Defences to Assault

There are a number of defences to assault charges available to an accused person. Just because Police decide to charge you with an offence, does not mean that you will necessarily be found guilty.

Often there is a failure by police to investigate the offence properly or to only accept one person’s version of the incident. In such cases, you can be found ‘not guilty’ if one of the below defences are successfully raised.

 

Defences to Assault in NSW

The following are defences to assault charges:

1. Self-defence
2. Duress
3. Necessity
4. Lawful Correction
5. Automatism

If an accused person is able establish any of the above defences, then they will be found not guilty to an assault charge. The defences are explained in more detail below.

 

Self Defence

Self-defence allows a person to be found ‘not guilty’ of an offence if an accused person’s actions were committed to protect themselves or another person.

Section 418 of the Crimes Act 1900 (NSW) sets out the two-stage test for self-defence:

1. The accused genuinely believed it was necessary for them to act to:

a) Defend themselves or another person; OR

b) Stop themselves or another person being held without consent; OR

c) Protect their property from being taken, destroyed, damaged or interfered with; OR

d) Prevent a trespass

 

2. The accused’s actions were a reasonable response in the circumstances they perceived them.

Self-defence is most often used to defend domestic violence assault charges, common assault and grievous bodily harm assaults.

Once an accused raises self-defence, the prosecution must prove beyond reasonable doubt that they were not acting in self-defence.

 

A person’s state of mind at the time of their actions will be considered. This includes age, health, gender, and surroundings at the time.

 

Duress

Duress is a legal concept which refers to a person being forced into committing a crime against their will.

Duress is a full defence to a number of assault offences. However, it is not a defence to a charge of murder or manslaughter.

 

In order to successfully argue duress, there are a number of criteria which must be satisfied:

1. You genuinely believed that if you did not commit the crime, yourself or another person would be killed or seriously injured.
2. The threat would have driven a reasonable person to act as you did.
3. Could you have escaped without damage to yourself or another person?

Some examples of duress could be:

• Being held against your will and being forced to commit or assist in a fraud;
• Being sent a picture or video of a family member who has been kidnapped and told to immediately commit a crime (ie. there is no opportunity to alert Police).

Duress is a difficult defence to raise as there will usually be an opportunity to contact Police.

 

Necessity

Necessity is a legal defence to a criminal charge.

If you commit a crime to escape an immediate threat, then you can argue that your actions were necessary, and you may be found ‘not guilty’.

This is different to duress which is where you were forced to commit a crime, although there can be some overlap (R v Loughnan [1981] VR 443 [448]).

 

In order to successfully argue a necessity defence, you must satisfy the three-stage test:

1. You acted to ‘avoid consequences of irreparable evil’ (ie. death or serious harm to yourself or another person);
2. You held a genuine belief that you were in imminent danger; and
3. your actions were proportionate to that danger.

Once you have raised necessity, the prosecution must prove beyond reasonable doubt that one (or more) of the above points has not been established.

 

Lawful Correction

Section 61AA of the Crimes Act 1900 sets out that a person charged with assault of a child can raise a defence of lawful correction.

In order to establish this defence, an accused person must prove:

a) The force used on the child was for punishment of the child;

b) The force was applied by the parent or a person acting for a parent of the child;

c) The force was reasonable having regard to the physical and mental characteristics of the child, what the child did or other circumstances.

The force will not be reasonable if:

a) It is applied to the neck or head of the child unless it was trivial or negligible.

b) The force is likely to cause harm to a child that last for more than a short period.

 

Automatism

Automatism is a legal defence to an assault offence. If an accused person’s actions were involuntary.

It is most often employed when a person commits a crime while sleepwalking or while ‘blacking out’ due to trauma.

There is a general presumption that an accused person’s actions are voluntary (R v Falconer (1990) 171 CLR 30 at 40).

In order to establish the defence of automatism, an accused must prove that there was a reasonable possibility that their actions were not voluntary.

If a Judge or Magistrate determines that there is sufficient evidence for automatism to be raised, the prosecution must then prove beyond reasonable doubt that an accused person’s actions were voluntary. If the prosecution cannot do this, then the accused will be found ‘not guilty’.

Some examples of the automatism defence include:

1. suffering an unexpected reaction to medication;
2. sleepwalking (R v Tolson (1889) 23 QBD 168 at 187). A medical expert will have to confirm that the accused was in fact sleep walking and the defence is available;
3. suffering an epileptic fit (R v Youssef (1990) 50 A Crim R 1). A neuropsychiatrist will need to provide a report and possibly appear in Court to give evidence that the accused’s actions were due to epilepsy;
4. an accused ‘blacked out’ due to trauma and did not have control over his or her actions.

 

You can view some recent cases where assault charges were dismissed after one of the above defences was successfully raised by clicking here.

If you have been charged with an assault offence you should call Astor Legal immediately on (02) 7804 2823 or email us at info@astorlegal.com.au. Our team are experts in defending assault charges and accredited specialists in criminal law.