Common Law Assault in Victoria
What is Common Law Assault?
Common law assault is an assault charge established under the common law. The common law is a legal system based on court decisions rather than legislation. The key principle is that the courts must follow earlier court rulings about the elements of a charge to ensure consistency. So to answer the question about what is a common law assault? It is an assault charge created at common law, not by the parliament.
Common Law Assault vs Common Assault, what is the difference?
The difference between a common law assault charge and a common assault charge is the penalty. Common law assault under the common law, carries a maximum penalty of 5 years imprisonment or a maximum fine of 600 penalty units. Common assault under s23 of the Summary Offences Act carries a maximum penalty of 15 penalty units ($2963.85) or a 3 month term of imprisonment.
Considering the significant difference in sentencing scope between ‘Common Law Assault’ and ‘Common Assault’, also know as Unlawful Assault, it is important to know which offence you are facing.
Although the elements regarding Common Law Assault and Common/Unlawful assault in Victoria are the same, common law assault is not created by parliament, but it is referred to in the legislation in Victoria at section 320 of the Crimes Act 1958.
Common/unlawful assault is created by parliament and is referred to in section 23 of the Summary Offences Act 1966 of the legislation.
If you have been charged with an offence relating to assault, it is important to understand which offence you have been charged with. Follow the link for more information on assault charges in Victoria, particularly if you are facing multiple assault charges.
Things to consider in relation to common law assault:
- Did the assault occur?
- Did it involve the application of force?
- If so, was this intentional or reckless?
- Did you have a lawful excuse or reason for the assault?
- Do you have a defence of self-defence?
All these questions, must be carefully considered before you and your lawyer can determine how you should plead. You must be aware that, should you plead guilty, the offence carries a maximum penalty of 5 years in prison, which is a much higher maximum than for common assault under the Summary Offences Act 1966.
Keep reading below for specific information in relation to Common Law Assault or follow the link to read about assault offences more generally.
Elements of Common Law Assault
The elements of common law assault are very similar to those in relation to common assault. This was determined in the Victorian Law reported case of R v Patton, Caldwell & Robinson [1998] 1 VR 7. To prove common law assault, the prosecution must establish several elements beyond reasonable doubt.
For assault involving the application of force:
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The accused applied force to the alleged victim’s body;
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The application of force was intentional or reckless; and
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The application of force was without lawful justification or excuse.
For assault not involving the application of force:
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The accused committed an act that caused the complainant to apprehend the immediate application of force to his or her body;
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The accused intended his or her actions to cause such apprehension, or was reckless as to that outcome; and
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The accused had no lawful justification or excuse for causing the complainant to apprehend the application of immediate force.
If both offences have the same elements, why don’t the prosecution charge the more serious charge all the time?
- They often do if the offending relates to domestic violence, where the prosecution cannot establish injury as defined by Victorian Law.
- The other reason is that an unlawful/common assault cannot proceed before a jury because it is a summary offence, whereas a common law assault charge is an indictable offence and can proceed in that jurisdiction. In this situation, the prosecution will often lay a common law assault charge regarding more serious examples of the offence.
Penalties for Common Law Assault
The base offence for common law assault is liable to level 6 imprisonment, which is a maximum penalty of 5 years imprisonment. See section 320 of the Crimes Act that references the penalty only, not the elements.
Penalty for common law assault of a police officer
Despite section 320, the maximum term of imprisonment for common law assault is level 5 imprisonment, being a maximum of 10 years, if a person commits the assault against a police officer or protective services officer with an offensive weapon readily available (section 320A(1)).
However, if the person commits the assault against a police officer or protective services officer with a firearm or imitation firearm readily available, then the maximum term of imprisonment is level 4 imprisonment, being a maximum of 15 years (section 320A(2)).
A common assault against a police officer or protective services officer in the circumstances above is a category 2 offence under the Sentencing Act 1991 if the assault consisted of or included the direct application of force within the meaning of assault as defined in section 31(2) of the Crimes Act 1958.
Where will my case be heard?
This type of common law assault charge is usually only reserved for matters proceeding in the County Court, or matters relating to domestic violence in the magistrates court. This is because offences under the Summary Offences Act cannot be heard in the County Court before a jury, and the prosecution typically reserve the common law charge for more serious examples of assault.
Questions to consider
Do you have a defence?
If you are pleading guilty, what can you do to minimise your sentence?
The offence of Assault now includes both Assault and Battery. Before proceeding further, consult a specialist criminal lawyer.
What to do next
A common law assault charge is serious. Consult an expert criminal lawyer in Melbourne urgently.
Don’t leave preparing for your case until the last minute. Being thoroughly prepared is critical to the success of any matter.
If you have been charged with Common Law Assault arrange an appointment to see one of our experienced lawyers today.
