Common Assault (Common Law)

Common Assault (Common Law)

Common Law

Common Assault (Common Law) is used when a person makes unlawful contact with another person, or threatens to do so.
Sentencing
Sentencing in the higher courts of Victoria Sentencing Statistics Pie Chart for Common Law Assault in the Higher CourtsPlease note that suspended sentences were abolished in the higher courts earlier than that of the Magistrates’ Court, and therefore all offences committed on or after 1 September 2013 will not have this available as a sentencing option.1

Sentencing in the Magistrates’ Courts of Victoria Sentencing Statistics Pie Chart for Common Law Assault in the Magistrates' CourtsPlease note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.2

[1] Sentencing Advisory Council. Abolished Sentencing Orders, accessed December 7, 2020, https://www.sentencingcouncil.vic.gov.au/about-sentencing/abolished-sentencing-orders.
[2] Ibid.
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.3

[3] http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#4957.htm
 
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?”

The maximum penalty is 5 years imprisonment.