Assault Lawyers in Adelaide

If the alleged victim has given their free and informed consent to the physical contact, it would not constitute an assault. However, consent must be specific to the act in question and cannot be assumed or implied.

If a person uses reasonable force to protect themselves or another person from an immediate threat of harm, this may not be considered assault. However, the force used must be proportionate to the threat faced

If the contact was accidental and not intentional, it would not meet the requirement of intentionality for assault. The person must have intended to apply force or have been reckless as to whether force was applied

If the person had a lawful excuse for their actions, such as carrying out a legal duty or acting in a professional capacity (like a police officer making an arrest or a doorman ejecting a n intoxicated or unruly patron), it may not be considered assault.

Conduct that lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault.

For example, a friendly pat on the back, a handshake, or a light touch on the arm to get someone’s attention would typically fall within this category.

These actions are generally accepted as part of social interaction and would not be considered an assault.

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.

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.

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.

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.

1. The defendant must show an imminent danger to person or property
2. An honest belief on reasonable grounds of the necessity to act for the preservation of person and/or property and
3. 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.

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

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

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.

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.

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.

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.

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.

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).