R v Gabriel [2004] ACTSC 30

Supreme Court of the ACT|2004-05-20|Before: Higgins CJ

1. A verdict of not guilty be entered to both counts of common assault on indictment dated 15 July 2003.

1. On 3 March 2004 an indictment was presented against the accused, Derek James Gabriel. It contained two counts of common assault contrary to s 26 of the Crimes Act 1900 (ACT) (the Crimes Act). They were that -

...on the 12th day of December 2002 at Canberra ... [he] assaulted Natalie Beasley.

3. The accused had, before entering those pleas, duly elected for trial by judge alone. That trial commenced on 17 March 2004.

4. It was the Crown case that each of those offences occurred at the premises of the Commonwealth Employment Service, known as Centrelink, situated at Belconnen.

5. The first count related to an alleged incident about 9.30 to 10.30 am on 12 December 2002. Ms Smith, the alleged victim, was a counter officer employed by Centrelink. It was alleged that she was approached by the accused in his capacity as a customer of Centrelink. He requested an urgent payment in advance of his entitlement. He was told that he would need a serious reason. He stated that he needed to go to Sydney as his father had died, to identify the body. He filled out a request form. After he had done so Ms Smith informed him he would need to produce evidence of death, being a death certificate.

I'll give you a death certificate, I'll slit your throat.

7. It is further alleged that this statement caused Ms Smith to become afraid of some physical attack by the accused. She fled to a back office. The accused was then told to leave the premises and did so. The statement which he made is the alleged assault.

8. The second count related to an incident at about 12.30 pm the same day. The accused again attended the Centrelink offices and approached the customer service counter. Ms Smith saw him and, though it is not alleged that the accused did or said anything to cause her to do so, fled to the back office. The accused allegedly followed her, though at a distance, stating that he wished to speak to her.

9. Another Centrelink employee, Ms Natalie Beasley, then positioned herself in front of the accused so as to bar his progress. She said, "You cannot enter this area." She raised her arms, palms of her hands pointing outwards. Despite this, the accused continued forward until his chest impacted her palms pushing them back into her chest. She stepped back. The accused then allegedly said to her, "I'm going to smash your fucking glasses into your face like Sari" and "I'm going to wring your neck" The accused then left the office.

10. The action of the accused in proceeding forward to contact Ms Beasley's palms and pushing them back is alleged to be the second assault.

11. Ms Smith gave evidence that, at about 9.30 am, she noted a customer waiting and called him over. He said he wanted to apply for an urgent payment. She asked him for identifying details. He gave his name as Derek Gabriel and gave his date of birth.

12. Then she asked him for his reasons for applying for an urgent payment. He responded, she said -

My father has died, I have to go and identify his body, he's in the mortuary in Sydney.

13. The accused then accepted an application form which he started to fill out away from her work station but came back and filled it out in front of her commenting as he did so -

My father, the one who molested me first, has died.

14. Having completed it, he handed it to her. She said -

We'll have to have some verification that your father's passed away.

Well, we need to either have a contact number for a funeral parlour or something like that, or a death certificate.

And he said that he doesn't have a death certificate, that they're Greek Orthodox and the body's still in the house but he could give me his father's missus' phone number and I could contact them if I wanted verification.

I said that unfortunately like we have to have proper verification, so we'd have to get some more sort of verification such as a death certificate.

And then he said, `I'll give you a death certificate, I'll slit your throat'.

He said it very quietly in a very controlled manner. In a really - it really scared me and I honestly thought that he meant it. I deal with lots of aggressive customers and people in different sort of crisis situations, but this was by far the most scary thing.

15. However, all she said to the accused was "Take a seat, I'll get someone to talk to you."

16. She then closed down her station and went into Natalie Beasley's office (she was an occupational psychologist). Kate Norman, the team leader, was in there also.

17. The latter looked out into the corridor beyond the office, the accused was there and said to Ms Smith -

18. Ms Norman then went out and spoke to the accused, passing out of Ms Smith's sight as the latter retired with Ms Beasley to a back office.

19. Ms Smith saw the accused again, at about 12.30 pm. She saw him in a line of customers, not those waiting to see her. He was, she said "like swearing to themselves". The use of the plural was apparently to avoid the use of a singular personal pronoun despite the conventional demands of English grammar rather than to refer to a number of persons so conducting themselves. He looked at her, she became scared again, shut down her work station and went back to Natalie Beasley's office.

20. Ms Beasley and Ms Smith then sat at a desk partially in view of the reception area Ms Smith had left, to observe the accused.

21. A fellow counter officer, Eddie Ansell, came over to them and told them that a customer, apparently referring to the accused, wanted an urgent payment and to speak to a manager. Mr Ansell was told he had already seen Ms Norman and left to go back to the reception area.

22. Next, she saw the accused approaching them from the reception area.

23. She was then told to leave by Ms Beasley. As she left to go to the back office, Ms Smith saw Ms Beasley go forward with her hands up in front of the advancing accused who was saying "I want to talk to her, I want to talk to Kate".

24. She did not hear any conversation between the accused and Ms Beasley. She next saw him in the public area outside the premises through the frosted glass wall pointing at the glass repeating that he wanted to talk to her. He seemed "aggressive" to her and she was fearful for her safety.

25. In cross-examination, Ms Smith denied that she was already upset before the accused arrived or that he appeared to be "ill" or in pain or that he first gave as his reason for wanting an urgent payment that he needed medication. She denied having invited the accused into the interview area. However, she had said in her evidence in chief that, as she was leaving the reception area, she had told the accused she was going to get someone else to speak to him.

26. She denied saying anything to the accused on his return at about 12.30 pm to the effect that she would handle his case or get someone to speak to him. She appeared, however, to suggest that the second time she went to Ms Beasley's office she did hear the accused refer to her as "the fucking panic merchant", speaking more loudly than the "quiet" tone she referred to before.

27. Ms Katherine Norman gave evidence of seeing Ms Smith "at around 10.30 am" on 12 December 2002. The latter was upset and crying. Plainly, that evidence was inconsistent so far as time is concerned but it seems to me that Ms Norman was probably mistaken as to the time. Both the accused and Ms Smith agree that it was about 9.30 am they first met on 12 December 2002.

28. She gave evidence of a conversation relating to urgent payments between herself and the accused. He complained to her that girls could get such payments easily by flashing "their titties" around at male officers. He then, she said -

... made several threats, he threatened to follow me home to break into my home and to stab me and said, `Would that hurt?'

He then said -

Well, yes it would.

29. Notwithstanding that Ms Norman was "very scared" by these threats, no charge of assault has been made in respect of them. He further threatened her, she said, by saying "Do you want AIDS?" At the same time he caused a cut on his finger to bleed. He pushed his hand towards her but did not make contact. He then left the Centrelink office.

30. Ten minutes later she saw him in "the back office". He was using a phone but was told by a male staff member to desist. He and the staff member expressed their mutual intention to call the police. However, there is no evidence that any such call was then made.

31. On arriving back from lunch, after 12.30 pm, Ms Norman noticed the accused outside the offices in the public plaza area. He was yelling, she said, that he wanted to see "Kate or Caroline" and was "banging on the glass".

32. I take Ms Norman to be indicating her conclusion as to the person the accused desired to see not a report of what he actually said.

33. She described his demeanour at her desk earlier in the morning as -

... very agitated, but also very controlled and very deliberate in what he was saying and the manner in which he was acting. Very threatening in what he was saying.

34. Under cross-examination she conceded that she had not told police about the accused shouting and banging on the glass.

35. Natalie Beasley also deposed that 10.30 am was the time of the first incident. About then, Caroline Smith came into the room in which she and Ms Norman were. She observed that Ms Smith was distressed and crying.

36. She saw, through the open door, the accused speaking to a male colleague. That officer was not called as a witness. Ms Smith appeared to notice the accused and became more distressed and "quite scared". Ms Smith left that room, going to a more remote office, out of sight of the accused. Ms Norman went out into the office area.

37. She was in her office at about 12.30 pm when Caroline Smith again came to her and Ms Beasley distressed and crying saying, "He's back". This, it was apparent, was a reference to the accused.

38. Ms Beasley then exited the office and confronted the accused who was approaching the office area. She did not mention sitting at a desk observing the accused. She said to him -

39. She repeated the words and put her hands up, palms outwards in front of her face. The accused walked into her hands pushing them back into her chest so that they touched her chest. Ms Beasley took a step back to gain balance and pushed out so as to put distance between herself and the accused. Then Mr Eddie Ansell intervened between them and spoke to the accused. She told the accused that the police had been called and that he had to leave. The accused and Mr Ansell then left the area. The conversation concerning "smashing your fucking glasses into your face", she said, occurred after she had pushed the accused in the chest.

40. Again, it was not suggested that those words were accompanied by any threatening gesture as if to strike Ms Beasley nor was the threat relied on by the prosecution to constitute an assault. The relevance of the threat was merely to evidence the accused's state of mind during the incident. The assault alleged was pushing forward so as to cause Ms Beasley's hands to be pressed back into her chest.

41. In cross-examination, Ms Beasley denied a suggestion that, during the incident at 12.30 pm, the accused had been referred to as "the fuckwit". Nor that there had been any conversation as to his father's reported death being "a mistake".

42. She also denied that her push to the accused's chest had caused him to lose his balance though she did agree that he said, when she pushed him away -

You are now assaulting me

And

I can have you up for assault.

43. She further denied that the accused had produced any spectacles, broken or otherwise. She conceded that she had not previously stated that she saw the accused thereafter in the plaza, near the window wall of the Centrelink offices knocking on the glass.

44. I have to say I think Ms Beasley was somewhat confused between what she was told and what she herself observed. However, nothing turns on this.

45. Mr Edward (also referred to as "Eddie") Ansell was the final eye-witness. He had not observed anything relevant to the first incident. He was on reception duty at 12.30 pm with Ms Smith and another person whose name he could not recall.

46. He observed a person he identified as the accused walk past his counter. Before noticing the accused, he had seen Ms Smith leave her work station and walk past his counter behind him. The accused then walked past him in the same direction as Ms Smith saying "What's her problem?"

47. It was Mr Ansell's impression that Ms Smith had been serving the accused before she left her station. He then noticed that the accused was heading towards an area where the public was not usually permitted to go. Consequently, Mr Ansell left his station and followed the accused.

48. He then saw Ms Beasley walk towards the accused with her hands up. She was, he said, a "couple of steps" away from him at that stage. He was then asked - "And did you see something happen?" He replied -

... I could see they were very - very close, but I could also see that the customer was advancing, not quickly but he was advancing ... forward in like a very slow motion but he was heading forward with - you could just - it wasn't like he was pushing her back but she was going backwards very slowly. They were going along, yes.

There was "a lot of words that were exchanged." He could not hear all of them and recalled only -

... Natalie had told him, in effect, it wasn't the exact words, like he had to leave the building and - and also I heard the customer say that he was going to punch her glasses through her face.

He did not see any contact between Ms Beasley and the accused. However, when he heard these words, he "stepped in between". He said -

... I didn't put my whole body between - I put - just stuck my arm between the both of them and just told the customer that he - he needs to leave the building.

He was then asked -

How close were they together when you put your arm between them?

He replied -

... Probably an arm's distance.

49. It was apparent that this evidence was inconsistent with Ms Beasley's account of the accused pushing into her and she then stepping back and pushing the accused away from her.

50. Mr Ansell was asked to describe the accused's demeanour when he spoke about the glasses. He replied -

His voice did elevate, his body language he did not show any impression with his body but his voice did elevate which is very, very intimidating in a - a threatening manner.

51. Mr Ansell then escorted the accused from the building.

52. In cross-examination Mr Ansell agreed that he had placed his arm and shoulder between Ms Beasley and the accused.

53. It emerged that Mr Ansell had only made a statement to police that morning, the 17th March 2004 but he said that only affected his ability to recall the exact words used.

54. He also recalled that, as he escorted the accused from the area, "... he did turn to tell me that he needed money for his father". The accused did not use any telephone before leaving the building.

55. The final prosecution witness was Constable Michael Harris. He was permitted, without objection, to depose that the accused's mother had denied to him that the accused's father was other than alive and well. He had spoken to and then charged the accused later on 12 December 2002.

56. Under cross-examination, he deposed that the accused had denied the accusation of assault saying. "Assault? I didn't assault anyone, they assaulted me."

57. The proceedings were adjourned from 17 March 2004 to 22 March 2004. I then declined to dismiss the first count. No application was made to dismiss the second count.

58. The accused gave evidence in his own defence. I remind myself, in assessing that evidence, that he was not obliged to do so, nor does his giving of evidence relieve the prosecution of any of its burden of proof.

59. He deposed that, on 12 December 2003, he attended the Centrelink offices at Belconnen. He claimed that, at the time he was in a state of withdrawal from drugs. He had been on the methadone program for some 10 years but had been abruptly withdrawn from it on suspicion of "diversion". That is, on suspicion of withholding methadone rather than consuming it on the spot. He said he was withdrawn from the program in September 2002.

60. I have to say that it strikes me as unlikely that the accused was still suffering from withdrawal from methadone in December 2002. Nevertheless, his behaviour, as perceived by the witnesses, is consistent with some degree of mental or emotional disturbance on his part.

61. The accused gave evidence that on 12 December 2002 he had gone to the CES offices to ask for an urgent payment to buy medication. He stated that Ms Smith was showing signs of being emotionally upset before he dealt with her.

62. He deposed to an initial conversation in the course of which Ms Smith said to him "really the only chance of you getting an early payment would be a death in the family". That prompted the accused to say that his father might well be dead and was there anything on her screen about it.

63. Why such information would be available is difficult to understand. If the accused reasoned as he states, it further supports the view that he was in a disturbed mental state. He told her a story, he said, of his father having been attacked when working as a taxi driver, saying -

The bloke in the back stabbed my father in the throat straight through the neck and then tried to slit his throat.

Ms Smith, he said, then became visibly upset and walked away. The accused then said -

What's wrong with you? What are you? A panic merchant.

64. He agreed that Ms Smith had said "something like you'll have to get a death certificate". He denied using the threatening words Ms Smith attributed to him. He said he protested that he could not get a death certificate.

65. He agreed that Ms Norman then came and spoke to him. He claimed that she explained to him that Ms Smith had been receiving abusive phone calls from her boyfriend or something. Ms Norman then discussed his claim with him. He agreed he would need a death certificate of other information and that he would go and get it. He agreed that he complained to her that young girls seemed to get paid easily.

66. He denied that he made any threats to Ms Norman as she had claimed in her evidence.

67. He left the Centrelink office at about 9.37 am and, he said, made enquiries about his father. He found he was, though unwell, still alive.

68. He returned to the Centrelink offices between 12.25 and 12.35 pm. He did not speak to Ms Smith but to some other female employee. He explained to the latter that he wanted a payment for medication and that his previous statement that his father had passed away was not correct.

69. He said Ms Smith was listening to him and said "I'll handle this one". She then left her station and headed towards the office area. He believed Ms Smith was going to handle his claim and so he followed her.

70. He heard Ms Smith, in the interview room (as he called it) say, "That fuckwit's back."

71. Natalie Beasley said, apparently to Ms Smith, "What does this fuckwit look like?" Ms Smith said, "He's wearing a baseball cap, he's got t-shirt, shorts." Presumably this was accurate as a description because the accused then stated -

And yet when she [Ms Beasley] walked out of the room she walked directly past me.

She went to the counter, turned around, spotted the accused and said to him -

Who the fuck are you?

He replied -

I guess I'm the f-wit that you're looking for.

Ms Beasley said -

You're a fucking liar. Your dad isn't dead is he? You're a fucking liar. You've tried to claim a payment under a lie.

He then described a somewhat detailed conversation -

...I said to her, `It is true. My father did have all this happen to him.' And I said, `He is very sick but he is not dead, so why would I come back to tell you that he's not dead if I was worried about the consequences of telling you that he's not dead? I'd prefer to go with what I originally stated, was that I needed a medical prescription. Now, you said you don't pay doctor's bills, but medical - prescribed medical prescriptions are different.' And she said, `Well, they couldn't cost very much, you must be on the PBS.' And I said, `It's unfortunate but the drugs that I have been issued to stop fitting and cramping are not on the PBS and cost $24 for a 24 hour period and that's Doloxene and the other one is on the PBS, it's $3.80 for nine days and I stated to her that I had no money in which to purchase these drugs, and that I hadn't had a dose of methadone for something like six days, I hadn't slept.

He was then asked by his counsel -

So what happened? Did she assist you?

He replied -

She pointed to an imaginary line. She said, `You know, if you're not invited, you're not allowed past that line.' And I looked and I said, `What line?' I said, `There's three computers here that are workstation computers for Jobsearch applicants.' I said, `If I'm standing here, where I am now, I can easily access them if I take one step to the right.' And I said, `I can access the first one.' And she said, `Don't be smart.' And I said, `I'm not being smart, I'm just saying that I figured that I was going to be interviewed and it turns out that I'm not, so you've come out.' And she said, `Yes, and I'm a psychologist too.' And she said, `Now, I told you to get back over that line.' And when I turned around again, to sort of say, well, where's the line, she shoved me.

72. He was, he said, shoved so hard that he went back three to four feet, lost his balance and felt his spectacles, then under his shirt, losing a lens.

73. He protested, he said, "You've broken - you've just broken these" and she said, "I don't give a fuck." Ms Beasley then shoved him again. He was propelled back "another five feet into a sort of workstation". He said, "that's assault." He did, he said, mention "Sarri".

74. Whilst denying he told Ms Beasley he would "wring her neck" he said his statement was, referring to his glasses -

Why don't you wait till I put these on my face and then you can smash them into my, - you can smash them into me face like Sarri did ...

75. He further denied that Mr Ansell came between them. He claimed it was a conspiracy and that Mr Ansell was outside smoking when he left.

76. Ms Hunter, in cross-examination, asked the accused why he had not caused Ms Smith in particular to be questioned about many of the matters he had alleged occurred. She elicited no responsive answer.

77. The accused suggested that the four civilian witnesses had become frightened at what Ms Beasley had done. He further added that Ms Beasley had not been wearing glasses on 12 December 2002. That had not been put to her during her cross-examination.

78. Nor was it suggested to Ms Norman that she had a conversation with the accused about Ms Smith being upset for reasons not related to the accused threatening her.

79. It had not been suggested to Mr Ansell that he had been outside the offices smoking when the accused left after 12.30 pm on 12 December 2002 nor that there had been a conversation between them in which he sought to enlist Mr Ansell's support.

80. All in all, I was not impressed favourably with Mr Gabriel's veracity. I accept that his reliability may, in part, have been affected by his physical and mental state he having been suspended from the methadone program and being, as he asserted, in need of medication, whether for that reason alone or not. Indeed, his need for medication, as he described it, was so great that he was unable to wait until the next day when he would receive his usual entitlements.

81. This is a criminal matter. There are two counts and, though similar in nature, they are to be considered separately.

82. In each case the onus of proof rests upon the Crown to prove each element of the offence as alleged. The accused has to prove nothing.

83. Each of the elements of each offence must be proved to the requisite standard. That is, beyond reasonable doubt.

84. Further, I must assume the innocence of the accused until and unless I am, on the evidence, persuaded to the contrary to the requisite standard.

85. The elements of the offences are in each case the same. Assault is the application, intentionally and voluntarily, of unlawful physical force against the person of another without their consent or the threatened application of such force.

86. In the present case there is an issue whether, even if the accused uttered the threats to Ms Smith as alleged, the statement so made constitutes an assault. In relation to the second allegation, there is an issue as to the physical contact alleged. The threat uttered in the latter case, if found to be so uttered, was not relied upon as part of that assault though it was relied upon to cast light upon the intention of the accused in advancing upon Ms Beasley as she alleged he did.

87. In relation to the first count, whether the accused was being deliberately untruthful or confused because of his infirmity, I do not accept the version of events he gave. I am positively persuaded beyond reasonable doubt that the accused confronted Ms Smith at about 9.30 am on 12 December 2002 and spoke to her the words complained of by her.

88. I accept to the same standard that those words caused Ms Smith to fear that some violence might result if the accused was further crossed. However, I am not persuaded that, by any movement or gesture, the accused indicated any intention to move to immediately carry out the threat. Nor am I persuaded that Ms Smith believed that he would. She was emotionally upset and felt threatened but not by the actual terms of the threat. I cannot exclude the hypothesis that she feared verbal abuse continuing leading to some physical act of violence not necessarily involving a battery.

89. However, there is a question whether to create fear of that kind would constitute the actus reus of assault.

THE ACTUS REUS OF ASSAULT BY VERBAL THREATS

90. In the Criminal Code States (Queensland, Tasmania and Western Australia) and the Northern Territory the actus reus of assault is any act that "indicates an actual or apparent present ability to apply force" (NT - s 187B; Qld - s 245; Tas - s 182(1); WA - s 222).

91. The new ACT Criminal Code 2002 (commencing 1 January 2003) refers to "physical elements" rather than actus reus and "fault elements" rather than mens rea. Interestingly, pursuant to s 15, conduct of a person can only be a physical element of an offence "if it is voluntary" (s 15(1)) and a "voluntary" act must be "a product of the will of the person whose conduct it is". However, the Code presently does not define the "physical element" of assault. The Crimes Act 1900 (ACT) s 26 does not define assault. That is left to the common law.

92. The definition of assault adopted by James J in Fagan v Metropolitan Commissioner of Police [1969] 1 QB 439, at 444 has been approved and applied in many cases (for example, Attorney-General's Reference (No. 6 of 1980) [1981] EWCA Crim 1; [1981] QB 715; R v Miller [1982] QB 532). James J (with the concurrence of Lord Parker CJ and Bridge J) stated -

An assault is any act which intentionally - or possibly recklessly - causes another person to apprehend immediate and unlawful personal violence.

It includes a `battery' that is "the actual intended use of unlawful force to another person without his [or her] consent_"._

93. Their Lordships, at 444-5, addressed the issue of threatening words -

To constitute the offence of assault some intentional act must have been performed: a mere omission to act cannot amount to an assault. Without going into the question whether words alone can constitute an assault, it is clear that the words spoken by the appellant could not alone amount to an assault: they can only shed a light on the appellant's action.

94. The earliest case I have been able to find in which words were relied upon to charge assault was Tuberville v Savage (1669) 1 Mod 3 684. A question arose whether it was an assault for the plaintiff to lay his hand upon his sword and say "If it were not assize-time, I would not take such language from you." That was not assault. The Court also agreed however, that if a person "... hold up his hand in a threatening manner and say nothing, it is an assault."

95. Another early case is Stephens v Myers (1830) 4 Car & P 735; 172 ER 735. The defendant advanced on the plaintiff uttering a threat to pull the plaintiff out of his chair. He was not then close enough to do so. He was stopped before he could carry out his threat. Lord Tindal, CJ, held -

If he was so advancing, that, within a second or two of time, he would have reached the plaintiff, it seems to me it is an assault in law.

96. There, of course, the threatening words were accompanied by actions evincing an intention immediately to carry out the threat and the defendant clearly had the means to do so.

97. Similarly, in R v Wilson [1955] 1 All ER 744, a poacher kicked a gamekeeper to the ground calling out, to fictitious accomplices, "get out knives". He was, of course, convicted of assault for the kick. The Court did, however, as an aside, state (at p 745) -

He [the accused] called out "Get out knives", which itself would be an assault, in addition to kicking the gamekeeper.

98. In the United Kingdom, further consideration was given to the issue in R v Ireland; R v Burstow [1997] UKHL 34; [1998] AC 147. The appellant had made a number of threatening phone calls to three women. That caused each of them psychological damage. The second appellant had made a number of "silent" telephone calls in the context of offensive and threatening cards and notes. He was stalking her. She suffered severe psychological damage. The House of Lords considered that an assault might be committed by words or gestures alone, depending on the circumstances.

99. Lord Steyn said, with the concurrence of the other members of the House -

There is no reason why something said should be incapable of causing an apprehension of immediate personal violence, e.g., a man accosting a woman in a dark alley saying, "Come with me or I will stab you."...That brings me to the critical question whether a silent caller may be guilty of an assault. The answer to this question seems to me to be "Yes, depending on the facts." It involves questions of fact within the province of the jury. After all, there is no reason why a telephone caller who says to a woman in a menacing way "I will be at your door in a minute or two" may not be guilty of assault if he causes his victim to apprehend immediate personal violence. Take now the case of the silent caller. He intends by his silence to cause fear and he is so understood. The victim is assailed by uncertainty about his intention. Fear may dominate her emotions, and it may be the fear that the caller's arrival at her door may be imminent. She may fear the `possibility' of immediate personal violence. As a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstance and in particular on the impact of the caller's potentially menacing call or calls on the victim.

100. Lord Hope of Craighead, whilst agreeing with Lord Steyn emphasised [166-7] that the fear to be intentionally created, to constitute assault, must be such as to cause "an apprehension of immediate and unlawful violence." The silent telephone call was different from a menacing silent presence in person (166G) -

... for him merely to remain silent with them in the same room, where they could see him and assess his demeanour, would have been unlikely to give rise to any feelings of apprehension on their part ...

101. If there was personal presence however, his Lordship said -

... it is not true to say that mere words or gestures can never constitute an assault. It all depends on the circumstances. If the words or gestures are accompanied in their turn by gestures or words which threaten immediate and unlawful violence, that will be sufficient for an assault.

102. It is, therefore, apparent that mere words, however threatening, will not constitute the actus reus of assault unless in the context of any accompanying gesture or other circumstance they convey a fear of immediate physical violence and are so understood.

103. There is a comment by Taylor J in Barton v Armstrong [1969] 2 NSWR 451 about words uttered over a telephone being capable of constituting an assault. It is noteworthy that the context was an application to strike out counts in a declaration alleging an assault and seeking damages in respect thereof (inter alia). The action also sought the setting aside of a deed upon the ground of duress.

... the earlier cases seem to establish that the gist of the offence of assault is putting a person into apprehension of impending physical contact. The effect on the victim's mind is the material factor, and not whether the defendant actually had the intention or the means to follow it up. The essence of assault is the expectation raised in the mind of the victim of physical contact from the threat of the defendant.

105. It is apparent that the recipient of a threat to punch him or her delivered by a telephone call could not reasonably believe that a punch was imminent. Nor could it reasonably be concluded that the words used were intended to produce such an irrational fear. However, to convey the impression that the recipient is about to be shot could well convey the impression that the caller then and there has the recipient of the call in the sights of a firearm and that harm was imminent.

To telephone a person in the early hours of the morning, not once but on many occasions, and to threaten him, not in a conversational tone but in an atmosphere of drama and suspense, is a matter that a jury could say was well calculated to not only instil fear into his mind but to constitute threatening acts, as distinct from mere words. If, when threats in this manner are conveyed over the telephone, the recipient has been led to believe that he is being followed, kept under surveillance by persons hired to do him physical harm to the extent of killing him, then why is this not something to put him in fear or apprehension of immediate violence? In the age in which we live threats may be made and communicated by persons remote from the person threatened. Physical violence and death can be produced by acts done at a distance by people who are out of sight and by agents hired for that purpose. I do not think that these, if they result in apprehension of physical violence in the mind of a reasonable person, are outside the protection afforded by the civil and criminal law as to assault.

107. To this point, the opinion expressed by Taylor J is clearly appropriate. It depends on the terms of the threat conveyed in the context of the case whether an assault has been committed. If, for example, the victim had been sent a letter conveying a death threat by shooting and the perpetrator then made an ominous phone call conveying the impression that the victim was at imminent risk those words would constitute the actus reus of assault.

108. However, if the fear so intentionally created is of harm in the future, not being the immediate future, then whilst the fear may be equally harmful and distressing to the victim, it would not fulfil the requirement of immediacy or imminence that is an element of an assault not involving a battery.

109. It was for that reason, to protect such persons, who may be as damaged as if the threat was of imminent violence, that the legislature enacted, by amendment to the Crimes Act, the offences of threat to kill (s 30) and threat to inflict grievous bodily harm (s 31). Whilst it is an element of those offences that the victim should reasonably fear "the threat would be carried out", the element of imminence in relation to the harm threatened is not a requirement. Stalking is an offence under s 35. It includes conduct falling short of immediate or even overt threats of violence if, inter alia, the intent of the stalker is to create a fear of harm, physical or mental. It is not a necessary element of that offence that the person stalked should fear that the harm in question will be immediately carried out.

110. Clearly, in Barton's case, it may have appeared at trial, once evidence had been given, that the threats did intentionally create a fear of imminent violence, rather than violence at some more remote time in the future.

111. Taylor J, did attempt to answer the question "How immediate does the fear of physical violence have to be?" His Honour, answered that question in the following terms, at 455 -

In my opinion the answer is it depends on the circumstances. Some threats are not capable of arousing apprehension of violence in the mind of a reasonable person unless there is an immediate prospect of the threat being carried out. Others, I believe, can create the apprehension even if it is made clear that the violence may occur in the future, at times, unspecified and uncertain ...

... If the threat produces the fear or apprehension of physical violence then I am of opinion that the law is breached, although the victim does not know when that physical violence may be effected. (emphasis added)

112. It is consistent with prior authority that if the fear intentionally engendered is of physical violence to be inflicted either imminently or at a more remote time, the presence of the former aspect of the fear will cause the threat to fall within the bounds of the crime of assault. Nor does the word "imminent" mean that the violence will commence without any delay. It is enough that it be "soon" that is, in the immediate future. Stephens v Myers (supra) is an illustration of that, though it does not necessarily define the outer time limit of imminence.

113. However, in my view, the words emphasised above, do go beyond the notion of imminent execution of it as a necessary element of the intended threat of physical harm.

114. I note that in Macpherson v Beath (1975) 12 SASR 174 a conviction for assault was upheld in circumstances where the defendant, a university student, with other students, harassed a lecturer with a view to persuading him to drop a previous charge of assault against the defendant. The group demanded that the lecturer speak to them. He had to abandon a meeting. His progress around the university was impeded. Hostile and rude remarks were addressed to him. The lecturer feared physical violence.

The actus reus of an assault where there is no actual physical contact is an act of the defendant raising in the mind of the victim the fear of immediate violence to him ...By violence I mean any unlawful physical contact.

116. It was found as a fact that the defendant had intended to engender such fear. It was not relevant whether the fear was of violence emanating from the defendant personally or from those with whom he was acting in concert.

117. It seems to me, that Macpherson v Beath does no more than apply the conventional position as to the actus reus of assault absent a battery, though the facts were unusual. It does not support the elimination of the element of threatened immediate physical violence.

118. More recently, there is the case of R v Knight (1988) 35 A Crim R 314. The victim was a Magistrate. The accused had been an unsuccessful defendant in an assault case. The latter telephoned the Magistrate's home. He used obscene and threatening language to the Magistrate's daughter over the telephone, though the Magistrate heard some part of it. The threats included, "I had him in my rifle sights", "we are going to put a bomb at his front gate", "I will poke your fucking eyes out with a screw driver" and "I'm going to shoot you. I was going to shoot you last night but I will leave it to tonight [at] your party".

119. Lee J (Carruthers and Loveday JJ agreeing) noted and adopted Taylor J's reasoning in Barton v Armstrong (supra) allowing that, in appropriate circumstances, threats over the telephone could amount to an assault but did not adopt the whole of his Honour's opinion. Lee J said, at 318 -

Some of the remarks of his Honour in that judgment would suggest perhaps that the element in assault that the violence be immediate, that is that there be a fear of immediate violence was not always necessary and that the word `immediate' could be stretched to perhaps cover events in the future. It is to be remembered that his Honour was dealing with an interlocutory application where the principle applicable is that a cause of action is not to be struck out unless lack of cause of action is clearly demonstrated ... In the circumstances, I do not regard the decision in Barton v Armstrong as absolutely requiring the view that his Honour has finally held, that fear of immediate violence has other than its ordinary literal import.

120. In R v Knight, the accused had made similar calls to the arresting police officer and the District Court Judge who had rejected the defendant's appeals. Despite the vile and chilling nature of the phone calls in this case, engendering fear of violence at least at some future time, Lee J found them to form no basis for a reasonable person to fear immediate violence. The assault convictions based on those and similar calls were set aside. It was noted that the same facts could have provided a basis for prosecution under the Telecommunications Act 1975 (Cth). Now, of course, the threat to kill or do grievous bodily harm provisions or stalking would be available as vehicles for the prosecution of such conduct.

121. In Zanker v Vartzokas (1988) 34 A Crim R 11 reference was made to the judgment of Zelling J in Macpherson v Brown (1975) 12 SASR 184 a decision relating to a similar but earlier incident than that the subject of MacPherson v Beath (supra). In this case, the defendant was, on appeal, acquitted on the basis that the Special Magistrate had found him guilty despite expressing doubt that the defendant had an intention to create the fear of physical force that the group's activities had engendered. It was not sufficient that he had intended unlawful confinement or that he ought to have known that the requisite fear for assault might reasonably be engendered.

122. Jacob J agreed with both Bray CJ and Zelling J that a false imprisonment may, but does not necessarily involve an assault, with or without actual physical contact, but agreed with Bray CJ that the doubt expressed as to the intent to cause fear of such hostile physical contact made it impossible to support the conviction of the appellant.

123. Zelling J, in dissent, considered that the use of the group of students by the appellant created a fear in the victim of physical violence from them as he must have known it would and so he was guilty of assault.

124. Zanker v Vartzokas (supra) raised a similar issue to that raised in Macpherson v Brown. The victim accepted a lift in a van being driven by the accused. After it started moving, the accused asked for sexual favours. The victim rejected this request and demanded to be let out. The accused not only refused this, thus falsely imprisoning the victim, but also threatened her saying "I am going to take you to my mate's house. He will really fix you up". Frightened for her safety, the victim leapt out of the moving vehicle suffering some actual injury.

125. The Magistrate accepted that the victim feared that "at some time in the future" she would be unlawfully assaulted and that the accused intended her so to fear. As that was not, in the Magistrate's opinion, a fear of "immediate violence" the charge of assault was dismissed.

126. On appeal, White J noted that the threat was of violence that included its perpetration very shortly. He said at 14 -

A present fear of relatively imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual violence was to occur.

127. White J considered that threat to have been a continuing one, presumably up to the moment the victim leapt from the moving vehicle.

128. White J expressed similar reservations to those expressed by Lee J (supra - R v Knight) concerning Taylor J's observations as to the feared immediacy of violence engendered by an oral threat. However, his Honour did made the point that (at 16) -

The striking difference in the facts in the appeal before me is that the fearful victim of future physical harm was not at liberty but always at the mercy of the defendant.

129. With respect to his Honour, and recognising that the accused's conduct was deserving of punishment, to do so by unnecessarily forcing it into the confines of the definition of assault, seems to me to be wrong in principle. The ordinary meaning of the term "immediate" is that the consequence follows "at once, without delay" (The Concise Oxford Dictionary 5th Edition). The term "imminent" means "impending, soon to happen". I do not consider that a consequence which is not to follow without delay but which may or may not happen in the more distant future satisfies this requirement. The mere fact that the victim is held captive under threat of violence does not seem to me to warrant a conclusion that the threat is of "immediate" or "imminent" violence. Of course, the apparent time between the threat and its execution must involve some lapse of time. A fist formed and shaken may indicate an impending blow. That blow, if struck, may take a few seconds to follow. It is also important to note that for the presented fist to constitute an assault, it does not matter that the accused does not strike the blow or that he or she has no intention to do so. The issue is the identification of the threat, next what the victim concludes from the threat, and, finally, what he or she was intended by the accused to conclude.

130. I agree entirely with Crispin J in R v Bailiff [2002] ACTSC 79 (16 August 2002) at par 21 -

An offence of assault is constituted by any act committed intentionally, or possibly recklessly, which causes another person to apprehend immediate and unlawful violence: If force is actually applied, either unlawfully or without the consent of the recipient, then a battery is committed. In the absence of any such application of force, there must be some threatening act sufficient to raise in the mind of the person threatened a fear or apprehension of immediate violence.

132. I reject the accused's contention that Ms Smith mistook some reference by him to his father's stabbing as a statement that he would slit her throat. I am satisfied to the criminal standard of proof that he uttered the threat as Ms Smith deposed. I accept that she was genuinely upset by the accused's remark and, in a general sense, was physically in fear of the accused.

133. However, I am not satisfied that his threatening words, in context, could reasonably have conveyed a fear that he would then and there attack Ms Smith with some hidden cutting instrument. Nor does Ms Smith assert that she entertained such a belief. The threat was of no different character from the threat I am satisfied that he uttered to Ms Norman to which she deposed. There were no threatening gestures or movements in either case which was capable, in the circumstances, of conveying a threat of immediate physical violence.

134. Nor am I satisfied that the accused intended to convey that he was immediately going to inflict any form of physical violence on Ms Smith. He was expressing his frustration at being denied his advance payment. His state of health at the time may explain the offensive nature of his comments. His reference to Ms Smith being a "panic merchant" further indicates a lack of intent to create a fear of immediate physical violence even if his threat could reasonably have been so interpreted.

135. It follows that I must find the accused not guilty of the offence charged, though I note that had the prosecution chosen a more appropriate charge a different verdict might well have followed.

136. As to the second count, I reject as fanciful the accused's assertion that Ms Beasley pushed him so hard as to cause him to stumble. To suggest that Ms Beasley, a slightly built lady, did so once strains credulity to breaking point. To assert that she would do so twice is utterly incredible. This is the more so in relation to a customer who had uttered dire threats both to Ms Smith and Ms Norman and who was clearly in a disturbed mental state. If anything was calculated to have pushed a person, such as the accused appeared then to be, into overt physical violence, such provocation would have done so. I am satisfied that Ms Beasley would not have considered attacking the accused and did not do so.

137. Her evidence is that the accused advanced towards her in an apparent desire to talk to Ms Smith. I have no doubt, although such certainty is not necessary, that he was intending to pursue his claim for an immediate payment. There is nothing to indicate that he was intending to rely on his father's death as he had seemed to earlier. In that respect, I cannot be satisfied that he had planned falsely to claim a death related benefit. It is possible, at least, that in his confused mental state he latched onto Ms Smith's intimation that a death in the family might warrant an early payment and thus told her about it during the earlier confrontation.

138. Nevertheless, whatever his motive, Ms Beasley was entitled to bar his way and to refuse him access to the non-public areas of the Centrelink offices.

139. It was reasonable for her to say so, and to hold up her hands to bar the accused's entry. All three witnesses, even the accused, agree that such was her initial physical presentation, whatever the words she uttered.

140. I am satisfied that to approach Ms Beasley as she recollects he did, threatening to smash her glasses into her face "like Sari", albeit the latter statement would be meaningless to her, whilst pushing into her would constitute the actus reus of assault. If Ms Beasley's recollection of the words and accompanying actions of the accused is accurate then, absent proof of mental impairment pursuant to s 320 of the Crimes Act, there would be powerful evidence of the necessary intent. The aggressive forward motion would convey the message that the accused was threatening physical violence at least to the extent of pushing his body against her and, perhaps, forcing her to give way. The addition of the statement, "I'm going to wring your neck" reinforces that impression although it could not, by itself, be taken literally.

141. However, the accused states that he intended the statement he made to be a question; "Are you going to smash my glasses into my face, like Sari?" I cannot dismiss the possibility that the accused had mumbled something to that effect, construed by Ms Beasley as a threat towards her.

142. Nevertheless, the action of the accused in barging forward into Ms Beasley even if he was uttering a challenge rather than a threat would still constitute assault. His action, on her account of it, was still belligerent and deliberate.

143. However, her evidence does not stand alone. Whilst I have rejected the evidence of the accused as either inaccurate or deceitful, though I need not find which, I cannot so confidently dismiss the evidence of Mr Ansell. I appreciate that he did not make a contemporaneous statement. However, Ms Beasley did not make a statement until May 2003. Mr Ansell was not, at the time, emotionally involved in the confrontations between the accused and the other three Centrelink employees. He had not perceived himself to be the object of any angst exhibited by the accused.

144. He was present and able closely to observe the confrontation between Ms Beasley and the accused. I do not accept that he was outside having a "smoke" as the accused's evidence suggests. It was Mr Ansell's clear evidence that, whilst the accused was approached by Ms Beasley as the accused approached the back office area, they were still a "couple of steps" apart as he positioned himself at the accused's shoulder. He did agree that Ms Beasley did retreat slowly as the accused approached. He agreed that words were exchanged but they were not, it seems, so memorable that he could remember them exactly.

145. Nevertheless, he did have the same impression of the threatening words as did Ms Beasley did but, as I have found, the construction the accused suggests he intended to convey is so close, albeit different in stated intent, that I cannot be sure that the accused pronounced a threat rather than a challenge, though I consider the former more likely than the latter.

146. It would not, however, be consistent with Ms Beasley's account of physical contact with the accused that Mr Ansell was able to place his shoulder and arm between them. That is not to say that the accused and Ms Beasley may not have been briefly in contact as she held out her arms, palms outwards, to bar the accused from progressing further. He did offer the observation that despite the threat, as Mr Ansell perceived it, there was no aggressive gesture or action from the accused.

147. The accused's voice was elevated and intimidating according to Mr Ansell. Nevertheless, as he recalled it, the accused left peaceably when he asked him to do so. That there may have been contact when Ms Beasley held out her hands is, perhaps, made more likely by the accused's exaggerated claim that he had been assaulted but that contact, necessarily brief, would not constitute an assault by the accused on Ms Beasley.

148. I should add that it does seem to me likely that the accused did gesture and tap on the outer glass wall of the Centrelink office in a manner indicating he wanted to speak further of his claim but nothing turns on that save that I conclude that the Centrelink officers were genuine in their recollections as they gave them in evidence even if, as is not unusual, there were differences in the quality of those recollections.

149. I am satisfied that on 12 December 2002, the accused behaved threateningly and gave reasonable cause to Ms Smith, Ms Norman and Ms Beasley to be concerned and even, perhaps, to be fearful of the accused so as to have obtained a restraining order against him. I am not, however, satisfied that he committed the offence of assault.

I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the Crown: ACT Director of Public Prosecutions

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