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Assault

Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713. Johnson J. 29.6.12.

29 The legal ingredients of the crime of assault (sometimes described as common assault) were considered in McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549, where it was said at 558 [40]-[42]:

"[40] What is an assault? The traditional common law distinction between assault and battery has largely fallen away for the purpose of application of the modern law of assault. The distinction between assault and battery noted that an assault is an act which causes another person to apprehend the infliction of immediate unlawful force on his or her person, and a battery is the actual infliction of unlawful force on another person: R v Knight (1988) 35 A Crim R 314 at 316-317.

"Where the assault takes the form of a battery, what is required is an intentional touching of the victim without that person's consent and without lawful excuseFitzgerald v Kennard (1995) 38 NSWLR 184 at 192 and 200.

[41] A practical distinction is sometimes drawn between a physical assault (or battery assault) and psychic assault (or apprehended unlawful force assault): Fitzgerald v Kennard at 200-201; Mikhael v Conroy (Finlay J, 6 December 1990, unreported, BC9002962 at p 8-15); Lake Macquarie City Council v Morris (2005) 63 NSWLR 263 at 273-274 [48]-[49].

[42] It is not an element of the crime of assault that injury be caused to the victim. Any touching of another person, however slight, may amount to a physical assault. It has been said that the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: Department of Health and Community Services v JWB and SMB (1991-1992) 175 CLR 218 at 233 and 265-266Collins v Wilcock [1984] 1 WLR 1172 at 1177."

30 A series of related events during an incident may give rise to a single offence of assault, even where each act may be capable itself of constituting a separate offence of assault: Mikhael v Conroy (Finlay J, 6 December 1990, BC9002962 at pages 13-14); Lake Macquarie City Council v Morris [2005] NSWSC 387; 63 NSWLR 263 at 273-274 [48]-[49]Colquhoun v Magistrate Guy [2010] NSWSC 235 at [45].

 

Cooper v Mulcahy [2012] NSWSC 373. Macready AsJ.

109 I note that an assault consists of:

Intentionally creating in another person an apprehension of imminent harmful or offensive contact. If the threat is actually carried out, the whole incident is properly described as an 'assault and battery'. Usually both offences occur in rapid succession, and in common parlance the word 'assault' is frequently used as including a battery. But the one offence may be committed without the other.

A battery may be inflicted on a victim who does not expect it and therefore cannot complain of an assault, as where the victim is struck from behind without warning.

Conversely there may be an assault without battery if the threat to inflict lawful force is not in fact carried out.

Assault allows redress for the creation of an undesired emotional state unaccompanied by external injury. This is unusual for tort law, but it was decided at an early stage that assault warranted legal redress, partly as an aid to punishing offenders who had attempted to commit the crime of battery, partly because it minimised the temptation to retaliate.

Since the gist of assault lies in the apprehension of impending contact, the effect on the victim's mind created by the threat is the crux, not whether the defendant actually had the intention to follow it up.

The intent required for the tort of assault is the desire to arouse apprehension of physical contact, not necessarily to inflict actual harm.

Hence it is actionable to point a pistol for the mere purpose of frightening. It is sufficient if the threat would have aroused an expectation of physical aggression in the mind of a reasonable person not afflicted with exaggerated fears or peculiar and abnormal timidity.

But the plaintiff need not have been actually frightened: apprehension is not the same as fear, and one too courageous to be intimidated is nonetheless entitled to redress.

There must, however, be an apparent ability to carry out the threat immediately.

Lunging at someone who is obviously out of range does not count as assault, unless the intended victim had reasonable grounds for fearing that the defendant would immediately have come within range and landed a blow.

It is an assault to point a pistol at another in such a way as to induce the belief that the plaintiff is about to be shot even if, unknown to the plaintiff, the pistol is unloaded.

But a threatened coup d'etat did not constitute an assault where no one capable of carrying out violent attacks had yet arrived in the relevant country.

See Carolyn Sappideen et al, Fleming's The Law of Torts, 10th ed (2011) Thomson Reuters at 2.70.

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