Unit 5 – Non Fatal Offences against

the Person
Learning Outcomes
• To understand offences against a person which fall short
of causing death;
• To distinguish the following offences;
ocommon assault;
oassault occasioning actual bodily harm;
ogrievous harm; and
owounding.
 Non- Fatal Offences Against The
Person
Refers to offences against a person which fall short of
causing death

This is an area of law which is inconsistent in the case of

the Penal Code (PC) & hence there is a need on urgent
reforms on the law.
 Common Assault & Battery
• Title of chapter XXIV of the penal code is Assault
• From the title of the chapter there is a presumption
that the chapter should address matters in relation to
the offence of Assault
• However contrary on the left margin of s.247 is the
phrase ‘Common assault’
• The terms ‘Common assault’ , assault’ & ‘battery’ are
often used interchangeably by laymen & even lawyers
• Under the PC the term ‘Common assault’ may seem to
imply that ‘assault’ & ‘battery’ not included under
Chapter XXIV may be treated to mean the same thing
• However ‘assault’ & ‘battery’ are two distinctive
offences
 Common Assault & Battery Cont’d
• Assault is putting someone in fear of immediate unlawful
force or violence
• Battery is the actual infliction of unlawful force or violence
on a person
• It is easier to understand the two offences by using the
terms ‘technical’ assault & ‘physical assault’
• ‘technical’ assault –used to describe assault
• ‘physical assault’ – used to describe battery
• Therefore the terms ‘common assault’ embodies two
separate offences
 Assault
• Absence of a definition of the meaning of the terms
‘common assault’, ‘assault’ or ‘battery’ in the PC;
• Therefore the analysis of AR & MR depends on principles
developed by Crts.
 Actus reus - Assault
• Actus reus of assault is any act including words spoken
by X which causes Z to apprehend immediate &
unlawful personal violence - R v. Savage (1992) 1 AC
699
• First requirement is the conduct;
• Secondly the conduct must be unlawful hence consent
may lead to the offender escaping criminal liability;
• Thirdly, the threat of the application of force or
violence must be imminent.
 Mens rea
• Of technical assault is the intentional or reckless causing
the victim to apprehend the possibility of imminent
violence ( R v. Savage).

• Reckless referred to is the Cunningham recklessness

(Subjective).
 Battery (Physical Assault)- Actus
reus
• Actus reus of battery is the act of infliction of force or
violence on a victim by the defendant
• Classic example an unwanted kiss would constitute a
battery [ Dungey (1866) 4 F & F 1066 , 176 ER 910]
• Spiting on somebody would also constitute a battery
provided that it was not accidental [Smith (1866) F & F
1066, 176 ER 910]
 Example of Assault Cases
• Battery (Physical Assault)- Mens rea

• Is that the D intends to inflict unlawful violence (or force)

on the victim

• Or it is done so recklesslyrecklessness)

• See - Kabika v. The people (1973) High Crt for Zambia

 Causing Bodily Harm

1. Assault Occasioning (causing) Actual Bodily Harm

(AOABH)
• The law is as set out PC, Cap 87, Section 248
• ‘Any person who commits an assault occasioning actual
bodily harm is guilty of a misdemeanour & is liable to
imprisonment for five years’
• However the section fails to define the phrase an assault
occasioning actual bodily harm
 Actus reus of AOABH
The following factors are essential:
1. There must be an assault
2. Which must then cause actual bodily harm
• occasioning - Causing or resulting to
• actual bodily harm – any hurt or injury which interferes
with the health or comfort of the victim [ R v. Miller
(1954) 2 QB 282
• Injury need neither be major nor trivial
 Mens rea of AOABH
Mens rea for S248 is the mens rea for assault or battery -
Violence or force caused intentional or reckless
• Kampangila v. The People (1969) ZR 59 (HC) - an abrasion
causing bleeding is not necessarily a "wound’

• Read - Maxwell Chanda v the People (1971) Z.R 34 (H.C)

 Grievous Harm
• The law set out S.229 Any person who unlawfully does
grievous harm to another is guilty of a felony & is liable to
imprisonment for seven years
• Grievous harm is defined under S4 PC

oMeans any harm which endangers life or which amounts

to maim or which serious or permanently injuries health
or which is likely so to injure health, or which extends to
permanent disfigurement, or any permanent or serious
injury to any external or internal organ, member or
sense;

• Penalty imposed is higher than that imposed under s.248

 Actus reus & mens rea of Grievous
Harm- S229
• Actus reus - Doing of grievous harm- serious harm
(inflicting) - Grievous harm- defined under s. 4 PC.
• mens rea – prosecution must prove either intention to do
grievous harm or recklessness
• See the case of TV Chibuye v. The people (1978) ZR 43 (HC)
 Unlawfully wounding or Poisoning
(Administering Poison)
• The law S232, PC, Cap 87
• Person who unlawfully wounds , injures, annoy or causes
any poison or other noxious thing to be administered to or
taken by any person
• ‘Is guilty of a felony
• Liable to 3 years imprisonment
• Look at s. 4 of the PC for the definition of a wound.
 Actus reus
• Wound defined in S4 PC- definition in PC seems to be
restricted to wounds caused by some instrument or
weapon with a cutting point .
• Need for both inner & outer skin need to be broken
(Lengwe v. The people (1976) Z.R 127, N’gambi v. The
people (1975) ZR 97 & Zakalia v. The people SC, 1978.
• No need for the prosecution to prove any assault.
• There must be wounding which occurred in an unlawful
manner [N’gambi v. The people (1975) ZR 97 ]
 Mens rea
• Prosecution must prove intention to wound despite the
fact that there is no reference to intention under s232(a)
• or realised that some harm will result from actions
undertaken.
• A wound amounts to actual bodily harm
• Any cut which may threaten the life of the victim should
be dealt with under S232 or 229.
 Reforms
• Do you think the wilful transmission of HIV Aids should be
criminalized?

• What would be the arguments for criminalising/refusal to

criminalise the act?