Being charged with common assault in New South Wales can have serious consequences, even if the alleged incident did not cause any physical injuries. A common assault charge may arise from physical contact, such as pushing or slapping another person, but it can also involve threatening behaviour that causes someone to fear immediate and unlawful violence.
Understanding the law, the evidence required to prove the offence and the defences that may be available is important if you are facing a common assault charge.
What is common assault in NSW?
Common assault is an offence under section 61 of the Crimes Act 1900 (NSW).
The offence can involve either applying unlawful force to another person or engaging in conduct that causes another person to apprehend immediate and unlawful violence.
Importantly, physical contact or an actual injury is not necessary for common assault to occur.
For example, pushing someone during an argument may amount to common assault, even if the person is not injured. Similarly, raising a fist and moving towards them may constitute an assault if the conduct causes the person to apprehend immediate and unlawful violence.
Common assault is considered to be as a less serious assault offence than assault occasioning actual bodily harm (ABH) or grievous bodily harm (GBH). However, it can still result in a criminal record and significant penalties.
What does the prosecution have to prove?
To establish a common assault, the prosecution must prove the relevant elements of the offence beyond a reasonable doubt.
The prosecution will generally need to establish that:
- An assault occurred: The accused either applied unlawful force to another person or caused that person to apprehend immediate and unlawful violence.
- The conduct was intentional or reckless: The accused acted intentionally or with the relevant awareness of the risk associated with their conduct.
- The conduct was without consent or lawful justification: it was neither consented to nor otherwise legally justified.
If the prosecution cannot establish an essential element beyond reasonable doubt, the accused must be acquitted.
Does common assault require physical contact?
No. Common assault can occur without physical contact.
Not every verbal threat amounts to common assault. The threat must be considered in its context, including whether it involved an apprehension of immediate and unlawful violence.
For example, threatening to punch someone while standing close to them with a raised fist may be treated differently from making a vague threat about something that might happen in the future.
What are some examples of common assault?
Common assault can arise in a range of circumstances, including:
- Pushing or shoving someone during an argument.
- Slapping, punching or kicking another person without lawful justification.
- Throwing an object, or spitting in the direction of someone. It does not need to hit them.
- Striking at someone, even if no contact is made, where the conduct causes apprehension of immediate and unlawful violence.
- Threatening immediate violence while behaving in a way that causes another person to fear an imminent attack.
These are examples only. Whether an incident amounts to common assault depends on the conduct, the surrounding circumstances and the applicable legal principles.
What are the penalties for common assault in NSW?
The maximum penalty is two years’ imprisonment and/or a fine of $5,500.
The maximum penalty is not the sentence imposed in every case. The appropriate outcome depends on factors such as the seriousness of the conduct, the offender’s criminal history, any injury caused, the circumstances of the incident and whether the person pleads guilty.
Depending on the circumstances, sentencing options may include:
- A conditional release order (CRO), with or without a conviction.
- A fine.
- A community correction order (CCO).
- An intensive correction order (ICO), where legally available.
- Imprisonment in more serious cases.
- Dismissal of the charge without proceeding to conviction, where the statutory requirements are satisfied.
A court may also consider relevant mitigating factors, including an early guilty plea, demonstrated remorse, rehabilitation efforts, character references and the person’s prospects of reoffending.
What happens if you plead not guilty?
If you plead not guilty, the prosecution must prove the charge beyond reasonable doubt.
Depending on the case, your lawyer may examine witness statements, police evidence, CCTV footage, photographs and other material to identify weaknesses in the prosecution’s case.
Possible issues include whether the alleged conduct occurred, whether the required intention or recklessness can be established, and whether a defence such as self-defence applies.
If the prosecution fails to prove the charge beyond reasonable doubt, you must be acquitted.
What are the defences to common assault?
The appropriate defence will depend on the allegations and the available evidence. Potential defences include the following. Defences to common assault include:
- Self-defence,
- Duress,
- Necessity,
- Identification
Can common assault charges be withdrawn?
In some circumstances, a common assault charge may be withdrawn or dismissed. However, this depends on the evidence, the circumstances of the alleged offence and the prosecution’s assessment of the case.
A criminal defence lawyer can review the brief of evidence, identify potential weaknesses and communicate with the prosecution where there are proper grounds to seek withdrawal.
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