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(1911) JELR 87000 (QDC)

Queensland District Court  •  8 Aug 1911  •  Australia

(Chubb J.)



The appellant was convicted of a common assault. The material evidence in support of the complaint was as follows: The respondent, accompanied by two other men, went to the appellant's residence to interview a boy named Richter. While the respondent was speaking to the boy, the appellant came out, and ordered the boy to go inside. After using some abusive language to the three men, the appellant went into her house, and returned carrying a rifle, which she admitted to be a .447 shot repeating Winchester, and which is well known to be a breech-loading rifle. She appeared to open the breech, and to place something in it, and it was heard to click. She then placed the butt of the rifle to her right shoulder, and pointed the muzzle 207at the respondent, who was standing within seven yards of her, saying, “This is my law for you bastards. If the lot of you don't clear out of this, I will put something in your bloody arses.” The respondent was armed with a revolver, which he did not draw. In cross-examination, he said, “I did not think it was time to use my revolver when a loaded rifle was pointed at me and my mates. The reason why I did not use the revolver was to give the defendant time to consider, and cool down before she began to shoot. I was not a bit scared.” At the close of the evidence for the prosecution, the solicitor for the appellant applied for a dismissal of the case on the grounds that there was no evidence to prove an assault, or to prove that the rifle was loaded. The Justice refused. The appellant then gave evidence; and although she admitted that she had the rifle in her hands, she alleged that it was not loaded, and denied that she pointed it at the respondent. She also admitted that she had cartridges in the house. The boy Richter gave similar evidence. The Justices convicted the appellant.

The definition of assault applicable to this state of facts is “a person who, by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.” The Criminal Code, s. 245.

To point a loaded firearm at any one is an assault. Reg v. James , per Tindal C.J.[11] . In R v. St. George [12] , Parke B. was of opinion that it is an assault to present a pistol at all, whether loaded or not, if the person pointed at believes the weapon to be loaded, and is thereby put in fear and alarm. In Osborne v. Veitch [13] , Willes J. said, “Pointing a loaded gun at a person is in law an assault,” and did not qualify this by saying the person pointed at must be thereby put in fear. See also East, Pleas of the Crown, p. 406. In Blake v. Barnard [14] , part of the cause of action was “presenting a pistol at the plaintiff, and threatening to shoot him,” and Lord Abinger C.B., in summing up, said that if the pistol was not loaded, it would 208be no assault and it was for the plaintiff to prove that it was. In The Queen v. Cleary [15] , where the prisoner presented a pistol, which was not loaded, at the prosecutor, who was within two or three yards, saying at the same time, “It's loaded; I'll blow your brains out,” the Full Court held there was no assault, because the weapon was powerless to injure by being discharged, and the threat was harmless. This case was questioned in R. v. Hamilton [16] , where the pistol presented was loaded. All these cases were before our Criminal Code was passed and undoubtedly received consideration by its framers. The Code section added nothing new to the law, and the definition of an assault purports to be an exact statement of the law as then interpreted by the Courts. As to the element of intention, every person is presumed to intend the consequences of his acts. The Criminal Code, s. 4. Here the presenting of the rifle was accompanied by a threat to fire it, which was certainly inferential, if not positive, evidence that it was loaded. In my opinion, it is not material that the person assaulted should be put in fear, as observed by Parke B. in R v. St. George [17] . If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or a timid person. Possibly, the learned Baron, by the term “bodily fear,” only meant to imply apprehension or expectation, and not a physical fear, of assault. I am of opinion, therefore, that there was evidence on which the Justices, disbelieving the appellant's evidence, could reasonably find that the rifle was loaded, in which case, of course, the appellant having the actual “present ability” to effect her purpose, was guilty of assault. And, I think—if, in fact, the rifle was not loaded—the Justices, on the evidence, could find that she pretended that it was, and so had “apparently” a present ability to effect her purpose, and in that case was also guilty of assault. The rule must therefore be discharged, with costs.

Order nisi discharged, with costs.

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