COMMON ASSAULT | COMMON ASSAULT DV T2
COMMON ASSAULT
Common assault is an offence under section 61 Crimes Act 1900 which states:
Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.
An assault can be any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence.
WHAT THE PROSECUTION NEEDS TO PROVE?
To secure a guilty verdict for common assault, the prosecution must prove beyond a reasonable doubt:
- An act which caused another person (the complainant) to apprehend immediate and unlawful violence, and
- The act was without the consent of the complainant, and
- The act was intentional or reckless, and
- The act was without lawful excuse.
If the allegation is one of application of actual physical force, then the prosecution must prove beyond a reasonable doubt:
- A striking, touching or application of force by the accused to another person (the complainant), and
- The act was without the consent of the complainant, and
- The act was intentional or reckless, and
The act was without lawful excuse.
STANDARD OF PROOF
Section 141 Evidence Act 1995 states:
In criminal proceedings, all the elements of an offence must be proved beyond a reasonable doubt by the prosecution.
The Courts have held that the expression “proved beyond reasonable doubt” mean exactly what they say – proof beyond reasonable doubt.
This is the highest standard of proof known to the law. The test in a criminal case is not whether the accused is guilty. In a criminal case the prosecution must prove the accused’s guilt beyond reasonable doubt. A suspicion, even a strong suspicion, that the accused may be guilty is not enough. Further a decision that the accused has probably committed the offence also falls short of what is required to prove an offence beyond reasonable doubt.
COMMON ASSAULT DV T2 | COMMON ASSAULT DOMESTIC VIOLENCE
If the other person (the complainant) and the accused are in a domestic relationship, the Police will charge the accused with common assault DV related.
The penalty for the offence remains the same, however the Court process will be different, and the domestic violence charge will accompany with it a provisional apprehended domestic violence order (ADVO).
More information on Apprehended Violence Orders.
SELF DEFENCE
An accused acting in self-defence is not criminally responsible for the offence.
An accused carries out the conduct constituting the offence in self-defence if the accused believes that the conduct is necessary to:
- to defend himself or herself or another person, or
- to prevent or terminate the unlawful deprivation of their liberty or the liberty of another person, or
- to protect property from unlawful taking, destruction, damage, or interference, or
- to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and
Such conduct of the accused is a reasonable response in the circumstances as the accused perceives them.
DURESS
The law recognises that in some cases, a person who commits what would otherwise be an offence should be excused for committing the offence. The law recognises that sometimes people do not have a choice, and their choices have been overborne by a serious threat to either them or their family.
To establish duress, the following three elements must be satisfied:
- because of threats of death or really serious injury to them or a member of their family,
- being threats of such a nature that a person:
- of ordinary firmness and strength of will, and
- of the same maturity and sex as the accused, and
- in the accused’s position,
- would have given in to them and committed the crime demanded of them.
DEFENCE OF LAWFUL CORRECTION
An accused charged with common assault arising out of application of physical force to a child, can rely on the defence of lawful correction if the accused applied physical force as punishment of the child but only if:
- the force was applied by a parent or person acting as the parent of the child, and
- the application of the force was reasonable in the circumstances.
For a consultation with a Criminal Lawyer, call AMA Legal on (02) 8610 3764.
