Defences to Assault Charges

To be found guilty of an assault charge, the prosecution needs to prove beyond a reasonable doubt that the accused did not have a reasonable defence. In Western Australia, there is a variety of defences that could be relied upon to provide a valid excuse for an assault.

Below is a brief description of some of the possible defences to assault. It is important to note that not all defences are available for all types of assault.

Self-Defence/Defence of Another

Self Defence is covered within section 248 of the Criminal Code. A harmful act done by a person is lawful if the act is done in self-defence.

An act is done in self-defence if the person believes the act is necessary to defend themselves or another person from a harmful act. The harmful act does not need to be imminent.

To be considered self-defence the act must be a reasonable response by the person in the circumstances as they believed them to be, and there must be reasonable grounds for those beliefs.

Provocation

A person is not criminally responsible for an assault committed upon a person who provokes the assault. This is governed by sections 245 and 246 of the Criminal Code.

Provocation can include any wrongful act or insult that can be likely to deprive an ordinary person the power of self-control. The person must act upon the provocation in the moment, before there is time for the passion to cool.

The force used cannot be disproportionate to the provocation and cannot be likely to cause death or grievous bodily harm.

Duress

A person is not criminally responsible for an assault committed under duress.

A person is under duress if they believe a threat has been made, and that threat will be carried out unless the assault is committed and committing the assault is necessary to prevent the threat from being carried out.

Duress does not apply if the person who committed the assault is voluntarily associated with the person making the threat for the purposes of prosecuting an unlawful purpose, and it is reasonably foreseeable that such a threat would be made.

 Domestic Discipline

Parents (and those acting in parental roles) can use force to discipline a child in their care.

The force can only be reasonable in the circumstances. The child’s age, size, and nature of behaviour may be considered by the Court, with the use of extreme force or violence not excusing someone from an assault charge.

Accident

A person is not criminally responsible for an event which occurs by accident. An assault would be considered an accident if it occurred unintentionally, the accused could not have foreseen the event which occurred, and without the accused’s negligence.

The defence of accident cannot be used, where a victim suffers death or grievous bodily harm as a result of an assault, and that death or grievous bodily harm would not have occurred, if the victim did not suffer from an abnormality, defect or weakness. Even if the accused had no intent to cause the grievous bodily harm or death and the outcome was not foreseeable.

Unwilled Acts or Omissions

Similarly to accident, a person is not criminally responsible for an act or omission which occurs independently of the exercise of the person’s will. An example of an unwilled act would be if it occurred while the accused was sleep-walking.

Consent

An assault occurs by striking, touching, moving, or applying force of any kind to another person without their consent, either directly or indirectly. If the force was applied with the consent of the ‘complainant’, then the assault may be lawful. Consent to an assault cannot be obtained by fraud, and the assault cannot go beyond the scope of which consent was given.

For example, all players who participate in contact sport consent to some form of assault to a certain degree. However, an assault could occur if the contact went beyond what one may reasonably expect when participating in that particular sport.

Insanity

If at the time of the assault, the individual was suffering from a severe mental illness that deemed them incapable of understanding their actions, being able to control them, or knowing what they did was wrong, then the accused may be able to plea insanity.

Proving that someone was mentally impaired is usually done using expert witnesses.

Need Legal Advice?

If you require legal assistance, Kate King Legal can help. We are a boutique firm of specialist criminal defence lawyers based in Perth CBD, with extensive experience in assault offences.

If you need legal guidance on criminal charges or any related matters, call us on (08) 9467 3333 or click here to submit an online enquiry