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Assault is defined in s.31 of the Crimes Act 1958 (Vic). An assault is any act done with the intention to cause the victim an immediate apprehension of unlawful violence against him or her.

A person must not be consenting to the assault, as this would not be an assault at all. Please note that battery is usually linked with assault. It essentially means the intentional (direct or indirect) application of unlawful force to a person. Please remember that it is assault which involves apprehension of harm, and battery is actual harm. It is often used interchangeably with common law assault, and is done some impliedly at law and in the Crimes Act 1958 (Vic).

The mens rea (intention) of the offence can be satisfied by intention or recklessness as to do the act that caused the assault, see Fagan v Metropolitan Police Commissioner [1969] 1 QB 439. The actus reus (physical act) of the offence is constituted by the slightest degree of physical contact or touching. It does not necessarily have to be hostile, cause injury or hurt. If the application of the assault causes injury or serious injury then the accused can also be charged with causing serious injury or injury.

Conditional threat

Threats that are qualified by a condition which dispel the threat, will not be held to be assault. The famous English case of Tuberville v Savage [1699] EWHC KB J25 was a case where a man placed a hand on his sword and stated “If it were not assize-time, I would not take such language from you.” The court in that case held that the threat was dispelled by that comment. (NOTE: Assize-time was when the judges in medieval England travelled around the country dispersing law and order)

A more modern example is the case of Rozsa v Samuels [1969] SASR involving a defendant who was a taxi driver who jumped a queue at a taxi rank. Another taxi driver, annoyed at the jump in the queue, angrily threatened that he would punch the defendant in the head. The defendant brandished a knife and stated “I will cut you to bits if you try it.” In this circumstance the defendant was convicted of assault because he had not completely dispelled his threat.

Threats by words alone

If the threat is simply by words alone (with no physical component) then it can still qualify as assault. This was illustrated by the case of Zanker v Vartzokas (1988) 34 A Crim R 11 SASC.

FACTS: A young woman accepted a lift in the defendant’s car. He offered her money for sex. When she refused and asked to be let out of the car he said, “I am going to take you to my mate’s house. He will really fix you up.” She jumped out of the car and injured herself.

HELD: This threat by words alone not accompanied by any other physical threat was considered sufficient to constitute assault.

 This case also provides guidance on how direct the threat must be. Usually the threat of physical harm must be immediate i.e. “I am going to punch you.” But Zanker is a case that shows that the harm does not necessarily have to be temporally immediate. This is because the woman was in a locked car, and that even though the threat was in the distance, it was still relatively immediate.

Should you require a lawyer please feel free to contact Grigor Lawyers. It is highly advisable in indictable matters that you contact a legal practitioner. Grigor Lawyers can can advise and represent you in these matters.


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