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Assaults (Sexual and Common)

Thu, 02/07/2013 - 10:37 -- alexr

Common Assault, Assault Occasioning Actual Bodily Harm, Assault Occasioning Grievous Bodily Harm

Offences involving assault range in seriousness, usually tied to the nature of the injury sustained by the victim. In order to be found guilty of an Assault the Police must prove that you threatened or committed a violent act either intentionally or recklessly without either consent or legal excuse.

Our Criminal Lawyers have extensive experience with all kinds of assaults, and are experts at identifying gaps in Police evidence which can be exposed in defence of assault charges. We can also advise you on and run defences to charges where there is self defence or where your actions were performed under duress or by necessity.

When faced with a charge of assault, it is important to have a lawyer who can analyse the evidence, advise you on the potential consequences and available defences, and where needed prepare submissions to be made in mitigation of your sentence.

The Law

Section 61 of the Crimes Act states “Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”. The maximum penalty for the offence of common assault is 2 years imprisonment.

An Assault occasioning Actual Bodily Harm occurs where the assault results in scratches, bruising, cuts or abrasions. The maximum penalty for assault occasioning actual bodily harm is 5 years imprisonment or 7 years where it is committed in the company of others.

An assault occasioning Grievous Bodily Harm involves a serious injury such as permanent or serious disfiguring of the person. Such an offence, depending on how it is committed and whether intentional or reckless, can carry a sentence of up to 25 years imprisonment. Technically grievous bodily harm is a measure of penetration of the assault into the skin and it is imperative that the evidence is carefully examined to see whether this type of assault can be made out. Often such a charge can be downgraded to the lesser charge of actual bodily harm.

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Assault Police, Resist Arrest, Hinder or Obstruct An Officer In Execution Of Their Duty

Generally, police can only place you under arrest if they have a reasonable suspicion that you have, or are about to, commit a crime. There are strict procedures a Police officer must follow if they are going to place you under arrest.

A charge of Assaulting Police, Resisting Arrest or Hindering or Obstructing a Police Officer is a serious charge, and it is important you have a lawyer who has an extensive knowledge of not only the law, but also the procedures Police are required to follow in placing you under arrest. It may be the case that the Police have failed to adhere to their own procedures when charging you with this type of offence.

Not surprisingly police will usually prosecute such a charge with vigour. For that reason you will need to be competently advised and represented to protect your own rights.

One of our experienced lawyers can identify if you can defend your charges, including because a Police officer failed to follow correct procedure.

The Law

Section 60 of the Crimes Act 1900 states:

  1. Any person who assaults, stalks, harasses or intimidates a police officer while in the execution of the officer‘s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.
  2. Any person who assaults a police officer while in the execution of the officer‘s duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.
  3. Any person who maliciously by any means: (a) wounds a police officer, or (b) inflicts grievous bodily harm on a police officer, while in the execution of the officer‘s duty is liable to imprisonment for 12 years.

Such charges can be laid in relation to a police officer who is not uniformed or even on duty. The penalty for the offence of a common assault and other actions against police officers can be 5 years imprisonment.

If you are to be arrested you should be informed not only that you are under arrest, but the reason for that arrest. A police officer may use as much force as is reasonably necessary to arrest you. Unreasonable force is assault.

You can also be charged with this offence if you assist or incite somebody to resist arrest, or hinder an officer from executing their duty. Positive action must be taken to resist arrest, for example, struggling against the officer or running away. In accordance with section 315 of the Crimes Act a person who does anything intending in any way to hinder the investigation of a serious indictable offence committed by another person, or the discovery of evidence concerning a serious indictable offence committed by another person, or the apprehension of another person who has committed a serious indictable offence, is liable to imprisonment for 7 years.

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Sexual Assaults

There are many different kinds of sexual related offences under the Crimes Act 1900. These include physical assaults as well as acts of voyeurism.

Given the nature of Sexual Assault related offences, the evidence put forth by the Police can be relating to circumstances years earlier, uncertain or otherwise inconclusive. This is commonly an area of law where the evidence involves one peron’s word against another. This often results in the person the Police are investigating being asked to come in to the Police Station to answer questions. Our team of experienced lawyers can assist you from this early stage, and have the expertise to recognise when the evidence put forth by the Police cannot support the charges.

Our Criminal Law solicitors have extensive experience in Sexual Assault related offences and our legal knowledge and experience can ensures you are receiving the best representation right from the start, through the procedural trials and at a hearing itself.

The Law

Section 61I of the Crimes Act states that “any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years”.

Section 61J of the Crimes Act states that “Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years. In this section, "circumstances of aggravation" means circumstances in which:

  1. at the time of, or immediately before or after, the commission of the offence, the alleged offender maliciously inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
  2. at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
  3. the alleged offender is in the company of another person or persons, or
  4. the alleged victim is under the age of 16 years, or
  5. the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
  6. the alleged victim has a serious physical disability, or
  7. the alleged victim has a serious intellectual disability.

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Affray and Riot

A charge of Affray or Riot can be brought against a person who in company causes a person to fear for their personal safety.

It is common in these type of charges for several people to be charged with an offence, and it can be difficult to distinguish those present who were actively involved in the offence, and those who just happened to be in the wrong place at the wrong time.

Such offences often involve the use of security or CCTV footage and there are evidence exclusions that must be carefully considered when defending these type of charges.

Our team of experienced lawyers can assist you in dealing with the Police, defending a charge brought against you, or by making submissions in mitigation of any sentence you may receive.

The Law

You could be found guilty of Affray if you used or threatened unlawful violence towards another and such a threat would cause a person to fear for their safety. A threat cannot be made by the use of words alone. Affray may be committed in private as well as in public places. The maximum penalty for the charge of affray is ten years imprisonment.

Section 93B of the Crimes Act defines a Riot as being where a group present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause someone present to be fearful for their safety. The maximum penalty for the charge of Riot is 15 years imprisonment.

No person need actually be present at the scene for these offences and the Riot or Affray may be committed in private as well as in public places.

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Murder and Manslaughter

Murder and Manslaughter are two of the most serious criminal charges in our legal system. The police must prove that someone did an act that caused another person’s death, and that, for a charge of murder they either intended that act to cause another person’s death or acted with reckless indifference to that possibility.

The Law

In order for a person to be found guilty of murder it must be proved that:

  • their act or omission caused the death of the victim
  • the act was done with intent to kill or inflict grievous bodily harm or with reckless indifference to human life, or was committed in or before or after a felony punishable by a term of imprisonment of 25 years.

Manslaughter occurs where the victim dies as a result of an act of the accused and includes:

  • criminal negligence: where the accused had a duty of care to the deceased and they committed a negligent act or omission which fell so far short of their duty of care, and caused or accelerated the deceased’s death
  • unlawful and dangerous act: this is where an act of the accused breached the criminal law and was of such a danger that there was a reasonable possibility of risk of serious injury
  • excessive self-defence: s421 of the Crimes Act 1900 states that where the accused intentionally or recklessly kills the victim of the manslaughter due to what they believed was necessary to defend themselves or another, but was in the circumstances unreasonable force, will be found to have committed manslaughter
  • manslaughter by omission: it is manslaughter to fail to do an act which causes death where either the accused owed the victim a legal obligation to care for them (such as a parent to their children) or where the accused assumed a duty of care for the victim and secluded the helpless person so that others could not render aid.

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