R v Agius Clarifies What Constitutes a Limb 2 Assault

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R v Agius [2015] QCA 277 is a recent Queensland Court of Appeal case which clarifies the requisite bodily acts or gestures needed to prove a limb 2 assault under s245 of the Criminal Code Act 1899 (Qld) (“the Act”). In this case, the Accused was initially convicted of attempted robbery (of which assault is an element) but had this conviction successfully appealed after analysis by the court of what constitutes an act or gesture of threatened violence (limb 2 assault).

The case highlights the necessity for those charged with assault to speak to a Brisbane Criminal Lawyer – a charge of assault does not automatically mean a person is guilty of the crime.  For more information on s 245 of the Criminal Code read our Assault page here.

Facts

On 21 May 2013, Agius (“the Accused”) entered a pharmacy at the Noosa Fair Shopping Centre on the Sunshine Coast. The Accused asked to speak to a pharmacist and shortly after was introduced to Andrew Feichter (“the Complainant”). The Accused handed the complainant a piece of torn cardboard (fashioned from a medicine container) with the words:

“IMMEDIATELY (sic)

2 X 80 MG OXY CONTIN

2 X 40 MG II

PLEASE MATTER OF LIFE AND DEATH AND NO ONE GETS HURT”

Mr Feichter responded to the Accused’s act by saying he could not supply the Accused with medicine without a script from a doctor. The Accused then asked whether the pharmacy stocked the drugs, to which Mr Feichter replied, “Yes, but they are locked in a safe.”

 The Accused promptly reached across the counter and attempted to “grab” the cardboard back. Mr Feichter took a step back and said he was keeping the cardboard. The Accused then left the store.

During cross-examination Mr Feichter indicated that the Accused did not attempt to come behind the counter towards the dispensary, or continue to grab at the note after Mr Feichter had refused to give it up.

The Accused was charged under s412 of the Act for Attempted Robbery.

Charge – Attempted Robbery

Attempted Robbery is prescribed under s412 of the Act as:

 “Any person who assaults any person with intent to steal anything, and, at or immediately before or immediately after the time of the assault, uses or threatens to use actual violence to any person or property in order to obtain the thing intended to be stolen, or to prevent or overcome resistance to its being stolen, is guilty of a crime, and is liable to imprisonment for 7 years.”

In this case “assault” was an element of the crime.

 The Court discussed that the Criminal Code recognises two forms of assault which were historically different offences. These were battery (limb 1) and assault (limb 2). By virtue of the first limb, an assault involves an actual physical application of force; a second limb assault involves an attempted or threatened application of force.

Issue

The issue before the Court of Appeal was whether the second limb definition of assault had been met on the evidence on the case. That is, whether the note with the implicit threat was enough to constitute a limb 2 assault for the purposes of proving attempted robbery.

Held

The Accused’s appeal against conviction was allowed.

Reasons

The prosecution argued that the handing over of the cardboard note with a demand for pharmaceutical goods was  what constituted a “bodily act or gesture”, and that the Accused had an actual and present ability to carry out the threat. The Court of Appeal rejected this argument.

The Court explained that while words alone cannot constitute an assault they may be taken into account in conjunction with an act or gesture to render the actions collectively as threatening.

For example in Fogden v Wade, the Accused’s conduct of following so closely to a girl as to be able to touch her in conjunction with indecent words of suggestion was held to be assault. The bodily act was enough to indicate a threat of molestation; the words further supported this threat.

Similarly in Stephens v Myers the defendant advanced upon the complainant in a threatening manner with a clenched fist after being told he was to be turned out of a meeting. This bodily act was made further intimidating by the Accused’s verbal threat that he would rather “pull the chairman out of his chair” than be turned out. Thus, even though the Accused was not near enough to strike the complainant, the advancement in a threatening attitude constituted assault in law.

The Court distinguished these cases from the current case, in that the bodily act here was not enough to constitute a threat to apply force, regardless of the words transcribed on the cardboard.

It further held that the bodily act of handing the note to the pharmacist did not manifest in itself an intention to assault, or what an ordinary person would reasonably construe as an intention.

The key word here, the Court explained, is a threat to apply force “by” a bodily act or gesture.

Their Honours Fraser, Philippides JJA and Bond J held that “The threat of handing over the note was the means of communicating an implied threat but, even so, clearly there was no threat to apply force “by” that act itself”.

The Accused, therefore, did not assault Mr Feichter and consequently appealed his conviction of attempted robbery.

Written by Matthew Shearing.