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Assault Crimes Act 1958 – SECT 31 Victoria Australia

  • Assault is an indictable common law offence in Victoria (R v Patton [1998] 1 VR 7).
  • In Victoria, a person may also be charged with assault under s31 of the Crimes Act 1958.
  • Also known as unlawful assault, common assault
  • There are two types
  • Assault Involving the Application of Force
  • Assault Not Involving the Application of Force
  • What is the maximum penalty for Assault charges? Level 6 imprisonment (5 years maximum)
  • Possible defences to Assault charges?

The prosecution must disprove, beyond reasonable doubt, any justifications or excuses that are open on the evidence (Zecevic v DPP (1987) 162 CLR 645).

  • Consent;
  • Touching in the course of an ordinary social activity
  • Exercising a lawful power of arrest
  • Lawfully correcting a child
  • Ejecting a trespasser.
  • Duress
  • Factual dispute
  • Lack of intent
  • Mental impairment
  • Necessity
  • Self defence
  • Which Court will hear the charge? Magistrates’ Court
  • The elements – Assault involving the application of force has three elements:
  1. The accused applied force to the complainant’s body;
  • The prosecution must prove that the accused applied force to the complainant’s body (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439).
  • The force applied need not be violent and may be as slight as a mere touch (Collins v Wilcock [1984] 1 WLR 1172).
  • Force may be applied directly or through the medium of a weapon or instrument controlled by the accused (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Director of Public Prosecutions v K [1990] 1 WLR 1067; Pritchardv R (1999) 107 A Crim R 88; Darby v DPP (NSW) (2004) 150 A Crim R 314).
  1. The application of force was intentional or reckless;  
  • The prosecution must prove that the application of force was intentional or reckless (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Macpherson v Brown (1975) 12 SASR 184; R v Venna [1976] QB 421; R v O’Conner (1980) 146 CLR 6).
  • For the application of force to have been “reckless”, the accused must have realised that his or her conduct would probably result in force being applied to the complainant’s body (R v Crabbe (1985) 156 CLR 464; R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585).
  • The accused will not have acted recklessly simply because he or she ought to have known that his or her conduct would result in such contact. The accused must have adverted to that likelihood (Edwards v Police (1998) 71 SASR 493; Fisher v Police (2004) 154 A Crim R 511).
  1. The application of force was without lawful justification or excuse.
  • The prosecution must prove that the application of force was intentional or reckless (Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; Macpherson v Brown (1975) 12 SASR 184; R v Venna [1976] QB 421; R v O’Conner (1980) 146 CLR 6).
  • For the application of force to have been “reckless”, the accused must have realised that his or her conduct would probably result in force being applied to the complainant’s body (R v Crabbe (1985) 156 CLR 464; R v Nuri [1990] VR 641; R v Campbell [1997] 2 VR 585).
  • The accused will not have acted recklessly simply because he or she ought to have known that his or her conduct would result in such contact. The accused must have adverted to that likelihood (Edwards v Police (1998) 71 SASR 493; Fisher v Police (2004) 154 A Crim R 511).

CRIMES ACT 1958 – SECT 31

Assaults

    (1)     A person who—

        (a)     assaults or threatens to assault another person with intent to commit an indictable offence; or 

S. 31(1)(b) amended by Nos 43/2011 s. 16, 37/2014 s. 10(Sch. item 36.3), substituted by No. 69/2014 s. 13(1).

        (b)     assaults or threatens to assault, resists or intentionally obstructs an emergency worker on duty, knowing or being reckless as to whether the person was an emergency worker; or

S. 31(1)(ba) inserted by No. 69/2014 s. 13(1).

        (ba)     assaults or threatens to assault, resists or intentionally obstructs a person lawfully assisting an emergency worker on duty, knowing or being reckless as to whether the person was an emergency worker; or

        (c)     assaults or threatens to assault a person with intent to resist or prevent the lawful apprehension or detention of a person— 
s. 31 is guilty of an indictable offence.

Penalty:     Level 6 imprisonment (5 years maximum).

    (2)     In subsection (1), “assault” means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is—

        (a)     without lawful excuse; and

        (b)     with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty— and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen).

S. 31(2A) inserted by No. 69/2014 s. 13(2).

    (2A)     In subsection (1)—

emergency worker on duty and emergency worker have the same meanings as in section 10AA of the Sentencing Act 1991 .

    (3)     In subsection (2)—

“application of force” includes—

        (a)     application of heat, light, electric current or any other form of energy; and

        (b)     application of matter in solid, liquid or gaseous form.

 

We have sourced information from the relevant statutory instruments, from much legal literature for this article. These matters will require tailored legal advice. Contact us for a consultation.