The mental elements of assault in Western Australia

Document Type

Journal Article




Faculty of Business and Law


School of Business and Law




This article was originally published as: Nisbet, T. (2014). Mental Elements of Assault in Western Australia, The University of Western Australia Law Review, 38, 46-61. Original article available here


Hall v Fonceca has long been said to have introduced common law notions of intent into Western Australia’s The Criminal Code (‘CCWA’). This paper re-examines this old understanding of Fonceca. There is arguably some residual misunderstanding of the proper place of intent in the analysis of assault offences. This paper examines, in detail, the mental elements of various types of assault in CCWA. Part I of the paper examines Fonceca in detail. Fonceca is only binding authority for the proposition that intent to create apprehension in the victim is an element of threatening gesture assault. Fonceca was a case in which the character of the alleged assault was by way of a threatened or apprehended action and being of such a character as to apprehend a further assault – this being by implication some physical act. For convenience, and for the purposes of contradistinction with the type of case in which the alleged assault is in the nature of the physical application of force, the shorthand description of “threatening gesture” assault will be used to describe the former. Threatening gesture assault is analogous to assault (compare: battery) at common law. Common law assault requires an intention to create apprehension of ‘imminent harmful or offensive contact’ in the victim, with ‘an apparent ability to carry out the threat immediately’. Part II of the paper examines principles of code interpretation as they apply, or ought to apply, to CCWA s222, which defines assaults, concluding that Fonceca was probably wrongly decided, relying as it did on the common law of assault. Part III of the paper compares the common law approach to mens rea to the position under CCWA, in order to analyse the significance of the alternative understanding of Fonceca and CCWA s222. Part III indicates that the common law approach of matching the mens rea to the actus reus applies equally to CCWA. Once actus reus is broken down into its constituent components – acts, circumstances and events – the similarities between CCWA and the common law become readily apparent.