Brief Explainer: Defences to Assault Charges

We will discuss the following four defences to assault charges:

  • duress,
  • necessity,
  • self-defence,
  • lawful correction.

What is duress?

Duress is a particular form of the defence of necessity available at common law where an accused performed actions because of threats of death or really serious injury to themselves, or to family members. Those being threats of such a nature that a person of ordinary firmness to them.[1]

It is not available as a defence to murder.[2]

If there is evidence to suggest duress, the Crown must prove that the accused acted voluntarily, and must eliminate any reasonable possibility that the accused acted under duress. Duress will not be found if the accused had a reasonable opportunity to assert his or her will, or to render the threats ineffective.[3]

Duress may be relevant in sentencing.[4]

Duress is also referred to as ‘compulsion’ in some jurisdictions.


[1] R v Hurley [1967] VR 526; R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424.

[2] DPP for Northern Ireland v Lynch [1975] AC 653; R v McConnell [1977] 1 NSWLR 714.

[3] R v Lawrence [1980] 1 NSWLR 122; (1980) 32 ALR 72.

[4] Crimes (Sentencing Procedure) Act 1999 (NSW) s.21A(3)(d).

What is necessity?

Necessity is a defence at common law involving a plea by a person that they had a compulsion by a threat or danger to commit the crime. The threat or danger must have been of such a nature as to exert immense pressure on the person because of imminence, suddenness, or gravity. The person must have reasonably believed that he or she was in imminent peril. The acts done must not be out of proportion to the peril faced.[1]

Under statute necessity (or sudden emergency) is an available defence.[2] However, the defence of necessity is applicable for all offences except murder.[3]


[1] R v Loughnan [1981] VR 443; R v White (1987) 9 NSWLR 427.

[2] Criminal Code (Cth) s.10.3.

[3] R v Loughnan [1981] VR 443; R v Dudley (1884) 14 QBD 273; [1881-85] All ER Rep 61; R v Howe [1987] AC 417; [1987] 1 All ER 771.

What is self-defence?

A complete defence to a criminal charge whereby the accused’s conduct which would otherwise be unlawful is excused on the basis that the accused was compelled to act as he or she did in the defence of self or another (and in New South Wales (‘NSW)’, property[1]). The actions used in defence must be reasonable in the circumstances. Once the accused raises self-defence the onus is on the Crown to disprove the defence beyond reasonable doubt. In NSW, where death is caused by excessive force used in self-defence, the offence may be reduced from murder to manslaughter.[2]


[1] Crimes Act 1900 (NSW) s.418.

[2] Crimes Act 1900 (NSW) s.421.

What is Lawful correction?

Correction is a reasonable and moderate force applied to a child by:

  • a parent,
  • a person standing in place of a parent,
  • or a schoolteacher for the purpose of chastising the child.

Such force will not amount to an assault at common law or under statute.[1] However, New South Wales has now either banned corporal punishment in schools or repealed provisions allowing it.[2] This defence is sometimes known as ‘reasonable chastisement’ or ‘corporal punishment’.


[1] R v Terry [1955] VLR 114; Crimes Act 1900 (NSW) s.61AA.

[2] Education Act 1990 (NSW) ss.35(2A), 47(h).

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O’Brien Criminal & Civil Solicitors
p: 02 9261 4281
a: Level 4, 219-223 Castlereagh St,
Sydney NSW 2000

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