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team at Sydney Criminal Lawyers® has an outstanding track record of winning assault cases, through having charges withdrawn or thrown out of court due to insufficient evidence or the existence of a valid defence.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
Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.
Here are 12 reasons to choose our multi-award winning legal team:
- Proven Track Record of Exceptional Results
Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases. Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial. Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.
We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.
We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.
Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.
- Highest Level of Client Satisfaction
We have the best and most comprehensive client review record of any law firm in Australia. Regular communication, accessibility and quality service are our team’s highest priorities. We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.
We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.
- Australia’s Most Awarded Criminal Law Firm
We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running. The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.
- Fixed Fees
We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004. We offer fixed fees for most types of criminal cases and services.
Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.
Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.
- Free First Appointment
For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers. We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.
- Specialist Lawyer Guarantee
We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court. This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.
- All NSW Courts
From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases. And we offer fixed fees for most criminal and traffic law cases throughout the state.
- Accredited Specialists
Our entire firm is exclusively dedicated to criminal law – which makes us true specialists. All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005. An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field. Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.
Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.
- Results-Focused Law Firm
Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet. The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’. Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.
No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.
The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.
- Team of Lawyers Behind You
Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide. Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes. A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.
In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.
- Familiar with Magistrates and Judges
Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state. Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.
We have offices in locations across the Sydney Metropolitan Area and beyond, including:
- the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
- Liverpool, directly opposite Liverpool Local Court, and
- Parramatta, near the justice precinct.
We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.
For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.
If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at email@example.com.