Assault Cause Harm SA
Facing an assault causing harm charge in South Australia can be overwhelming. Our deep understanding of the Criminal Law and experience in local courts helps us tailor the strongest possible defence strategy for our clients.
Assault Cause Harm Charges?
Assault cause harm is a serious criminal defence in South Australia and may result in up to 3 years of imprisonment and a permanent criminal record. Talon Legal are experts in defending assault cause harm charges and have a proven track record of securing charge withdrawals, acquittals and without conviction outcomes.
Book a same-day free 30-minute consultation or call (08) 7094 2021 now to speak with a senior criminal defence lawyer today.
What is Assault?
Under section 20 of the Criminal Law Consolidation Act 1935 (SA), assault is defined as an act where a person intentionally applies force to another person, or threatens to apply force, without their consent.
Elements of Assault
In order to be found guilty of assault or assault cause harm, the prosecution must prove every element of the offence beyond a reasonable doubt:
- Intentionally apply force (directly or indirectly) to the victim; or
- Intentionally make physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or
- Threaten (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that the person making the threat is in a position to carry out the threat and intends to do so, or there is a real possibility that the person will carry out the threat; or
- Do an act with the intended purpose to apply force to another.
- Accost or impede another in a threatening manner.
What is Causing Harm?
Assault causing harm, as defined under section 20(4) of the Act, involves an act of physical violence that results in harm to another person.
Harm is defined as any physical or mental injury, including pain and unconsciousness. The offence becomes aggravated if committed in certain circumstances, such as in a domestic setting or against a police officer.
Whether the alleged harm is physical injury or significant mental harm, the courts take a firm stance on violent offences.
Elements Causing Harm
To secure a conviction for assault causing harm, the prosecution must prove the following elements beyond a reasonable doubt:
- Assault – The accused must have committed an act of assault, which involves the intentional or reckless application of force to another person, or the threat of such force.
- Causing Harm – The assault must have caused harm to the victim. Harm includes any physical or mental injury.
- Intention or Recklessness – The accused must have intended to cause harm, or have been reckless as to whether harm would be caused.
Penalty for Assault Causing Harm
This is a more serious form of assault where the assault results in actual physical harm to the victim. “Harm” is defined as any physical or mental injury.
The maximum penalty for assault causing harm in South Australia is imprisonment for 3 years. If the offence is committed in aggravated circumstances, the maximum penalty increases to 4 years imprisonment.
Assault Cause Harm Defence
Self Defence
The defence of self-defence is a legal principle that can be invoked when a person commits an offence, such as assault, but did so to protect themselves from an immediate threat of harm.
This defence is based on the idea that the accused person had to commit the act to protect themselves from harm.
In the context of an assault charge, this defence could apply if the accused person committed the act of assault because they were facing an immediate threat of harm and had no reasonable alternative but to commit the act that constitutes the offence.
The key elements of this defence are that the accused must show an imminent danger to person, an honest belief on reasonable grounds of the necessity to act for the preservation of person, and the acts done to avoid the imminent danger must not be out of proportion to the danger to be avoided.
The case of Zecevic v DPP (1987) clarified the principles of self-defence, emphasizing that the force used must be proportionate to the threat perceived.
The High Court also stated that in considering whether the force used in self-defence was proportionate to the threat, “the whole of the circumstances should be considered, of which the degree of force used may be only part”.
However, it’s important to note that there are limits to the defence of self-defence. For example, a person cannot claim to have been acting in self-defence if he engaged willingly in a fight.
As Priestly JA said in R v Nguyen, self-defence has as its starting point a person who, not wanting to fight, is attacked or threatened with attack in a way leading the person to believe self-defence is necessary for the person’s own protection from harm.
Such situations do not include those where what is going on is a fight which the fighters have willingly joined in, whether to carry on or settle a quarrel, or for some other reason.
Consent
The defence of consent is a legal principle that can be invoked when a person commits an offence, such as assault, but the alleged victim had given their consent to the act.
This defence is based on the idea that the accused person had the permission of the alleged victim to commit the act, and therefore, it was not unlawful.
In the context of an assault charge, this defence could apply if the accused person committed the act of assault because the alleged victim had given their consent to the act.
The key elements of this defence are that the consent must be freely and voluntarily given, it must be informed (meaning the person giving consent must understand the nature and consequences of the act), and it must be specific to the act in question.
However, it’s important to note that there are limits to the defence of consent.
For example, a person cannot consent to serious harm or death, and consent obtained through fraud, duress, or undue influence is not valid.
Furthermore, the defence of consent is not available in all jurisdictions or for all offences.
Lack of Intent
In South Australia, as in other jurisdictions, the mental element or ‘mens rea’ is a crucial component of many criminal offences, including assault.
This means that the prosecution must prove not only that the accused committed the physical act constituting the offence (the ‘actus reus’), but also that they did so with a certain state of mind.
For the offence of assault, the prosecution must generally prove that the accused intentionally or recklessly applied force to another person without their consent. If the accused did not have the necessary intent to apply force, or was not reckless as to whether force was applied, this could provide a defence to the charge.
However, it’s important to note that ‘lack of intent’ is not a defence in itself, but rather a failure by the prosecution to prove a necessary element of the offence.
If the prosecution cannot prove beyond reasonable doubt that the accused had the necessary intent, then the accused must be acquitted.
Necessity
The defence of necessity is a legal principle that can be invoked when a person commits an offence because they were compelled to do so by circumstances that were beyond their control.
This defence is based on the idea that the accused person was compelled to commit the act due to an urgent situation of imminent peril.
Necessity may justify intervention for the preservation of oneself, another person, one’s own property or the property of another.
Necessity is only a justification when three elements are shown.
- The defendant must show an imminent danger to person or property
- An honest belief on reasonable grounds of the necessity to act for the preservation of person and/or property and
- The acts done to avoid the imminent danger must not be out of proportion to the danger to be avoided.
The case of R v Loughnan [1981] VR 443 provides an example of this defence. In this case, the court considered that the criminal act or acts must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect.
The court also noted that the element of imminent peril means that the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril.
The defence of emergency is closely related to the defence of necessity.
It is often invoked in situations where the accused person was facing an immediate and serious threat to their safety or the safety of others, and they had no reasonable alternative but to commit the act that constitutes the offence.
The key elements of this defence are similar to those of the defence of necessity, but the focus is on the immediacy and seriousness of the threat, and the lack of any reasonable alternative course of action.
Lawful Justification or Excuse
This defence applies when the accused person had a lawful justification or excuse for their actions. For example, reasonable force used in the defence of property is not considered an assault
Removing a Trespasser
This defence applies when the accused person was removing a trespasser from their property. The case of R v Bellchambers [2021] discussed the defence of removing a trespasser in the context of an assault charge
Duress
The defence of duress is a legal principle that can be invoked when a person commits an act under the threat of immediate harm or danger to themselves or another person.
This defence is based on the idea that the accused person was compelled to commit the act due to the circumstances they were in, and not out of their own free will.
In the context of an assault charge, this defence could apply if the accused person committed the act of assault because they were under a threat of immediate harm or danger.
The key elements of this defence are that the threat must be of serious bodily harm or death, the harm threatened must be greater than the harm caused by the offence, the threat must be immediate and inescapable, and the accused person must have become involved in the situation through no fault of their own.
The case of R v Brown [1986] 43 SASR 33 provides an example of this defence. In this case, the court considered that in the circumstances of that case the accused’s failure to report a threat to the police and to seek the protection of the police for himself and his son was fatal to the common law defence of duress.
The court acknowledged that there may be circumstances in which a failure to seek the protection of the police would not deprive an accused of the defence.
It’s crucial to note that the applicability of this defence depends on the specific circumstances of each case. It’s also important to remember that the burden of proof for this defence often lies with the accused person, and the standard of proof is typically on the balance of probabilities. This means that the accused person must convince the court that it is more likely than not that they were acting under duress at the time of the offence.
Automatism
This defence applies when the accused person was not conscious of their actions at the time of the offence.
This could be due to sleepwalking, a seizure, or a severe concussion. The case of Bratty v Attorney-General for Northern Ireland [1963] provides an example of this defence.
Mental Impairment
If the accused person was suffering from a mental impairment at the time of the offence, they may be found not guilty by reason of mental impairment.
This defence is based on the principle that the accused person did not have the capacity to understand what they were doing, or that what they were doing was wrong.
The case of R v Porter [1933] is a leading authority on this defence.
Emergency
The defence of emergency, also known as the defence of necessity, is a legal principle that can be invoked when a person commits an act to avoid an imminent danger or peril. This defence is based on the idea that the accused person had no reasonable alternative but to commit the act in question to prevent a greater harm from occurring.
In the context of an assault charge, this defence could apply if the accused person committed the act of assault to prevent an immediate and serious harm to themselves or another person. The force used in such a situation must be proportionate to the threat perceived.
The case of Proudman v Allen [1954] SASR 336 provides an example of this defence. In this case, Mr. Allen caused damage to Mr. Proudman’s car when he attempted to stop the car from rolling into another vehicle, which would have likely caused damage to both cars.
The car had been set in motion by the act of a stranger.
The Special Magistrate summarised the case in the following terms: “The position was simply that he saw an accident about to happen on the highway as a result of another’s conduct, and he did what occurred to him at the time as the best thing to do to avert it.”
The Magistrate concluded that it was necessary for someone to intervene to avoid a collision and that the defendant acted reasonably in doing what he did.
However, it’s important to note that the defence of emergency is only made out if a real emergency, often described in terms of there being a situation of imminent danger or imminent peril, is proven to have arisen at the point in time that the defendant does the act that causes harm, loss or damage.
It’s not enough to prove that the defendant believed a real emergency to have arisen. It must be established that a situation of real emergency had arisen or was imminent.
It’s crucial to note that the applicability of this defence depends on the specific circumstances of each case. It’s also important to remember that the burden of proof for this defence often lies with the accused person, and the standard of proof is typically on the balance of probabilities.
Intoxication
While voluntary intoxication is generally not a defence to criminal charges, in some limited circumstances, it may negate the intent required for certain offences. However, this defence is not typically applicable to assault charges.
Mistake of Fact
The defence of mistake of fact is a common law principle that can be invoked when a person has an honest and reasonable, but mistaken, belief in a state of facts that, if true, would make their conduct innocent.
This defence is based on the idea that the accused person did not have the requisite mens rea, or guilty mind, to commit the offence because they were under a mistaken but reasonable belief about a certain fact or set of facts.
In the context of an assault charge, this defence could apply if the accused person had an honest and reasonable belief that the victim had consented to the act, or that they were acting in self-defence against an immediate threat.
The key element here is that the belief must be both honest and reasonable. This means that the accused person genuinely held the belief (the subjective element), and that a reasonable person in the same situation could have held the same belief (the objective element).
Will I go to Jail For Assault Cause Harm?
In sentencing individuals for assault offences in South Australia, the court considers a range of factors to ensure that the sentence is proportionate to the gravity of the offence and the culpability of the offender. These factors may include:
- Nature and Gravity of the Offence – The court considers the seriousness of the offence, including the degree of force used, the harm caused to the victim, and the circumstances surrounding the assault. This includes whether the assault was aggravated, such as the use of a weapon or causing serious harm.
- Offender’s Intent – The court assesses the offender’s level of intent or recklessness in committing the assault. This includes whether the offender intended to cause harm or was indifferent to the possibility of causing harm.
- Offender’s Prior Criminal History – The court takes into account the offender’s previous convictions, particularly for similar offences. A history of violent behaviour can result in a harsher sentence.
- Plea of Guilty – If the offender pleads guilty, the court may reduce the sentence. This is seen as an indication of remorse and acceptance of responsibility, and can result in a more lenient sentence. Timely advice is needed to obtain the benefit of the diminishing sentencing discount regime.
- Impact on the Victim – The court considers the physical, emotional, and psychological impact of the assault on the victim. This can be presented through a victim impact statement.
- Deterrence – The court considers the need to deter the offender and others from committing similar offences. This is particularly important in cases of domestic violence, where the court aims to protect vulnerable individuals and deter offenders from inflicting violence.
- Rehabilitation Prospects – The court assesses the offender’s prospects for rehabilitation, including their willingness to participate in rehabilitation programs, their remorse, and their likelihood of reoffending.
- Totality Principle – If the offender is being sentenced for multiple offences, the court applies the totality principle to ensure that the total sentence is just and appropriate in relation to the overall offending behaviour.
- Proportionality – The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The court must balance the need for punishment, deterrence, and rehabilitation against the principle that the punishment should fit the crime.
Frequently Asked Questions About Assault Cause Harm
What does the prosecution need to prove to secure a conviction for assault causing harm?
The prosecution must prove beyond a reasonable doubt that the accused committed an act of assault, that the assault caused harm to the victim, and that the accused intended to cause harm or was reckless as to whether harm would be caused.
What is the difference between assault and assault causing harm?
The key difference is the result of the assault. In an assault, there is no requirement for the victim to have suffered harm. However, for a charge of assault causing harm, the prosecution must prove that the victim suffered harm as a result of the assault.
What are the potential penalties for assault causing harm?
The maximum penalty for assault causing harm in South Australia is imprisonment for 3 years. If the offence is committed in aggravated circumstances, the maximum penalty increases to 4 years imprisonment.
Can I defend a charge of assault causing harm?
Yes, there are several defences available to a charge of assault causing harm, including self-defence, duress, necessity, mental incompetence, and consent. The availability and applicability of these defences depend on the specific circumstances of the case.
What is considered 'harm'?
Harm includes any physical or mental injury, including pain and unconsciousness. It is a broad definition that covers a wide range of injuries and impacts.
What are aggravated circumstances?
Aggravated circumstances can include situations where the victim is a police officer, a correctional officer, or a public transport worker. It can also include situations where the offender uses a weapon, or where the offence is committed in a domestic setting.
What happens if I am found guilty of assault causing harm?
If you are found guilty of assault causing harm, you may be sentenced to imprisonment, given a fine, or both. You will also have a criminal record, which can impact your future employment prospects and ability to travel overseas.
What should I do if I am charged with assault causing harm?
If you are charged with assault causing harm, you should seek legal advice as soon as possible. A lawyer can help you understand the charges against you, advise you on your options, and represent you in court.
How Talon Legal Can Help
If you are charged with Assault Causing Harm in South Australia, it is crucial to seek legal representation promptly. These charges can be stressful and have life changing consequences. At Talon Legal, we offer:
- Expertise in South Australian criminal law and court procedures.
- Comprehensive legal advice on available defences.
- Skilled negotiation and advocacy to seek a reduction in penalties where possible.
- Personalised support, ensuring you fully understand each stage of the legal process.
We are approachable, professional, and determined to secure the best outcome for our clients.
Speak with an experienced criminal lawyer
Contact Talon Legal today to discuss your case for free and without obligation:
- Call now (08) 7094 2021 or book your free case review online.
- Understand non-conviction outcomes: Section 24 Sentencing Act guide.
- Learn more about assault law in SA: Assault & Violence Offences hub.
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