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Common assault charge

Common Assault occurs when a person, although not occasioning actual bodily harm, causes another person to fear immediate and unlawful violence (Section 61 of the Crimes Act). It involves both physical and non-physical contact as long as the act causes another person to fear immediate and unlawful violence. In both situations, the assault must not be consented to by the other person. Lack of consent must be proven in court.

If you are charged with common assault your matter will be dealt with in the Local Court unless an election is made for trial on indictment. If an election is made your matter will be dealt with in the District Court. If the common Assault is dealt with by the Local Court, the person found guilty may be punished by imprisonment of up to 12 months (maximum) or a fine up to $2200.00 or both. If by the District Court, the maximum penalty imposable is imprisonment of two years.

If you are charged with this offence and you are pleading guilty you will have to appear before a Magistrate to be sentenced. You can however avoid criminal record of conviction if the court finds Section 10 of the Crimes (Sentencing & Procedure) Act 1999 applicable to your case. In such instance, you will be convicted without having any criminal record. A Magistrate when sentencing you for this offence will take into account the facts of the case, your prior criminal record and any subjective material you present.

You can enter a plea of not guilty to the charge of common assault. If you plead not guilty, a brief of evidence will be served upon your legal team. The brief of evidence contains all the evidence against you usually consisting of statements by alleged victim(s), witnesses and any forensic evidence. Once the brief of evidence has been carefully considered by yourself and your legal team and you adhere to your not guilty plea, a hearing date will be scheduled. At the hearing, the victims, witnesses, police and any experts attend trial to give evidence orally. They may be cross-examined by your legal team.

You can also give oral evidence to explain your version of events. Doing so however will subject you to be cross-examined by the prosecutor.

There are certain defences available for those charged with common assault. These are:

  • Self Defence/ Defence of another/Defence of property
  • Duress;
  • Necessity;
  • Wrongful identification, where you will state that it was not you who did the act.
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Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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