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7.4.8 - Common Law Assault

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Introduction

  1. Assault is an indictable common law offence in Victoria (R v Patton [1998] 1 VR 7). [1]
  2. Historically, a distinction was drawn between the offences of assault and battery:
  3. This distinction is no longer drawn. The offence of assault now incorporates both situations (which are addressed separately below) (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Pritchard v R (1999) 107 A Crim R 88).

    Assault Involving the Application of Force

    The elements

  4. Assault involving the application of force has three elements:
    1. The accused applied force to the complainant’s body;
    2. The application of force was intentional or reckless; and
    3. The application of force was without lawful justification or excuse.

    The accused applied force to the complainant’s body

  5. The prosecution must prove that the accused applied force to the complainant’s body (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439).
  6. The force applied need not be violent and may be as slight as a mere touch (Collins v Wilcock [1984] 1 WLR 1172).
  7. Force may be applied directly or through the medium of a weapon or instrument controlled by the accused (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Director of Public Prosecutions v K [1990] 1 WLR 1067; Pritchard v R (1999) 107 A Crim R 88; Darby v DPP (NSW) (2004) 61 NSWLR 558).[2]

    The application of force was intentional or reckless

  8. The prosecution must prove that the application of force was intentional or reckless (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Macpherson v Brown (1975) 12 SASR 184; R v Venna [1976] QB 421; R v O’Conner (1980) 146 CLR 6).
  9. For the application of force to have been "reckless", the accused must have realised that his or her conduct would probably result in force being applied to the complainant’s body (R v Crabbe (1985) 156 CLR 464; R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585).
  10. The accused will not have acted recklessly simply because he or she ought to have known that his or her conduct would result in such contact. The accused must have adverted to that likelihood (Edwards v Police (1998) 71 SASR 493; Fisher v Police (2004) 154 A Crim R 511).
  11. For more information on recklessness generally, see Recklessness.

    Lawful Excuse

  12. The prosecution must disprove, beyond reasonable doubt, any justifications or excuses that are open on the evidence (Zecevic v DPP (1987) 162 CLR 645).
  13. The following justifications and excuses are discussed below:

    Consent

  14. In some cases, the prosecution may need to prove that the complainant did not consent to the alleged assault (see, e.g., Neal v R (2011) 32 VR 454; R v Stein (2007) 18 VR 376; Parish v DPP (2007) 17 VR 412; [2007] VSC 494; R v McIntosh [1999] VSC 358).
  15. Whether consent is available as a lawful excuse will depend on:
  16. See Consent (Non-Sexual Offences) (topic not yet complete) for further information.

    Ordinary Social activities

  17. An act which is conducted as part of ordinary social activity will not constitute an assault (Collins v Wilcock [1984] 1 WLR 1172).
  18. Physical contact that is generally acceptable in the ordinary course of everyday life includes jostling on public transport or in a busy street (Collins v Wilcock [1984] 1 WLR 1172).

    Arrest

  19. A person exercising a lawful power of arrest is entitled to use reasonable force where necessary to effect the arrest (R v Turner [1962] VR 30).
  20. Resisting unlawful arrest may be a defence to assault. For more information about resisting arrest, see Statutory Assault.

    Lawful correction of children

  21. The lawful correction of children will generally not be an assault. However, there are strict limits on the rights of parents (or those in loco parentis) to inflict corporal punishment. The punishment must:
  22. Corporal punishment is not permitted in Victorian Government schools (Education and Training Reform Regulations (Vic), reg 14).

    Self-defence

  23. People can use reasonable force to defend themselves from unlawful violence, as long as they believe on reasonable grounds that what they are doing is necessary in self-defence and the other elements of the defence are met. The test differs depending on when the offence was alleged to have been committed. For offences committed before 1 November 2014, see Common Law Self Defence for further information. For offences committed on or after 1 November 2014, see Statutory Self-Defence.

    Ejecting a trespasser

  24. A householder is entitled to use reasonable force to eject a trespasser. However, where the person who enters is a licensee, he or she must be given reasonable time to leave before force can be used against him or her (Robson v Hallett [1967] 2 QB 939; Kay v Hibbert [1977] Crim LR 226).

    The accused’s acts need not be hostile

  25. In Victoria, hostility has sometimes been seen to be an element of assault involving the application of force. For example, some cases define assault as "a blow or other intentional application of physical force to the complainant’s body in a hostile manner without his [or her] consent and without lawful justification or excuse" (see, e.g., R v Holzer [1968] VR 481).
  26. However, the High Court has held that hostility or hostile intent is not a necessary requirement of assault. It is simply one of the factors to be taken into account when determining whether or not the force used was unlawful. Hostility may turn an otherwise unobjectionable act into an assault (Boughey v R (1986) 161 CLR 10).
  27. Thus, the absence of hostility does not, on its own, provide an excuse or justification for an assault (Boughey v R (1986) 161 CLR 10).

    Assault Not Involving the Application of Force

    The Elements

  28. Assault not involving the application of force has three elements:
    1. The accused committed an act that caused the complainant to apprehend the immediate application of force to his or her body;
    2. The accused intended his or her actions to cause such apprehension, or was reckless as to that outcome; and
    3. The accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.

    The accused caused the complainant to apprehend violence

  29. The prosecution must prove that accused committed an act that caused the complainant to apprehend the immediate application of force to his or her body (Knight v R (1988) 35 A Crim R 314; Fisher v Police (2004) 154 A Crim R 511; ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441; White v State of South Australia (2010) 106 SASR 521).
  30. Although the cases often refer to the accused "fearing" the application of force, the complainant does not need to have been frightened. He or she only needs to have apprehended that physical contact would be made without his or her consent (ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441).
  31. The contact apprehended by the complainant does not need to be grave. Apprehension of any application of force is sufficient (Macpherson v Brown (1975) 12 SASR 184; ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441).
  32. The complainant does not need to apprehend a specific act. This element will be met where the complainant does not know what the accused is going to do next, but believes that whatever it is, it is likely to be physically violent (Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234; R v Ireland [1998] AC 147).
  33. The complainant does not need to fear that the accused will apply the force personally. This element will be satisfied if the accused causes the complainant to apprehend the immediate application of force by a third party (Macpherson v Beath (1975) 12 SASR 174).
  34. This element may be satisfied even though the accused had neither the intention nor the ability to carry out his or her threat (e.g. where the accused points a replica gun at the complainant, but the complainant believes it to be real and apprehends its imminent use) (Barton v Armstrong [1969] 2 NSWR 451; Macpherson v Brown (1975) 12 SASR 184; R v Gabriel (2004) 182 FLR 102).
  35. For this element to be satisfied, the complainant must know about the accused’s actions (Pemble v The Queen (1971) 124 CLR 107). [3]
  36. Evidence that the complainant feared immediate violence can be inferred from his or her actions (e.g., fleeing or hiding from the accused) (R v Mostyn (2004) 145 A Crim R 304).

    The complainant must have feared the "immediate" application of force

  37. The complainant must have apprehended or expected the immediate or imminent application of force (Knight v R (1988) 35 A Crim R 314; R v Gabriel (2004) 182 FLR 102; ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441).
  38. Although there has been some confusion about this issue, it now seems clear that the question is not whether the complainant immediately apprehended the application of force (i.e., felt fear as soon as the threat was made), but whether he or she apprehended the immediate application of force (i.e., feared that force would be applied shortly) (Knight v R (1988) 35 A Crim R 314; Zanker v Vartzokas (1988) 34 A Crim R 11; R v Gabriel [2004] ACTSC 30; ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441. Cf Barton v Armstrong [1969] 2 NSWR 451; R v Mostyn (2004) 145 A Crim R 304).
  39. It is therefore not sufficient for the complainant to have immediately feared that force would be applied at some distant point in the future. The complainant must have apprehended that force would be applied immediately after the threat was made (Knight v R (1988) 35 A Crim R 314; R v Gabriel [2004] ACTSC 30; ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441. Cf Barton v Armstrong [1969] 2 NSWR 451; R v Mostyn (2004) 145 A Crim R 304).
  40. This does not mean that the complainant must apprehend that the force will be applied without delay. It is enough that the complainant apprehend that it will commence ‘soon’ (i.e., in the immediate future) (R v Gabriel (2004) 182 FLR 102).
  41. In some cases, while the complainant will fear the application of force, he or she will not be sure if it is likely to be applied immediately or at some more remote time. This element will be met as long as he or she apprehends the possibility of its immediate application (R v Gabriel (2004) 182 FLR 102).

    Continuing Threats

  42. A threat of violence may continue after the relevant words have been uttered (e.g., where the complainant is held prisoner by the accused, who has threatened to harm him or her later) (Zanker v Vartzokas (1988) 34 A Crim R 11).
  43. It has been held that in such cases, the requirement for "immediacy" will be satisfied if:

    The apprehension may have been caused by words or gestures

  44. While there has been some confusion over whether "mere words" can constitute an assault, it seems that they can (as long as they cause the complainant to apprehend the immediate application of force) (White v State of South Australia (2010) 106 SASR 521; Slaveski v State of Victoria [2010] VSC 441. See also Zanker v Vartzokas (1988) A Crim R 11; R v Ireland [1998] AC 147; R v Gabriel (2004) 182 FLR 102).
  45. A physical gesture may also cause the complainant to apprehend the immediate application of force (White v State of South Australia (2010) 106 SASR 521).

    Threats from a distance (e.g., telephone threats)

  46. There is no rule preventing a threat of violence made from a distance (e.g., a threat made over the telephone or by email) from constituting an assault (Slaveski v State of Victoria [2010] VSC 441. See also Barton v Armstrong [1969] 2 NSWR 451; R v Knight (1988) A Crim R 314; R v Mostyn (2004) 145 A Crim R 304).
  47. For such conduct to constitute an assault, all of the elements of the offence must be met – including the requirement that the complainant fear the immediate application of force (Slaveski v State of Victoria [2010] VSC 441; R v Knight (1988) A Crim R 314).
  48. Whether or not a threat made from a distance will constitute an assault will depend on the circumstances. For example:
  49. A silent telephone call may amount to an assault where it causes fear of immediate violence (R v Ireland [1998] AC 147).

    The apprehension does not need to have been reasonable

  50. Although not clear, [5] it seems that the complainant’s apprehension does not need to be reasonable (Macpherson v Beath (1975) 12 SASR 174; White v State of South Australia (2010) 106 SASR 521).
  51. Thus, if the accused intentionally puts in fear of immediate violence an exceptionally timid person known to him or her to be timid, the unreasonableness of the complainant’s fear may not prevent conviction (Macpherson v Beath (1975) 12 SASR 174).

    The fear was created intentionally or recklessly

  52. The second element the prosecution must prove is that the accused intended to cause the complainant to apprehend the immediate application of force, or was reckless as to that outcome (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Macpherson v Brown (1975) 12 SASR 184; Knight v R (1988) 35 A Crim R 314; White v State of South Australia (2010) 106 SASR 521).
  53. In relation to intention, the prosecution only needs to prove that the accused intended to create in the complainant’s mind an apprehension that force would be applied. They do not need to prove that he or she intended to actually apply force (ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441; White v State of South Australia (2010) 106 SASR 521).
  54. In relation to recklessness, the prosecution must prove that the accused realised that his or her conduct would probably cause the complainant to apprehend the immediate application of force (R v Crabbe (1985) 156 CLR 464; R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585).
  55. The accused will not have acted recklessly simply because he or she ought to have known that his or her conduct would cause the complainant to fear the application of force. The accused must have turned his or her mind to that likelihood (Edwards v Police (1998) 71 SASR 493; Fisher v Police (2004) 154 A Crim R 511).
  56. For more information on recklessness generally, see Recklessness 

    Lawful Justification or Excuse

  57. The third element the prosecution must prove is that the accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.
  58. See the discussion of lawful justification and excuse above (in relation to assault involving the application of force) for further information about this element.

    Notes

[1] In Victoria, a person may also be charged with assault under s31 of the Crimes Act 1958. See Statutory Assault.

[2] For example, it has been held that this element has been met where the force was applied via a car (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439) or a police dog (Darby v DPP (NSW) (2004) 61 NSWLR 558; [2004] NSWCA 431 per Giles JA).

[3] Thus, if the complainant is unaware of that fact that the accused is pointing a gun at the back of his or her head, there will be no assault (Pemble v The Queen (1971) 124 CLR 107).

[4] In such circumstances the accused may be guilty of another offence which does not contain an immediacy requirement, such as making a threat to inflict serious injury (R v Gabriel (2004) 182 FLR 102).

[5] In relation to the tort of assault, the apprehension created in the mind of the victim must be objectively reasonable (ACN 087 528 774 v Chetcuti (2008) 21 VR 559; Slaveski v State of Victoria [2010] VSC 441). However, it seems that this is not a requirement in the criminal law.

 

Last updated: 1 November 2014

In This Section

7.4.8.1 - Charge: Assault - Application of Force

7.4.8.2 - Checklist: Application of Force

7.4.8.3 - Charge: Assault - No Application of Force

7.4.8.4 - Checklist: No Application of Force

See Also

7.4 - Other Offences Against the Person

7.4.1 - Intentionally Causing Serious Injury in circumstances of gross violence

7.4.2 - Intentionally Causing Serious Injury

7.4.3 - Intentionally Causing Injury

7.4.4 - Recklessly Causing Serious Injury in circumstances of gross violence

7.4.5 - Recklessly Causing Serious Injury

7.4.6 - Recklessly Causing Injury

7.4.7 - Negligently Causing Serious Injury

7.4.9 - Statutory Assault

7.4.10 - Threats to Kill

7.4.11 - Threats to Inflict Serious Injury

7.4.12 - Stalking (From 7/6/11)

7.4.13 - Stalking (10/12/03 - 6/6/11)

7.4.14 - Conduct Endangering Life

7.4.15 - Conduct Endangering Persons

7.4.16 - Extortion

7.4.17 - False Imprisonment

7.4.18 - Child Stealing

7.4.19 - Kidnapping (Common Law)

7.4.20 - Kidnapping (Statutory)

7.4.21 – Common law riot

7.4.22 - Affray