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Common Assault in NSW

In New South Wales, the indictable offence of common assault is defined by section 61 of the Crimes Act 1900 as an assault upon another person that does not cause actual bodily harm. A common assault carries a 2-year maximum sentence of imprisonment.

A common assault does not require the infliction of physical force, although some assaults involve physical contact (such as shoving) that does not cause actual bodily harm. An assault that involves unlawful physical contact is also known as a battery, but the law in NSW uses the term “common assault” to describe the offence whether or not physical contact occurs.

When an assault causes actual bodily harm or grievous bodily harm, or when aggravating factors are present (such as an assault upon police or certain government officials), the prosecution can charge a more serious offence. A conviction for common assault can nevertheless have serious consequences, including disqualification for certain kinds of employment, denial of entry into foreign countries, and the social stigma of having a criminal conviction for a violent offence.

Definition of Common Assault

Courts in NSW have defined a common assault as:

  • any act
  • by which a person intentionally or recklessly
  • causes another person to apprehend immediate and unlawful violence.

Each of those three elements is important. Each must be proved beyond a reasonable doubt when the accused contests the charge.

Any act

An assault involves physical action. Failing to act is not an assault. Someone who fails to protect another person from an assault by a third person has not committed an assault.

Intentionally or recklessly

“Intentionally” means acting with the purpose of causing another person to fear that he or she will be the victim of immediate and unlawful violence. In other words, the accused must intend to provoke that state of mind in the victim.

The intent to produce fear does not need to be motivated by hostility. The existence of hostility, however, can be used as evidence to distinguish non-threatening acts from assaults. Shaking a fist while joking is not intended to cause fear while shaking a fist in anger is more likely to constitute an assault.

“Recklessly” means that the accused realised that the victim might fear the immediate and unlawful application of force, but the accused acted without regard to that risk. In other words, although the accused might not have intended to cause fear, the accused realised that his or her behaviour might cause the victim to experience fear and nevertheless engaged in the behaviour.

Apprehend immediate and unlawful violence

To “apprehend” violence means to expect or to fear violence. Courts have held that fear of violence is the gist of assault.

“Immediate” usually means something that will happen in the coming moments. However, some court decisions have construed “immediate” to mean that the fear of violence is immediate, even if the person experiencing the fear does not know exactly when the violence will occur. Not all cases agree with such a broad definition of “immediate.” Each case must be decided on its own facts.

“Unlawful” means without legal justification. It is not unlawful to act reasonably in self-defence or in defense of others. Reasonable discipline of a child is not unlawful even if it places the child in fear of being spanked.

Examples of Common Assault

The application of physical force to another person is not required to establish that a common assault occurred. Examples of assaults that are accomplished without making physical contact with another person include:

  • Swinging a fist at someone without striking the person.
  • Throwing an object at a person that misses its target.
  • Brandishing a weapon with the intent to frighten another person.
  • Making menacing gestures with the intent to provoke fear.
  • Threatening to inflict physical harm.

When physical force is actually used, the force does not need to cause physical harm. Examples include:

  • Offensive or provocative shoving that is meant to instil fear.
  • A slap or light blow that does not cause actual pain.
  • Striking someone with a thrown object that does not cause injury.
  • Spitting on another person.

Note that the element of intent to provoke fear distinguishes shoving a person from jostling other people in a crowd. Pushing one’s way through a crowd might be rude but it does not rise to the level of an assault unless the pushing is meant to cause fear or if the person who pushes should realize that a reasonable person would be frightened by his or her actions.

Defences to Common Assault

A number of defences can be raised to an accusation of common assault. They include:

  • The accused reasonably acted in self-defense.
  • The accused reasonably acted in defense of another person.
  • A parent reasonably used force to correct a child’s behaviour.
  • The accused had no intent to cause fear.
  • The accused had no reason to appreciate the risk of causing fear.
  • The alleged victim experienced no actual fear.
  • No reasonable person would have experienced fear.
  • The alleged behaviour never occurred (false accusation).
  • The description of the accused’s behaviour is exaggerated.
  • Any physical contact that occurred was accidental.

In rare cases, the legal defenses of necessity and duress may be available to a charge of common assault. If you are accused of common assault, you should discuss possible defences with your lawyer to determine which defence will best serve you in your case.

Court Procedure

The Criminal Procedure Act 1986 defines a common assault as an indictable offense that will be dealt with summarily unless the prosecutor decides otherwise. The prosecutor, but not the accused, is allowed to choose the court that will hear the case.

If the prosecutor chooses to proceed by indictment, the case can be heard in the Supreme Court or the District Court. It is much more likely that the prosecutor will choose to proceed summarily in the Local Court. The maximum penalty is the same, regardless of the court that hears the case.

When the case is heard in Local Court, the accused does not have the option of a jury trial. If the case proceeds to trial, guilt will be determined by a Magistrate.

Avoiding an assault conviction

In some cases, the only way to avoid an assault conviction is to take the case to trial in order to obtain a verdict of “not guilty.” That option is particularly attractive when the evidence of wrongdoing is weak or ambiguous or when the circumstances are likely to create sympathy for the accused’s conduct.

In other cases, it may be possible to convince the court to exercise its discretion not to enter a conviction. In NSW, this is known as a section 10 order. Section 10 allows a court to find an accused guilty without recording a conviction or imposing a penalty.

When the court decides to enter a section 10 order, it can either dismiss the case outright or can dismiss it subject to certain conditions. The most common condition is to place the accused on a good behaviour bond for up to two years.

In addition to requiring the accused to avoid committing new crimes, the court might require anger management counselling or some form of treatment as a condition of the bond. The case will be dismissed if the accused complies with all bond conditions. If the court decides that the accused breached a bond condition, it can enter a conviction on the original assault charge.

Penalties Upon Conviction of common assault

The court has the discretion to impose several different penalties when an accused is convicted of common assault. Potential penalties that follow a conviction include:

  • A fine (that must take account of the accused’s ability to pay).
  • A good behaviour bond that may include conditions with which the accused must comply.
  • A community service order.
  • A suspended sentence that will only be served if the accused breaches a condition that the court imposes.

Confinement in a correctional facility for up to 2 years.

The accused should follow a lawyer’s advice to develop a strategy that increases the chance of avoiding jail. People who are accused of common assault can often minimize the penalty they receive by staying out of trouble and taking appropriate action (such as entering a treatment program for alcohol abuse or completing anger management classes) prior to sentencing.

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