What is a Common Assault Charge in NSW?

 

It is reported that following 3 internal police investigations who had initially cleared Senior Constable Grantley James Keenan of any wrongdoing, the senior officer was then investigated by the Corruption and Crime Commission (CCC).

Following the CCC report from the investigation, the officer was stood aside.

The CCC produced a report which ultimately found that the officer’s act of tasering the Perth motorist was unlawful.

After being tasered, the Perth man was arrested and taken into custody where he spent numerous hours in a police cell.

 

The CCC’s Findings of Unlawful Conduct

According to the CCC report, on 31 March 2017 the Perth man, James Bartlett was driving his Jeep Wrangler to a restaurant for dinner with his wife and a friend before he was stopped by police on Beach Road for the purposes of a random breath test (RBT).

While the breath test returned a zero-alcohol reading, police issued Mr. Bartlett an infringement for having a broken windscreen and a vehicle defect notice for having made modifications to his Jeep.

It is reported that after the RBT was over, Mr. Bartlett flashed his lights which caused Senior Constable Keenan to walk over to the Jeep for the second time before attempting to remove the keys from its ignition.

The scenes were all captured on a phone video which was filmed by one of the passengers of the jeep.

The footage depicts the officer tasering Mr. Bartlett who was at the time seated in the driver’s seat with his seat belt fastened.

While the officer concedes to tasering Mr. Bartlett, he claims that it was not unlawful because he did it in self-defence.

The officer then pleaded not guilty to 2 charges of common assault.

 

The Local Court Hearing

Following a 2-day defended hearing at the Perth Magistrates Court, the Constable Keenan was found guilty and convicted of the assaults against Mr. Bartlett.

According to reports, Perth Magistrate Elaine Campione found that the senior officer was not a truthful witness. The Magistrate also found Mr. Bartlett to give a truthful account of what occurred, and that he was compliant and cooperative with all police directions in the lead up to the assault on him.

The Magistrate is reported saying, that both of the police officers at the time “exhausted their powers to require [Mr. Bartlett] to stop his vehicle… He was free to go… The accused was not justified in using the taser. The use of the taser constituted an unlawful assault. There was no imminent risk to the accused [Keenan] or to [his colleague]. He was not acting in self-defence.”

“The actions of the accused are inconsistent with his evidence that he was in mortal danger.”

While the officer has no prior criminal convictions, having served 25-years in the police force, the court found that he has shown no responsibility and remorse.

Magistrate Campione said, “Your actions were deliberate, and they were premeditated… You acted out of frustration or a desire to teach him a lesson… You allowed the situation to get out of hand”.

“the community needs to have confidence that police officers will not misuse their powers”.

“This was a gratuitous use of a weapon… against a member of the public who was not in a position to defend himself”.

The Court sentenced the officer to a term of imprisonment of 8-months which is to be suspended for the term of that sentence on conditions which include that he is to be of good behaviour during that period. This effectively means that he does not spend any time in custody.

What is a Common Assault Charge in NSW?

If you do something that causes another person to fear or you do something that causes injury to another person, provided you intended to or recklessly caused this without consent, you will face a maximum penalty of up to two-years imprisonment and/or a $5,500 fine.

This is expressed in section 61 Crimes Act 1900 (NSW) and is known as common assault.

If the police are unable to prove that you intended to cause fear or cause injury at the time, you can be guilty of common assault if you recklessly caused this.

To be reckless at causing this, the police will be required to prove that at the time of your conduct, you realised the likelihood of causing ‘immediate fear or injury’ to the alleged victim, but you went ahead and acted that way anyway.

A common assault encompasses different extents of violence, ranging from the more serious to the least serious.

For example, one of the most least serious kinds of common assault includes doing or saying something without making any physical contact to the victim, so long as that conduct causes the requisite immediate fear in the victim.

One of the most serious kinds of common assault includes conduct involving physical contact to the victim multiple times with a high extent of violence, provided that the injuries caused does not amount to ‘actual bodily harm’.

Some of the common types of defences to common assault allegations under the law include, self-defence, exigencies of everyday life (where the contact was an inevitable part of every day life or accepted by the community), where the alleged conduct was not known to the alleged victim, or where the accused was exercising a lawful arrest or lawful correction (in the case of his/her child).

If pleading guilty to a common assault charge, an offender may still be able to walk away without having a criminal record if, with thorough preparation, the offender or legal representative is able to present a compelling case to the Magistrate or Judge that results in getting a non-conviction order, such as section 10 dismissal or Conditional Release Order without conviction.

As part of thoroughly preparing for a common assault sentence in court, it is important to properly draft an apology letter for court and a select few compelling good character letters for court.

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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