What is an assault and battery offence? Generally, an assault happens when a person applies force or strikes another through a physical attack. An assault charge also includes an attempt or a threat where the offender appears to have the intention to follow through with the assault.
In New South Wales (NSW), the Crimes Act 1900 governs assault and battery offences against a person. The law does not take assault lightly, even if they do not result in physical injury, i.e., serious bodily injury.
This article discusses assault and battery in NSW.
What is Battery Crime: The Difference Between Assault and Battery in NSW
Darby v DPP (2004) 61 NSWLR 558 distinctly defines assault and battery:
“an assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force. There can be an assault without a battery, and there can be a battery without an assault”.
However, the distinction between assault and battery no longer applies in NSW. In NSW, the law considers both the use and threat of force as assault. The distinction between assault and battery no longer applies and has mostly disappeared in NSW Criminal Law.
Previously, assault exclusively referred to the threat of force, while battery referred to its actual use. If someone punched you in the face, they would be charged with battery, and the few seconds before they punched you were charged as assault. Because of this, people charged with battery were also charged with assault.
Thus, in the past, offenders faced charges for both assault and battery. This was the law then. But now, battery is treated as a form of assault. The law stipulates both the threat and the use of force are now considered to be assault, and offenders will face charges for a single offence of assault.
What is Battery Crime: The Different Kinds of Assault in NSW
There are various types of assault offences under the Crimes Act 1900, and their penalties differ. The types of assault charges under the Crimes Act 1900 include:
Section 61 of the Crimes Act 1900 (NSW) provides that “whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”
Common assault includes the following:
- Any act which causes another person to fear the threat of force or imminent physical harm (for instance, a raised fist or the threat of a punch), and
- Using force on another person (striking, punching, or touching the person).
Common assault can be the result of a simple argument. A person can face a charge of assault if that person threatens another or throws an object at another person.
The prosecution has to prove beyond a reasonable doubt that the accused applied physical force to another person and threatened the person with immediate violence. In addition, the Court considers the following matters in a charge of common assault:
- Mode of assault,
- Duration of the assault,
- The location of the assault,
- Provocation (if applicable), and
- The age of the victim.
Assault Occasioning Bodily Harm
Under Section 59 of the Crimes Act 1900, a person who assaults another and causes actual bodily harm, and immediate harm, shall be liable to imprisonment for five years. If the person committed the offence in another person’s company, the maximum penalty imposable is 7 years imprisonment.
The law considers assault occasioning bodily harm as a serious offence because the victim suffers injuries that could require medical treatment and interfere with the victim’s health.
Wounding or grievous bodily harm with intent
Under Section 33 of the Crimes Act 1900, a person who, with intent to cause grievous bodily harm:
- wounds any person, and
- causes grievous bodily harm to any person
shall be liable for this offence and face a maximum penalty of up to 25 years imprisonment.
Grievous bodily harm is one of the most serious forms of assault. Under Section 4 of the Crimes Act, “grievous bodily harm” includes:
- the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm,
- any permanent or serious disfiguring of the person, and
- any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).
Grievous bodily harm by unlawful act or negligence
Under Section 54 of the Crimes Act 1900, whosoever by any unlawful or negligent act or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.
What is Battery Crime: Sexual Assault
Division 10, Subdivision 2, Section 61I to Section 61KB of the Crimes Act 1900 deals with sexual assault cases in NSW. Sexual assault is another common assault and a serious offence. The act of sexual assault can occur in the following scenarios:
- when a person touches another person inappropriately without consent
- when the offender forces another to take part in sexual activity with them
- unwanted kissing and sexual touching
Sexual assault cases are heard in a District Court, and the offender can face penalties of up to 14 years imprisonment. The court can also order an extended imprisonment sentence for aggravated assault or aggravated sexual assault.
What is Battery Crime: Defences to Assault and Battery
These are some of the defences to assault and battery in NSW, Australia. The specific defences that apply will depend on the specific circumstances of the case:
- Self-defence. If you use force to defend yourself or another person from imminent danger of unlawful violence, you may be able to use the defence of self-defence.
- Defence of others. If you use force to defend another person from imminent danger of unlawful violence, you may be able to use the defence of defence of others.
- Necessity. If you use force to prevent greater harm, you may be able to use the defence of necessity.
However, the force you use must be reasonable and proportionate to the threat you are trying to prevent.
Seeking Legal Advice
Remember that the law no longer places any distinction between assault and battery. Hence, a person can only be charged with a single offence of assault. If you are facing charges of assault, we highly advise you to seek legal services.
JB Solicitors has a leading team of expert lawyers with vast experience in Australian Criminal Law. We can help obtain the best possible outcome for your case. Our lawyers can discuss possible defences that may be raised and any other legal matters of your concern. We can provide legal advice and guide you through your case of assault.
Do you have any more queries on assault and battery? Contact us today.