Assault

[5-000] Common assault prosecuted by indictment

Section 61 of the Crimes Act 1900 provides:

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

[5-010] General principles

Definitions

An assault is any act — and not a mere omission to act — by which a person intentionally — or recklessly — causes another to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147. Thus it is the fear which is the gist of assault.

Battery is the actual infliction of unlawful force on another. But the word “assault” has come to describe both offences: see DPP v JWH (unrep NSWSC, 17 Oct 1997).

Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at 472 described an assault in the common law sense of the word as follows: “Such an assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault.”

Apprehension of immediate and unlawful personal violence

A number of cases have considered the element of immediacy with regard to the requirement of a threat of immediate violence and the following propositions may be deduced from the cases.

Perhaps the concept was most widely construed in Barton v Armstrong [1969] 2 NSWR 451 at 455 where it was held that if the threat produces an immediate fear or apprehension of physical violence, there may be an assault, although the complainant does not know when the physical violence may be effected. Barton v Armstrong was considered and distinguished in R v Knight (1988) 35 A Crim R 314.

There need be no intention or power to use actual violence or power, for it is enough if the complainant on reasonable grounds believes that he or she is in danger of it. Indeed, if it later appears that no violence was intended, it is sufficient if the complainant or a reasonable person thinks that it is intended. Thus, in Zanker v Vartzokas (1988) 34 A Crim R 11 a young woman accepted a lift from the accused. While the van was moving, the accused accelerated the vehicle saying: “I’m going to take you to my mate’s house. He will really fix you up.” She was put in fear and jumped out of the moving vehicle. This was held to be an assault on the basis that the complainant was put in fear of relatively immediate imminent violence which continued to have effect as the vehicle continued toward the threatened destination while she was unlawfully imprisoned and at the continuing mercy of the accused. Again, Barton v Armstrong was distinguished.

A threat to strike a person even at such a distance as to make contact impossible may constitute an assault if it instils a fear of immediate violence in the mind of the victim: R v Mostyn [2004] NSWCCA 97 at [71].

Recklessness — recklessly causing another to apprehend immediate and unlawful violence

In the case where no physical force is actually applied, and the Crown relies upon recklessness, it is necessary to prove that the accused realised that the complainant might fear that he or she would then and there be subjected to immediate and unlawful force, but none the less went on and took that risk.

In the case where physical force is actually applied, it is necessary to prove that the accused realised that the complainant might be subjected to unlawful force, however slight, as a result of what the accused was about to do, but yet took the risk that that might happen: see R v Savage; DPP v Parmenter [1992] 1 AC 699.

Hostile intent

There is no general proposition that the intentional application of force to the person of an unwilling victim cannot constitute unlawful assault at common law unless it be accompanied or motivated by positive hostility or hostile intent on the part of the assailant towards the complainant. Such hostility or hostile intent may however, convert what might otherwise be unobjectionable as reasonably necessary for the common intercourse of life into assault by precluding an excuse or justification of assistance or rescue: Boughey v The Queen (1986) 161 CLR 10 at 27.

[5-020] Suggested direction — assault where no physical force is actually applied

The accused is charged that the accused did on the [day] of [month] at [location] assault the complainant. Assault is a word in common, everyday use. No doubt it immediately conjures up in your minds the image of one person striking another person physically, whether with a hand, a fist or perhaps some hand held implement. In most cases, any such striking would also be regarded by the law as an assault.

However, there are differences between the law and what is perhaps ordinary, everyday speech. For example, if I raise my hand at you in a menacing fashion and thereby cause you to fear that you are about to be struck, then the law says that I have assaulted you. Ordinary use of the word assault would probably not have extended that far. It is, therefore, necessary that I should tell you what an assault is in law.

An assault is any act by which a person intentionally, or recklessly, causes another person to apprehend immediate and unlawful violence. There are four elements which constitute an assault. They are:

1. 

An act by the accused which intentionally, or recklessly, causes another person (the complainant) to apprehend immediate and unlawful violence.

2. 

That such conduct of the accused was without the consent of the complainant.

3. 

That such conduct was intentional or reckless in the sense that the accused realised that the complainant might fear that the complainant would then and there be subject to immediate and unlawful violence and none the less went on and took that risk.

4. 

That such conduct be without lawful excuse.

[The relevant evidence should be related to the four elements set out above, together with the competing arguments]

The Crown must be able to satisfy you beyond reasonable doubt of each of the four elements which I have mentioned, before you may convict the accused of assault.

[5-030] Suggested direction — assault where physical force is actually applied

The accused is charged that the accused did on the [day] of [month] at [location] assault the complainant.

The Crown contends that the accused [here outline the specific physical force which the Crown contends constituted the assault]. There are four elements which constitute an assault. They are:

1. 

A striking, touching or application of force by the accused to another person (the complainant).

2. 

That such conduct of the accused was without the consent of the complainant.

3. 

That such conduct was intentional or reckless in the sense that the accused realised that the complainant might be subject to immediate and unlawful violence, however slight as a result of what he or she was about to do, but yet took the risk that that might happen.

4. 

That such conduct be without lawful excuse.

[The relevant evidence should be related to the four elements set out above, together with the competing arguments]

The Crown must be able to satisfy you beyond reasonable doubt of each of the four elements which I have mentioned, before you may convict the accused of assault.

[5-040] Notes

1. 

Should any issue of intention or voluntariness arise, it will have to be pointed out to the jury that the Crown must prove that the act was voluntary and intentional, not merely accidental. Should any issue of “lawful excuse” arise, that will also have to be dealt with for example, by pointing out that the Crown must prove beyond reasonable doubt that the assault was not consented to, or that the accused was not acting in lawful self defence.

2. 

As to mens rea, a person using unnecessary violence to push through a crowd would have the necessary intent: R v Court [1988] 2 WLR 1071 at 1073–1074.

3. 

Mere use of words may in certain circumstances amount to an assault: R v Tout (1987) 11 NSWLR 251 at 254–255. Threats made over the phone have been held to amount to more than “mere words” depending on the circumstances: Barton v Armstrong [1969] 2 NSWR 451 at 455. Mere silence, as in silent telephone calls, may constitute an assault: R v Burstow; R v Ireland [1998] AC 147.

4. 

The following passage from para 19–175 of Archbold, Criminal Pleading, Evidence and Practice, 2004, Sweet and Maxwell, London, is instructive.

The effect [of the fundamental principle that every person’s body is inviolate] is that everybody is protected not only against physical injury but against any form of physical molestation: Collins v Wilcock 79 Cr App R 229, DC. There are exceptions, for example, the correction of children, the lawful exercise of the power of arrest, the use of reasonable force when the necessity to act in self-defence arises. Further, a broader exception exists which caters for the exigencies of everyday life such as jostling in crowded places and touching a person for the purpose of engaging his attention. The approach to the facts of any particular case where there is an element of persistence in the touching should not be unreal. In each case, the test must be whether the physical contact so persisted in has in the circumstances gone beyond generally acceptable standards of conduct.

[5-050] Examples of assault

The following examples of assault, which may be of assistance to trial judges, are set out in para 19–172 of Archbold.

  • Striking at a person with a stick or a fist is an assault, even though the person striking misses the aim; drawing a weapon such as a knife or throwing a bottle or glass with intent to wound or strike, will constitute an assault; so will any other like act indicating an intention to use violence against the person of another: Martin v Shoppe (1837) 3 C & P 373.

  • To strike a horse causing the rider to fall, would be an assault. An act may cause grievous harm or other injury, yet not constitute an assault. Causing a deleterious drug to be taken by another is not an assault: R v Walkden (1845) 1 Cox 282.

  • An unlawful imprisonment is also an assault: Hunter v Johnson (1884) 13 QBD 225 (detention of a child after school hours by a master, without lawful authority).

  • For a discussion of s 58 of the Crimes Act 1900 (assault with intent to commit a serious indictable offence on certain officers) and s 60 (assault and other actions against police officers), see DPP v Gribble [2004] NSWSC 926.