The experienced criminal defence team at Sydney Criminal Lawyers has an outstanding track record of winning assault cases, through having charges withdrawn or thrown out of court due to insufficient evidence or the existence of a valid defence.
Here is a summary of some of the main defences to assault charges in NSW.
Defences to Assault
The most common defences to assault are:
- Necessity, and
- Lawful Correction
Self-defence is the most frequently used defence to assault charges.
Section 418 of the Crimes Act says that:
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) 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 oe premises or to remove a person committing any such trespass
However, the conduct must a reasonable response in the circumstances as he or she perceives them.
This means that a person cannot be found guilty of assault if:
(a) they genuinely believed that the assault was necessary to defend him/herself, or another person, or property, and
(b) the assault was a reasonable response to a perceived threat.
If the possibility of self-defence arises in an assault case, the defendant must be found ‘not guilty’ unless the prosecution can prove ‘beyond reasonable doubt’ that:
(a) they did not genuinely believe that the assault was in self-defence; or
(b) the assault was not a reasonable response to a perceived threat.
‘Duress’ is where a person is forced to undertake an act under the threat of death or serious harm.
An example might be where an armed bank robber warns a staff member that they will be stabbed or shot unless they restrain or strike an uncooperative customer.
If the possibility of ‘duress’ arises in an assault charge, the defendant must be found ‘not guilty’ unless the prosecution can prove ‘beyond reasonable doubt’ that:
(a) there is no reasonable possibility that the assault was committed by reason of a threat of death or serious injury, or
(b) there is no reasonable possibility that an ordinary person would have committed such an assault, or
(c) they failed to take advantage of a reasonable opportunity to render the threat ineffective.
An important question is whether the defendant could have run away or called police.
‘Necessity’ is where a person undertakes an emergency act because they believe it must be done to prevent death or serious injury to themselves or another.
An example might be where a customer during a bank robbery pushes and strikes people while running away believing that the robbers are in pursuit.
If the possibility of ‘necessity’ arises in an assault case, the defendant must be found ‘not guilty’ unless the prosecution can prove beyond reasonable doubt that:
(a) sudden or extraordinary circumstances did not exist, and
(b) committing the assault/s was not the only reasonable way to deal with that emergency, and
(c) the conduct was not a reasonable response to that emergency.
‘Lawful Correction’ is a defence to assault of a child by its parent or a pupil by its teacher.
Section 60AA of the Crimes Act provides that:
(1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of punishment of the child, but only if:
(a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
The assault must be therefore reasonable and warranted in the circumstances, and the age and health of the child must be considered.
The assault must be administered with a proper instrument and in a decent manner.
Examples of ‘lawful correction’ include:
- smacking a young child’s bottom as punishment, provided that excessive force is not used,
- physically retraining a child, again provided that excessive force is not use, and
- pushing a child towards his/her room, again as long as there is no excessive force.
Examples of conduct exceeding ‘lawful correction’ include:
- striking a child excessively,
- raising a fist at a child in anger, and
- punching or kicking a child.
Defences to Assault Charges