Assault is one of the most commonly charged offences in Victoria. It covers a wide range of conduct, from a single act of physical contact through to serious attacks involving weapons. In Victoria, assault offences arise under both the common law and the Crimes Act 1958 (Vic), with different charges carrying significantly different maximum penalties.

Assault matters can be heard in either the Magistrates’ Court or the County Court, depending on the nature and seriousness of the charge. At Angus Cameron and Partners, we regularly represent clients facing assault charges at all levels of the court system. If you have been charged, it is important to obtain legal advice as early as possible — the defences available and the way your matter is presented can make a significant difference to the outcome.

Types of Assault Offence

Common law assault — application of force

The most basic form of assault involves the intentional or reckless application of force to another person’s body. The prosecution must prove beyond reasonable doubt that:

• the accused applied force to the complainant’s body;
• the application of force was intentional or reckless; and
• the application of force was without lawful justification or excuse.

The force involved need not be violent — even a slight touch can constitute assault if it is without lawful excuse. Force may be applied directly or through a weapon or instrument. For recklessness to be established, the accused must have actually turned their mind to the likelihood that force would be applied — it is not enough that they ought to have known.

The maximum penalty for common law assault is five years’ imprisonment.

Common law assault — causing apprehension of force

Assault can also be committed without any physical contact. This form of assault occurs where the accused’s conduct causes the complainant to apprehend the immediate application of force. The prosecution must prove beyond reasonable doubt that:

• the accused committed an act that caused the complainant to apprehend the immediate application of force to their body;
• the accused intended to cause such apprehension, or was reckless as to that outcome; and
• the accused had no lawful justification or excuse.

The complainant does not need to have been frightened — it is enough that they apprehended that physical contact would be made without their consent. The apprehension must be of immediate or imminent force, though this requirement has been interpreted broadly.

Assault with intent to commit an indictable offence — section 31(1)(a) Crimes Act

Section 31 of the Crimes Act 1958 (Vic) creates a number of aggravated assault offences. Under section 31(1)(a), it is an offence to assault or threaten to assault another person with intent to commit an indictable offence. The maximum penalty is five years’ imprisonment.

Assault on an emergency worker, custodial officer, or youth justice custodial worker — section 31(1)(b) Crimes Act

It is a serious offence to assault, threaten to assault, resist, or intentionally obstruct an emergency worker, custodial officer, or youth justice custodial worker who is on duty. The prosecution must prove that:

• the accused assaulted, threatened to assault, resisted, or intentionally obstructed the person; and
• the accused knew, or was reckless as to whether, the person was an emergency worker, custodial officer, or youth justice custodial worker.

Emergency workers include police officers, protective services officers, ambulance officers, hospital emergency staff, and firefighters, among others. The accused must have actually turned their mind to the probability that the person was an emergency worker — it is not enough that they ought to have known.

The maximum penalty is five years’ imprisonment.

Assault on an emergency worker with a weapon — increased penalties

Where a common law assault is committed against a police officer or protective services officer and involves an offensive weapon or firearm, significantly higher maximum penalties apply: ten years’ imprisonment if an offensive weapon is used, and fifteen years’ imprisonment if a firearm or imitation firearm is involved. These offences also attract mandatory sentencing provisions, meaning a term of imprisonment is required unless specific exceptions apply.

Assault to resist arrest — section 31(1)(c) Crimes Act

It is an offence to assault or threaten to assault a person with intent to resist or prevent the lawful apprehension or detention of any person. A person can only be found guilty under this provision if the apprehension or detention that was being resisted was, or would have been, lawful. Where an attempted arrest is unlawful, a person is entitled to use reasonable force in self-defence, and such resistance may be a defence to the charge.

Defences

Being charged with assault does not mean you are guilty. There are several effective defences which we regularly use to assist clients in obtaining a just outcome.

Self-defence

A person may use proportionate force to defend themselves from unlawful violence, provided they believe on reasonable grounds that what they are doing is necessary. Self-defence is one of the most commonly raised defences to assault charges.

Consent

In some circumstances, the complainant’s consent to the physical contact will provide a lawful excuse. Whether consent is available as a defence depends on the extent of any harm caused or risked and the purpose for which the act was committed.

Lawful authority

Conduct that would otherwise constitute assault may be lawful where the accused was exercising a lawful power of arrest, ejecting a trespasser using reasonable force, or acting in another capacity authorised by law.

Ordinary social contact

Physical contact that is generally acceptable in the ordinary course of everyday life — such as jostling in a crowd — does not constitute assault.

Insufficient evidence

In criminal proceedings, the prosecution must prove its case beyond reasonable doubt. In many assault cases, the evidence is disputed or incomplete. Where the prosecution cannot establish the elements of the offence to the required standard, the charge cannot succeed.

Improperly obtained evidence

Where evidence has been obtained improperly or unlawfully — for example, through an unlawful search or seizure — it may be possible to argue that the evidence should be excluded. These arguments are technical and require careful assessment by an experienced lawyer.

FAQs

What is the difference between assault and battery?

In Victoria, the term ‘assault’ is used broadly to cover both the application of force to another person and conduct that causes another person to apprehend the immediate application of force. In some other jurisdictions, ‘battery’ refers to the physical contact element and ‘assault’ to the apprehension element, but this distinction is not generally used in Victorian practice.

Can I be charged with assault if I didn’t hit anyone?

Yes. Assault can be committed without any physical contact. If your conduct — whether words, gestures, or actions — caused another person to apprehend the immediate application of force, that may be sufficient for a charge of assault, even if no contact occurred.

What if I was acting in self-defence?

Self-defence is a complete defence to assault if you believed on reasonable grounds that what you were doing was necessary to defend yourself from unlawful violence, and the force you used was proportionate in the circumstances. Whether self-defence applies will depend on the specific facts of your matter and should be assessed carefully with your lawyer.

Will I go to jail for an assault charge?

Not necessarily. The outcome depends on the nature and seriousness of the assault, your prior criminal history, and your personal circumstances. For less serious assaults by a first-time offender, a non-custodial outcome is often achievable. For more serious charges — particularly those involving weapons or attacks on emergency workers — the risk of imprisonment is real. An experienced lawyer can advise you on the realistic range of outcomes for your matter.

What is an emergency worker for the purposes of assault charges?

Emergency workers include police officers, protective services officers, ambulance officers, hospital emergency staff, firefighters, and State Emergency Service members, among others. Assaulting an emergency worker on duty is treated as a more serious offence than ordinary assault and carries higher penalties.

What does ‘reckless’ mean in the context of assault?

Recklessness in the assault context means that the accused actually turned their mind to the likelihood that force would be applied — or that the complainant would apprehend force — and proceeded regardless. It is not enough that the accused ought to have known this would occur.

Do I need a lawyer if I’ve been charged with assault?

Yes. Assault charges carry serious consequences including criminal conviction and imprisonment. An experienced lawyer can assess the strength of the prosecution’s case, identify any available defences, and ensure your matter is presented in the best possible way at court.

Related Guides

You may also find the following guides useful:

• Guide to Summary Assault Charges Victoria — less serious assault offences under the Summary Offences Act 1966
• Guide to Intentionally Causing Serious Injury — the most serious non-fatal assault offence in Victoria
• Guide to Recklessly Causing Serious Injury — a related serious assault offence
• Guide to Bail in Victoria — how bail operates in assault matters