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

I. 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.

II. 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

Ant 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….