Common Defences to Basic Assault Charges


Our video and blog post below talks about Common defences to basic assault charges.

If you have been charged with assault, it does not mean you have to plead guilty, or that you are necessarily going to be found guilty if you choose to plead not guilty.

There are a number of possible defences to assault, which might allow you to escape conviction, or even potentially have the charges against you withdrawn.

Your lawyer can explain your options to you, and advise you on the best defence for your specific situation.

Here are some of the most common defences to basic assault charges:

Where you were acting in self defence

Section 418 of the Crimes Act 1900 (NSW).

The section states that:

A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.”

If you raise that you were acting to defence yourself, your property or another person, the prosecution will then need to prove beyond reasonable doubt that you were not.

If the prosecution is unable to disprove that possibility, you will be found not guilty.

Where you were under duress

Duress is where you are forced to do something in fear of serious harm or death.

In cases where you raise that somebody else forced you to commit an assault, the prosecution will need to negative that possibility beyond a reasonable doubt.

When it was necessary due to an emergency situation

Necessity is where you were acting under extreme and unusual circumstances, and that you dealt with the situation in what can be considered a reasonable manner.

Situations may include fleeing an emergency situation, or pushing someone to get away from imminent danger. The amount of force used, and the action taken needs to be considered reasonable, according to the situation.

When defending an assault charge on the basis of any of the above, in order to prove that you are guilty, the prosecution needs to prove beyond a reasonable doubt that you were not acting out of self-defence, duress or necessity.

If they can’t do this, it is likely that you will be presumed to be not guilty.

There are other ways to avoid an assault charge. In some cases, you might be able to prove that the police acted illegally, and this might mean they decide to withdraw the charges against you.

Your lawyer will be able to advise you, and if appropriate, write a formal letter to the police requesting that they withdraw the charges against you. This is often enough to have an assault case dropped.

For certain assault charges involving intent to harm someone, being intoxicated can be a valid defence. This depends on the specific assault, and whether there was intent before the person became intoxicated.

If you have been charged with assault, it is important to seek legal representation when deciding your defence. An experienced assault lawyer can help you decide the best defence according to your circumstances, and help you gather the evidence to support your case.


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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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