Defences to assault charges

It is important for any defendant that is facing assault charges to know their rights, and understand the defences to assault charges that are available to assault charges.

There are many different types of “assault” related charges. Some of these include:

• Common Assault,
• Assault occasioning actual bodily harm,
• Reckless Wounding
• Recklessly causing Grievous Bodily Harm,
• Maliciously inflicting Grievous Bodily Harm.

 

Self Defence

Self defence is one of the most common defences to assault related offences.

Section 418 of the Crimes Act 1900 states:

A person carries out conduct in self defence if the person believes that the conduct is necessary:

• to defend himself or herself or another person, or
• to prevent or terminate the unlawful deprivation of his or her 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 the conduct is a reasonable response in the circumstances as he or she perceives them.

In short, the court will consider your conduct in terms of the position YOU thought you were in so as to act the way you did, then it will consider whether the conduct was reasonable.

Once self defence is raised, the onus lies with the prosecution to disprove, beyond reasonable doubt, the defence of self defence in any criminal proceedings.

Self defence arguments can become quite complicated, so it is very important that you have an experienced Criminal Defence Lawyer to argue for you in court!

 

Is protecting a friend considered as one of the defences to assault charges?

Yes.

If the court finds that you acted in the way you did to protect another, and your conduct satisfies the self defence test as stated above, you   have a defence to the charges.

Is provocation a defence to an assault charge?

No. Provocation, in the eyes of the law, in not considered as one of the defences to assault related charges. However, it may be considered as a mitigating circumstance in sentencing proceedings.

Is intoxication a defence to an assault charge?

No. However if an ingredient of the charge includes “specific intent”, for example the charge of “Maliciously inflicting grievous bodily harm”, intoxication may be used as a defence to the charge.

 

What other defences do I have to an assault charge?

There are many other ways that you can have your assault charge dismissed by the court, withdrawn by the prosecution or downgraded to a lessor charge. Some of these include:

• It wasn’t you who committed the assault, it is a case of mistaken identity,
• The victim/s  and/or witnesses don’t show up at court to give evidence,
• The victim/s and /or witnesses were lying,
• The Police acted improperly, and the evidence is excluded by the court,
• …and many more

For general information on defences, and to see case studies for self defence and other defences where we have represented others, go to our defences page:

https://lylawyers.com.au/criminal-law/defences/

 

If you have been charged with any assault related charge, call our expert Criminal Defence Lawyers on 1300 595 299 for a free consultation.