Common Assault

25 April 2023 in Criminal Law

What is common assault?

Under Section 61 of the Crimes Act 1900 (NSW), common assault is defined as the intentional or reckless use of force or the threat of force against another person without their consent. This can include hitting, kicking, pushing, slapping, spitting or any other physical contact that causes harm or injury. It can also include threatening behaviour, such as making threats of violence, shouting or verbally abusing someone. Importantly, the assault does not need to result in physical injury or even contact to be considered a criminal offence.

In order for a person to be convicted, the prosecution is required to establish beyond a reasonable doubt the following elements:

1. The accused either used physical force against someone else, or threatened them with violence in the immediate future;
2. The accused acted intentionally or recklessly, and without the consent of the other person; and
3. The accused lacked a lawful justification for their actions.

Common assault is considered to be a less serious offence than assault resulting in actual bodily harm (AOABH) or  grievous bodily harm (GBH).  This is because common assault may not necessarily result in any harm to the victim, whereas assault occasioning actual or grievous boldly harm must cause injury.

It is common for the police to charge a person with AOABH even when the conduct in question could be classified as common assault. Having a comprehensive understanding of the definitions of common assault and AOABH is crucial in negotiating with prosecutors and can ultimately determine whether a person is faced with more serious charges.

Cases of common assault are heard in the Local Court.

Penalties for common assault

The penalties for common assault in NSW vary depending on the severity of the offence. The maximum penalty for common assault is 2 years in prison or a fine of $5,500. However, the actual penalty that is imposed will depend on a range of factors, including the circumstances of the offence, the defendant’s criminal history and other factors set out in the Crimes (Sentencing Procedure) Act 1999 (NSW).

Defences for common assault

There are several defences that can be used in a common assault case. These include:

Self-defence

If the accused person can show that they were acting in self-defence, this can be a defense to common assault. This means that the accused was responding to an attack or threat of attack and was acting to protect themselves.

Consent

If the victim consented to the conduct that is alleged to be assault, this can be a defence. However, this defence can be difficult to prove, and there are limitations on when consent will be a valid defence, sport such as boxing, is one such example of consent.

Accident

The assault was a genuine accident.

Age

If the accused is under the age of 14, it is possible to argue that the offender was not old enough or mature enough to comprehend the gravity of their conduct.  The Children (Criminal Proceedings) Act 1987 (NSW) states that a child under the age of 10 cannot be guilty of an offence.  At common law there is a rebuttable presumption, called “doli incapax” that a child under the age of 14 does not have the mental capacity (“mens rea”) to be guilty of an offence.

Duress

If the accused person can show that they were under duress or were threatened or intimidated into committing the assault, this can be a defence.

Lawful Correction of a Minor

Section 61AA of the Crimes Act 1900 (NSW) provides that a defence to assault is that the force was applied to a child for the purpose of punishment, but only if the force was applied by a parent (or person acting for the parent) and was reasonable in the circumstances.

What to do if you are charged with common assault

If you are charged with common assault, it is important to seek legal advice as soon as possible. The experienced criminal lawyers at Brander Smith McKnight can help you understand the charges against you, advise you on your legal options and help you mount a strong defence in court. It is important to take this seriously, as the penalties can be severe. Our lawyers can help you prepare your case and ensure that your rights are protected throughout the legal process.

We understand that being charged with an assault can be a very stressful and confusing. This is why we handle all assault matters with efficiency, expertise and compassion.