s31 Assault

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Have you been charged with s31 of the Crimes Act, assault?

If you are facing assault charges under section 31 of the Crimes Act 1958 in Victoria, it is crucial to engage a specialist assault lawyer experienced in assault cases. Assault is a complex legal area, and there are various types of assault, each with its own set of elements and penalties. This article explores the specifics of the assault offence as defined in section 31 of the Crimes Act 1958.

In Victoria, an assault under section 31 is defined as the direct or indirect application of force to another person that is without lawful excuse and with intent to inflict or being reckless as to the infliction of injury, pain, discomfort, damage, insult or deprivation of liberty. Assault under section 31 is an indictable offence and carries a maximum penalty of 5 years in prison.

In instances of alleged assault, it is not uncommon for police to lay multiple charges in respect of a single incident. Charges for assault may include common assault (or unlawful assault), aggravated assault, intentionally or recklessly causing injury, recklessly or negligently causing serious injury , affray and riot. While multiple charges may be filed initially, it is typical for some to be withdrawn as alternatives during the legal process. Expertise from an assault lawyer is indispensable to negotiate with the prosecution and achieve an optimal outcome.

What is assault?

In Victoria, under section 31 of the Crimes Act 1958, there are five distinct assault offences:

Assaulting or threatening to assault a person with intent to commit an indictable offence (s31(1)(a))
Assaulting or threatening to assault an emergency worker, youth justice custodial worker or custodial officer on duty (or person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer on duty) (s31(1)(b), (ba)).
Resisting an emergency worker, youth justice custodial worker or custodial officer on duty (or person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer on duty) (s31(1)(b), (ba)).
Obstructing an emergency worker, youth justice custodial worker or custodial officer on duty (or person lawfully assisting an emergency worker, youth justice custodial worker or custodial officer on duty) (s31(1)(b), (ba)).
Assaulting or threatening to assault a person with intent to resist or prevent arrest (s31(1)(c)).

Assault, as defined in section 31(2), means:

The direct or indirect application of force to a person’s body, clothing, or equipment.
The term “application of force” is broadened in section 31(3) to include not only physical force but also the application of heat, light, electric currents, or any other form of energy, as well as any form of matter, whether solid, liquid, or gaseous.

This statutory definition differs significantly from common law assault. Under section 31(2), the act must be performed either with the intention to cause or with recklessness regarding bodily injury, pain, discomfort, damage, insult, or deprivation of liberty. Furthermore, the assault must actually result in one of these outcomes, though not necessarily the specific consequence that was intended or anticipated.

Assault with intent to commit an indictable offence

Under s 31(1)(a) it is an offence to assault or threaten to assault another person with intent to commit an indictable offence.

To prove this offence, the prosecution must prove the following 5 elements beyond reasonable doubt:

The accused applied force to the body of the complainant or threatened to apply force to the body of the complainant;
The accused applied force or threatened to apply force, to the complainant’s body with an intention to injure the complainant, inflict pain, cause discomfort, cause damage, cause insult or deprive the complainant of liberty;
The accused’s actions resulted in the complainant being injured, in pain, in discomfort, caused damage, insulted or deprived of liberty.
The accused’s actions were done with an intention to commit an indictable offence.
The accused’s actions were without lawful excuse.

An indictable offence is a particular kind of serious crime that may be heard on indictment before a judge of the Supreme Court or County Court. However, several indictable offences may also be heard summarily in the Magistrates Court with the consent of the defence and prosecution. In Victoria, indictable offences include theft, robbery, murder, manslaughter and rape.

For example, a person may be found guilty of an assault with intent to commit an indictable offence if they:

Hit someone with the intent of stealing their bag;
Pull a person to the ground with the intent of raping them;
Assault a person with the intent to cause them grievous bodily harm.

In each of these examples, if the intentions were carried out by the accused, the more serious offences of robbery, rape or causing grievous bodily harm would apply, respectively. However, the offence of assault with intent to commit an indictable offence covers situations where the intent of the accused person was not carried out.

Assaulting, resisting or intentionally obstructing an emergency worker, youth justice custodial worker or custodial officer on duty

Section 31(1)(b) outlines the offence of assaulting, threatening to assault, resisting, or intentionally obstructing an emergency worker, youth justice custodial worker, or custodial officer while they are on duty. It is crucial that the perpetrator acts with knowledge or reckless disregard as to whether the victim is one of the specified workers on duty.

Section 31(1)(ba) extends this protection to individuals lawfully assisting such workers. This provision makes it equally an offence to assault, threaten, resist, or obstruct someone assisting emergency personnel, knowing or recklessly ignoring their role in support.

The terms “assault,” “resist,” and “intentionally obstruct”, as used in section 31(1)(b), are defined as three distinct offences (R v Galvin (No 2) [1961]). For an individual to be convicted under these sections, two requirements must be met:

The victim must be an emergency worker, youth justice custodial worker, custodial officer, or someone lawfully assisting such a worker.
The accused must have knowledge of, or have recklessly disregarded, the fact that the victim is, or is assisting, an emergency worker, youth justice custodial worker or custodial officer (R v Galvin (No 1) [1961], R v Reynhoudt [1962]).

For the purposes of this offence, under the Crimes Act s 31, “emergency worker,” “youth justice custodial worker”, and “custodial officer” have the same meaning as in the Sentencing Act 1991 s 10AA. See here for the definitions of emergency workers.

Assault with intent to resist or prevent arrest

Under section 31(1)(c), it is illegal to assault or even threaten to assault someone with the intention to resist or prevent the lawful arrest or detention of any person. For a conviction under this section, it must be established that the arrest or detention was or would have been, lawful (R v Wilson [1955] and R v Galvin (No 1) [1961]).

However, if the attempted arrest is unlawful, or if the police officer is not properly performing their duties, the person being arrested is entitled to use reasonable force in self-defence. This type of resistance is considered lawful and can be used as a defence against the charge, as supported by several cases, including Kenlin v Gardiner [1967] and Zecevic v DPP (1987).

Additionally, it may be open to an accused to argue self-defence based on an honest but mistaken belief that the arrest was unlawful (R v Thomas (1992) and Blackburn v Bowering [1994]).

Penalty for assault

In Victoria, the maximum penalty for any of the 5 distinct offences for assault under section 31 of the Crimes Act 1958 is 5 years’ imprisonment.

Defences to an assault charge

Several defences may be applicable to an assault charge, depending on the specifics of the case. An experienced criminal lawyer will carefully assess all potential defences:

Self-Defense: This defence is viable if the actions were necessary and proportionate to the threat faced. The court must be convinced that the accused person acted to protect themselves, or others, from imminent harm and that the response was justified in the circumstances.
Mistaken Identity: It might be argued that someone else committed the assault. This requires substantiating evidence to support the claim of mistaken identity.
Consent: In some instances, the alleged victim may have consented to the act that is alleged to have been an assault. This is often relevant in contexts like sports or medical procedures where physical contact is expected and agreed upon.
Lawful Excuse: Engaging in a regulated sport where physical contact is a norm can be a defence, such as tackling in football or punching in boxing, provided the conduct was within the rules of the sport.
Lawful Correction of a Child: This common law defence applies if the accused was reasonably disciplining a child if the force used was moderate and appropriate in the circumstances.

Where will the case be heard?

Assault is an indictable offence that may be heard and determined summarily in the Magistrates’ Court of Victoria. This means that the offence will be heard in the County Court unless both the accused and the prosecution consent to have it heard in the Magistrates’ Court.

What to do if charged with assault

If you find yourself charged with assault, it’s crucial to take immediate action. First and foremost, refrain from discussing the incident with anyone other than a lawyer to avoid inadvertently compromising your defence. Contact a criminal defence lawyer who specialises in assault cases as soon as possible.

Your lawyer will help you understand the charges against you, the possible defences, and the potential outcomes. It’s also important to gather any evidence that may support your case, such as witness statements or video footage. Remember, navigating the legal system effectively requires professional guidance to ensure your rights are protected and to achieve the best possible outcome in court.