carry out the threat. However, it
does not matter that D was incapable of carrying out the threat. The essential question is the view
formed of D’s conduct by T. The main question is whether the victim reasonably believed that
the threat would be carried out. Thus if D points an imitation gun at P and says he is about to
shoot him, if P anticipates the immediate infliction upon himself of unlawful violence, the actus
reus of assault has been brought about.
In the case of Logdon vs. DPP 1976 QBD, the accused showed a customs officer a replica gun
which was in a drawer and threatened to shoot her if money owed to him was not paid up. The
court held that the complainant had reasonable cause to fear that force was to be inflicted on her.
The court went on further to say that the conditional nature of the threat, the fact that the accused
had no intention of carrying out his plans and the fact that he had no means of carrying it out
were all irrelevant. What was relevant was that the complainant had reasonably believed that
force was to be applied to her person.
On the other hand, in R vs. Lamb 1967(2) Q.B 981,Lamb pointed a gun at his friend and pulled
the trigger believing that there was no bullet opposite the firing pin. Nor did he intend to cause,
or consciously take an unjustifiable risk, or his friend apprehend fear. It was held that there was
no assault since the friend did not believe that he gun would fire
.EFFECTS OF WORDS ON ASSAULT
In the case of R vs. Meade and Belt (1823) 1 Lew CC 184, Holyroyd J, stated that, “ no words
or singing are equivalent to an assault”

In the case of Read vs. Coker (1853) CP, a rent collector had gone into certain premises and
stated that he would not leave unless he had been paid. The tenants told him that they would beat
him if he did not go. They rolled up their sleeves and advanced to the rent collector. The court
stated that were words are accompanied by actions, they could sufficiently amount to an assault.
The defendant and his servants advanced on the complaint, rolling up their sleeves, tacking in
their aprons and threatening to break P’s neck if he did not leave the premises. The court held
that there was no doubt that this was an assault. Words may negate an assault.
In Tuberville vs. Savage (1669) 1 Mode Rep 3, the defendant took hold of his sword saying,
“if it were not assize time, I would not take such language from you”. The grabbing of the sword
could clearly have constituted an assault, but the words indicated that the defendant had no
intention of using his sword.
In Blake vs. Bernard (1840) 9 C&P 626, a man put a gun to the head of another and said, “be
quiet or I blow your brains out”. The court held that there was no assault because if the person
did what he was told, no assault would take place. Glanville Williams [1957] Crim L.R. @220,
critizes this view and states that “otherwise indeed the highway man who says, your ‘money ‘or
your ‘life ’at the same time presenting a weapon, would not be guilty of assault at common law-
a proposition which is impossible to believe.”

ASSAULT OCCASIONING ACTUAL BODILY HARM

Section 247 of the Penal Code reads, Any person who commits an assault occasioning actual
bodily harm is guilty of an offence and is liable to imprisonment for a term not exceeding five
years, with or without corporal punishment.
Section 2(1) of the Penal Code defines “Harm” as follows, Any bodily hurt, disease or disorder,
whether permanent or temporary. In relation to its consequences as contrasted with assault
common, they are more severe. In DPP vs. Smith 1961 AC 290 Viscount Kilmuir L.C. stated
that the words ‘bodily harm’ needed no explanation and that grievous meant ‘really serious’. It
was, thus, taken to follow that ‘actual bodily harm’ means something less ‘than really serious
harm’. Therefore, assault occasioning actual bodily harm should not be grievous or aggravated.
This offence requires first that the prosecution establish a common assault. The prosecution must
further prove bodily harm.
In the case of State vs. Hirschfeldt and Another 1987 BLR 344 , Hallchurch J, s stated that the
ingredients for assault occasioning actual bodily harm were: a) assault, and b) actual bodily
harm- actual bodily harm need not be injury of a permanent nature, nor need it amount to what
was considered grievous bodily harm. It includes any hurt or injury calculated to interfere with
the health or comfort of the victim
Bodily harm should be some scar, swelling, or some kind of disorder. If there is no such bruise to
the body, it cannot amount to assault occasioning bodily harm. This mainly borders on the issue
of causation, that it is this blow that caused this swelling or scar, or some kind of disorder
.In R vs. Miller [1954] 2 ALL ER 529, the issue was whether hysteria and a nervous condition
could amount to assault occasioning actual bodily harm. Lynskey J, in delivering his judgment
held that actual bodily harm includes any hurt or injury calculated to interfere with the health or
comfort of the prosecutor. “There was a time when shock was not regarded as bodily harm, but
he day has gone by when that could be said. It seem to me now that, if a person is caused hurt or
injury resulting not in any physical injury, but in an injury to the state of his mind for the time
being, that is within the definition of actual bodily harm.”

ASSAULTING A POLICE OFFICER IN THE DUE EXECUTION OF HIS DUTY

Section 249(a) of the Penal Code reads,

a) Any person who assaults any person with intent to commit an offence punishable under this
Code with death, or with imprisonment for three years or more, or to resist or prevent the lawful
apprehension or detainer of himself or any person for any offence,
b) Assaults, resists or willfully obstructs any police officer in the due execution of his duty, or
any person acting in the aid of such officer,
c) ……Is guilty of an offence and is liable to imprisonment for a term not exceeding five years.
The purpose of this offence is to ensure that police officers are protected when performing their
duties. For a person to be charged under this section there must be, An assault, resistance, or
obstruction of a police officer, Who is in the due execution of his duty. For the offence to be
sustainable, the arrest should be lawful. The police officer should not exceed his mandate.
Therefore if the police officer purports to make an unlawful arrest, they will not be acting in the
due execution of their duties. If it is an offence that demands a warrant, then it should first be
obtained.
In the case of State vs. Setshameko 1974-75 BLR 53, the court held that it what had ensued was
a mere heated argument that did not warrant an arrest and as such they had a right to resist an
unlawful attack. Aguda J, elucidated, “…if a police officer is acting illegally in the discharge of
his duty or he is exceeding his authority, he cannot be held to be acting in the execution of his
duty, and it would not be an offence under the section to assault, resist, or obstruct him”.
In the case of State vs. Shamukuni Munikasu 1968-1970 BLR 255, it was held that there was no
obligation on the accused to remain in attendance at the police station and to abide interrogation
of the witnesses. He was not under arrest and there was nothing g preventing him from going on
as he did. It was held by Dendy Young CJ, that the police officer committed an unlawful assault
upon the accused in trying to detain him and he was therefore at liberty to employ reasonable
force to resist the assault on him.

MENS REA FOR ASSAULT

In Fagan vs. Metropolitan Police Commissioner 1969 QBD, it was held that an assault is any act
which intentionally or possibly recklessly causes another person to apprehend immediate and
unlawful personal violence. To constitute this offence, some intentional act must have been
performed, The defendant intended to cause another to apprehend the immediate infliction of
unlawful force, Intended to inflict unlawful force on another, Consciously took an unjustified
risk.
DEFENCES TO ASSAULT
1. Consent- State vs. Hirshfield and Another 1987 BLR 344
2. Necessity
3. Lawful correction/ Parental chastisement- Abel vs. The State 2007(2) BLR 720 C.A
4. Self defence

UNLAWFUL WOUNDING
Section 233(a) of the Penal Code reads, Any person who
a) Unlawfully wounds another is guilty of an offence, and is liable to imprisonment for a term
not exceeding 7 years…Section 2(1) of the Penal Code defines a “wound” as, Any incision or
puncture, which divides or pierces any exterior membrane of the body, any membrane, is
exterior for the purposes of this definition which can be touched without dividing, or piercing
any other membrane.
In Moriarty vs. Brookes (1834) 6 C&P 684, the court held that wounding required the breaking
of the continuity of the whole skin. A single drop of blood is sufficient, but the blood should
drop outside the body.
In State vs. Baipheti 1984 BLR, the court noted that a wound is a tear which divides the skin.
O’Brien Quinn looked at the Oxford Dictionary meaning of laceration, which meant a tear in the
skin. Accordingly, a laceration is a tear which divides the skin and therefore a wound as
envisaged by section of the Penal code. The complainant had sustained what was medically
stated as a “very minor laceration on the left side of the lumber region”.
In State vs. Seleke 1997 BLR 422, the accused was convicted of unlawful wounding. The
accused slashed the victim with a knife several times. Medical reports were tendered as evidence
of the stab wounds.
Gyeke-Dako J. held that this was indeed wounding. He further went on to state that for the
prosecution to succeed, they must establish beyond reasonable doubt that, The subject person or
complainant was wounded, The wound or wounds were inflicted by no other person but the
accused, The accused did so unlawfully, in that there were no circumstances which afford legal
justification for his conduct Kwame Frimpong and Alexander McCall Smith in their textbook,
“The Criminal Law of Botswana” argue that a tear caused by ‘say, a blow with the fist’ should
not properly be treated as wounds. They conclude that it is only lacerations caused by sharp
objects that constitute wounds as envisaged by the Penal Code. However, it must be noted that it
is not the object you use, but the result that ultimately attracts a charge of unlawful wounding

GRIEVOUS HARM
Section 230(1) of the Penal Code reads as follows,
Subject to the provisions of this section, any person who unlawfully causes grievous harm to
another by the use of any offensive weapon or any other means whatever is guilty of an offence
and shall, where there are no extenuating circumstances, on conviction, be sentenced to a term of
imprisonments of not less than 7 years or more than 14 years.
Section 2(1) of the Penal Code defines grievous harm as
Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures
health, or which is likely to injure health, or which extends to permanent disfigurement or to any
permanent or serious injury to any external or internal organ, membrane or sense.
Grievous harm is an aggravated form of bodily harm. Sense, as envisaged by section 2(1) of the
Penal Code may also include psychologically induced impairments.
The common law does not give a very comprehensive definition of grievous harm. In State vs.
Baatsi Joseph 1983, Review Case No. 52 of 1983, the victim suffered a deep wound in the chest
and two superficial wounds on the hand and on the elbow. O’Brienn Quinn CJ, held that the
wounds suffered by the victim did not amount to grievous harm.
In the case of State vs. Seheru 1982 BLR 159, on appeal it was held that, a slightly chipped
tooth fell short of constituting grievous harm. Hannah J went on further to say that while it may
be said that a chipped tooth constitutes disfigurement in the sense of a blemish, it is used more in
the sense of a deformity of some kind.
In DPP vs., Smith 1961 AC 290, grievous harm has been defined as “really serious harm”.
In George vs. The State [2001] 1 BLR 365, an attempt was made to define grievous harm. The
judge
quoted Archbold, and stated that “grievous harm means injury which is really serious but not
necessarily dangerous to health.”
It can therefore be said that the offence of grievous harm is reserved only for those serious
injuries, such as broken bones, ribs, etc…