A common assault charge can be dropped, but the decision ultimately lies with the police or the prosecution. This depends on the different circumstances surrounding the case.
Section 61 of the Crimes Act 1900 is the legislation that covers common assault. Its maximum penalty is 2 years of imprisonment.
Possible Grounds for Dropping a Common Assault Charge
Assault cases involve specific elements, yet when it comes to common assault, there are instances where the charge might be dropped due to various reasons:
The prosecutors might think about whether or not moving forwards with the case is in the public’s best interest. Some things that might be considered are how bad the crime was, the offender’s criminal past, and how it affected the victim.
Sometimes, the victim may request the dismissal of charges. Although the prosecution is not required to comply with this request, they may consider the victim’s desires when deciding whether or not to proceed with the case.
Alternative dispute resolution
Depending on the circumstances, the parties may agree to use an alternative dispute resolution procedure, such as mediation or a restorative justice programme, to resolve the dispute. When you win, the prosecution may decide to drop the charges.
First-time offenders and those with minimal criminal histories may sometimes qualify for a diversion program. The accusations may be dismissed upon successful completion of the program.
If there isn’t enough evidence to prove the charge beyond a reasonable doubt, the prosecutors may decide to drop the charge.
In common assault cases, the prosecution is burdened to prove the elements of the offence beyond a reasonable doubt. While the specific elements of common assault may vary slightly depending on the jurisdiction, generally, the prosecution must establish the following:
Act or conduct
The prosecution must prove that the defendant engaged in a physical act or behaviour (e.g., hitting, pushing, or spitting) or non-physical act or conduct (e.g., verbal threats, gestures, or actions that caused the victim to fear imminent physical harm).
Intention or recklessness
The prosecution must prove that the defendant either intended to cause the victim to fear unlawful and immediate violence or was negligent as to whether such apprehension would be caused. Typically, recklessness involves a defendant who is conscious of the possibility of causing apprehension but continues to act regardless.
Apprehension of immediate and unlawful violence
The prosecution must prove that the victim genuinely dreaded or anticipated criminal and direct violence due to the defendant’s actions. This indicates that the victim must have believed that the violence was imminent instead of a possibility in the future.
No lawful excuse or justification
The prosecution must demonstrate that the defendant had no legal alibi or reason for their actions, such as acting in self-defence or defence of another individual.
Courts Where Common Assault Charge Cases Are Heard
In Australia, cases of common assault are generally heard in the Magistrates’ Court or Local Court, depending on the jurisdiction. These courts handle less serious criminal matters and are the first level of the Australian court system.
In New South Wales, for example, such cases would be heard in the Local Court, while in Victoria, they would be heard in the Magistrates’ Court.
Other states and territories have similar courts where common assault cases are heard. If the assault is more serious or involves aggravating factors, it may be heard in higher courts, such as the District Court or County Court, depending on the jurisdiction.
Preparations Before Reaching a Common Assault Charge Verdict
If you are facing sentencing for common assault, there are several steps you can take to help prepare yourself and potentially lessen the severity of your sentence.
Hire a lawyer
Engage the services of an experienced criminal lawyer familiar with common assault cases and the relevant laws in your jurisdiction. They can advise you on the best action and represent your interests in court.
Gather character references
Get references from people who know you well and can talk about your good traits, like your employer, coworkers, friends, or leaders in your community. These references can help show that you are a good person, which may sway the judge’s choice.
Engage in counselling or rehabilitation
If your attack was caused by drug use, anger management problems, or other personal issues, you might want to go to counselling, therapy, or recovery. You can show the court that you are willing to change your behaviour by dealing with your problems.
Show remorse and take responsibility
Accepting blame for your actions and showing real regret for what you did can make a good impression on the court. This can be done by writing the victim an apology letter or showing regret at the sentencing meeting.
Prepare a personal statement
Write a personal statement to give to the court. In it, explain what happened, what problems you were having, and what steps you’ve taken to resolve and stop them from happening again.
Comply with bail conditions or court orders
Ensure you follow any bail terms or court orders. This will show that you care about the court process and want to make things right.
Familiarize yourself with the sentencing process
Knowing what to expect and how the process works can help you prepare for your sentencing meeting. Your lawyer can help you get through this process and know your rights and responsibilities.
Question: Can a common assault charge be dropped?
Answer: A common assault charge can be dropped, but the decision ultimately lies with the police or the prosecution. This depends on the different circumstances surrounding the case.
Need Guidance On How To Drop Common Assault Charges?
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Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.