Some things you need to know about assaults
Assault can be an element of other offences. For example section 112 of the Crimes Act 1900 NSW provides for the offence of break enter and commit serious indictable offence. The serious indictable offence may be an assault occasioning actual bodily harm. Common assault on the other hand, is a minor indictable offence. Sometimes police will get this wrong. The way in which assaults are classified are complicated but very important. From the degree to which intent is necessary, whether alcohol can be taken into account and the way in which the courts deal with assaults, you will need competent legal representation to ensure that you understand all your rights and choices.
Some types of assault
An assault can range from no physical contact at all to murder!
- Common Assault- By intentionally or recklessly causing somebody to fear being assaulted, by making a threat for example, a person can be guilty of an assault. Other common assaults will include unlawful physical contact against another person that does not cause an injury amounting to actually bodily harm or other more serious.
- Common assault is provided for in section 61 of the Crimes Act 1900 The offence carries a maximum of 2 years imprisonment. This is a minor indictable offence and is dealt with summarily in the local court.
- Assault occasioning actual bodily harm ( A.O.A.B.H.)- This is an assault where there is a visible injury, for example a bruise or a scratch. The injury has to be more than transient or trifling. A good example of this is a red mark from a slap. Sometimes police will charge a person with this offence when the injury does not amount to actual bodily harm. A.O.A.B.H also includes psychiatric injury that is more than merely emotions, fear or
- AOABH is provided for in section 59 of the Crimes Act 1900 NSW and carries a maximum of 5 years imprisonment. If the assault is committed in the company of another individual then the offence carries 7 years. The offence is a serious indictable offence that can be dealt with in the local court if no party elects
- Malicious wounding – This is an assault where the injury involved has caused a breaking of both layers of the skin, the exterior (epidermis) and interior (dermis). Often this is an offence that involves a knife or other sharp instrument in the assault but not always.
- Reckless wounding is found in section 35(4) of the Crimes Act 1900 It is a serious indictable offence that can be dealt with in the local court if no party elects otherwise. The offence however, is incorporated in many grievous bodily harm offences, for example, section 33(1)(a) provides for an offence for specifically intending to wound. This offence is strictly indictable and can only be dealt with in the district court.
- Assault occasioning grievous bodily harm- This is a serious assault resulting in a really serious This injury is defined pursuant to section 4 of the Crimes Act 1900 NSW as being an injury that is a permanent or serious disfigurement of the person. It can however, include a temporary effect. The injury also includes any infliction of a disease or harm to a pregnant woman causing the loss of a foetus. The extent of the injury amounting to grievous bodily harm can often be a cause for contention and it is easy to see how a wound and an injury amounting to grievous bodily harm can overlap.
- This offence appears in a number of sections of the Crimes Act including section 33, 35, 54, 58 and 60. The penalties vary from 2 years to 25 years imprisonment. The difference in penalty often reflects whether the injury was occasioned through negligence, recklessness or a specific
Where a specific intent is proved then the matter can only be dealt with in the district court. If you have been charged with this offence, competent legal representation is paramount.
Some issues with proving the offence of assault
Intention and recklessness
There are issues with intention with assault offences. In some cases a basic intent, which allows for recklessness, is all that is needed to be proved and in other cases, the prosecution must prove a specific intent to cause the injury sustained. In some cases alcohol and drugs can be taken into account in relation to your intent, and in some cases they cannot. These issues can be pivotal. With the Local Court Lawyers we are in the best position to ensure that these issues are fleshed out ensuring that you achieve the best possible outcome.
In some cases an assault may have occurred but your actions did not cause the injury. If the actions of an assault can be severed from the injury, for example a person tripping over after the assault, then it can be argued that you did not cause the injury alleged.
In some cases you may have used physical force against another person in self defence of yourself, another, or in the protection of your property or another’s property. For this defence, you have to show that you honestly believed that it was necessary to do what you did and you based that belief on reasonable grounds. This is a two part test involving a subjective test (you as an individual) and an objective test (what a reasonable person would believe). Once self defence is raised, it is up to the prosecution to disprove it beyond a reasonable doubt. This is another complicated area of law. The
Local Court Lawyers will be quick to identify any issues with self defence and be able to advise you if the defence is available.
Provocation – Provocation is not a defence but is worth mentioning. Under the Crimes Sentencing Procedure Act provocation is a matter the court can take into account in sentencing. If you allege provocation then the prosecution should be put on notice. If the prosecution disputes provocation then it may be necessary to have a disputed facts hearing.
Representations to the police – plea bargaining
If you have exercised your right to silence, the police may not have all the facts. There may also be issues in relation to the admissibility of evidence or there is other evidence available that the police were not aware of. Once you have given your version to the Local Court Lawyers there may be a factual or legal position that can be presented to the Prosecutions Section of the NSW Police Force in writing. The Local Court Lawyers are well versed in this process and the likely prospects of success. If written submissions are successful then a charge can be withdrawn and you can avoid the expenses associated with a hearing, you may receive a less serious penalty by amending the facts sheet or the prosecution may lay a less serious charge.