Assault is fear or apprehension of immediate/unlawful contact (Darby) Battery is the actual application of force without consent, lawful excuse or justification At common law, an assault is any act committed intentionally or recklessly, that causes another person to apprehend immediate or unlawful violence. If force is actually applied, directly or indirectly, and unlawfully, without the consent of the person assaulted, the assault becomes a battery, however slight the force (Fagan)
Both assault and battery are often described as ‘assault’ and the use of the word in offences within the Crimes Act includes both forms of assault. However, a distinction remains (Darby v DPP (NSW) (2004)) and battery can be committed without assault, for instance, when A strikes B from behind without warning and assault can be committed without battery.
Common or simple assault – it is our base offence,
Aggravated assault – s 61 offence- so a common offence with the presence of aggravated circumstances/ factors usually e.g. injury or nature of victim. For example it is an aggravating factor if the victim is a police, is a child.
The Conduct Element (actus reus) of Assault
The actus reus is the unlawful contact in applying force to another, or the act of creating fear of immediate unlawful contact. Fear per say is not required and mere anticipation of an assault is sufficient (Brady v Schatzel; Ex parte Brady (1911). Assault cannot be committed unless or until the victim is aware of the accused‟s actions (Pemble v R (1971) Touching an individual’s clothes is regarded as touching the person (R v Day and R v Thomas). Spitting at and contacting the person of another with spittle is a sufficient application of force to constitute a battery/assault (DPP v JWH). A mere omission to act cannot constitute an assault unless it is part of a continuing act (Fagan).
In relation to the use of threats, the victim must be (Knight; Zanker v Vartzokas): 1. Put in fear, and
2. The harm threatened must be sufficiently imminent
Apprehension of immediate force
Facts: D made threatening (relating to death and bodily injury) and abusive telephone calls to a police officer, magistrate and judge. Apart from the calls, which were traced to D at a considerable distance from the targets, there was no evidence in relation to the assault charges.
Approved Fagan v Metropolitan Commissioner of Police,that is, an assault was an act which causes another person to apprehend immediate violence (cf. immediately apprehend violence). In the present case, the NSWCCA held that the threat was not immediate enough to constitute an assault.
Note: With the advent of mobile phones it is unclear whether Knight could still be validly applied.
Zanker v Vartzokas(1988)
Facts: A young woman accepted a lift from D. While the van was moving, D accelerated the vehicle and offered her money for sexual favours. She rejected his offer and demanded that he stop to allow her to get out but he drove on. However, he accelerated and said that “I am going to take you to my mate‟s house. He will really fix you up”. The woman then opened the door and leapt onto the roadside. There was no evidence to suggest that D had touched or gestured towards the woman.
Held that the words spoken in the context of a fast moving vehicle which confined her to the cabin of the van induced immediate and continuing fear in the victim so long as she was imprisoned by D even though it was clear that the threat would be carried out in the future and there was no indication whether the “mate’s house” was nearby or not. If the words were not spoken in the same context it is unlikely that assault would be established. Note: The notion that it was necessary for the victim to have “reasonably believed” in D‟s intention and power to inflict violence with the help of his “mate” appears to be at odds with the...
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