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  • Writer's pictureShaun Pascoe

How Serious is a Charge of Unlawful Assault in Victoria?

Updated: Jan 11

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Unlawful Assault: From Summary to Indictable Offence

The offence of Unlawful Assault is a summary offence, unless the prosecution allege an injury has occurred, or that the unlawful assault was committed with a prescribed intent, in which case the offence is indictable.

Where unlawful assault simpliciter is alleged (section 23 of the Summary Offences Act 1966 Vic), the offence falls to be assessed at the bottom end of criminality, and the penalty is reflective of this.

As we discussed in a previous blog article, assaults which allege an injury was sustained to a victim are prosecuted under the Crimes Act 1958 (Vic). Often a single allegation of assault will give rise to a main charge (usually the first) and several alternative offences.

For example:

  1. Intentionally cause injury

  2. Recklessly cause injury

  3. Unlawful assault

The prosecution must prove an injury to successfully convict an accused charged with either intentionally cause injury or recklessly cause injury. To convict on an allegation of Unlawful assault the task is easier.

The Offence of Unlawful Assault And What the Prosecution Must Prove

The effect of section 31 of the Crimes Act 1958 (Vic) is that an unlawful assault is an indictable offence, where the assault is combined with an intention to:

  • commit an indictable offence

  • resist or intentionally obstruct an emergency worker, youth justice custodial worker, custodial worker,

  • resist the lawful apprehension or detention of a person

Under section 31(2) of the Crimes Act 1958 (Vic), "assault" is defined in these terms:

(2) "assault" means the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is:

(a) without lawful excuse; and

(b) with intent to inflict or being reckless as to the infliction of bodily injury, pain, discomfort, damage, insult or deprivation of liberty: and results in the infliction of any such consequence (whether or not the consequence inflicted is the consequence intended or foreseen).

The penalty for an unlawful assault pursuant to section 31 of the Crimes Act 1958 (Vic) is a maximum of 5 years imprisonment.

Where the alleged assault is not accompanied with any of the prescribed intents discussed above, the offence will usually be prosecuted under section 23 of the Summary Offences Act 1966 (Vic), unless aggravating circumstances are alleged (section 24: child or female victim).

Section 23 simply provides: "Any person who unlawfully assaults or beats another person shall be guilty of an offence."

The maximum penalty under section 23 of the Summary Offences Act 1966 is 15 penalty units or imprisonment for 3 months.

What is the Definition of Unlawful Assault At Law?

The term "unlawful assault" is not defined under the Summary Offences Act 1966 (Vic) but has been defined as follows: "An assault is any act done with intention to cause the victim to apprehend immediate or unlawful violence whether such apprehension is caused" (R v McNamara [1954] VLR 137 at 138; R v Venna [1976] QB 421).

The Court observed in Rosza v Samuels [1969] that "The gist of the offence i the creation of a fear in the mind of the person assailed that unlawful force is about to be used".

A common misconception is that unlawful assault must involve the laying of hands by the offender onto the victim. As is clear from the definition of law, an unlawful assault may be established where the prosecution can establish that the offender by his/her words or conduct intended to convey to another the application of unlawful force.

Require advice or representation for an allegation of unlawful assault? To explore your options don't hesitate to contact us to organise an appointment.


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