The definition of assault will vary from jurisdiction to jurisdiction. Generally, assault is defined as intentionally placing an individual in reasonable apprehension of imminent harm or offensive conduct.
Difference between aggravated and common assault
Common assault cases are usually dealt with in the Local Court and may sometimes reach the District Court. This kind of assault will normally result in no significant injury or injuries that aren’t defined as serious.
On the other hand, aggravated assault refers to more serious assault cases.
Types of Assault
Common Assault
Common assault is outlawed by s 61 of the Crimes Act 1900. The maximum penalty for common assault is one or both of a period of 2 years in incarceration and a fine of $5,5000.
Factors
To convict an individual of common assault, the prosecution must prove the following elements beyond a reasonable doubt:
- The individual caused another individual to fear immediate, unlawful violence, or the individual made physical contact with the other person
- The main feature of assault is that your actions caused another person to fear some form of personal violence.
- This means no physical contact needs to occur for there to be an assault.
- In addition, the threat must be immediate – a verbal threat of future violence will not constitute an assault.
- The other person did not consent
- The other person must not have given you permission to touch them.
- The individual acted with intention or recklessness.
Assault will not include situations where you accidentally came into contact with someone.
The prosecution must prove that you knew that your actions would cause the other person to fear immediate violence.
If your actions were reckless and resulted in physical contact, the prosecution has to prove that you realised that your actions could have resulted in some form of physical contact, however slight.
Assault Occasioning Actual Bodily Harm
Assault Occasioning Actual Bodily Harm is outlawed by section 59 of the Crimes Act 1900. The maximum penalty for Assault Occasioning Actual Bodily Harm is one or both a period of 5 years in incarceration or 7 years when the offence was committed with the assistance of another.
To convict an individual of assault Occasioning Actual Bodily Harm, the prosecution must prove the following beyond a reasonable doubt:
- The individual caused another individual to fear immediate, unlawful violence, or the individual made physical contact with the other person
- The other person did not consent
- The other person must not have given you permission to touch them.
- The individual acted with intention or recklessness
- Assault will not include situations where you accidentally came into contact with someone.
- The prosecution must prove that you knew that your actions would cause the other person to fear immediate violence.
- If your actions were reckless and resulted in physical contact, the prosecution has to prove that you realised that your actions could have resulted in some form of physical contact, however slight.
- There was no lawful excuse for the individual’s actions
- It must be shown that you did not have some lawful and reasonable excuse for your conduct.
- The individual cause a physical injury that is more than merely transient or trifling, or, the individual causes serious psychological injury to another.
- The assault must amount to some kind of physical injury that is not short-lived or transient. An example of things that may not amount to assault occasioning actual bodily harm includes swelling or small grazes which go away quickly.
- In the case of psychological injury, it must be shown to be something serious that goes beyond transient feelings and states of mind.
Defences
Common defences to Assault Occasioning Actual Bodily Harm are:
- Duress: You were intimidated or threatened to commit assault
- Necessity: Where you needed to commit the assault to prevent other serious consequences
- Lawful Correction, and
- Self-Defence: You acted to protect yourself, another person or your property
An ‘assault’ is where:
- You caused the officer to fear immediate and unlawful violence, or you made unauthorised physical contact with the officer,
- The officer did not consent, and
- Your actions were intentional or reckless
Factors
An act is considered to be against a police officer even though he or she is not on duty, if it is carried out due to:
- The fact he or she is a police officer, or
- Actions by the officer while executing his or her duty
To establish the offence, the prosecution must prove beyond reasonable doubt that you assaulted, threw a missile at, harassed, stalked or intimidated a police officer.
Defences
Defences to the charge include self-defence, necessity and duress.
If evidence of any of these defences is raised, the prosecution needs to prove beyond reasonable doubt that it does not apply.
Assaulting a Police Officer
Assaulting a Police Officer is an offence which carries a maximum penalty of 5 years’ imprisonment.
An ‘assault’ is where:
- You caused the officer to fear immediate and unlawful violence, or you made unauthorised physical contact with the officer,
- The officer did not consent, and
- Your actions were intentional or reckless
Factors
An act is considered to be against a police officer even though he or she is not on duty, if it is carried out due to:
- The fact he or she is a police officer, or
- Actions by the officer while executing his or her duty
To establish the offence, the prosecution must prove beyond reasonable doubt that you assaulted, threw a missile at, harassed, stalked or intimidated a police officer.
Defences
Defences to the charge include self-defence, necessity and duress.
If evidence of any of these defences is raised, the prosecution needs to prove beyond reasonable doubt that it does not apply.
Recklessly Causing Grievous Bodily Harm
Factors
To convict an individual of recklessly causing grievous bodily harm, the prosecution must prove the following elements beyond a reasonable doubt:
- The individual inflicted grievous bodily harm upon another person
A wound is defined as an injury that results when both layers of the skin are broken.
Grievous bodily harm is defined as ‘really serious harm’ – including serious and permanent disfigurement.
- The grievous bodily harm was caused by the individual’s recklessness.
The offence applies in situations where you did not intend to wound another person or inflict grievous bodily harm, but where the physical injury came about as a result of your recklessness.
Recklessness refers to situations where you knew or should have known that your actions could cause grievous bodily harm or wounding, but you continued to act anyway.
Defences
Common defences to Recklessly Causing Grievous Bodily Harm (GBH) or Wounding are:
- Duress: You were intimidated or threatened to commit assault
- Necessity: Where you needed to commit the assault to prevent other serious consequences
- Lawful Correction, and
- Self-Defence: You acted to protect yourself, another person or your property
Causing Grievous Bodily Harm (GBH) or Wounding
Causing Grievous Bodily Harm (GBH) or Wounding is made illegal by s 33 of the Crimes Act 1900. The offence carries a maximum penalty of 25 years’ imprisonment. Grievous bodily harm is very serious harm that includes but is not limited to permanent or serious disfigurements, the destruction of a foetus outside medical procedure and any grievous bodily disease. Wounding is defined as the breaking of the demise and epidermis, that is, the breaking of both layers of skin.
To convict an individual of causing grievous bodily harm or wounding, the prosecution must prove the following elements beyond a reasonable doubt:
- The individual caused a wound or inflicted grievous bodily harm on another individual
- A wound is defined as an injury that results when both layers of the skin are broken.
- Grievous bodily harm is defined as ‘really serious harm’ – including serious and permanent disfigurement.
- The individual inflicted the harm with intent
- The prosecution must prove that you had the intent to inflict grievous bodily harm upon the other person. You must have foreseen that your actions would have resulted in the extent of harm that was suffered by the other person.
Defences
Common defences to Causing Grievous Bodily Harm or Wounding with Intent are:
- Duress: You were intimidated or threatened to commit assault
- Necessity: Where you needed to commit the assault to prevent other serious consequences
- Lawful Correction, and
- Self-Defence: You acted to protect yourself, another person or your property
Domestic Violence
The term ‘domestic violence charges’ is often used where police have brought criminal charges and/or applied for AVOs against a person where there has been an allegation of harassment, intimidation, stalking or violence between spouses or partners.
It is often the case that the partners wish to rectify their differences and seek to have the AVO and/or charges dropped.
It is also common for false allegations to be made by one party against another out of vengeance, anger or in spite, or to further their interests in other proceedings.
Defences to Assault
Defences that are most common to charges of assault include:
- Duress: You were intimidated or threatened to commit assault
- Necessity: Where you needed to commit the assault to prevent other serious consequences
- Lawful Correction, and
- Self-Defence: You acted to protect yourself, another person or your property
