02 Jul Common Assault – Section 313 – Criminal Code

s 313 – Common Assault

1. Any person who unlawfully assaults another is guilty of a simple offence and is liable –
   1. if the offence is committed in circumstances of aggravation, to imprisonment for 3 years and a fine of $36,000; or
   2. in any other case, imprisonment for 18 months and a fine of $18,000.

Elements of the Offence

• In order to be convicted of this offence you must be found to have assaulted another person.
• “Assault” is defined in section 222 of the Criminal Code as:
  • A person who strikes, touches, or moves, or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud, or who by any bodily act or gesture attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose, is said to assault that other person, and the act is called an assault.
• “Applies force” is also defined in section 222 of the Criminal Code as including:
  • Applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.

Typical Circumstances of the Offence

• As the name would imply, common assault is the least serious form of assault.
• The element the Police need to prove to convict you of the offence are fairly easy to do so.
• They only need to show that you applied force to a person without their consent.
• The actions that may constitute this offence could be as little as a gentle push, to as much as a firm shove.
• The key aspects of the offence are that it force was applied without consent.
• If there is an injury present as a result of the force applied the applicable offence may be actually be assault occasioning bodily harm, or if the injury is so serious as to require medical intervention to avoid more permanent injury or death, then grievous bodily harm may be applicable.

Possible Defences

• Defending a charge of common assault can be difficult as the level of force required to constitute a common assault is so low.
• Even so, depending on your circumstances there may be several defences that may be worth investigating
• “Self-defence” can be claimed by an accused person to justify a “harmful act” done, such as a common assault.
  • This defence can be used if the assault you were alleged to have committed was done in protection of yourself or another from a harmful act.
  • The harmful act you were alleged to commit must be a reasonable response to the circumstances that you believed them to be and you must have reasonable grounds for the belief.
• “Provocation” is a defence used when the alleged assault was done only because the accused person was so provoked that they lost control of themselves and committed the assault.
  • In order to make out this defence you must show that the force you use in response to the provocation is not disproportionate to the provocation.
  • The assault must also occur in the heat of the moment when the provocation happens. If someone said something provoking to you and you went away for a while and returned and hit them this would not be in the heat of the moment.
  • The force used must also not be likely to cause death or grievous bodily harm.
  • Generally, this defence is very hard to prove. The provocation has to be very serious in order to excuse the assault.

Possible Penalties and Sentences

• Whilst Common Assault is the lowest type of assault in terms of severity that does not mean

If you have been charged with this offence it is important to obtain legal advice as soon as possible. Book an initial appointment with for expert legal advice.