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Chapter 35: Assault With Intention

Table Of Contents  

[35.0] Introduction 

This chapter will examine the offence of 'Assault With Intent', as provided for by section 247(a) of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Offences Against The Person Act 1861 (UK), section 18.

[35.1] Offence 

Section 247(a) of the Penal Code (Ch. 26) states: 

'Any person who – 

(a)                assaults any person with intent to commit a felony or to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence, 

is guilty of a misdemeanour, and shall be liable to imprisonment for two years.'

[35.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did assault a person namely [specify the name of this person] with intent to [commit a felony to wit (specify the felony) or (resist or prevent) the (lawful apprehension or detainer) of ([himself/herself] or a person namely [specify name of person]) for an offence to wit (specify the offence)].' 

[35.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Assault 

E. Complainant 

F. Intent 

G.        [i] Commit A Felony; 

[ii]        [1] Resist; or 

[2] Prevent 

[A] Lawful Apprehension; or 

[B] Detainer

 Of 

[I] Himself/Herself; or 

[II] Person 

 For An Offence

[35.4] Assault 

The element 'Assault' is examined commencing on page 564.

[35.5] Intent To Commit A Felony 

Section 247(a) of the Penal Code (Ch. 26) requires that the defendant must assault another person with intent to commit a felony. At the time of the assault the prosecution must prove 'beyond reasonable doubt' that the defendant had that intention. 

Intention, which is a state of mind, can never be proven as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of this offence, 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to commit a felony, see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

The felony intended to be committed does not necessarily have to relate to the person assaulted. 

The defendant may after the commission of the assault either: 

·                     commit the felony intended; 

·                     attempt to commit the felony intended; or 

·                     change his/her mind and not commit the felony intended. 

Under each of those circumstances the defendant would still be guilty of this offence. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444. 

The term 'Felony' is defined in section 4 of the Penal Code (Ch. 26) as meaning: 

'an offence which is declared by law to be a felony or, if not declared to be a misdemeanour, is punishable, without proof of previous conviction, with imprisonment for three years or more.'

[35.6] Intent To Resist Or Prevent Lawful Apprehension Or Detention

[35.6.1] Introduction 

Section 18 of the Penal Code (Ch. 26) states: 

'Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.' (emphasis added)

[35.6.2] Intent 

Section 247(a) of the Penal Code (Ch. 26) requires that the defendant must assault another person with intent to resist or prevent the lawful apprehension or detention of himself/herself or of any other person. At the time of the assault the prosecution must prove 'beyond reasonable doubt' that the defendant had that intention. 

Intention, which is a state of mind, can never be proven as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of this offence, 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant intended to resist or prevent the lawful apprehension or detention of himself/herself or of any other person, see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22). 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444.

[35.6.3] Resist 

The term 'Resist' is not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

However, the 'natural and ordinary' meaning of that term in the context of this section would include opposing by force some course of action which the police officer resisted is attempting to pursue, see R v Galvin (No. 2) [1961] VR 740. 

In Collins v Murray, Ex parte Murray [1989] 1 QdR 614 the case involved two police officers who each had hold of the defendant, one officer on either side, attempting to effect the defendant's arrest for another offence. The defendant pulled away, screaming and yelling. The defendant was charged with two counts of resisting police in the execution of their duty. 

The court held that one bodily movement of twisting and struggling constituted resisting each of the two police officers in the execution of their duty; the one bodily movement on the part of the defendant gave rise to two charges. However, Williams J, with whom the other members of the court concurred, stated at page 618: 

'In my view […] the second charge is constituted by the "gist or gravemen" of the former and it would be an harassment of the accused to charge him with two several offences. […] The magistrate should have recorded a conviction on one of those charges and forever stayed the other; […] The penalty with respect to the conviction recorded should reflect the overall criminality of the conduct constituting the offence.'

[35.6.4] Lawful Arrest Or Detention 

The element relating to the 'lawful arrest or detention' is examined in the chapters titled: 

·                     'Power To Arrest' commencing on page 242; and 

·                     'Power To Enter & Search' commencing on page 256.

It should be noted that: 

·                     both police officers and civilians have the power to arrest under the Criminal Procedure Code (Ch. 7); and 

·                     police officers have the power to detain a person for the purpose of a search under the Criminal Procedure Code (Ch. 7).

[35.6.5] Defence 

In R v Lee [2001] 1 CrAppR 293 Rose LJ, delivering the judgment of the Court, stated at pages 294 – 296: 

'[D]oes the mens rea for assault with intent to resist lawful apprehension [under section 38 of the Offences Against The Person Act 1861 (UK)] include an absence of honest belief in the defendant that the arrest was lawful? 

[…] 

In Bentley (1850) 4 CoxCC 408, Talfourd J put the point at page 410 in a way which in our judgment is still good law: 

"I think that, to support a charge of resisting a lawful apprehension, it is enough that the prisoner is lawfully apprehended, and it is his determination to resist it. If the apprehension is in point of fact lawful, we are not permitted to consider the question, whether or not he believed it to be so, because that would lead to infinite niceties of discrimination. The rule is not, that a man is always presumed to know the law, but that no man shall be excused for an unlawful act from his ignorance of the law. It was the prisoner's duty, whatever might be his consciousness of innocence, to go to the station – house and hear the precise accusation against him. He is not to erect a tribunal in his own mind to decide whether he was legally arrested or not. He was taken into custody by an officer of the law, and it was his duty to obey the law." 

[…] 

In our judgment, once the lawfulness of the proposed arrest is established, the mens rea necessary for a section 38 offence is an intention by the defendant to resist arrest, accompanied by knowledge that the person he assaults (who may or may not be a police officer) is a person who is seeking to arrest him. Whether or not an offence has actually been committed or is believed by the defendant not to have been committed is irrelevant.' (emphasis added) 

In Horne v Coleman (1929) 46 WN(NSW) 30 the Court held: 

A constable, whether in uniform or not, or at a time outside his/her ordinary working hours or not, has a continuing duty to prevent, or assist in preventing disturbances in public places, or breaches of peace. A person who strikes a constable who is in plain clothes at a time outside his/her ordinary hours and who is arresting him/her for the commission of a disturbance in a public place or a breach of peace, is guilty of the offence of assaulting a constable in the execution of his/her duty. 

However, police officers not in uniform should at all times ensure that people who they are dealing with are aware that they are members of the RSIP. Otherwise, a defendant may not realise that the person he/she is assaulting or resisting or wilfully obstructing is a police officer. Those circumstances may enable such a defendant to 'fairly raise' the defence of 'Mistake Of Fact' which is examined commencing on page 439. 

See also: Duncan v Jones [1936] 1 KB 218; [1935] AllER 710.

[35.7] Jurisdiction 

The jurisdiction of the Courts in respect of the offence of 'Assault With Intent' is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of that offence is examined commencing on page 918.

[35.8] Related Offences 

Refer also to the other 'Assaults Punishable With Two Years Imprisonment' as provided for by section 247 of the Penal Code (Ch. 26). Subsection (b) of that section is examined commencing on page 595.