Brown v Blake [2000] WASCA 132

Cramer v The Queen, unreported; FCt SCt of WA; Library No 980620; 28 October 1998

Wayne [1992] NTSC 42; (1992) 62 A Crim R 1

1 HEENAN J: On 7 January 2000 after trial in the Court of Petty Sessions at Perth Mr P G Thobaven SM convicted the appellant of unlawfully assaulting Jennifer Louise Ward and thereby causing her bodily harm. Now the appellant seeks to have the conviction set aside.

2 The charge arose out of an incident on the evening of 15 August 1999 outside a shop in Langford. The prosecution case was that the incident began when another woman punched Ms Ward in the face and pulled her hair, causing her to fall to the ground. While she was sitting there the other woman had hit her four or five times in the head and the appellant had kicked her twice to the stomach on the right side, near her ribs. In evidence, the appellant said that when she was kicked she felt pain which "lasted for a couple of days". Because of the pain she went to see her doctor on the following day, but he gave her no treatment. The medical report which was accepted into evidence made no reference to any injury in the region of Ms Ward's ribs or stomach.

3 At the end of the prosecution case counsel for the appellant submitted that the evidence could not establish that Ms Ward had suffered bodily harm. Had the submission been accepted, there would have been no case to answer. Unlawful assault no longer is an indictable offence and a verdict of guilty of that offence, although established by the evidence, was not open (see Scatchard v The Queen (1987) 27 A Crim R 136). As it happened, the submission failed. Having expressed the view that the testimony of Ms Ward would support a finding that she had suffered residual pain - that is, pain for some time after the event - his Worship concluded that on the evidence before him he "could be satisfied that there has been bodily harm". The appellant then elected not to give evidence. Following further submissions his Worship delivered oral reasons at the end of which he found the appellant guilty as charged.

4 The expression "bodily harm" is defined in s 1(1) of The Criminal Code (WA) as "any bodily injury which interferes with health or comfort". There is no doubt that the kicks to her stomach interfered with Ms Ward's comfort, and so the appeal is based solely on the ground that there was no evidence that the kicking caused "bodily injury".

5 In The New Shorter Oxford English Dictionary "injury" is described inter alia, as "Hurt or loss caused to or sustained by a person or thing; harm, detriment; damage, esp. to the body; an instance of this." The definition is not so specific as to relieve this Court of deciding what the word means in this context. In Scatchard's case at 137 Burt CJ said:

"... When used as a noun the word 'hurt' is synonymous with injury, and when used as a verb its primary meaning is to cause bodily injury or to inflict injury upon. But when used to describe pain ... I do not think that the word necessarily carries with it the meaning that a bodily injury was being or had been done .... In other words, while bodily injury can cause the sensation of pain, a sensation of pain does not of itself and without more require one to say that there has been a bodily injury ...

It is not necessary for the purposes of this appeal to attempt a definition of 'bodily injury'. It is, I think, enough to say that to apply force to another which 'hurts' in the sense of producing a sensation of pain is not of itself and without more to do that person a 'bodily injury' and without such an injury the sensation of pain cannot of itself and without more satisfy the definition of 'bodily harm'."

For present purposes, I take "bodily injury" to mean something in the nature of damage to bone, muscle, tendon, skin, organ or any part of which the human body is constructed. The word relates to more than merely a sensation of pain.

6 In this case the question to be answered is whether, in the light of the evidence before him and in the absence of expert evidence as to the significance of the pain of which Ms Ward complained, the learned Magistrate was entitled to infer that she had suffered damage to part of her body and not merely the sensation of pain. In my opinion the learned Magistrate was entitled to draw that inference. The available evidence was meagre, but I am satisfied that as a matter of ordinary human experience one knows that, if pain has lasted, as Ms Ward said, for a couple of days then the body has suffered damage. In such a case the pain originates from the damage and is more than merely "a perception activated by a stimulus", the phrase used by Kennedy J in Scatchard at 138.

7 In my opinion the learned Magistrate was entitled to find that in this case there was bodily injury amounting to bodily harm. The appeal, therefore, fails.