ASSAULT08-Jun-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 8/6/2010
The offence of assault can be committed in two ways , either through the intentional or reckless application of unlawful force (at common law known as battery) or by intentionally or recklessly causing a person to apprehend immediate unlawful violence.
The elements for assault being:
Where physical force is actually applied
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.
Where no physical force is actually applied
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.
Generally, the elements of assault where physical force is actually applied are well understood unlike the elements for an assault where physical force is not applied and whether words alone can constitute the offence of assault. The authorities relating to this issue were considered by His Honour, Higgins CJ of the ACT Supreme Court in R v Gabriel  ACTSC 30 (20 May 2004). Whilst His Honours examination of the authorities relating to this issue are set out below in relation to the actus reus for assault – essentially, His Honour found that mere words could not constitute an assault unless accompanied by gestures or other circumstances that convey an apprehension of immediate physical force towards the complainant.
The mental element of recklessness has been considered in Stokes & Difford  51 A Crim R 25 and in R v Coleman (1990) 19 NSWLR 467. Where His Honour Hunt CJ at CL at 475 said, “…the degree of recklessness required in order to establish that an act was done maliciously was a realisation on the part of the accused that the particular kind of harm in fact done (that is, some physical harm – but not necessarily the degree of harm in fact so done) might be inflicted (that is, may possibly be inflicted) yet he went ahead and acted”. Hence, recklessness involves a realisation on the part of the accused of the possibility of some physical harm and with that realisation the accused continued to act in any event.
Extract from R v Gabriel  ACTSC 30 (20 May 2004) per Higgins CJ:
THE ACTUS REUS OF ASSAULT BY VERBAL THREATS
90. In the Criminal Code States (Queensland, Tasmania and Western Australia) and the Northern Territory the actus reus of assault is any act that "indicates an actual or apparent present ability to apply force" (NT - s 187B; Qld - s 245; Tas - s 182(1); WA - s 222).
91. The new ACT Criminal Code 2002 (commencing 1 January 2003) refers to "physical elements" rather than actus reus and "fault elements" rather than mens rea. Interestingly, pursuant to s 15, conduct of a person can only be a physical element of an offence "if it is voluntary" (s 15(1)) and a "voluntary" act must be "a product of the will of the person whose conduct it is". However, the Code presently does not define the "physical element" of assault. The Crimes Act 1900 (ACT) s 26 does not define assault. That is left to the common law.
92. The definition of assault adopted by James J in Fagan v Metropolitan Commissioner of Police  1 QB 439, at 444 has been approved and applied in many cases (for example, Attorney-General's Reference (No. 6 of 1980)  QB 715; R v Miller  QB 532). James J (with the concurrence of Lord Parker CJ and Bridge J) stated -
An assault is any act which intentionally - or possibly recklessly - causes another person to apprehend immediate and unlawful personal violence.
It includes a `battery' that is "the actual intended use of unlawful force to another person without his [or her] consent".
93. Their Lordships, at 444-5, addressed the issue of threatening words -
To constitute the offence of assault some intentional act must have been performed: a mere omission to act cannot amount to an assault. Without going into the question whether words alone can constitute an assault, it is clear that the words spoken by the appellant could not alone amount to an assault: they can only shed a light on the appellant's action.
94. The earliest case I have been able to find in which words were relied upon to charge assault was Tuberville v Savage (1669) 1 Mod 3 684. A question arose whether it was an assault for the plaintiff to lay his hand upon his sword and say "If it were not assize-time, I would not take such language from you." That was not assault. The Court also agreed however, that if a person "... hold up his hand in a threatening manner and say nothing, it is an assault."
95. Another early case is Stephens v Myers  EWHC J37 (KB); (1830) 4 Car & P 735; 172 ER 735. The defendant advanced on the plaintiff uttering a threat to pull the plaintiff out of his chair. He was not then close enough to do so. He was stopped before he could carry out his threat. Lord Tindal, CJ, held -
If he was so advancing, that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law.
96. There, of course, the threatening words were accompanied by actions evincing an intention immediately to carry out the threat and the defendant clearly had the means to do so.
97. Similarly, in R v Wilson  1 All ER 744, a poacher kicked a gamekeeper to the ground calling out, to fictitious accomplices, "get out knives". He was, of course, convicted of assault for the kick. The Court did, however, as an aside, state (at p 745):
He [the accused] called out "Get out knives", which itself would be an assault, in addition to kicking the gamekeeper.
98. In the United Kingdom, further consideration was given to the issue in R v Ireland; R v Burstow  UKHL 34;  AC 147. The appellant had made a number of threatening phone calls to three women. That caused each of them psychological damage. The second appellant had made a number of "silent" telephone calls in the context of offensive and threatening cards and notes. He was stalking her. She suffered severe psychological damage. The House of Lords considered that an assault might be committed by words or gestures alone, depending on the circumstances.
99. Lord Steyn said, with the concurrence of the other members of the House -
There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g., a man accosting a woman in a dark alley saying, "Come with me or I will stab you."...That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to me to be "Yes, depending on the facts."
It involves questions of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way "I will be at your door in a minute or two" may not be guilty of assault if he causes his victim to apprehend immediate personal violence.
Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intention. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the `possibility' of immediate personal violence.
As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller's potentially menacing call or calls on the victim.
100. Lord Hope of Craighead, whilst agreeing with Lord Steyn emphasised [166-7] that the fear to be intentionally created, to constitute assault, must be such as to cause "an apprehension of immediate and unlawful violence." The silent telephone call was different from a menacing silent presence in person (166G) -
... for him merely to remain silent with them in the same room, where they could see him and assess his demeanour, would have been unlikely to give rise to any feelings of apprehension on their part ...
101. If there was personal presence however, his Lordship said -
... it is not true to say that mere words or gestures can never constitute an assault. It all depends on the circumstances. If the words or gestures are accompanied in their turn by gestures or words which threaten immediate and unlawful violence, that will be sufficient for an assault.
102. It is, therefore, apparent that mere words, however threatening, will not constitute the actus reus of assault unless in the context of any accompanying gesture or other circumstance they convey a fear of immediate physical violence and are so understood.
103. There is a comment by Taylor J in Barton v Armstrong  2 NSWR 451 about words uttered over a telephone being capable of constituting an assault. It is noteworthy that the context was an application to strike out counts in a declaration alleging an assault and seeking damages in respect thereof (inter alia). The action also sought the setting aside of a deed upon the ground of duress.
104. At 454, his Honour stated -
... the earlier cases seem to establish that the gist of the offence of assault is putting a person into apprehension of impending physical contact. The effect on the victim's mind is the material factor, and not whether the defendant actually had the intention or the means to follow it up. The essence of assault is the expectation raised in the mind of the victim of physical contact from the threat of the defendant.
105. It is apparent that the recipient of a threat to punch him or her delivered by a telephone call could not reasonably believe that a punch was imminent. Nor could it reasonably be concluded that the words used were intended to produce such an irrational fear. However, to convey the impression that the recipient is about to be shot could well convey the impression that the caller then and there has the recipient of the call in the sights of a firearm and that harm was imminent.
106. Taylor J adverted to such a case at 455 -
To telephone a person in the early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words. If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that he is being followed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then why is this not something to put him in fear or apprehension of immediate violence?
In the age in which we live threats may be made and communicated by persons remote from the person threatened. Physical violence and death can be produced by acts done at a distance by people who are out of sight and by agents hired for that purpose. I do not think that these, if they result in apprehension of physical violence in the mind of a reasonable person, are outside the protection afforded by the civil and criminal law as to assault.
107. To this point, the opinion expressed by Taylor J is clearly appropriate. It depends on the terms of the threat conveyed in the context of the case whether an assault has been committed. If, for example, the victim had been sent a letter conveying a death threat by shooting and the perpetrator then made an ominous phone call conveying the impression that the victim was at imminent risk those words would constitute the actus reus of assault.
108. However, if the fear so intentionally created is of harm in the future, not being the immediate future, then whilst the fear may be equally harmful and distressing to the victim, it would not fulfil the requirement of immediacy or imminence that is an element of an assault not involving a battery.
109. It was for that reason, to protect such persons, who may be as damaged as if the threat was of imminent violence, that the legislature enacted, by amendment to the Crimes Act, the offences of threat to kill (s 30) and threat to inflict grievous bodily harm (s 31).
Whilst it is an element of those offences that the victim should reasonably fear "the threat would be carried out", the element of imminence in relation to the harm threatened is not a requirement.
Stalking is an offence under s 35. It includes conduct falling short of immediate or even overt threats of violence if, inter alia, the intent of the stalker is to create a fear of harm, physical or mental. It is not a necessary element of that offence that the person stalked should fear that the harm in question will be immediately carried out.
110. Clearly, in Barton's case, it may have appeared at trial, once evidence had been given, that the threats did intentionally create a fear of imminent violence, rather than violence at some more remote time in the future.
111. Taylor J, did attempt to answer the question "How immediate does the fear of physical violence have to be?" His Honour, answered that question in the following terms, at 455 -
In my opinion the answer is it depends on the circumstances. Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times, unspecified and uncertain ...
... If the threat produces the fear or apprehension of physical violence then I am of opinion that the law is breached, although the victim does not know when that physical violence may be effected. (emphasis added)
112. It is consistent with prior authority that if the fear intentionally engendered is of physical violence to be inflicted either imminently or at a more remote time, the presence of the former aspect of the fear will cause the threat to fall within the bounds of the crime of assault. Nor does the word "imminent" mean that the violence will commence without any delay. It is enough that it be "soon" that is, in the immediate future. Stephens v Myers (supra) is an illustration of that, though it does not necessarily define the outer time limit of imminence.
113. However, in my view, the words emphasised above, do go beyond the notion of imminent execution of it as a necessary element of the intended threat of physical harm.
114. I note that in Macpherson v Beath (1975) 12 SASR 174 a conviction for assault was upheld in circumstances where the defendant, a university student, with other students, harassed a lecturer with a view to persuading him to drop a previous charge of assault against the defendant. The group demanded that the lecturer speak to them. He had to abandon a meeting. His progress around the university was impeded. Hostile and rude remarks were addressed to him. The lecturer feared physical violence.
115. Bray CJ noted at p 177 -
The actus reus of an assault where there is no actual physical contact is an act of the defendant raising in the mind of the victim the fear of immediate violence to him ...By violence I mean any unlawful physical contact.
116. It was found as a fact that the defendant had intended to engender such fear. It was not relevant whether the fear was of violence emanating from the defendant personally or from those with whom he was acting in concert.
117. It seems to me, that Macpherson v Beath does no more than apply the conventional position as to the actus reus of assault absent a battery, though the facts were unusual. It does not support the elimination of the element of threatened immediate physical violence.
118. More recently, there is the case of R v Knight (1988) 35 A Crim R 314. The victim was a Magistrate. The accused had been an unsuccessful defendant in an assault case. The latter telephoned the Magistrate's home. He used obscene and threatening language to the Magistrate's daughter over the telephone, though the Magistrate heard some part of it. The threats included, "I had him in my rifle sights", "we are going to put a bomb at his front gate", "I will poke your fucking eyes out with a screw driver" and "I'm going to shoot you. I was going to shoot you last night but I will leave it to tonight [at] your party".
119. Lee J (Carruthers and Loveday JJ agreeing) noted and adopted Taylor J's reasoning in Barton v Armstrong (supra) allowing that, in appropriate circumstances, threats over the telephone could amount to an assault but did not adopt the whole of his Honour's opinion. Lee J said, at 318 -
Some of the remarks of his Honour in that judgment would suggest perhaps that the element in assault that the violence be immediate, that is that there be a fear of immediate violence was not always necessary and that the word `immediate' could be stretched to perhaps cover events in the future.
It is to be remembered that his Honour was dealing with an interlocutory application where the principle applicable is that a cause of action is not to be struck out unless lack of cause of action is clearly demonstrated ... In the circumstances, I do not regard the decision in Barton v Armstrong as absolutely requiring the view that his Honour has finally held, that fear of immediate violence has other than its ordinary literal import.
120. In R v Knight, the accused had made similar calls to the arresting police officer and the District Court Judge who had rejected the defendant's appeals. Despite the vile and chilling nature of the phone calls in this case, engendering fear of violence at least at some future time, Lee J found them to form no basis for a reasonable person to fear immediate violence.
The assault convictions based on those and similar calls were set aside. It was noted that the same facts could have provided a basis for prosecution under the Telecommunications Act 1975 (Cth). Now, of course, the threat to kill or do grievous bodily harm provisions or stalking would be available as vehicles for the prosecution of such conduct.
121. In Zanker v Vartzokas (1988) 34 A Crim R 11 reference was made to the judgment of Zelling J in Macpherson v Brown (1975) 12 SASR 184 a decision relating to a similar but earlier incident than that the subject of MacPherson v Beath (supra).
In this case, the defendant was, on appeal, acquitted on the basis that the Special Magistrate had found him guilty despite expressing doubt that the defendant had an intention to create the fear of physical force that the group's activities had engendered. It was not sufficient that he had intended unlawful confinement or that he ought to have known that the requisite fear for assault might reasonably be engendered.
122. Jacob J agreed with both Bray CJ and Zelling J that a false imprisonment may, but does not necessarily involve an assault, with or without actual physical contact, but agreed with Bray CJ that the doubt expressed as to the intent to cause fear of such hostile physical contact made it impossible to support the conviction of the appellant.
123. Zelling J, in dissent, considered that the use of the group of students by the appellant created a fear in the victim of physical violence from them as he must have known it would and so he was guilty of assault.
124. Zanker v Vartzokas (supra) raised a similar issue to that raised in Macpherson v Brown. The victim accepted a lift in a van being driven by the accused. After it started moving, the accused asked for sexual favours. The victim rejected this request and demanded to be let out.
The accused not only refused this, thus falsely imprisoning the victim, but also threatened her saying "I am going to take you to my mate's house. He will really fix you up". Frightened for her safety, the victim leapt out of the moving vehicle suffering some actual injury.
125. The Magistrate accepted that the victim feared that "at some time in the future" she would be unlawfully assaulted and that the accused intended her so to fear. As that was not, in the Magistrate's opinion, a fear of "immediate violence" the charge of assault was dismissed.
126. On appeal, White J noted that the threat was of violence that included its perpetration very shortly. He said at 14 -
A present fear of relatively imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual violence was to occur.
127. White J considered that threat to have been a continuing one, presumably up to the moment the victim leapt from the moving vehicle.
128. White J expressed similar reservations to those expressed by Lee J (supra - R v Knight) concerning Taylor J's observations as to the feared immediacy of violence engendered by an oral threat. However, his Honour did made the point that (at 16) -
The striking difference in the facts in the appeal before me is that the fearful victim of future physical harm was not at liberty but always at the mercy of the defendant.
129. With respect to his Honour, and recognising that the accused's conduct was deserving of punishment, to do so by unnecessarily forcing it into the confines of the definition of assault, seems to me to be wrong in principle.
The ordinary meaning of the term "immediate" is that the consequence follows "at once, without delay" (The Concise Oxford Dictionary 5th Edition).
The term "imminent" means "impending, soon to happen". I do not consider that a consequence which is not to follow without delay but which may or may not happen in the more distant future satisfies this requirement.
The mere fact that the victim is held captive under threat of violence does not seem to me to warrant a conclusion that the threat is of "immediate" or "imminent" violence.
Of course, the apparent time between the threat and its execution must involve some lapse of time. A fist formed and shaken may indicate an impending blow. That blow, if struck, may take a few seconds to follow.
It is also important to note that for the presented fist to constitute an assault, it does not matter that the accused does not strike the blow or that he or she has no intention to do so.
The issue is the identification of the threat, next what the victim concludes from the threat, and, finally, what he or she was intended by the accused to conclude.
130. I agree entirely with Crispin J in R v Bailiff  ACTSC 79 (16 August 2002) at par 21 -
An offence of assault is constituted by any act committed intentionally, or possibly recklessly, which causes another person to apprehend immediate and unlawful violence: If force is actually applied, either unlawfully or without the consent of the recipient, then a battery is committed.
In the absence of any such application of force, there must be some threatening act sufficient to raise in the mind of the person threatened a fear or apprehension of immediate violence.