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Key Criminal Law Cases Concerning Common Assault

Key Criminal Law Cases Concerning Common Assault

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The offence of common assault is outlined in s 61 of the Crimes Act 1900 (NSW):

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

Case law is helpful in narrowing what exactly is required for an offence to be found. This post discusses some, but not all, leading cases which assist the courts in determining when an assault offence has occurred.

 

Fagan v Commissioner of Police for the Metropolis [1969] 1 QB 439

Facts: The defendant, Fagan, accidentally drove his car onto a police officer’s foot during a routine stop. When the officer told him to move the car, Fagan initially refused, leaving the car on the officer’s foot for some time before finally moving it.

Issue: The issue was whether Fagan’s refusal to remove the car from the officer’s foot constituted an assault, given that the initial act (driving onto the foot) was accidental.

Judgment: Fagan’s actions amounted to assault because driving onto the foot and refusing to remove the car constituted a continuing act. Although the initial act was accidental, Fagan’s subsequent refusal to act transformed the situation into an intentional application of force.

Principle: The case established that an actus reus can be considered a continuing act, and mens rea (criminal intent) can develop during the act for a crime to be complete.

 

Zanker v Vartzokas (1989) SASC 795

Facts: Vartzokas offered the complainant a lift in his van. During the ride, he made unwanted advances, and when the complainant rejected him, he refused to let her out of the van. He then said he would take her to “his mate’s house,” where she would be “fixed up.” Fearing for her safety, the complainant jumped out of the moving van to escape.

Issue: Whether Vartzokas’ words and actions amounted to an assault, even though no physical harm was inflicted.

Judgment: Vartzokas’ actions constituted assault. The threat of being taken to “his mate’s house” and the complainant’s immediate fear for her safety were sufficient to establish actus reus. The court emphasised that assault includes actions that cause a person to apprehend imminent harm, including psychological fear.

Principle: Assault is not limited to physical harm; the creation of a reasonable apprehension of imminent harm through threats or conduct can suffice.

 

R v Knight (2001) NSWSC 1011

Facts: The appellant was charged with an offence and convicted. He appealed to the District court and the appeal was dismissed. The magistrate who initially heard the matter, and the police man who had charged the appellant began to receive threatening phone calls. The calls were traced back to the appellant and he was charged with assault. This case is his appeal of the assault charge.

Issue: Whether the evidence of verbal threats of harm at an unspecified time could constitute an assault.

Judgment: Knight’s actions did not constituted assault. The threats, although serious, were not threats of immediate violence. They may have been executed at any time. A key part of an assault offence is the apprehension of imminent harm. In R v Knight, Lee J noted that; “The expression is, “apprehend immediate violence”, not “immediately apprehends violence”.

Principle: An apprehension of harm must relate to harm that is imminent, not harm that may occur at some unspecified future time.

 

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* Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.
Please contact for legal advice tailored to your situation. *


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About Brian Walker

B.Acc., GradDipLegPrac, Juris Dr Barrister & Accountant. Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters. Post Created by Cassidy Pole, paralegal.

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