By James Cobiac
The laws regarding assault in South Australia are partially defined by the degree of harm that the defendant intends to, or is reckless that their conduct may, cause. Allegations of assault that can be brought against an accused include assault intending to cause serious harm and assault causing harm intending to cause harm. Each carries different maximum penalties, but all underpinned by interrelated principles of criminal law and are amenable to similar types of defences.
Assault causing serious harm to another intending to cause serious harm is the most serious charge of assault that can be brought against the accused. It sits just below a charge of attempted murder. The charge may be brought as either a basic offence or an aggravated offence depending on the circumstances that surround the alleged offending. A basic offence carries a maximum sentence of 20 years and an aggravated offence 25 years. The two key elements that the Crown must establish beyond reasonable doubt is the defendant intended to cause serious harm to the victim and that serious harm was caused to the victim. The actual subjective intent of the defendant is critical to establishing a charge of causing serious harm intending to cause serious harm. If a defendant can retains reasonable doubt upon the Crown case as to the Defendant’s actual intent the charge cannot be proved. For example, the defendant may have only intended to defend themselves against another, which raises which raises a possible defence of self-defence. Establishing self-defence results in a complete acquittal, or can help mitigate the seriousness of the charge even when the defensive action was not proportionate to the threat perceived. Alternatively, if intent cannot be proven, either actually or with reference to the circumstances, then the charge may default to a charge of simple assault causing harm, intention of which is excluded as an element.
For a charge of assault causing serious harm intending to cause serious harm to be successful the Crown must also establish that serious harm was caused by the accused. Serious harm encompasses acts that are intended to put a person’s life in danger by reference to any injuries they received, or any action that causes a person to suffer physical impairment or disfigurement. If the Crown cannot establish this beyond reasonable doubt the accused may only be guilty of a lesser charge of assault causing harm intending to cause harm, or assault. This is because the law of assault is tiered, whereby it is open to a jury to convict on a lesser charge if the more serious charge has not been proven by the Crown. For the purposes of causing harm intending to cause harm, harm includes actions that render the victim unconscious, inflict injury and pain, or disfigure the victim in some way.
The structure of these offences means that understanding the charges that have been laid against you can become very complicated. It is important to seek legal advice if you have been charged with criminal offending so that you can fully explore the legal avenues open to you once your lawyer has analysed the evidence in the Crown brief. Culshaw Miller Criminal Lawyers are available 24 hours a day to provide advice or attendance on 040 021 9889 or to book an appointment you can contact our offices on (08) 8464 0033.