Being charged with common assault can feel disproportionate to what you believe actually occurred, particularly where the allegation arises from a brief confrontation, an argument or competing versions of the same incident.

Galbally Parker’s criminal defence lawyers regularly act in assault matters throughout Melbourne and Victoria. We look closely at what is alleged to have happened, what the prosecution can actually prove and whether there is evidence or a lawful defence that changes the way the incident should be understood.

Speak to our team to find out your rights and how we can help you.

Common Assault in Victoria

Common assault, also referred to as unlawful assault, is an offence under section 23 of the Summary Offences Act 1966 (Vic).

The legislation makes it an offence to unlawfully assault or beat another person. It is a summary offence and carries a maximum penalty of 15 penalty units or three months’ imprisonment.

Common assault generally sits at the lower end of assault offending. However, that does not mean the consequences are insignificant. A finding of guilt can still have implications for a person’s criminal record, employment, professional obligations and other areas of their life.

Common assault also needs to be distinguished from more serious assault offences. If the allegation involves injury, a weapon, kicking, multiple alleged offenders or other aggravating circumstances, different charges may apply. See our Aggravated Assault Lawyers page or our broader Assault Lawyers page for more information.

After a Common Assault Charge

Common assault is generally dealt with in the Magistrates’ Court of Victoria. The Court hears summary offences, including some assault offences.

The first steps depend on whether you have already been charged or police are still investigating the allegation. If police want to interview you, getting advice beforehand gives you an opportunity to understand the allegation and your rights before deciding how to respond.

Once charges have been laid, we review the police brief and take detailed instructions about what actually occurred.

From experience, the police summary does not always tell the full story. We may need to consider material outside the brief, including:

  • CCTV or phone footage
  • statements from other people who were present
  • messages before or after the incident
  • photographs
  • medical evidence
  • inconsistencies between different accounts
  • the events leading up to the alleged assault.

This can be particularly important where the case depends heavily on the evidence of one person against another.

Defending a Common Assault Charge

Our first task is to establish precisely what the prosecution alleges occurred and whether the evidence supports that version of events.

In common assault matters, small details can become important. Two people may agree that an argument or confrontation occurred but disagree considerably about who initiated it, whether physical contact occurred, what the contact involved or why force was used.

We therefore look beyond the allegation itself and test it against the available evidence.

Depending on the circumstances, this may involve assessing whether:

  • the alleged assault occurred at all
  • the accused person has been correctly identified
  • witness accounts are reliable and consistent
  • objective evidence supports or contradicts the allegation
  • there was a lawful reason for the conduct
  • self-defence applies
  • the prosecution can prove the charge beyond reasonable doubt.

Where there are weaknesses in the evidence, there may be a basis to make submissions seeking withdrawal of the charge. If the allegation remains contested, the matter can proceed towards a contested hearing.

Self-Defence and Common Assault

Self-defence can arise where a person believes their conduct is necessary to defend themselves or another person and their response is reasonable in the circumstances as they perceive them.

In practice, this means we need to understand much more than the physical act itself.

We look closely at what happened immediately beforehand, what the accused person believed was occurring and why they responded in the way they did. CCTV, witness evidence and communications surrounding the incident can all affect that assessment.

This is one reason we recommend getting legal advice before giving a police interview where self-defence may be relevant.

Read our article, Examining the Use of Self-Defence for Assault-Related Charges in Victoria.

Possible Outcomes

There is no single outcome for a common assault matter.

Depending on the evidence and circumstances, a case may result in:

  • the charge being withdrawn
  • the matter being contested
  • charges being negotiated
  • an application for diversion where the requirements are satisfied
  • a plea of guilty followed by sentencing.

The right approach depends on both the strength of the prosecution case and the client’s objectives.

Where a client intends to plead guilty, our role also includes considering what material should be put before the Court and whether there are steps that can be taken before sentencing to place the client in the strongest possible position.

For eligible matters, Victoria’s Criminal Justice Diversion Program can result in charges being dismissed without a finding of guilt if the diversion is granted and successfully completed. Prosecution consent is required before the Court can consider diversion.

Why Choose Galbally Parker?

Common assault may sit at the lower end of assault offending, but we do not treat these matters as unimportant.

Our approach is to understand the allegation in detail, scrutinise the evidence and identify the consequences that matter to the individual client. That may mean challenging the prosecution case, seeking withdrawal, assessing eligibility for diversion or preparing a carefully considered plea.

Galbally Parker represents clients facing assault and other criminal charges throughout Melbourne and Victoria.

Speak With a Common Assault Lawyer

If you have been charged with common assault or police want to interview you about an allegation, contact Galbally Parker to discuss your circumstances before deciding what to do next.

Book a Free 15 Minute Tele-consult

Frequently Asked Questions About Common Assault

The terms are often used interchangeably in Victoria when referring to the offence under section 23 of the Summary Offences Act 1966.

However, there are several different assault offences under Victorian law, so it is important to look at the exact wording and section on the charge sheet rather than relying only on the general description of the allegation.

Not necessarily.

Common assault is generally at the lower end of assault offending. Where an allegation involves an injury, police may instead, or additionally, consider offences specifically involving the causing of injury.

We therefore look closely at any medical evidence and at what police say resulted from the alleged conduct.

Yes, depending on the circumstances.

In our experience, the fact that police have laid a charge does not necessarily mean every aspect of the prosecution case is strong. Witness inconsistencies, missing evidence, CCTV, identification issues or other problems can change the assessment of the case.

Where there is a proper evidentiary or legal basis, we can raise those matters with the prosecution and seek withdrawal of the charge.

These cases require careful analysis rather than assuming one person’s allegation will automatically be accepted.

We look at the consistency of each account, whether there are independent witnesses, communications between the parties, CCTV, photographs and other evidence that may support or undermine either version.

Sometimes evidence that appears relatively minor becomes important when the credibility of the competing accounts is the central issue.

Potentially. The Magistrates’ Court’s Criminal Justice Diversion Program may be available in some cases.

The prosecution must agree to diversion before an application can proceed, and the Court ultimately decides whether diversion is appropriate. If the diversion plan is successfully completed, the charges are dismissed without a finding of guilt and no criminal record is recorded.

Whether diversion is appropriate or available needs to be assessed in the context of the individual case.

Not necessarily.

The outcome depends on how the case resolves and, where there is a finding or plea of guilty, the sentencing decision made by the Court.

Avoiding a conviction may be particularly important for clients whose employment, professional registration, visa status or other circumstances could be affected by a criminal record. We take those consequences into account when advising on the strategy for the matter.