Anything interfering with the health or comfort of victim which is more than merely transient or trifling has been held by Australian courts to be "actual bodily harm".
Whosoever shall be convicted upon an indictment of any assault occasioning actual bodily harm shall be liable ... to be kept in penal servitude ...; ...
The words "with or without hard labour" at the end were repealed for England and Wales by section 1(2) of the Criminal Justice Act 1948.
The second form of assault is an act causing the victim to apprehend an imminent application of force upon her: see Fagan v. Metropolitan Police Commissioner [1969] 1 Q.B.
As it was put in one of the old cases, it had got to be shown to be his act, and if of course the victim does something so "daft" in the words of the appellant in this case, or so unexpected, not that this particular assailant did not actually foresee it but that no reasonable man could be expected to foresee it, then it is only in a very remote and unreal sense a consequence of his assault, it is really occasioned by a voluntary act on the part of the victim which could not reasonably be foreseen and which breaks the chain of causation between the assault and the harm or injury.
In Rex v. Donovan,[26] Swift J., in delivering the Judgement of the Court of Criminal Appeal, said: For this purpose, we think that "bodily harm" has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor.
There will be a risk that language will be used which suggests to the Jury that it is sufficient that the assault has interfered with the heath or comfort of the victim, whether or not any injury or hurt has been caused.R v Chan-Fook also followed the case of R v Metharam,[31] in which Ashworth J had said: It is a misdirection to adopt the old formula and invite a jury to find a man accused of wounding with intent to do grievous bodily harm guilty if the only intent established is one to interfere seriously with the health or comfort.In R v. Morris (Clarence Barrington),[32] Potter LJ., in delivering the judgement of the Court of Appeal said (the citations that he quotes from the textbook are omitted): What constitutes "actual bodily harm" for the purposes of section 47 of the 1861 Act is succinctly and accurately set out in Archbold (1997 ed.)
Actual bodily harm is capable of including psychiatric injury but it does not include mere emotion, such as fear, distress or panic ..." In DPP v. Smith (Michael Ross),[33] Judge P. said: "Actual", as defined in the authorities, means that the bodily harm must not be so trivial or trifling as to be effectively without significance.
[35] In DPP v Smith (Michael Ross), the defendant held down his former girlfriend and cut off her ponytail with kitchen scissors a few weeks before her 21st birthday.
The divisional court allowed an appeal by the Director of Public Prosecutions, rejecting the argument for the defendant that the hair was dead tissue above the scalp and so no harm was done.
Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it.
[citation needed] It has been accepted that actual bodily harm includes any hurt or injury that interferes with the health or comfort of the victim, and which is more than transient or trifling.
As Creswell J. commented in his short concurring judgment: To a woman her hair is a vitally important part of her body.
Where a significant portion of a woman's hair is cut off without her consent, this is a serious matter amounting to actual (not trivial or insignificant) bodily harm.The Crown Prosecution Service has revised the guidance in its publication "Offences Against the Person, Incorporating the Charging Standard" due to the enactment of section 58 of the Children Act 2004 which provides that reasonable chastisement is not a defence to the offence of assault occasioning actual bodily harm.
[36] The charging standard states: "The offence of Common Assault carries a maximum penalty of six months' imprisonment.
ABH should generally be charged where the injuries and overall circumstances indicate that the offence merits clearly more than six months; imprisonment and where the prosecution intend to represent that the case is not suitable for summary trial."
[41] Where a person is convicted on indictment of assault occasioning actual bodily harm, other than an offence for which the sentence falls to be imposed under section 227 or 228 of the Criminal Justice Act 2003, the court, if not precluded from sentencing an offender by its exercise of some other power, may impose a fine instead of or in addition to dealing with him in any other way in which the court has power to deal with him, subject however to any enactment requiring the offender to be dealt with in a particular way.
[44] This means that sections 227 and 228 of the Criminal Justice Act 2003 (which relate to extended sentences) apply where a person is convicted of assault occasioning actual bodily harm, committed after the commencement of section 227 or 228 (as the case may be) and the court considers that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.
[50] In England and Wales, section 29(1)(b) of the Crime and Disorder Act 1998 (c.37) creates the distinct offence of racially or religiously aggravated assault occasioning actual bodily harm.
In England and Wales and Northern Ireland, assault occasioning actual bodily harm is an offence against the person for the purposes of section 3 of the Visiting Forces Act 1952.
South Australia's section 20(4) of the Criminal Law Consolidation Act 1935 creates the offence of assault causing harm.