Assault

Question 1

Where is the offence of common assault found and what are its elements?

Answer 1

Common assault is a common law offence, so its elements are found in case law rather than statute.

The elements of common assault are:
- Accused
- Intentionally or Recklessly
- Threatened a person with immediate unlawful violence
- Without lawful excuse

The penalty for common assault is provided in Crimes Act 1900 s61 (penalty is maximum of 2 years)

Question 2

Where is the offence of assault occasioning actual bodily harm found and what are the elements?

Answer 2

Crimes Act 1900 s59

Elements:
- The accused
- Assaulted (note: this breaks down into its own sub-elements from common law, as below*)
- A person
- Occasioning ABH**

*elements of ‘assault’ are:
- intentionally or recklessly
- threaten another person with immediate unlawful violence
- without lawful excuse

**definition of ABH is any injury that is more than transient or trifling, but not permanent

Question 3

What are some of the lawful defences to assault?

Answer 3

Some of the easier to remember defences are:
- Self defence
- Consent (only for common assault)
- Accidental use of force
- Medical procedure
- Forensic procedure
- lawful correction (e.g. smacking a child on bottom)