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Criminal Law in Solomon Islands

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Chapter 31: Common Assault

Table Of Contents 






Wording Of Charge






 [31.4.1] Introduction


 [31.4.2] Consent


 [31.4.3] Defence Of Person Or Property


 [31.4.4] Corporal Punishment




Multiplicity Of Acts




Related Offences




[31.0] Introduction 

This chapter will examine the offence of 'Common Assault', as provided for by section 244 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 47.


[31.1] Offence 

Section 244 of the Penal Code (Ch. 26) states: 

'Any person who unlawfully assaults another is guilty of a misdemeanour, and, if the assault is not committed in circumstances for which a greater punishment is provided in this Code, shall be liable to imprisonment for one year.'


[31.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did unlawfully assault a person namely [specify the name of the complainant].'


[31.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Unlawfully 

E. Assault 

F. Complainant


[31.4] Unlawfully


[31.4.1] Introduction 

An act or omission is 'unlawful' unless it is authorised, justified or excused by law. 

The prosecution has the burden of proving the 'unlawfulness' of the defendant's actions, see R v Williams (1984) 78 CrAppR 276 [[1984] CrimLR 163] at page 281 & R v May (1912) 8 CrAppR 63; [1912] 3 KB 572, per Lord Alverstone CJ at page 575.


[31.4.2] Consent 

The prosecution must prove that the absence of consent, see R v Brown (A.) [1994] 1 AC 212; [1993] 2 AllER 75; [1993] 2 WLR 556; (1993) 97 CrAppR 44. 

In Attorney – General's Reference No. 6 of 1980 (1981) 73 CrAppR 63 [[1981] QB 715; [1981] 2 AllER 1057; [1981] 3 WLR 125; [1981] CrimLR 533] Lord Widgery CJ, delivering the judgment of the Court, stated at pages 65 - 66: 

'For convenience we use the word "assault" as including "battery", and adopt the definition of James J in FAGAN V METROPOLITAN POLICE COMMISSIONER (1968) 52 CrAppR 700, 703; [1969] 1 QB 439, 444, namely "… the actual intended use of unlawful force to another person without his consent", to which we would respectfully add 'or any other lawful excuse'. 


'The answer to the question [, "Where two persons fight (otherwise than in the course of sport) in a public place can it be a defence for one of those persons to a charge of assault arising out of the fight that the other consented to fight?,] in our judgment, is that it is not in the public interest that people should try to cause or should cause each other actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in private or in public; it is an assault if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent. 

Nothing which we have said is intended to cast doubt upon the accepted legality of properly conducted games and sports, lawful chastisement or correction, reasonable surgical interference, dangerous exhibitions, etc. These apparent exceptions can be justified as involving the exercise of a legal right, in the case of chastisement or correction, or as needed in the public interest, in the other cases.' (emphasis added) [words in brackets added] 

In R v Richardson [1998] 2 CrAppR 200 Otton LJ, delivering the judgment of the Court of Appeal, held at page 206: 

'The concept of informed consent has no place in the criminal law. It would also be a mistake, in our view, to introduce the concept of a duty to communicate information to a patient about the risk of an activity before consent to an act can be treated as valid. The gravemen of the appellant's conduct in the instant case was that the complainants consented to treatment from her although their consent had been procured by her failure to inform them that she was no longer qualified to practice. This was clearly reprehensible and may well found the basis of a civil claim for damages. But we are quite satisfied that it is not a basis for finding criminal liability in the field of offences against the person.'


[31.4.3] Defence Of Person Or Property 

The law relating to the 'Defence Of Person Or Property' is examined commencing on page 451.


[31.4.4] Corporal Punishment 

In R v Rose [1987] SILR 45 Ward CJ stated at pages 50 – 51: 

'[W]hen this defence is raised, the Court must consider, on the facts, whether the punishment is reasonable and the question of whether it offends section 7 of the Constitution should be borne in mind as part of that assessment. Any infliction of corporal punishment on a child that was inhuman or degrading must, in the light of that provision, be unreasonable punishment. 


In determining whether the conduct was degrading, the section should be interpreted in the light of present day conditions and the commonly accepted standards in this country at this time. Whilst the very old cases established the defence of reasonable correction, the generally accepted standard of what is reasonable has changed radically since then. If the manner of inflicting corporal punishment is outside the standards normally accepted and expected today, the possibility that the victim will feel humiliated is increased.' 

Section 233(4) of the Penal Code (Ch. 26) states: 

'Nothing in this section shall be construed as affecting the right of any parent, teacher, or other person, having the lawful control of a child or young person to administer reasonable punishment to him.'


[31.5] Assault 

In R v Kimber (1983) 77 CrAppR 225 Lawton LJ, delivering the judgment of the Court, stated at page 228: 

'An assault is an act by which the defendant intentionally or recklessly causes the complainant to apprehend immediate, or to sustain, unlawful personal violence.' 

An act causing a complainant to apprehend an imminent application of force is an assault, see Fagan v Metropolitan Police Commissioner (1968) 52 CrAppR 700; [1969] 1 QB 439 [[1968] 3 AllER 442; [1968] 3 WLR 1120] at pages 703 & 444 respectively. 

In Fairclough v Whipp (1951) 35 CrAppR 138 [[1951] 2 AllER 834] Lord Goddard CJ, with whom Hilbery & Slade JJ concurred, stated at pages 139 – 140: 

'An assault can be committed without there being battery, for instance, by a threatening gesture or a threat to use violence made against a person, but I do not know of any authority that says that, where one person invites another person to touch him, that can amount to an assault. The question of consent or non – consent arises only if there is something which, without consent, would be an assault on the latter. [… I] cannot hold that an invitation to somebody to touch the invitor can amount to an assault on the invitee.' 

In R v Rolfe (1952) 36 CrAppR 4 Lord Goddard CJ, delivering the judgment of the Court, held at page 6: 

'An assault can be committed without touching a person. One always thinks of an assault as the giving of a blow to somebody, but that is not necessary. An assault may be constituted by a threat or a hostile act committed towards a person, and if a man indecently exposes himself and walks towards a woman with his person exposed and makes an indecent suggestion to her that, in the opinion of this court, can amount to an assault.' 

In R v Ireland; R v Burstow [1998] 1 CrAppR 177 [[1998] AC 147] Lord Slynn of Hadley, with the other members of the House of Lords concurred, stated at page 190: 

'It is to assault in the form of an act causing the victim to fear an immediate application of force to her that I must turn. Counsel argued that as a matter of law an assault can never be committed by words alone and, therefore, it cannot be committed by silence. The premise depends on the slenderest authority, namely, an observation by Holroyd J to a jury that "no words or singing are equivalent to an assault": Meade and Belt (1823) 1 Lew. 184. The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, eg. A man accosting a woman in a dark alley saying "come with me or I will stab you". I would, therefore, reject the proposition that an assault can never be committed by words. 

That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to me be "yes, depending on the facts". It involves questions of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way "I will be at your door in a minute or two" may not be guilty of an assault if he causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intentions. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the possibility of immediate personal violence. As a matter of law the call may be guilty of an assault: whether he is or not will depend on the circumstances and in particular on the impact of the caller's potentially menacing call or calls on the victim. Such a prosecution case under section 47 may be fit to leave to the jury. And a trial judge may, depending on the circumstances, put a common – sense consideration before the jury, namely what, if not the possibility of imminent personal violence, was the victim terrified about? I conclude that an assault may be committed in the particular factual circumstances which I have envisaged. For this reason I reject the submission that as a matter of law a silent telephone caller cannot ever be guilty of an offence under section 47.' (emphasis added) 

Lord Hope of Craighead commented at pages 193 – 194: 

'As Swinton Thomas LJ observed in the Court of Appeal [1996] 2 CrAppR 426, 429, [1997] QB 114, 119D, that […] it has been recognised for many centuries that putting a person in fear may amount to what in law is an assault. This is reflected in the meaning which is given to the word "assault" in Archbold Criminal Pleading, Evidence and Practice (1997), p. 1695 para. 19-166, namely that an assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. This meaning is well vouched by authority: see Venna (1975) 61 CrAppR 310, [1976] QB 421; R v Savage (1992) 94 CrAppR 193, 214, [1992] 1 AC 699, 740F, per Lord Ackner.' (emphasis added) 

The law relating to 'Voice Identification' is examined commencing on page 200

See also: Director of Public Prosecutions v Taylor & Director of Public Prosecutions v Little (1992) 95 CrAppR 28; [1992] 1 AllER 299; [1992] 2 WLR 460; [1992] 1 QB 645; Director of Public Prosecutions v Rogers (1953) 37 CrAppR 137; [1953] 1 WLR 1017; [1953] 2 AllER 644; R v Venna [1976] QB 421 at page 428 – 429; (1976) 61 CrAppR 310 at 314; [1975] 3 WLR 737; [1975] 3 AllER 788; [1975] CrimLR 701; R v Harrow Justices, Ex parte Osaseri (1985) 81 CrAppR 306; [1985] 3 WLR 819; [1986] QB 589; [1985] 3 AllER 185; [1985] CrimLR 784; R v Lynsey [1995] 2 CrAppR 667; [1995] 3 AllER 654; R v Roberts (1971) 56 CrAppR 95; Collins v Wilcock [1984] 1 WLR 1172; [1984] 3 AllER 374; (1984) 79 CrAppR 229; [1984] CrimLR 481; R v Lamb [1967] 2 QB 981, [1967] 2 AllER 1282; [1967] 3 WLR 888; (1967) 51 CrAppR 417 & Smith v Chief Superintendent Woking Police Station (1983) 76 CrAppR 234; [1983] CrimLR 323.


[31.6] Multiplicity Of Acts 

In R v T [1993] 1 QdR 454 the Court of Criminal Appeal stated at page 455: 

'The question arises – what is an offence? 

If A attacks B and, in doing so, stabs B five times with a knife, has A committed one offence or five? 


In many different situations comparable questions could be asked. 

In my view, such questions when they arise are best answered by applying common sense and by deciding what is fair in the circumstances. 

No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Lord Widgery CJ in a case where it was being considered whether an information was bad for duplicity: see Jemmison v Priddle [1972] 1 QB 489, 495. 

I agree respectfully with Lord Widgery CJ that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. 

It must, of course, depend upon the circumstances. 

[…] The question is whether that series of acts may reasonably be regarded as one transaction or as comprising one offence: In R v Morrow and Flynn (CA 120 and 122 of 1990 CCA unreported 30th August 1990) Connolly J observed: 

"It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings, but one must ask oneself whether this would be an application of common sense in terms of Lord Morris's speech". 

His Honour further observed: 

"For my part I see no objection to charging the incident as one offence, provided always that it is clear what the offender is charged with. Similarly, a series of penetrations by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts as long as they are not seen to be separate and distinct in time and circumstance […]'" (emphasis added) 

Therefore, it may be proper for the prosecution to charge a defendant for a single offence although it may comprise of a number of acts. For example, if a complainant is punched eight times such circumstances do not necessarily require that the defendant should be charged with eight charges of assault because each act is an assault as defined. The prosecution should apply common sense in deciding whether to prosecute the defendant for more than one offence in such circumstances. The duration and circumstances of the offence are obvious important factors to be considered. 

The law relating to 'Duplicity' is examined commencing on page 86.


[31.7] Jurisdiction 

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

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


[31.8] Related Offences 

The following offences are related to the offence of 'Common Assault' as provided for in the Penal Code (Ch. 26): 

·                     'Assaults Causing Actual Bodily Harm', section 245 of the Penal Code (Ch. 26) which is examined commencing on page 570

·                     'Assaults On Magistrates & Other Persons Protecting Wrecks', section 246 of the Penal Code (Ch. 26); and 

·                     'Assaults Punishable With Two Years Imprisonment', section 247 of the Penal Code (Ch. 26) some of which are examined commencing on page 590.

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