This article was written by Aurhett Barrie - Solicitor – Sydney
As a former Judge’s Associate Aurhett has rare insight into how cases are heard and decided. This knowledge allows him to persuasively advocate for his clients’ interests, both inside and outside of a courtroom. He has spent his career practising exclusively in criminal and traffic law and has advised hundreds of clients on an extensive range of matters. He takes...
Common Assault
In New South Wales common assault carries a maximum penalty of two years imprisonment and/or a fine of 50 penalty units. A person is often charged with common assault where he or she assaults another person, but does not cause an injury amounting to actual bodily harm (for example bruising or scratches) or grievous bodily harm (e.g. causing loss of sight, complicated fractures or significant injuries requiring surgery).
What is Common Assault?
An assault is an act that causes another person to apprehend immediate and unlawful violence. While most assaults involve unwanted physical contact an assault does not necessarily require actual physical contact. All it requires it that the victim apprehends physical contact. So if, for example, a person raises his or her fist to another person, an assault could be found to have occurred, despite the other person not actually being hit. At law this is known as the distinction between “battery” (causing physical contact) and “assault” (causing the apprehension of physical contact).
The following acts constitute common assault:
- Punching, hitting, slapping, pushing or kicking another person;
- Raising a fist towards a person as though to hit that person;
- Spitting upon another person;
- Threatening to hurt another person;
- Throwing an item (such as a bottle) at another person (whether or not it makes contact);
- Physically restraining someone against their will.
Common assault can cover a range of actions and injuries, It is a less serious offence than assault occasioning actual bodily harm (AOABH) or causing grievous bodily harm (GBH), which involve harm to the victim. It is not uncommon for the police to charge a person with AOABH where the alleged conduct would sit comfortably within the definition of common assault.
Thoroughly understanding the definitions of common assault and AOABH is critical to successfully negotiating with prosecutors and can mean the difference between a person facing a maximum 2 years imprisonment for common assault or a maximum 5 years imprisonment for AOABH.
Which Court Will Hear the Matter?
Common assault is generally dealt with in the Local Court. However, the prosecution or defence can elect to have the matter dealt with in the District Court. If the matter is dealt with in the Local Court the maximum penalty is 2 years imprisonment and/or 20 penalty units.
What must be proven?
For a person to be found guilty of common assault, the prosecution must prove each of the following matters beyond a reasonable doubt:
- that the accused applied physical force to another person; or
- that the accused threatened another with immediate violence; and this was done:
- internationally or recklessly; and
- without the person’s consent; and
- without lawful excuse.
Possible Defences to Common Assault
A common assault charge can be defended by arguing that:
- The assault was committed in self-defence;
- The assault was an accident;
- The accused was acting under duress;
- The accused was too young and insufficiently developed to understand the nature of their actions (if the accused was under 14).
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.