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Common Law Assault (Per the Common Law)

Have you been charged with Common Law Assault?

‘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.

To Prove a Common Law Assault the Prosecution must establish the following:

For Assault involving the application of force:

  1. The accused applied force to the alleged victim’s body;

  2. The application of force was intentional or reckless; and

  3. The application of force was without lawful justification or excuse.

For Assault not involving the application of force:

  1. The accused committed an act that caused the complainant to apprehend the immediate application of force to his or her body;

  2. The accused intended his or her actions to cause such apprehension, or was reckless as to that outcome; and

  3. The accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.

The maximum penalty

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.

Assault Charges

Summary Offences Act

s9 Wilful Damage

s23 Common Assault

s52A Offence to Harass Witnesses etc.

Crimes Act 1958

Affray

s15A Intentionally Causing Serious Injury in Circumstances of Gross Violence

s16 Intentionally Causing Serious Injury

s17 Recklessly Causing Serious Injury

s18 Intentionally Causing Injury

s18 Recklessly Causing Injury

s19 Offence to Administer Certain Substances

s20 Threats to Kill

s21A Stalking

s24 Negligently Causing Serious Injury

s27 Extortion With Threats to Kill

s28 Extortion With Threat to Destroy Property

s30 Threatening Injury to Prevent Arrest

s31A Use of Firearms in the Commission of an Offence

s31B Being Armed with Criminal Intent

s63A Kidnapping

s75 Robbery

s75A Armed Robbery

s77 Aggravated Burglary – Assault

s197 Arson

s197 Criminal Damage

Common Law

Common Law Assault (Per the Common Law)

False Imprisonment

Public Nuisance

Riot

Rout

Unlawful Assembly

Repealed Legislation

s19A Intentionally Causing a Very Serious Disease (Repealed 2015)

Case Studies

Arson Charges Case study

Assault and Breach Intervention Order Charges, Not Guilty.

Assault Offences County Court

Assault on Taxi Driver

Assault; Criminal Damage

Assaults

Attempted Robbery Geelong

Conduct Endanger Life – Withdrawn

Conduct Endangering Life

Criminal Damage Charges Geelong

Damage Property Case Study Geelong

Diversion For Unlawful Assault

Intentionally Cause Injury Dandenong

Recklessly Causing Injury – Dandenong

Recklessly Causing Injury & Assault Case Study (Withdrawn)

Resist Arrest; Breach Suspended Sentence

Section 123 of the Family Violence Protection Act 2008

Sexual Assault Charges – Section 40(1) of the Crimes Act

Threat to Kill

Threat to Kill; Intentionally Causing Injury

Unlawful Assault & Recklessly Causing Injury

Unlawful Assault Charges Frankston

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Melbourne – 03 8644 7320
13/200 Queen St
Melbourne Vic 3000

Frankston – 03 8644 7322
8/395-399 Nepean Hwy
Frankston VIC, 3199

Ballarat – 03 8644 7310
Armstrong House
17 Armstrong Street South
Ballarat Central VIC, 3350

Dandenong – 03 8644 7315
1a/147 Foster St
Dandenong, VIC, 3175

Moorabbin – 03 8644 7328
Level 1, 441 South Rd
Moorabbin, Vic, 3189

Geelong – 03 8644 7300
2/13 Fenwick Street
Geelong Vic 3220

Ringwood – 03 8644 7325
7/2 Nelson St
Ringwood VIC 3134

Werribee – (03) 9116 9595
9/7 Bridge Street
Werribee VIC 3030

© 2021 Dribbin & Brown

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