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7.4.8.1 - Charge: Assault - Application of Force

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I must now direct you about the crime of assault. To prove this crime, the prosecution must prove the following 3 elements beyond reasonable doubt:

One - the accused applied force to the body of the complainant.

Two - the application of force was intentional. [1]

Three - the application of force was without lawful justification or excuse.

I will now explain each of these elements in detail.

Application of force

The first element relates to what the accused did. [He/She] must have applied force to the body of the complainant.

It does not matter how much force is applied or for how long it was applied, and it does not need to have harmed the complainant. Even a slight touch is enough.

In this case, the prosecution alleged that NOA applied force to NOC when [insert evidence]. The defence responded [insert evidence].

Intention or recklessness

The second element relates to the accused person’s state of mind. The prosecution must prove that the application of force was intentional. For you to be satisfied that the accused’s actions were intentional, you must be satisfied that NOA deliberately applied force to NOC’s body.

Lawful justification and excuse

The third element that the prosecution must prove is that the application of force was without lawful [justification/excuse].

[If any lawful justifications, such as consent, self-defence, arrest, or the lawful correction of children, are open on the evidence, add the following shaded section]

In this case, the defence argued that [Insert evidence of lawful justification]. The prosecution argued [insert any counter arguments].

[If the excuse of ordinary social activity is open on the evidence, add the following shaded section]

In this case the defence argued that while NOA did apply force to NOC’s body, this was done while [he/she] was carrying out the ordinary social activity of [insert evidence]. Under the law, force that is applied in the course of ordinary social activities is excusable. However, this excuse is limited to touching that is reasonable in our daily interactions. If the force that is applied goes beyond that, the accused will not have a lawful excuse.

[If hostility is in issue, add: Similarly, if the force is applied with a hostile intention, actions that would otherwise be considered excusable may become unlawful. In this case, the prosecution argued that [insert relevant evidence]. The defence responded [insert relevant evidence]. It is for you to determine whether NOA did have such a hostile intention, and whether in all of the circumstances this intention made [his/her] acts unlawful].

[If any lawful justifications or excuses are open on the evidence, add the following shaded section]

Remember, it is for the prosecution to prove, beyond reasonable doubt, that the application of force was without lawful [justification/excuse]. NOA does not need to prove that [he/she] had such a [justification/excuse].

[If no lawful justifications or excuses are open on the evidence, add the following shaded section]

In this case, it has not been suggested that there was a lawful justification or excuse for the accused’s alleged actions. The main issue[s] for you to determine are [refer to facts in issue].

 

Summary

To summarise, before you can find NOA guilty of assault the prosecution must prove to you beyond reasonable doubt:

One — that NOA applied force to NOC; and

Two — that NOA intended to apply force to NOC; and

Three — that NOA applied force to NOC without a lawful [justification/excuse].

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of assault.

 

Notes

[1] It is also possible for this element to be satisfied by recklessness. In relevant cases the charge will need to be amended accordingly (see Recklessness for assistance).

 

Last updated: 3 December 2012

See Also

7.4.8 - Common Law Assault

7.4.8.2 - Checklist: Application of Force

7.4.8.3 - Charge: Assault - No Application of Force

7.4.8.4 - Checklist: No Application of Force