Earlier this month the team at NCL defended a matter in the Court whereby our client was charged with Assault Occasioning Actual Bodily Harm. This charge carries a maximum 5-year imprisonment term and is the second in a range of assault charges pursuant to the Crimes Act.
The charges related to our client biting another person on the back quiet severely. Our client instructed us that they did so in self-defence.
Whilst at first glance biting someone on the back may likely not to have been in self defence given the person is not facing you, it depends on the perception to a harm you are feeling and the proportionality and reasonable response to that harm.
THE LAW: ASSAULT OCCASIONING ACTUAL BODILY HARM
The offence of Assault occasioning actual bodily harm is found under Section 59 of the Crimes Act 1900. It is stipulated under such provision that:
“Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.”
Some examples of assault include:
- Striking at a person with a first or slapping a person.
- Throwing an object at another person (even if it misses); and/or
- Unlawful imprisonment of another person
Such offence of Assault Occasioning Actual Bodily Harm is known as a “Table 2” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Director of Public Prosecutions (DPP).
Since Assault Occasioning Actual Bodily Harm is a criminal offence, the onus of proving guilt beyond a reasonable doubt lies with the Prosecution. This is the standard of proof in which the prosecution is compelled to achieve before an accused person can be convicted of Assault Occasioning Actual Bodily Harm.
To establish Assault Occasioning Actual Bodily Harm the prosecution must prove each of the following matters beyond reasonable doubt:
- You applied force, hit or touched another;
- You did so intentionally or recklessly.
- Without consent or lawful excuse; and
- That action caused bodily harm to the other person.
OUR CASE
NCL defended the matter at summary defended trial and put forth a case whereby regardless of the complainant’s back turned at the time, the threat was still imminent, and the response by our client was proportionate and reasonable in all the circumstances.
THE LAW: SELF-DEFENCE
The defence of ‘Self-Defence’ is founder under Section 418 of the Crimes Act 1900. It is stipulated under the provision:
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary–
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage, or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass, and the conduct is a reasonable response in the circumstances as he or she perceives them.
Such provision can be summarised as follows;
‘A person is entitled to use such conduct as he or she genuinely believes is reasonable and necessary for a ‘defensive purpose’ (that is, in self-defence or in defence of another, or to prevent or end an unlawful imprisonment or protect property).’
In the case of R v Katarzynski [2002] NSWC 613, it was held that the finder of facts must establish and determine the following two question;
- Is there a reasonable possibility that the accused believed that their conduct was necessary in order to defend themselves?
- If there is, is there also a reasonable possibility that what the accused did was a reasonable response to the circumstances as he or she perceived them?
It should be understood that as long as the defence used is reasonable and proportionate there is “No duty to retreat”, and an individual has a right to stand their ground.
The “No Duty to retreat” and “Stand your ground” approach to Self-defence seeks to remove any requirement of retreating in a situation. It acts to authorise a person who is threatened or attacked to stand their ground.
OUR RESULT
Bearing in mind that the defence need not prove self-defence it is for the prosecution to negate the existing of the defence the Court ultimately agreed with our submissions and found that the prosecution had not negated the defence beyond a reasonable doubt. Thus, our client was found not guilty of the criminal conduct of Assault Occasioning Actual Bodily by reason of that they did so in self-defence.
WHAT SHOULD YOU DO IF CHARGED WITH THIS OFFENCE?
It is important to seek legal advice if charged with this offence to see if the allegation can be successfully defended. The evidence pertaining to a charge of this nature needs to be carefully reviewed by a criminal defence lawyer to see whether the injuries amount to grievous bodily harm under the law and, if so, whether they were caused by the driver’s negligence. Based on the subjective circumstances of the case, a specialist criminal lawyer with extensive experience in the field will be able to advise you regarding the possibility of any defence that can be available to you or if there is any room for negotiations with NSW Police relating to the gravity of the offence. You can contact our office on 1800 CRIM LAW or visit https://www.nationalcriminallawyers.com.au for more information about your options.
If you or a loved one have been charged with the named offence, get in touch with one of our criminal defence lawyers in order to ensure your case is heard according to the law.
Why Choose NCL?
The team at National Criminal Lawyers® are passionate about providing educational information to our readers. We hope you have found this blog informative and a valuable read. Our office encourages our readers to let our Criminal Defence Lawyers know if there are any particular topics you would like a blog about in the future.
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For more information on self-defence please visit our dedicated defences page.