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“But I never hit him, how can I be charged with an assault?”

The Local Court of New South Wales commonly encounters charges of common assault, as the term suggests. Unfortunately, the legislation fails to define the nature of a common assault, leaving individuals without clear guidance on the matter. The legislation states:

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

Most people do not realise that authorities can charge them with common assault even without physically touching somebody.

Assault vs Battery

When we think of the term “assault,” we usually envision someone physically touching another person. Society commonly understands it this way, aligning with the framing of some criminal offenses, such as assault occasioning actual bodily harm.

Let’s reconsider the historical distinction between assault and battery. You are likely familiar with the expression “assault and battery. You may have heard it on your favourite American legal dramas. Traditionally (and presently in some civil contexts), a battery occurs when a person is touched by a person without consent. This does not necessarily have to be violent. It could be as simple as somebody resting their hand on your shoulder. An assault would occur when there was an action causing somebody to fear for their safety – for instance by threat. Traditionally then, if you struck somebody, you committed battery.

Legislation has evolved over time, and currently, it interchangeably uses the criminal offense of assault to refer to assault or battery, depending on the nature of the offense.

Psychic Assault

The Prosecution can successfully argue common assault even in the absence of physical contact. This means that the defendant can face charges without actually striking somebody. This situation is sometimes referred to by courts as a “psychic assault”.

To establish a charge of common assault (psychic assault), the Prosecution must prove beyond a reasonable doubt that:

  1. The defendant performed an act that caused the victim to fear immediate unlawful physical contact;
  2. The defendant intended to cause the victim to fear immediate unlawful physical contact;
  3. In the alternative to (2) above, the defendant was reckless in causing the victim to fear immediate unlawful physical contact; and
  4. That the above was done without a lawful excuse.
Zanker v Vartzokas (1988)

In the matter of Zanker v Vartzokas (1988) 34 A Crim R 11, a woman accepted a lift from a young man. As the car was moving, the man sexually propositioned the woman, to which she declined. The male thereafter caused the car to accelerate, and said to the woman, “I’m going to take you to my mate’s house. He will really fix you up”. Fearing the threat, the woman, alarmed by the prospect of imminent violence, decided to jump out of the moving vehicle. Later, authorities charged and convicted the male perpetrator. The Court found that the stated threat induced immediate fear of violence. This constitutes an immediate assault, and the individual carried out such actions without a lawful excuse.

Unlawful physical contact must occur. For example, in a rugby match, if the opposition fears immediate physical contact from a tackle, as long as the behavior adheres to the game rules, the fear is lawful, and consequently, a charge of common assault would be unsuccessful. However, if the rugby match concludes, and a player starts running at the opposition as if to initiate a tackle, there would likely be enough fear of immediate unlawful physical contact to establish a charge, irrespective of whether a tackle actually occurs.

In summary, the law in this area is unclear. The key takeaway is the need to exercise careful control in situations of conflict and to walk away before any escalation.

Contact Access Law Group

If you have questions about an assault charge or need to seek legal representation. Please reach out to our experienced criminal law team at Access Law Group. You can book your initial consultation by calling 02 4220 7100, Emailing email, or here.