Have you been charged or accused of committing common assault against another person? Do you know the seriousness of the offence or what steps you need to take? It is essential that you seek legal advice about common assault at the first possible opportunity.
What is common assault?
Common assault is the act of physically striking or physically assaulting another individual. It is a serious offence to unlawfully touch an individual without their consent. Assault is considered an act of immediate and unlawful violence. A criminal conviction for common assault in either the local court or the supreme court holds a permanent record.
There are a few different types of assault which ultimately rate from mild to serious on the scale. On the more serious end of the scale you have grievous bodily harm (GBH) which is a supreme court offence carrying a maximum penalty. GBH is a type of physical contact which usually results in the most significant or permanent injuries as a result of violence against another person.
Which court would the matter be heard in?
Common assault matters can be heard in either the Supreme Court or the district court (local court) depending on the severity of the charge. The term common assault encompasses varying degrees of behaviour/physical contact. On one hand a charge of assault may result in light bruising or a cut and on the more severe end it may result in broken bones or contusions.
If your matter is heard in the Supreme Court then the offence is considered indictable however if it is heard in the district court (local court) then the offence is considered summary.
A summary offence is overall considered less severe than an indictable offence. A summary offence is determined by way of hearing in front of a magistrate whereas an indictable offence is determined by way of jury and judge.
A jury will decide whether a guilty or not guilty verdict will be given for each charge and a judge will decide the overall sentencing for each offence.
What area of law do I need to consider?
Common assault forms part of criminal law and in specific the Crimes Act which relates to each respective state or territory. It is important that if you try and interpret legislation without expert advice that you do so carefully as it can be confusing and interpretive.
It can be detrimental to your case to proceed on a wrong assumption and could result in the local court giving you an unfavorable outcome.
Legislation can explain the elements that make up a common assault charge and therefore the elements that need to be proven for a finding of guilt but it will not explain the process of court nor the different defences which may be available. Legislation will likewise not set out what punishments you may face, only going so far as to confirm that a term of imprisonment is possible and a maximum for that term. It will not for example offer alternatives such as a good behaviour bond, conditional release order, etc.
I have been charged with assault, what is my first step?
First and foremost, you must seek legal advice immediately if you are accused or charged with common assault. Common assault is a criminal law offence and you should seek advice from an experienced criminal lawyer. Depending on how serious the matter is and the surrounding circumstances, you may need to seek advice from a specialist lawyer who has experience dealing with the situation you find yourself in.
It is important to ask your criminal lawyer the following;
Does your offence carry a maximum penalty?
What is the maximum penalty you could receive if determined guilty?
What is a Lawful excuse?
Is a prison sentence likely?
What personal circumstances, if any, can be taken into account?
Your lawyer or team of experienced criminal lawyers will be able to answer any and all questions you may have and guide you through the process.
What is reasonable doubt?
Reasonable doubt is what all criminal matters are measured against essentially. To be found guilty, it must be measured against what an ordinary person would consider beyond a reasonable doubt.
It can be very difficult to convince a judge or jury that there is reasonable doubt as to whether you committed the crime or not. In common assault cases specifically, there is usually medical evidence to prove common assault occurred. This may be from bruising, lacerations, broken bones, body trauma, etc. Your criminal lawyers will request this evidence from the police or prosecution prior to fully advising you what plea to enter so they can see what evidence the state hold against you.
Realistically, a level of evidence needs to exist before an individual can be charged with assault charged however there are instances of matters being thrown out due to lack of evidence. This is more often than not the case with more minor instances of common assault where injuries may have been
Where should i go to seek advice?
Upon a charge or accusation of common assault, you should seek immediate advice from a criminal defence lawyer. It is important to seek legal representation for a few reasons but predominantly it is because the consequences of a guilty verdict are severe.
It is important to prove to the court that you are taking the situation seriously by engaging a lawyer to help you. It is also advisable to have a guide through the process of court to avoid easy mistakes being made which create unfavorable results.
If you cannot access a lawyer straight away then you can contact the national legal hotline for advice. The hotline is a round the clock advice service who can provide over the phone assistance in criminal matters. They would be able to assist you in obtaining an adjournment until such time as you can access advice.
What DEFENSES may be available to me?
Under common assault, there are a number of defences one can rely on to defend the charge however, in many circumstances, these defences only explain how the incident actually occurred rather than defend the actions. Below is a list of possible defences;
Alcohol or drug dependence, addiction or intoxication;
Self defence;
Mental/physical health conditions, diagnosed or undiagnosed;
Lawful excuse;
etc.
No matter which defence it is important to obtain any and all available evidence to help defend your case. It is essential that if you decide to use a defence, it is reasonable and realistic in the circumstances.
Mental health is perhaps the most challenging of defences because it requires a level of medical evidence that supports the argument. It is not simply enough to necessarily suffer with poor mental health as the evidence must support a finding that the individual’s mental state releases them from criminal liability. You may even require your lawyer to put in place a litigation guardian to make decisions your behalf.
What Common ASSAULT sentencing might i be subject to?
If you are ultimately found guilty of assault charges then there are a few possible sentencing options you could face. The maximum penalty is a term of imprisonment however largely, the period of time is discretionary to the magistrate or judge determining the matter. Legislation may provide a minimum sentence or provide that a certain offence carries a maximum penalty however the in between is discretionary.
Below is a list of possible sentencing options;
Prison sentence;
Good behaviour bond;
Community Correction Order; and
Monetary penalty or fines.
If you are subject to a good behavior bond or a community corrections order, you will be subject to conditions and obligations that must be followed. Failure to follow the obligations or breaches of the obligations will result in a termination of the order and normally, a triggering of the prison sentence you would have otherwise been subjected to.
The types of obligations you may be subject to are designed to prevent further offending and promote rehabilitation. If you matter is drug related then you may be subject to drug and alcohol counselling or random drug testing. There may be a curfew imposed, mandatory police check in’s each week or a prohibition on entering certain businesses or licenced premises.
Conditions can be removed or lightened based on good behaviour however they can also be further imposed based on uncooperative behaviour.
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