Common Assault

To establish this offence, the police must demonstrate each of the following elements:

1. You caused another person to fear immediate and unlawful violence, or you made physical contact with another person.

2. The other person did not consent to the actions.

3. Your actions in touching the other person (or instilling the fear of imminent unlawful contact) were intentional or reckless.

The type of penalty you may face for common assault varies depending on various factors, including the court where your case is heard.

Common assault cases are heard mainly in the Local Court before a magistrate. They can also be heard in the District Court (this happens mostly when the prosecution elects to proceed by way of indictment in the higher court, usually when other more serious matters are being heard on indictment there). The penalties in both courts for this charge are the same.

The maximum penalty for common assault is 2 years of imprisonment and/or a fine of up to $5,500. It’s essential to note that these are the maximum penalties and are typically reserved for the most severe cases. In most instances, the actual penalty imposed is much lesser.

If you are facing a common assault charge, you would want to know what the prosecution is required to prove and the potential penalties you could face.

To be found guilty of assault, the prosecution must establish the following beyond a reasonable doubt:

1. You acted in a way that caused another person to fear immediate and unlawful personal violence OR you physically touched another person without their consent.
The essence of assault lies in your actions leading another person to fear personal violence. It’s important to note that physical contact is not necessary for an assault to occur. Additionally, the threat must be immediate; a mere verbal threat of future violence, such as “I’m going to ruin your life,” would not constitute an assault.

2. The other person did not consent to your actions.
In cases involving physical contact, it must be proven that the contact was non-consensual, meaning the other person did not permit you to touch them.

3. You acted intentionally or recklessly.
Assault excludes situations where contact occurs accidentally, such as in crowded places. The prosecution needs to show that you either intended to cause the other person to fear immediate personal violence or acted recklessly, knowing that your actions would induce such fear.
If your actions were reckless and resulted in physical contact, the prosecution must prove that you were aware your actions might lead to some form of physical contact, however slight.

4. You did not have a lawful excuse for your actions.
The prosecution must demonstrate that you lacked a reasonable and lawful justification for your conduct. For instance, if you tackled someone while playing football within the rules of the game, it would not constitute an assault.

Proven Success in Defending Assault Cases
The highly experienced criminal defence team at KPT Defence Lawyers has an exceptional track record of effectively defending assault cases.
Defences to Assault Charges

The primary defences to assault charges are as follows:

1. Self-Defence
The most commonly used defence in assault cases is self-defence.
According to section 418 Crimes Act:
– A person is not criminally responsible for an offence if they carried out the conduct constituting the offence in self-defence.
– Conduct is considered self-defence only if the person believes it is necessary:

(a) to defend themselves or another person,
(b) to prevent or stop the unlawful deprivation of their liberty or another person’s liberty,
(c) to protect property from unlawful taking, damage, destruction, or interference, or
(d) to prevent criminal trespass to land or premises or to remove a person committing such trespass.

However, the conduct must be a reasonable response to the perceived circumstances.

In essence, a person cannot be found guilty of assault if:

(a) they genuinely believed the assault was necessary to defend themselves, another person, or property, and
(b) the assault was a reasonable response to the perceived threat.
If self-defence is raised as a defence in an assault case, the defendant must be found ‘not guilty’ unless the prosecution can prove ‘beyond reasonable doubt’ that:
(a) the person did not genuinely believe the assault was in self-defence, or
(b) the assault was not a reasonable response to the perceived threat.

2. Duress
‘Duress’ occurs when a person is forced to commit an act under the threat of death or serious harm.
For example, if an armed bank robber threatens to harm a staff member unless they restrain or strike an uncooperative customer.

If duress is raised as a defence in an assault charge, the defendant must be found ‘not guilty’ unless the prosecution can prove ‘beyond reasonable doubt’ that:

(a) there is no reasonable possibility that the assault occurred due to a threat of death or serious injury, or
(b) there is no reasonable possibility that an ordinary person would have committed such an assault, or
(c) the defendant failed to take advantage of a reasonable opportunity to render the threat ineffective, such as running away or calling the police.

3. Necessity
‘Necessity’ arises when a person undertakes an emergency act to prevent death or serious injury to themselves or another.

For instance, if a person commits some sort of assault offence to an innocent third party in order to, say, escape a bank robbery, believing the robbers are pursuing them.

If necessity is raised as a defence in an assault case, the defendant must be found ‘not guilty’ unless the prosecution can prove beyond reasonable doubt that:

(a) sudden or extraordinary circumstances did not exist, and
(b) committing the assault(s) was not the only reasonable way to handle that emergency, and
(c) the conduct was not a reasonable response to that emergency.

*Note that the defence of necessity cannot be used against a charge of murder (a principle established in a 19th century English case of cannibalism among starving ship cast-aways).

4. Lawful Correction
‘Lawful Correction’ serves as a defence to an assault committed by a parent on their child or a teacher on their pupil.

Section 60AA Crimes Act states:

– In criminal proceedings for applying physical force to a child, it is a defence if the force was applied for the purpose of punishment of the child, but only if:

(a) the physical force was applied by the child’s parent or a person acting for the parent, and
(b) the application of that physical force was reasonable considering the child’s age, health, maturity, or other characteristics, the nature of the alleged misbehavior, or other circumstances.

Thus, the assault must be reasonable and warranted in the circumstances, taking into account the child’s age and health.

Examples of ‘lawful correction’ include:

– Smacking a young child’s bottom as a form of punishment, as long as excessive force is not used.
– Physically restraining a child, provided excessive force is not employed.
– Pushing a child toward their room without using excessive force.

Examples of conduct that exceeds ‘lawful correction’ include:

– Striking a child excessively.
– Punching or kicking a child.
– strikes with force to the head and neck of a child.

To be convicted of assault, the prosecution must prove three key elements beyond a reasonable doubt:

1. That you engaged in conduct that caused another person to fear immediate and unlawful personal violence OR that you had physical contact with another person.
2. That the other person did not consent to your actions.
3. That your actions were intentional or reckless.

It’s important to note that even without physical contact, a common assault can still be established. For instance, causing fear of violence through verbal threats can constitute a common assault.

If you believe that the prosecution will struggle to prove these elements beyond a reasonable doubt, you may opt to plead ‘not guilty’ to the charges. Our experienced lawyers have a strong track record of defending and winning common assault cases in court. They will compel the prosecution to meet the burden of proof.

If the prosecution fails to do so, you will be found not guilty. Alternatively, our lawyers may identify a valid legal defence for your case, leading to an early dismissal or having the case thrown out of court.

Some defences to common assault include:

1. Acting in self-defence to protect yourself, another person, or your property.
2. Being coerced or threatened into assaulting another person (duress).
3. Believing that it was necessary to prevent serious injury or danger (necessity).
4. Lawful Correction.

If you acknowledge the charge of common assault and agree with it, you might consider entering a guilty plea at the earliest opportunity.

Once you plead guilty, the sentencing process will usually follow, during which the magistrate determines the appropriate penalty for your actions.

By pleading guilty early on, you can avoid the time and expense of a defended hearing.

Furthermore, a guilty plea may result in a more favorable outcome, as it shows the court that you are taking responsibility for your actions.

You may even have the chance to avoid a criminal conviction altogether by persuading the magistrate to grant a ‘section 10 dismissal or conditional release order,’ meaning a guilty finding with no conviction recorded against you.

However, before entering a plea to any criminal offence, it’s crucial to consult with an experienced criminal lawyer who can provide you with advice regarding your options.

If you decide to plead guilty, you might be wondering about the potential penalties you could face upon conviction.

The maximum penalty for common assault is 2 years of imprisonment and/or a fine of up to $5,500.

However, it’s essential to note that these are maximum penalties, typically reserved for the most serious cases.

The magistrate will consider all the facts and circumstances of your case to determine the appropriate penalty.

If you have a good character and the offence is not highly serious, you may have a chance to avoid a criminal record altogether.

It is crucial to understand that the court exercises its discretion in determining the appropriate penalties for this offence, which may include:

1. Section 10 Dismissal: The court may dismiss the charge without imposing any further penalties.
2. Conditional Release Order: You are to be placed on a good behaviour bond and adhere to specified conditions imposed by the court.
3. Fine: A monetary penalty may be imposed.
4. Community Correction Order: You are to be placed on a good behaviour bond for a period of time with specified conditions and this may include community service and/or supervision.
5. Intensive Corrections Order: A term of imprisonment be served in the community.
6. Full-time imprisonment