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Verbal assault is a commonly heard but very misunderstood phrase. In New South Wales you can be convicted of common assault even if no physical contact takes place. There are also a number of other Acts of Parliament which create offences for what is often called a verbal assault.

What exactly is an assault?

Most people associate assault with some kind of physical act like pushing, punching or kicking. However, assault can include non-physical actions, sometimes referred to as a verbal assault. Acts involving the actual application of violence were traditionally called battery.

It is only in recent times that assault has become an acceptable term to describe both the physical and verbal acts. In NSW, courts define assault as being any intentional or reckless act, which causes another person to apprehend immediate and unlawful violence. There is no need for battery, or physical contact, to occur.

When do mere words become verbal assault?

Words alone can constitute an assault provided they meet two criteria. Firstly, the words must cause the other person to fear they will be subjected to unlawful violence.

And secondly, that fear or apprehension must be immediate. Whether the fear is imminent or immediate will largely depend on the facts and circumstances of each individual case.

Factors that courts consider include the actual words spoken, the tone and manner used, and the distance between the two parties.

Can a phone call be a verbal assault?

A threat made over a phone may, in some circumstances constitute an assault. Numerous cases have considered this issue with outcomes varying on small factual differences.

In the case of Knight (1988) 35 A Crim R 314, the defendant, who made numerous threatening calls to police and judges, was found not guilty. This was because there was no immediacy to his threats. The court found that he did make threats, but those threats could have been carried out at any time, or not at all.

A call implying that the caller is on their way is far more likely to be defined as an assault than idle threats that could take place at any time in the future. The key issues in these matters is how immediate the threat is perceived to be.

Conditional threats

A conditional threat is where a victim is ordered to do something otherwise they will be subjected to violence. Depending on the circumstances a conditional threat can constitute an assault.

In Police v Greaves [1964] NZLR 295 the defendant was found to have assaulted police by holding a knife at waist height while threatening to stab them if they came any closer. The words of the defendant caused the police to retreat out of an immediate fear of being stabbed. He was found to be guilty of an assault.

By contrast, the defendant in Tuberville v Savage [1669] EWHC KB J25 placed his hand on a sword and told the victim that he would have cut him if the Judge was not in town at that present time. This was found not to be an assault as the Judge was in town at the time. The defendants words made it clear that the victim had no reason to fear immediate violence.

Verbal assault penalties in NSW

In New South Wales the maximum penalties for common assault are fines of up to $5500 and imprisonment for up to two years. If a verbal assault causes someone to suffer a recognised psychiatric illness you may be charged with assault occasioning actual bodily harm.

The maximum penalties for assault occasioning actual bodily harm are fines of up to $5500 and imprisonment for up to five years.

If you have been charged with assault, it is crucial that you speak to experienced assault lawyers as soon as possible to prepare your defence.

Intimidation with intent to cause fear of physical or mental harm

Rather than try to prove that a verbal assault constitutes a common assault police will often lay charges under alternate legislation. There are other offences which specifically cover the act of making verbal threats.

When police investigate domestic violence allegations, one of the most commonly laid charges is Intimidation with intent to cause fear of physical or mental harm. This is under the Crimes (Domestic & Personal Violence) Act 2007 (NSW).

Intimidation has a very broad definition and includes conduct or an approach by any means which causes the person to fear for their safety. It also covers conduct which causes a person to fear for the safety of another person they are in a domestic relationship with or where they fear damage to their property.

Intimidation includes verbal threats made face to face but also:

• Cyberbullying
• Text messages
• Phone calls
• Email

When investigating a domestic violence assault police will usually also apply for an apprehended violence order. This order prohibits one person from engaging in particular types of behaviour to protect another person.

Carriage service offences

If a person makes threats via a phone or other telecommunications service they may be prosecuted under Commonwealth Legislation which specifically covers telecommunications services. Under the Criminal Code Act 1995 (Cth) telecommunications services are referred to as ‘carriage services’ and the Act creates the following offences:

• Using a carriage service to threaten to kill someone
• Using a carriage service to threaten serious harm
• Using a carriage service to menace, harass or offend

Maximum penalties vary depending on the specific offence and range from three to ten years imprisonment.

What if I’m charged with a verbal assault?

The colloquial term verbal assault can certainly exist in the right circumstances. But whether words alone constitute an assault will vary according to the unique facts of each matter. That’s why it is important to contact an expert criminal lawyer if you, or someone you know, has been charged with any type of assault.