This article was written by Fernanda Dahlstrom - Content Editor - Brisbane

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

Assault


In New South Wales, various assault offences are set out in the Crimes Act 1900. Assaults in New South Wales are divided into two general categories: common assaults and aggravated assaults. In New South Wales, an assault can be hurting someone without a lawful purpose. It can also be an act which causes a person to fear immediate and unlawful violence, even where there is no physical contact.

For a person to be found guilty of an assault the court must be satisfied of two things beyond a reasonable doubt. Firstly, that the defendant used or threatened to use physical force against the victim without a lawful excuse. Secondly, that the physical force was either intentional or reckless. 

Common Assault

A common assault is an offence charged under s 61 of the Crimes Act 1900. Common assault is an indictable offence that is usually dealt with by the Local Court; however, the prosecution can elect to have a common assault dealt with by the District Court.

A common assault is an assault that results in no injury, or in injuries that do not require medical treatment. A common assault can also consist of a threat of violence, if the person making the threat has the ability to carry out the threat. A general threat that something will happen in the future is not enough to amount to an assault. If a threat creates an immediate fear it may constitute an assault. In New South Wales, common assault carries a maximum sentence of imprisonment for two years or a fine of up to $2,200.00.

Aggravated Assault

Aggravated assaults are governed by sections 32 to 54 of the Crimes Act 1900. These assaults are categorised according to the degree of injury caused.

Assault Causing Actual bodily harm

Assault occasioning actual bodily harm is dealt with under section 59 of the Crimes Act 1900. “Actual bodily harm” is any hurt or injury that interferes with the victim’s health or comfort. This includes recognisable psychiatric illnesses, such as a severe depressive illness or anxiety disorder that is caused by an assault. 

As with common assault, the prosecution can choose to have this offence dealt with in the District Court, where it carries a maximum penalty of 7 years in prison.

Assault causing grievous bodily harm

In New South Wales, offences relating to grievous bodily harm and wounding are set out in the Crimes Act 1900 between sections 33 and 54. Grievous bodily harm means really serious injury. However, the injury does not have to be permanent, long-lasting or life-threatening.

Grievous bodily harm includes:

  • the termination of a pregnant woman’s fetus whether or not she suffers any other injury;
  • any permanent or serious disfiguring of a person; and
  • any grievous bodily disease.

Wounding

Wounding is dealt with under section 33 or section 35 of the Crimes Act 1900. Wounding is an injury where the skin is broken. More than the top layer of skin must be broken by the act for it to amount to wounding.

Penalties for Wounding and Grievous Bodily Harm

Wounding and grievous bodily harm offences almost always result in jail sentences if the accused is found guilty. The maximum penalties for these offences range between 10 years and 25 years imprisonment. They are all strictly indictable offences and cannot be heard in a Local Court but must be committed to the District or Supreme Court. Most of these offences carry standard non-parole periods, which are the minimum times that are to be spent in custody before parole will be considered.

Lawful Excuse Defence

The lawful excuse defence is available in circumstances where a person comes into physical contact with another person (sometimes causing pain), but there has been agreement to the physical contact, such as when a doctor or dentist is treating a patient or when a person is playing sport. However, if the accused was playing sport and made contact outside of the rules of the sport – such as an illegal tackle- and that resulted in the other player being injured, then this may constitute an assault.

Consent Defence

Actions that might otherwise constitute an assault at law will not constitute an assault if there was consent by the victim, such as in the playing of a sport such as boxing. The consent defence may also be arguable where two people are engaging in a fair fight or where a person agrees to be hit in a consensual context, such as sexual relations involving S&M.

However, the defence of consent does not apply in unlawful situations or in situations where the degree of harm suffered is severe (such as a broken bone).

Lawful Chastisement Defence

In New South Wales, parents have always been allowed to use reasonable and moderate force to physically discipline their children. In the year 2000, s 61AA was added into the Crimes Act 1900. This provision sets out what is lawful when physically punishing a child. The provision states that the level of force used must be reasonable, must not be to the child’s head or neck and must only last for a short time. 

Self Defence

The defence of self-defence is outlined in section 418 of the Crimes Act 1900. It is a defence to an assault charge if the accused believed that their actions were necessary to defend either themselves or another person, or to prevent or stop an unlawful deprivation of liberty or to prevent or stop a criminal trespass. 

The action that the accused took must have been a reasonable response in the circumstances as they understand them. If self-defence is raised as a defence to assault, then it is up to the prosecution to prove that what the accused did was not reasonable in response to the danger as they understood it.

Intoxication

The defence of Intoxication does not apply to most assault offences. The defence only applies to offences that are set out in section 428B of the Crimes Act 1900, such as maliciously inflict grievous bodily harm with intent. When dealing with this offence, the court can take into account how intoxicated the accused was when deciding whether the police have proved that the accused formed the intention to bring about a specific result. Intoxication is not a defence if the accused became intoxicated in order to help them commit the offence.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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