In Victoria, an accused can be charged with several different categories of assault related offences. The charge will depend on the circumstances of the alleged offending and the severity of the injury sustained by the victim. Assault offences are extremely prevalent in Victoria. Whilst recent data is limited, the Crimes Statistics Agency of Victoria released a report in 2017 that found there were a total of 38,951 assault incidents that year, with approximately half (53%) resulting in a charge being laid. They also found that family violence related incidents are more likely to result in a charge being laid compared to non-family violence related incidents. For recorded offences of assault, Common assault offences comprised 56% of all assault and related offences, followed by Serious assault (38%) and Assault police, emergency services or other authorised officer (7%).
What is Assault? Understanding the Charge Nature of Different Assault Charges
Common law assault encompasses three essential elements that the prosecution must prove beyond a reasonable doubt. These elements are:
- that the accused applied force to the body of the complainant,
- that the application of force was intentional, and
- that the force was without lawful excuse.
Whilst the common law charge is often considered by the prosecution, if the alleged victim sustains an injury as a result of the assault, it is probable that the accused will also be charged with the statutory offence of causing an injury, with such charges being governed by the Crimes Act 1958 (Vic).
First, section 16 of the Crimes Act establishes an offence for intentionally causing serious injury. This charge has three elements;
- the accused caused a serious injury to the victim
- the accused intended to do so, and
- the accused did so without a lawful excuse.
Section 17 establishes an offence for recklessly causing serious injury. Similarly, this charge has three elements;
- the accused caused a serious injury to the victim,
- the accused acted recklessly to do so and
- the accused did so without lawful excuse.
Serious injury is defined as an injury that endangers the life of the victim or is substantial and protracted. Alternatively, section 18 establishes an offence for both intentionally and recklessly causing injury. This charge is essentially the same as those under sections 16 and 17, however, injury is defined as ‘physical injury or harm to mental health’.
The Assault of Police or an Emergency Worker – A Different Test
In Victoria, there is specific legislation covering assault of police and emergency workers. Unlike in other jurisdictions, the Victorian offence of assaulting a police officer is covered by a provision that also includes assaults on other emergency workers. The offence is contained in Section 31(1)(b) of the Crimes Act 1958. In order for a person to be found guilty of this offence it must be proven that they assaulted or threatened to assault, resisted or intentionally obstructed an emergency worker on duty, knowing or being reckless as to whether the person was an emergency worker. This charge is extremely serious, with the maximum penalty being 5 years imprisonment.
How to Best Defend Against Assault Charges
The most common defence available for assault charges is self -defence. The key provisions governing self-defence in Victoria are found in sections 322I –322N and 322T of the Crimes Act. Self-defence requires the defendant to prove that they believed the conduct was necessary in defending themselves, and that the conduct is a reasonable response in the circumstances as the person perceives them. Self-defence must be both necessary to avoid further harm, and reasonable. This means that it must be proportionate to the harm faced.
A common mistake that defence lawyers see daily is the belief that intoxication is a defence. This is not true. In Victoria, intoxication is not a defence. This is highly important in assault cases, given many occur in contexts where an accused has been drinking or using recreational drugs. However, intoxication may be relevant in determining whether an accused believed their actions to be necessary based on the circumstances as they perceived them (see section 322T Crimes Act).
Mistakes to Avoid When Charged with aAssualt
So, what are the most common mistakes and how do you best avoid them?
One of the most prevalent mistakes is for an accused to go into a police interview about an alleged assault without receiving prior legal advice. Whilst pre-interview advice is imperative for all criminal cases, it is particularly important in assault matters, given the prevalence of self-defence considerations. Ensure that you get legal advice before you are interviewed and remember: there is no such thing as a “chat” when speaking with Police!
Other mistakes to avoid include admitting to the assault but blaming it on intoxication. As has been discussed, intoxication itself is not a defence and in some contexts, be an aggravating factor. Similarly with drugs of dependence. There is law surrounding how drugs of dependence and mental health might combine and be used as a defence to assault charges. Most specifically, the law applies a high standard to mental impairment defences. Similarly, the law restricts how mental health and intoxication can be used as a mitigating factor in pleas of guilty. All of these factors will not be immediately apparent to you, but your criminal defence lawyer should be on to it.
And finally, your criminal lawyer should be advising you on the elements of the individual assault offences and they should be scrutinizing the evidence in relation to the nature of the injury and any forensic evidence. For example, is it really a serious injury? Is there an alternative explanation for the forensic evidence? Before you make a decision that can have serious effects, make sure you are across the evidence and are receiving the best possible legal advice.
How Galbally Parker Criminal Lawyers Can Help
When confronted with assault allegations, the urgency of securing a capable attorney for your defense cannot be overstated. We understand that with the number of concerns impacting you or your loved one when charged with such an offence, this task can be daunting. At Galbally Parker, our team of seasoned assault lawyers simplifies your access to essential resources during this trying period. We stand ready to advocate on your behalf, addressing various assault charges such as aggravated assault, physical assault, common assault, and domestic assault.
