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Zanker v Vartzokas (1989) SASC 795

Updated: Feb 12, 2023

White J

Criminal Law - Assault occasioning actual bodily harm - Assault

Facts: On the 20th of October 1986, a young woman was seeking a lift from her sister, who regrettably drove by unnoticed while inside a telephone booth. The respondent pulled over, offering whether he could assist the complainant, who agreed to get inside his white van in pursuit of her sisters gold coloured car. After entering the respondent's vehicle, he accelerated the van and presented her with money, expecting that she provide sexual services. Although she rejected his advances, he persisted. Unfazed, he persisted, driving faster whilst the complainant threatened to jump out of the accelerating vehicle. As the van's speed increased, the respondent made a threatening statement "I am going to take you to my mate's house. He will really fix you up." Despite the van travelling at 60km/h, after hearing the statement, the complainant was frightened, opened the vehicle door and leapt onto the roadside. The complainant suffered bodily injuries.

Law: White J 'In the case before me, there was undoubtedly an unlawful imprisonment. [emphasis added]. The question is whether there were present, in addition, all of the elements of the crime of assault.' White J goes on to reference the judgement made in the case of MacPherson v Brown (1975) 12 SASR 184, where Zelling J's reasoning determined that

"the fear had to be a present fear of physical harm in due course within the parameters of the incident of unlawful imprisonment — but the feared physical harm did not have to be immediate. The threat could operate immediately on the victim's mind but in a continuing way so long as the unlawful imprisonment situation continued."

This was an outcome that White J determined to be applicable in the case of Zanker v Vartzokas (1989) and his honour also agreed with Taylor J's two applications of the law in Barton v Armstrong [1969] 2 NSWR 451, which held that an

"assault can occur where a defendant threatens physical harm to a plaintiff unless he does what the defendant requires him to do. The plaintiff pleaded that the defendant was in such a strong position of power and influence that the plaintiff genuinely feared that the threats would be carried out at some time unless he did what was required."

However, 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."

Further, the facts in the present appeal indicate that the violence threatened was more immediate and likely than Barton v Armstrong [1969] 2 NSWR 451.

Holding: The assault here was proved, in my opinion, and a conviction for assault occasioning actual bodily harm should have been recorded.

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