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Unlawful Assault

In Victoria, the maximum penalty for unlawful assault (which may also be referred to as ‘common assault’) is a fine of 15 penalty units or three months imprisonment. This offence is considered the least serious of the assault offences. Generally, individuals are charged with unlawful assault when a person assaults another person without causing injury.

Unlawful assaults can be complicated if there are aggravating factors. It is important to get legal advice at an early stage to ascertain precisely what the consequences of a conviction may be and whether you have a defence to the charge.

The Offence of Unlawful Assault

The offence of unlawful assault is contained in section 23 of the Summary Offences Act 1966 which states:

Any person who unlawfully assaults or beats another person shall be guilty of an offence.

What Actions Might Constitute Unlawful Assault?

Whilst the slightest touch might constitute unlawful assault, usually police would not charge a person with unlawful assault unless there is a significant degree of force applied or there is evidence that threats of violence were made.

An unlawful assault may consit of:

  • Punching, hitting or kicking another person without causing bodily harm;
  • Spitting upon another person;
  • Threatening to hurt another person.

What the Police Must Prove

To convict a person of unlawful assault, the prosecution must prove each of the following elements beyond a reasonable doubt:

  • They struck/touched/applied force to another person, or threatened another with immediate violence;
  • They did so intentionally or recklessly;
  • The actions were not consented to by the victim;
  • There is no other lawful justification or excuse.

Possible Defences for the Charge of Unlawful Assault

Possible defences to a charge of unlawful assault include but are not limited to:

  • The accused has a lawful justification or excuse;
  • The accused acted in self-defence or in defence of another
  • The complainant consented to the assault
  • The assault was not intentional or foreseeable.

Which Court Will Hear Your Matter?

Unlawful assault is a summary offence and will be heard at the Magistrates’ Court.

Diversion for Unlawful Assault – Case Study

Our client was charged with one count of unlawful assault following a road rage incident.

Victoria Police alleged that our client beeped his horn at a female driver when she pulled her car in front of him. It was alleged he then left his vehicle and walked to her car while shouting at her. Following this, he proceeded to bang his fist on the roof of her car and direct offensive language toward her. It was not stated by Victoria Police that he physically attacked or assaulted her in any way.

Victoria Police offered our client a Diversion Notice and asked him to attend the Melbourne Magistrates’ Court for a Diversion Hearing. On arrival, it was made known to us that our client had a prior criminal record, including a prior offence of recklessly causing injury.

Generally, diversion is only granted to first-time offenders.

The Diversion Coordinator at the court advised our client would almost certainly be refused diversion and that the Magistrate may not even be willing to hear submissions by our legal team.

Eventually, we appeared before the Magistrate who explained they were not minded to accept diversion for our client given his serious prior record. After lengthy submissions and the tendering of substantial material to support our client, the Magistrate asked to hear from our client personally. The client gave verbal evidence to the Magistrate with our assistance and was ultimately deemed suitable for a Diversion Plan.

DISCLAIMER: This is a case study of an actual matter where the client was represented by Armstrong Legal. Details relating to the client have been changed to protect their confidentiality. The outcome, charges and facts have not been altered.

Our case studies are published to show real outcomes and give an indication of possible results. We cannot, and do not, guarantee a matter involving similar charges will get an identical outcome.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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