What are the Penalties and Defences for Common Assault in NSW?

 

A 46-year-old Senior ranking police officer of the Western Australia Police Force is charged with two counts of common assault for tasering a driver in Fremantle, WA.

Senior Constable Keenan, who has twenty-five years of experience as a police officer under his belt, was depicted in a disturbing footage tasering a defenceless driver who at the time was seated in the driver seat of his jeep which was stationary.

As the man is getting tasered, the disturbing footage reveals the sounds of his wife screaming “please stop it”.

The footage then depicts Constable Keenan ordering him out of the jeep before arresting him. As the man gets out of the jeep he is heard saying “I’m not doing anything wrong” before a police officer is heard saying “just stop fighting”.

The footage clearly depicts the man out of the jeep with no signs of resisting or fighting.

This all occurred in the context of when the man who is referred to as “Mr Holt” was driving his green jeep with his wife and friend in the vehicle, when suddenly stopped by police for a random breath test in March 2017 which came back negative. He was given a yellow sticker due to a crack in his windscreen.

Following the stop by police, Mr. Holt was reportedly taunting the police saying, “you are jealous of my car, you are too poor to afford this car”.

After Mr. Holt was advised by police that he was “good to go”, he apparently indicated that he was about to drive forward by flashing his lights.

It was at this point the Senior Constable Keenan claims to have felt threatened from the flashed lights.

What isn’t clarified is whether or not the engine of the jeep was on at the time, whether or not a police officer was situated in-front of the jeep, and whether Mr. Holt actually grabbed Senior Constable Keenan’s hand while attempting to take out the jeep’s key from the engine.

The Flawed Internal Police Investigations

There were 3 internal police investigations of this incident. The results of the police’s own internal investigations came back clearing the senior constable from any wrong doing.

Following this, the Corruption and Crime Commission (CCC), an independent watch dog got involved in the investigation and concluded that the police investigations were flawed!

The police internal investigations involved a criminal investigation from the traffic enforcement group, professional conduct investigation unit review and a managerial review.

The CCC also concluded, that the tasering of Mr. Holt was “unreasonable and oppressive”, and Mr Holt being an ordinary citizen was tasered for “no good reason”.

The CCC also found that the senior constable’s action in tasering the man was an act considered outside his lawful power as a police officer.

Notwithstanding these findings, the Police Assistant Commissioner, Nick Anticich was reported saying that the CCC watchdog and police may have to “agree to disagree on this case”.

John Quigley, Attorney-General, in response suggested that the Police Assistant Commissioner has embarrassed himself with those remarks and should carefully watch the footage again.

Senior Constable Keenan has now been charged with 2 counts of common assault summoned to appear at the Fremantle Magistrate’s Court in late October.

A further police officer is facing disciplinary charges for charging the passenger filming the incident with obstructing a police officer after the officer was trying to stop the passenger from filming it.

When Can Police Use a Taser on a Person?

Under the police guidelines, the use of a taser should be restricted to be used only to protect peoples lives, prevent really serious injury, or when a violent confrontation is occurring or when an officer is in danger of being overpowered or to protect themselves or others from injury. It can even be used for protection against animals.

A taser should not be used by police against passive subjects.

The Law and Penalties for Common Assault Charges in NSW

A person guilty of a common assault charge can expect to face a penalty of up to 2 years imprisonment and/or a $5,500 fine under section 61 of the Crimes Act 1900 (NSW).

You will be guilty of common assault if the police can prove that you did something that resulted in causing fear or injury in another person. The police must also prove that at that time, you intended to cause that fear or injury.

Where police cannot prove that you intended to cause fear or injury at the time of your actions, you will be guilty if police can prove that you at least foresaw the likelihood of causing ‘immediate fear or injury’ to the other person yet ignored that risk.

This means, that common assault can include actions that don’t cause psychical contact to the victim, provided that it causes an immediate fear in the other person. This type of assault is considered the least serious type in NSW.

What are the Defences to a Common Assault Charge in NSW?

A common assault charge will be dismissed if any one of the following defences apply:

  • Self-defence: Where your actions were done in circumstances you perceived was necessary to protect yourself, and where those actions are considered a reasonable response in the circumstances you perceived at the time. This defence is now recognised under section 418 of the Crimes Act 1900 (NSW).
  • Where the alleged common assault was either inevitable contact in daily life or generally acceptable in daily life.
  • You will be not guilty if the alleged victim didn’t know or was not aware of your actions.
  • Lawful correction: Where you did something to cause fear or injury to your child if those actions are considered by the court to be reasonable and warranted in the circumstances.
  • Lawful arrest: Where you used force considered by the court to be ‘reasonable force’ to arrest the alleged victim.

Please call our office on our 24/7 hotline (02) 8606 2218 to speak to one of our local criminal lawyers if you have any questions arising from this blog.

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About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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