• The phrase ‘assault and battery’ refers to the old English legal terms from which we get the modern offences relating to assault and grievous bodily harm. 
• Assault was creating the fear of violence in the victim and battery was the actual force or touching of the victim. 
• These old common law offences have been replaced by legislation in each Australian jurisdiction. 
• The term ‘assault’ now includes both of the old ‘assault and battery’ concepts. 

• A coward’s punch is used to describe a situation where a person attacks another with one punch to the head knocking them unconscious sometimes resulting in further head injury when the victim’s head hits the ground. 
• It is sometimes also known as a ‘king hit’ or ‘one punch’. 
• NSW introduced legislation in 2014 preventing offenders from relying on intoxication as a defence in one punch attacks that result in death. 

• Self defence can be a complete defence to assault and serious injury offences. 
• A complete defence means that the person charged is not guilty and would suffer no criminal punishment as a result of the assault. 
• However the force a person uses must be reasonable in the circumstances. 
• A person claiming self defence must be able to show the following:

1. they were unlawfully assaulted;
2. they did not provoke the assault;
3. the nature of the assault was such that the person reasonably feared that they would die or suffer a very serious injury;
4. they reasonably believed that they could not save themselves from death or serious injury without using the force that they used; and
5. the force used was necessary.

• The term ‘provocation’ generally refers to the sudden and temporary loss of control by a person as a result of a ‘triggering incident.’ 
• An example of a ‘triggering incident’ might be a parent who lost control when they saw their child about to suffer a serious act of violence from another person. 
• The rules regarding provocation are complex. 
• The provocation must be such that it would cause an ordinary person to lose control and to potentially act in the same way that the accused person did. 
• The provocation must have caused the offender to lose control and the offence must have been committed while the offender lacked self-control and before they were able to regain their composure. 
• A ‘triggering incident’ may not be required after a lengthy history of abuse such as a battered wife or a victim of persistent child sexual abuse killing the person who abused them.

Question

I got into a fight when I was out with some friends and I hit someone. What could happen to me if I am convicted or found guilty of assault?

Answer

• If you are an adult any conviction or finding of guilt (non-conviction) will usually stay on your criminal history for the rest of your life.
• In some states and territories if you were under the age of 18 when you committed the assault it will be wiped from your criminal history after 10 years.
• For a serious offence you may be sentenced to serve time in prison. 
• For a less serious offence you may be ordered to serve your sentence in the community such as by performing unpaid community work and attending alcohol and drug management or anger management courses. 
• You may be sentenced to pay a fine. 
• The law of sentencing is a complex area and we can advise specifically when we have all the necessary background information about the particular circumstances of your case. 

Question

There have been several robberies in our street and one of my neighbours was attacked when she disturbed the robbers. If someone enters my property how far can I go to defend myself?

Answer

• This depends on the circumstances. 
• You are entitled to use reasonable force to protect yourself however the same does not apply for the protection of your property.
• You are not allowed to shoot someone because you fear they may be about to steal your belongings.
• Any force used must be reasonable and proportionate to the actual threat. 

Question

I punched my sister’s ex-boyfriend because he was trying to drag her into his car. Will I get a criminal record? Is it ok to use force to defend someone else?

Answer

• It is ok to use force to defend someone else as long as the force used is reasonable and proportionate in the circumstances. 
• You should see a lawyer who specialises in criminal law as they will be able to assist you in gathering the evidence you will need and preparing your defence.

Question

I am a homeowner. If someone enters my home who I reasonably believe is there to steal from me and I cannot see any weapon on the thief, will I be charged if I shoot the thief and claim I did so in self-defence?

Answer

• It you shoot an intruder in these circumstances it will be difficult to establish that this was self-defence.
• You will need to show that a reasonable person would have feared for their life in these circumstances for your response to be considered proportionate to the danger.
• Your defence will need to carefully explain the reasons why it was reasonable for you to shoot the intruder in all the circumstances rather than take other action such as demand the intruder leave and threaten to shoot.
• The risk is that a jury or court will find the force used was not reasonable or necessary in the circumstances.