Not all assault charges in Victoria are indictable offences. A significant number of assault matters are prosecuted as summary offences under the Summary Offences Act 1966 (Vic) and are heard in the Magistrates’ Court. While the penalties are lower than for indictable assault, a conviction still results in a criminal record and can have lasting consequences.

At Angus Cameron and Partners, we regularly represent clients charged with summary assault offences. Even for matters that appear straightforward, obtaining legal advice early can make a significant difference to the outcome. There may be defences available, and the way your matter is presented at court matters.

The Offences

Common assault — section 23 Summary Offences Act

Section 23 of the Summary Offences Act 1966 (Vic) provides that any person who unlawfully assaults or beats another person is guilty of an offence. The prosecution must prove beyond reasonable doubt that:

  • the offence occurred at the place and time alleged;
  • the accused was the offender; and
  • the accused assaulted another person.

Assault under section 23 includes both the application of force to another person and conduct that causes another person to apprehend immediate and unlawful personal violence. The complainant does not need to have been frightened — it is enough that they perceived a present and immediate ability for the accused to apply force.

The maximum penalty for common assault under section 23 is 15 penalty units or three months’ imprisonment.

Aggravated assault — section 24 Summary Offences Act

Section 24 of the Summary Offences Act provides for aggravated assault in two distinct circumstances.

Under section 24(1), where an assault or battery is committed upon a male child aged 14 or under, or upon a female, and the assault is of such an aggravated nature that it cannot sufficiently be punished under section 23, the court may impose a higher penalty of 25 penalty units or six months’ imprisonment. The court may also order the offender to enter into a recognisance to keep the peace and be of good behaviour for up to six months.

Under section 24(2), higher penalties apply where:

  • the assault is committed in company with another person or persons — maximum penalty 12 months’ imprisonment; or
  • the assault involves kicking or the use of a weapon or instrument — maximum penalty two years’ imprisonment.

Assault on emergency workers and others — section 51 Summary Offences Act

Section 51 of the Summary Offences Act makes it an offence to assault, resist, obstruct, hinder, or delay:

  • an emergency worker, custodial officer, or youth justice custodial worker who is on duty;
  • a member of staff of a local authority in the execution of their duty under the Act; or
  • a person lawfully assisting an emergency worker, custodial officer, or youth justice custodial worker on duty.

The maximum penalty for each of these offences is 60 penalty units or six months’ imprisonment.

Emergency workers for the purposes of this section include police officers, protective services officers, ambulance officers, hospital emergency staff, and firefighters, among others.

Note that more serious assaults on emergency workers may be prosecuted as indictable offences under section 31 of the Crimes Act 1958, which carries significantly higher penalties. The decision about which charge to lay will depend on the nature and circumstances of the alleged assault.

Defences

Being charged with a summary assault offence 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 a complete defence to assault if established.

Consent

Where the complainant consented to the physical contact, that may provide a lawful excuse. Whether consent is available as a defence depends on the nature and extent of any harm involved.

Ordinary social contact

Physical contact that is generally acceptable in the ordinary course of everyday life does not constitute assault. Jostling in a crowd will not ordinarily give rise to liability.

Insufficient evidence

The prosecution must prove its case beyond reasonable doubt. In many summary assault matters, the evidence is contested or relies on a single witness. 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, it may be possible to argue that it should be excluded from the proceedings. These arguments are technical and should be assessed with an experienced lawyer.

FAQs

What is the difference between a summary assault charge and an indictable assault charge?

Summary assault offences under the Summary Offences Act 1966 are less serious matters dealt with entirely in the Magistrates’ Court, with lower maximum penalties. Indictable assault offences under the common law or the Crimes Act 1958 carry higher maximum penalties. The distinction matters because it affects the available penalties, the court process, and the consequences of a conviction.

Will I get a criminal record for a summary assault conviction?

Yes. A conviction for a summary assault offence results in a criminal record. Depending on the circumstances, the court may deal with the matter without recording a conviction — for example, through a diversion or an adjournment on undertaking — but this is not available in all cases.

Can words alone constitute assault?

Yes, in some circumstances. Words may constitute assault if they cause the complainant to perceive a present and immediate ability for the accused to apply force. Whether words alone are sufficient will depend on the specific circumstances.

What if the assault happened while I was defending myself?

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

Do I need a lawyer for a summary assault charge?

Yes. Even for relatively minor summary offences, a conviction results in a criminal record and can have lasting consequences for employment and travel. An experienced lawyer can assess whether there are grounds to contest the charge, identify any available defences, and ensure your matter is presented as effectively as possible.

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