Common Assault Charges- s 61 Crimes Act 1990 (NSW) states:
“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”
The offence of common assault extends not only to ‘the actual application of force without consent, lawful excuse, or justification’, defined as a Battery, but also includes ‘putting another person in fear or apprehension of an unlawful contact (psychic assault) e.g. Threatening someone with harm.
Common Assault Charge Defences:
There are several defences to a charge of common assault including self-defence, provocation, and motive.
- Fern is living with Paul, her 5th partner , with her daughter Kristy.
- Fern has had bad luck with her partners, as they are often abusive and violent.
- Paul is a heavy drinker, and is often yelling abuse at Fern and Kristy.
- Fern got Kristy a puppy for her birthday, and it keeps peeing all over the house, barking at night and chewing all the furniture in Paul’s house.
- Paul is drinking one night when he finally snaps about the mess the puppy had made. He is screaming and throwing things across the room.
- He is getting closer to where Fern and Kristy are sitting at the dining table.
- Scared, and worried Paul might harm one of them, Fern picks up a vacuum cleaner pole from nearby and swings it at Paul to get him to stay away.
- The pole hits Paul in the head and he is knocked unconscious.
- The ambulance is called, and the police are notified of the incident.
- Fern is charged with common assault under s 61 of the Crimes Act.
In this scenario, self–defence may be available to Fern under s 418 of the Crimes Act 1900 (NSW).
The burden of proof lies with Fern to raise the defence on an evidentiary basis- and the prosecution must negate this beyond a reasonable doubt.
Self – defence is available to those who believe their conduct is necessary to defend himself or herself or another person, to prevent a deprivation of liberty (i.e being locked in a car and kidnapped), to protect property or prevent trespass.
The conduct must also be considered to be a reasonable response in all the circumstances.
A court would determine if Fern’s conduct of using the vacuum cleaner pole to defend herself was reasonably proportionate to Paul’s violent outburst.
If Paul had yelled violent and abusive things to Fern, such as calling her a “useless cow” and a ” waste of space” and Fern reacted to this badly, after her string of failed relationships and assaulted him in an aggravated manner and killing Paul, a partial defence of provocation may be available.
This can only be raised if the act was done in direct response to Paul’s abusive and provoking conduct.
Recent amendments to the Crimes Act s 23 (Crimes Amendment (Provocation) Act 2014 (NSW) Act No 13) have limited the scope of this defence to ensure it is only raised for acts done in response to a serious indictable offence, and a reasonable person in the position of the accused would have also lost control resulting in death.
Motive is generally considered irrelevant in determining a person’s liability, but is currently recognised in the defences of self-defence and provocation.
In this case, Fern’s motive to defend herself and Kristy would be considered up until the point Paul was incapacitated, or no longer threatening.
IF Kristy continues to assault Paul, resulting in his death, beyond the necessity to protect herself or Kristy, then the person’s motive can no longer be considered in line with self-defence or provocation (R vs Conlon (1993).