Zanker v Vartzokas (1988)
Assault Law and Continuing Fear in Captivity Situations
Court
Supreme Court of South Australia
Judge
White J
Citation
(1988) 34 A Crim R 11
Date
30 June 1988
Material Facts
On an ordinary October afternoon in 1986, a young woman made a decision that would reshape assault law in Australia. She had just missed a lift from her sister and was stranded at a phone booth when a man sitting on a nearby bench offered her a ride. She was nervous - she'd even tested the door handle as she got in his white van - but she accepted, asking him to follow her sister's gold car.
The situation deteriorated rapidly. Once the van was moving, the driver offered her money for sexual favours. When she refused and demanded to be let out, he accelerated instead. She threatened to jump and even opened the door slightly, but he drove faster, forcing her to close it again.
Then came the words that would echo through courtrooms: "I am going to take you to my mate's house. He will really fix you up."
By this point, the van was travelling at 60 kilometres per hour through suburban streets. The young woman faced an impossible choice: stay in the van and face whatever awaited at this unknown "mate's house," or jump from a speeding vehicle. Terror won over physics. She opened the door and leapt onto the roadside, suffering injuries that, while serious, were miraculously less severe than might be expected from such a desperate act.
The driver was charged with assault occasioning actual bodily harm. Everyone agreed he had falsely imprisoned her by refusing to stop the van. But had he assaulted her? He never touched her, never raised a hand. His lawyer argued the wrong charge had been laid - this was false imprisonment, not assault.
The magistrate agreed with the defence, dismissing the charge. He found that while the woman was genuinely afraid of future violence at the mysterious mate's house, this fear was of something that would happen "later on, in the indefinite future" - not the immediate violence required for assault.
Issues
Can words threatening future violence constitute assault when the victim is trapped with their threatener?
Sub-issues included:
- Does assault require fear of immediate violence, or can continuing fear of future violence suffice?
- How does false imprisonment affect the immediacy requirement for assault?
- When someone jumps from a moving vehicle to escape threats, who is responsible for their injuries?
Key Reasoning
The Traditional View vs Reality
The magistrate had applied the traditional test: assault requires apprehension of immediate or imminent violence. Since the threatened violence would occur at some future time at the mate's house, he found no assault.
But White J saw a fundamental flaw in this reasoning. The magistrate assumed "the words had effect only at the time when they were uttered and heard." This ignored the psychological reality of the victim's situation.
The Cat and Mouse Analogy
The judge used a powerful analogy to explain the continuing nature of the fear:
"She was in the captive position of a mouse to which a playful cat poses a continuing threat of injury or death at a time to be decided by the cat."
This wasn't a threat made to someone free to go about their life and seek help. This was a threat made to someone trapped in a moving vehicle with their threatener, who controlled when and where the threat would be carried out.
Continuing Fear in Continuing Imprisonment
The breakthrough in the judgment was recognising that the threat operated continuously, not just at the moment of utterance:
"A present fear of relatively immediate 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."
The words were "ringing presently in her ears as a continuing threat, without the necessity for repetition, second by second as they progressed towards the house."
Drawing on Telephone Threat Cases
White J found support in Barton v Armstrong, where threats made over a telephone were held capable of constituting assault. If someone could be assaulted by telephone threats they might face hours or days later, surely someone trapped with their threatener faced an even more immediate danger.
The key distinction: telephone victims have freedom to seek help or take precautions. This victim had "no escape, no reasonable possibility of a novus actus interveniens to break the causal link between the threat and the expected infliction of harm."
The Objective Test for Harm
Once assault was established, the resulting injuries from jumping were the defendant's responsibility. In South Australia, it doesn't matter whether the defendant foresaw she would jump - if bodily harm results from an assault, the defendant is liable regardless of foresight.
Decision/Holding
The Supreme Court allowed the appeal, finding the magistrate erred in law. White J held:
1. The defendant's conduct DID constitute assault
2. The victim's fear was sufficiently immediate because it was continuing throughout the false imprisonment
3. The threatened violence was sufficiently proximate in the context of ongoing captivity
4. The bodily harm from jumping resulted from the assault
5. The defendant should have been convicted of assault occasioning actual bodily harm
Key Quotes
"The fear was a continuing fear in the mind of the victim, the utterance having as much effect in an hour or so as it has at the moment of utterance."
On the nature of continuing fear
"The striking difference... is that the fearful victim of future physical harm was not at liberty but always at the mercy of the defendant."
On the captive situation
"They were ringing presently in her ears as a continuing threat, without the necessity for repetition, second by second as they progressed towards the house."
On the threat's continuing effect
"The gist of the offence is the creation of a fear in the mind of the person assailed that unlawful force is about to be used against him."
On the gist of assault
"I think the question is 'how immediate must the threatened physical violence be after the utterance of the threat which creates the fear?'"
The critical distinction
Significance
This case fundamentally changed how courts understand assault in captivity situations. It established that:
1. Context transforms threats
The same words might not be assault if said to someone free to leave, but become assault when said to someone imprisoned. The victim's captivity makes future threats present dangers.
2. Fear can be continuing
Courts don't require the threatened violence to be immediate if the fear itself is immediate and continuing. The threat echoes in the victim's mind throughout their captivity.
3. Practical protection for victims
The decision recognises the psychological reality of being trapped with someone who has threatened you. It protects victims who face the terrible choice between certain future violence and dangerous escape attempts.
4. Assault and false imprisonment can overlap
When someone imprisons another and threatens future violence, they commit both crimes. The imprisonment doesn't swallow up the assault - it amplifies it.
The case stands for a simple but powerful principle: when you trap someone and threaten them, you can't hide behind timing technicalities. The law sees through to the continuing terror you've created. A young woman's desperate leap from a speeding van made sure of that.