Assault? Don’t Let a Night Out Turn Into a Fight

Assault is both a criminal offence and an offence against the person (a civil action). This means that both the police and the victim can initiate an action against an offender.

Assault and battery – Is there a difference?

The law used to recognise a difference between “Assault” (an intentional threat made to another causing an apprehension of harm) and “Battery” (an intentional act causing contact with another without their consent).

However, in criminal law, many states and territories have now merged the two concepts into the one offence of Assault, dividing the offence into Simple Assault and Assault Occasioning Actual Bodily Harm (or Occasioning Grievous Bodily Harm where it results in serious injury or death).

‘Assault and Battery’ still exists as a civil action (under the tort of trespass against the person).

What must be present to prove assault?

Assault (or Simple Assault)

For assault, the following three elements must be present:

  1. Threat by the offender: this can be through words or conduct. The offender must have intended to do the act that caused the threat but does not need to have intended to threaten the victim;
  2. Causing apprehension of harm in the victim: the apprehended harm could be contact to the victim’s self, family, close friend or property; and
  3. The apprehension must be reasonable: meaning that a reasonable person in the victim’s position would have likely felt threatened. Therefore, a person who was not aware of the threat or who knew of circumstances that would make the threat unlikely to be carried out would not be a victim of Assault (e.g. knowing that a gun isn’t loaded and therefore, having no reason to fear being shot with the gun).

Battery (or Assault Occasioning Actual or Grievous Bodily Harm)

For Battery, the following three elements must be present:

  1. Contact with the victim: the offender must make direct and actual contact with the victim. This includes spitting, shining a laser beam into another’s eyes and carrying out a medical procedure without the patient’s consent. If there is no contact with the victim there can be no Battery. However, there may still be an Assault. If there is contact but no injury caused, there may still be Battery (in a civil action) but no Assault Occasioning Bodily Harm (as a criminal offence);
  2. Without consent by the victim: contact in ordinary day-to-day life (e.g. bumping into a stranger on a busy street) is not Battery because the law recognises implied consent in such circumstances; and
  3. The offender intended the contact: the offender must have intended to cause contact with the victim in doing the act. Therefore, there will be no Battery if the offender did not realise that the act would cause contact with the victim. However, the offender will still have committed Battery if they intended to cause contact with the victim but did not mean any harm to the victim, did not intend for the full consequences of the act or did not know that the act was unlawful.

Defences to assault?

The two main defences are:

  1. consent by the victim,
  2. self defence.

There is no set formula for proving self defence. The test is whether the offender believed that the act done in self defence was necessary in the circumstances.

There must be reasonable grounds to support this belief. Whether there are reasonable grounds depends on a number of factors, including whether the act:

  • was in response to an immediate threat: attacking someone when they are walking away or after-the-fact will not be in response to an immediate threat of harm and may not be sufficient to make out self defence;
  • was proportionate to the threat posed: attacking someone with a glass bottle or knife may not be proportionate to the threat if the victim was unarmed. Similarly, physically attacking someone in response to hurtful or offensive words will not be proportionate despite the verbal provocation; and
  • was necessary to prevent harm to oneself or one’s property: if there are other ways to prevent harm to the offender or their property, and if this was obvious to the offender in the circumstances, then the defence may fail because it may be seen as motivated by reasons other than self defence.

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