Have you been charged with Common Law Assault in Victoria?
‘Common Law Assault’ should not be confused with ‘Common Assault’. ‘Common Law Assault’ is not contained in any Victorian legislation as it only exists at common law. This is different to ‘Common Assault’ which is contained in the Victorian legislation at section 23 of the Summary Offences Act 1966. For more information on ‘Common Assault’ follow the link. ‘Common Law Assault’ carries a maximum penalty of 5 years imprisonment whereas ‘common assault’ only carries a maximum penalty of 3 months imprisonment. If you have been charged with an offence relating to assault it is important to understand which offence you have been charged with. Follow the link for more information on assaults charges in Victoria.
Although as stated, the charge of Common Law Assault is not contained in legislation, there is a reference to the penalty (only) in the legislation at section 320 of the Crimes Act 1958 which provides maximum sentences in relation to multitude of common law offences.
Things to consider in relation to common law assault:
- Did the assault occur?
- Did it involve the application of force?
- If so, was this intentional or reckless? Did you have a lawful excuse or reason for the assault?
All these questions, must be carefully considered before you and your lawyer can ascertain how you should plead. You must be aware that, should you plead guilty, the offence carries a maximum penalty of 5 years in prison which is a lot higher maximum than the common assault under the Summary Offences Act.
Keep reading below for specific information in relation to Common Law Assault or follow the link to read about assault offences more generally.
Elements of Common Law Assault
To prove common law assault the prosecution must establish several elements beyond reasonable doubt.
For Assault involving the application of force:
The accused applied force to the alleged victim’s body;
The application of force was intentional or reckless; and
The application of force was without lawful justification or excuse.
For Assault not involving the application of force:
The accused committed an act that caused the complainant to apprehend the immediate application of force to his or her body;
The accused intended his or her actions to cause such apprehension, or was reckless as to that outcome; and
The accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.
The maximum penalty for assault
Level 6 imprisonment being a maximum of 5 years. See section 320 of the Crimes Act that references the penalty only, not the elements.
Where will my case be heard?
This type of common law assault charge is usually only reserved for matters proceeding in the County Court, this is because offences under the summary offences act are usually reserved for the Magistrates Court unless uplifted, but considering the elements are very similar the prosecution will often proceed with the common law offence.
Questions to consider
Do you have a defence?
If you are pleading guilty, what can you do to minimise your sentence?
The offence of Assault now includes both Assault and Battery. Before proceeding further, consult a specialist criminal lawyer.
What to do next
Consult an experienced criminal lawyer urgently.
Don’t leave preparing for your case until the last minute. Being thoroughly prepared is critical to the success of any matter.
If you have been charged with Common Law Assault arrange an appointment to see one of our experienced lawyers today.
