Common Assault (Common Law)

It’s worth noting that the Police are not calling you in to hear your version of events. They are interviewing you so that they can strengthen their case against you. They are trained interrogators and know how to obtain admissions.

Call us today for advice on how to conduct an interview. We can also attend the Police interview with you if you are concerned about harming your case.

Pleading Not Guilty

The Prosecution must prove their case beyond reasonable doubt which is a very high standard. We will help you vigorously fight the charges if you have been wrongly accused of Common Assault.

You may dispute the allegations because:

• You deny assaulting the alleged victim,
• You acted in self defence,
• It is a case of mistaken identity.

Whatever your defence, our lawyers will take the time to carefully listen to your instructions and defend you in a contested hearing.

Pleading Guilty

You should engage our firm if you decide to plead guilty to Common Assault. Our expert criminal lawyers make pleas in the Magistrates’ Court every day and obtain excellent results for our clients. A conviction or a very large fine could affect your professional career. Our lawyers will work hard with you to ensure that the Court is properly informed of the circumstances of your offending and your personal history. We can persuade the Court to give you the fairest sentence possible.

Sentencing

Sentencing in the higher courts of Victoria

Source: Sentencing Advisory Council of Victoria (SACStat), Crimes Act 1958 (Vic) — 975 charges across 173 cases, higher courts, 1 July 2019 – 30 June 2024.

This reflects the gravity of offending typically dealt with at that level. Importantly, the court still assesses each case individually, taking into account the circumstances of the assault, the consequences and the offender’s background.

Sentencing in the Magistrates’ Courts of Victoria

Source: Sentencing Advisory Council of Victoria (SACStat), Common Law — 1,003 charges across 854 cases, Magistrates’ Court, 1 July 2020 – 30 June 2023.

The spread of penalties demonstrates that the court tailors sentence to the seriousness of the conduct and the personal circumstances of the individual before it.

Which Court Will the Case be Heard in?

Common Assault (Common Law) can be heard in the Magistrates’ Court.

Examples of Common Assault (Common Law)

• You push your neighbour when he complains about a branch overhanging the fence.
• You angrily tell another motorist you will punch them for failing to give way to you.
• You threateningly grab the collar of someone’s shirt when they are rude to you in bar.

What is the legal definition of Common Assault (Common Law)?

The legal definition of Common Assault (Common Law) is making unlawful contact with another person, or threatening to do so.

Legislation

This is a common law offence which means there is no specific legislation for the offence.

Elements of the offence

For an accused to be found guilty of common assault, the Prosecution must prove the following elements beyond a reasonable doubt:

1. The accused applied force to the complainant’s body;
2. The application of force was intentional or reckless; and
3. The application of force was without lawful justification or excuse.¹

What are some of the possible defences to a Common Assault (Common Law) charge?

• Someone was acting in self-defence.
• Someone else did the assault.

There are other possible defences, depending on the circumstances surrounding the alleged offending. Each matter is unique and requires an individual approach and strategy.

Questions in cases like this

• Were there circumstances in which you need to defend yourself?
• Was someone else involved who did the offending? 

Why are they charging with common law assault? 

Maximum Penalty

The maximum penalty is 5 years imprisonment.

Other Important Resources

• FindLaw: Common Assault (Common Law)
• Judicial College: Bench Notes Common Law Assault
• Sentencing Manual: Common Law Assault