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Assault Criminal Charge – Criminal Lawyers Sydney

Sydney Criminal Lawyer, Steven Mercael, obtained a phenomenal result for a Sydney Nurse charged with 3 counts of assault and 1 count of intimidation.

This was a huge win for her defence team, led by Steven Mercael.

THE CHARGES:

The Sydney Nurse was charged with:

  1. Assault occasioning actual bodily harm
  2. Common assault x2
  3. Stalk and intimidation

WHAT IS A COMMON ASSAULT?

A Common Assault is a criminal offence defined under Section 61 of the Crimes Act 1900 – “Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”

A common assault is any act by which a person intentionally or reckless causes another to apprehend immediate and unlawful violence, or strikes, touches or applies force to another, without legal justification. It cannot be a mere omission.

Key elements of Common Assault in NSW include:

  1. Intention or Recklessness: The person committing the assault must either intentionally cause physical or psychological harm to another person or act recklessly, knowing that their actions could result in harm.
  2. Physical or Psychological Harm: Common Assault can involve both physical harm, such as a physical attack or touching without consent, and psychological harm, which may include threats or intimidation that cause another person to fear for their safety.
  3. Lack of Consent: Generally, Common Assault involves actions without the consent of the person affected.

WHAT IS AN ASSAULT OCCASIONING ACTUAL BODILYA HARM?

The offence of Assault Occasioning Actual Bodily Harm falls under Section 59 of the Crimes Act 1900:

(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.
(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years.
This offence is more serious than common assault and involves causing actual bodily harm to another person intentionally or recklessly.

WHAT IS STALKING AND INTIMIDATING?

Section 13 of the Crimes (Domestic and Personal Violence) Act 2007 makes stalking or intimidation with intent to cause fear of physical or mental harm an offence in NSW.  The maximum penalty is 5 years imprisonment, a fine of $11,100 or both.

Causing fear of physical or mental harm is not limited to the victim’s fear of harm to themselves.  If the victim fears harm from a person, they are in a domestic relationship with because of the offender’s behaviour then a criminal offence has been committed

DEFENCE OF SELF-DEFENCE

Mr Mercael raised the complete defence of self-defence.

In order for self-defence to be raised or left to the jury there must be evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence: Colosimo v DPP [2006] NSWCA 293 at [19]. It is not essential that there be evidence from the accused as to the accused’s beliefs and perceptions: Colosimo v DPP at [19]; but it must be raised fairly on the evidence: Mencarious v R [2008] NSWCCA 237 at [61], [78], [90]; Douglas v R [2005] NSWCCA 419 at [99]–[101]. 

Section 418(1) provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. Section 418(2) sets out the circumstances where self-defence is available. The questions to be asked by the jury under s 418(2) are succinctly set out in R v Katarzynski [2002] NSWSC 613 at [22]–[23] which was approved in Abdallah v R [2016] NSWCCA 34 at [61]. Section 419 provides that the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

WHAT IS SELF-DEFENCE?

Self-defence is a defence to assaults. If you are found to have acted in self-defence you will be acquitted of the alleged assault.

The test for this defence has two ‘limbs.’

The first ‘limb’ provides you will have acted in self-defence if you believe that your conduct is necessary:

  • To defend yourself or another person; or
  • To prevent or terminate the unlawful deprivation of your liberty or the liberty of another person; or
  • To protect property from unlawful taking, destruction, damage or interference; or
  • To prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

The second ‘limb’ provides that the conduct is a reasonable response in the circumstances as you perceived them.

The first limb test for self-defence

The legal question for the first limb of the test for self-defence is whether there is a reasonable possibility that you believed your conduct was necessary in order to defend yourself, someone else, or your property.

This question is determined from a completely subjective point of view and considers your personal characteristics. It involves considering what you were thinking. Intoxication can be considered as part of your belief.

The second limb for self-defence

The second limb of the test is determined by an entirely objective assessment of the proportionality of your response to the situation you believed you faced. In other words, was the conduct a reasonable response to the circumstances as you perceived them.

In considering whether your response was reasonable to the situation as you perceived it, some factors particular to you may be taken into account. These include the surrounding physical circumstances in which you acted as well as age, gender and health.

THE DEFENCE PLAN OF ATTACK:

Sydney Criminal Lawyer, Steven Mercael, put together a plan of defence for our client. Mr Mercael, issued numerous subpoenas, prepared detailed area of cross-examination of witnesses and wrote representations to police which resulted in 2 of the 4 charges being withdrawn prior to the hearing date. Further, on the day of the hearing, he ensured that our client’s best case was put forward and ultimately the magistrate dismissed the remaining two charges of assault.

COST APPLICATION FOR DEFENCE

After our clients’ charges were dismissed, Mr Mercael made an application for our client’s legal costs to be paid. This was on the basis on the prosecution failing to disclose crucial documents that exculpated our client in relation to two of the allegations.

CONTACT US:

Contact Criminal Lawyers Group on 0424 230 074 or via email at info@criminallawyersgroup.com.au if you have been charged with a traffic offence. Our team is committed to obtaining the best results for your case, ensuring that you receive comprehensive legal support every step of the way

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