Threat of force ≠ fear of force

Lexis Nexis and Thomson-Reuters are the two big legal publishers in the legal market, here and in the USA, UK and NZ. They publish under different brands, with the best known probably Butterworths, Sweet & Maxwell, and Law Book Co.

They’re not the only players though. Several smaller publishers exist, amongst them OUP Australia and Federation Press.

Federation Press prints an interesting range, and also generously provides updates to its texts that we can download from its website.

The field of torts often has many parallels to criminal law, dealing with similar topic matter — protection of people and property. Federation Press’s Cases on Torts has an update commenting on ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti [2008] VSCA 274.

You can read about the case at those links, but the general outline is it dealt with a tortious action for assault alleged against Connex ticket inspectors.

Connex v Chetcuti cited several old, but useful, criminal cases on assault.

One was Barton v Armstrong [1969] 2 NSWR 451. That was also a tort case alleging assault by a defendant who rang the victim politician and threatened him with serious violence. The Court there held that threats over the telephone in some circumstances were not ‘mere words’ and could amount to an assault when the victim feared later physical violence, even if he didn’t know when that might be.

The other useful case is Brady v Schatzel [1911] St R Qd 206. It’s well known in the Criminal Code states (Western Australia, Queensland & Tasmania), but not so well known in Victoria. That’s probably not so surprising, given it’s a case concerning assault provisions in the Queensland Criminal Code. The defendant threatened the victim police officer by pointing a rifle at him. The appeal considered if it was necessary to establish fear or fright to prove an assault.

Here the presenting of the rifle was accompanied by a threat to fire it, which was certainly inferential, if not positive, evidence that it was loaded. In my opinion, it is not material that the person assaulted should be put in fear, as observed by Parke B in R v St George. If that were so, it would make an assault not dependent upon the intention of the assailant, but upon the question whether the party assaulted was a courageous or a timid person. Possibly, the learned Baron, by the term ‘bodily fear’, only meant to imply apprehension or expectation, and not a physical fear, of assault. I am of the opinion, therefore that there was evidence on which the justices, disbelieving the appellant’s evidence, could reasonably find that the rifle was loaded, in which case, of course, the appellant having the actual ‘present ability’ to effect her purpose, was guilty of assault. And I think — if, in fact, the rifle was not loaded — the justices, on the evidence, could find that she pretended that it was, and so had ‘apparently’ a present ability to effect her purpose, and in that case was also guilty of assault: Brady v Schatzel [1911] St R Qd 206 at 208. (Emphasis added.)

This usefully clarifies that assault — threatening unlawful force, rather than a battery, applying unlawful force — doesn’t contain a point of proof that the victim was frightened, merely that they feared or perceived or apprehended the application of force.

Connex v Chetcuti neatly summarised this at [16]:

It is not necessary for the plaintiff to fear the threat, in the sense of being frightened by it. It is enough if the plaintiff apprehends that the threat will be carried out without his or her consent.

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