Previous Topic

Next Topic

Book Contents

Book Index

7.4.8.3 - Charge: Assault - No Application of Force

Click here to obtain a Word version of this document for adaptation.

 

I must now direct you about the crime of assault. To prove this crime, the prosecution must prove the following 4 elements beyond reasonable doubt:

One - the accused acted in the way alleged.

Two - the accused intended to cause the complainant to apprehend the immediate application of force to their body. [1]

Three - the accused caused the complainant to apprehend the immediate application of force.

Four - the accused had no lawful justification or excuse for their behaviour.

I will now explain each of these elements in detail.

Actions of the accused

The first element relates to what the accused did. In this case the prosecution alleged that NOA [insert evidence about the accused’s threatening behaviour]. 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 accused intended their actions to cause the complainant to apprehend the immediate application of force to their body.

It does not matter whether the accused was able to apply force to the complainant, nor whether they actually intended to apply such force. For this second element to be satisfied, the accused only needs to have intended to create an apprehension in the complainant that force would be applied.

Apprehension of immediate application of force

The third element relates to the effect of the accused’s actions on the complainant. The prosecution must prove that the accused’s actions caused the complainant to apprehend the immediate application of force to their body.

[If relevant, add: The complainant must apprehend that the force is about to occur. Threats of harm occurring some time in the future are not sufficient.]

Again, it does not matter whether the accused was able to apply force to the complainant, nor whether they intended to apply such force. For this third element to be satisfied, the complainant only needs to have apprehended the immediate application of force to their body.

Lawful justification and excuse

The fourth element that the prosecution must prove is that the accused’s acts were 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 [insert relevant act], this was done while [he/she] was carrying out the ordinary social activity of [insert evidence]. Under the law, a [insert relevant act] that is done in the course of an ordinary social activity is excusable. However, this excuse is limited to [insert relevant act] that is reasonable in our daily interactions. If the [insert relevant act] goes beyond that, the accused will not have a lawful excuse.

[If hostility is in issue, add: Similarly, if the [insert relevant act] is done 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 accused’s behaviour 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 acted in the way alleged; and

Two — that NOA intended to cause NOC to apprehend the immediate application of force; and

Three — that NOA caused NOC to apprehend the immediate application of force; and

Four — that NOA’s actions were without 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

7.4.8.1 - Charge: Assault - Application of Force

7.4.8.2 - Checklist: Application of Force

7.4.8.4 - Checklist: No Application of Force