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    A complete guide to the question, 'how to beat an assault charge', including defences and common pitfalls

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      assault vs battery

      How to beat an assault charge?

      The question of how to beat an assault charge is one that lawyers answer almost daily.

      This is unsurprising given being charged with assault can have a devastating effect on yourself, your career and your ability to travel overseas.

      If you are found guilty of assault, you can receive a criminal conviction and even imprisonment in some cases.

      Astor Legal have years of experience in defending assault charges. You can view some recent cases where cases have been dismissed and our clients have avoided a criminal conviction by clicking here.

      How to beat an assault charge?

      You can beat an assault charge by arguing that the prosecution have not proved the elements of the offence beyond reasonable doubt. You can also argue one of the defences to assault.  

      The elements of an assault offence are:

      1. You committed an act that caused immediate and unlawful violence to the alleged victim, or caused the alleged victim to apprehend immediate and unlawful violence; and
      2. You intended to assault the alleged victim or were reckless

      The primary defences are self-defence, duress, lawful correction and necessity. An experienced criminal lawyer will be able to determine whether any of these defences apply and how best to prepare your case.

      Self-Defence

      Self-defence is a legal defence whereby a person is not criminally responsible for their actions if their actions were necessary and reasonable in the circumstances.

      The most common way to win an assault case is by arguing you acted in self-defence.

      Section 418 of the Crimes Act 1900 sets out where self-defence is available. You must raise that you believed your conduct was necessary to:

      1. Defend yourself or another person; or
      2. Prevent or terminate the unlawful deprivation of their liberty or the liberty of another person; or
      3. Protect property from unlawful taking, destruction, damage or interference; or
      4. Prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

      You must also raise that the conduct is a reasonable response in the circumstances as you perceived them.

      Once self-defence is raised it is for the prosecution to negative it beyond reasonable doubt.

      A common issue that arises with self-defence is that the conduct may be necessary, but the level of force may be considered unreasonable.

      Defence Of Others

      Self-defence can also be used when defending another person or persons.

      As with self-defence, you must believe your actions were necessary and a reasonable response in the circumstances.  A specialist assault lawyer will be able to advise you on whether your case will have this defence available.

      Defence Of Property

      You can also fight an assault charge if your actions were to defend property. This can be a response to a person attempting to damage your property or if you are attempting to take your property back.

      This can extend to physically removing a person from a premises if they are not entitled to remain on the premises and refuse to leave.

      This is a situation that often arises in relationships where a person is at their partner’s residence. If your partner does not own the property or they are not on the lease, then you are entitled to use reasonable force to remove them from the property.

      Consent

      If an alleged victim consents to an activity, then anything that occurs within that activity is not an assault. This is common in sports or other physical activities.

      However, if your actions went outside the bounds of the activity or what was consented to, then you can be charged with assault. For example, if a person is playing football and they punch another player, then this would be outside the bounds of that activity and an assault charge can be laid.

      The more serious the injuries suffered, the less likely it is that this defence will be accepted. Generally, lawyers for common assault charges will have an easier time than those dealing with grievous bodily harm charges.

      Duress

      Duress is where you committed an act of because another person forced you to.

      This is complex defence and there is a very high burden on the person raising the defence.

      To successfully raise duress as a defence to assault, you must prove that you genuinely believed your health or life was at risk, and your response was reasonable to the circumstances a reasonable person would believe.

      Necessity

      Necessity is where you acted in response to a sudden or unexpected circumstance and your response was reasonable.

      This is also a very difficult defence to be successful on due to the strict requirements the person raising the defence must overcome.

      If you wish to use this defence to an assault charge, you must prove that you committed the assault in response to an emergency situation and your response was reasonable under the circumstances and to be the only way to deal with the situation.

      Lawful correction

      Lawful correction is a defence to assault where you used reasonable force to discipline a child.

      This is most commonly used to fight an assault charge involving your child.

      If the actions of the parent are reasonable in the circumstances then this would provide a valid defence.

      A common pitfall however is where excessive force is used. The most common example of this is where the child suffers an assault causing actual bodily harm such as bruising or marks. In this case is can often be difficult to argue that the amount of force used was reasonable.  

      How to get Assault Charges Dismissed?

      You can get assault charges dismissed if:

      1. police cannot prove one or more of the elements of the offence beyond reasonable doubt;
      2. you were acting in self-defence;
      3. you were defending another person;
      4. the other person consented to the assault;
      5. you were acting udner duress;
      6. you used a reasonable amount of force to discipline your child.

      Assault Lawyer

      An experienced assault lawyer will be able to advise you on all of the possible defences available to you and the best ways to beat a simple assault charge.

      In many cases we have been successful in writing ‘representations’ to the prosecution prior to the court date and having the charges against our client withdrawn.

      In the event the assault case proceeds to a hearing, you should retain a Law Society accredited specialist criminal lawyer. This is because they will be able to effectively cross-examine any witnesses and make persuasive submissions to the Judge or Magistrate. Call Astor Legal today on (02) 7804 2823 or email us at info@astorlegal.com.au.

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