The maximum penalty for common assault charges can be two years imprisonment. This can be either in place of, or in addition to a fine of 50 penalty units (currently $5,500). Before we discuss common assault charges, let’s also understand what common assault means.
The definition is as follows: “Such an assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault.”
Source of definition: https://www.judcom.nsw.gov.au/publications/benchbks/criminal/assault.html#d5e28312
Common Assault Charges and Definition
Section 61 of the Crimes Act 1900 (NSW) states the following: whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.
Common assault causes another person to fear immediate unlawful violence. Note that common assault may not necessarily involve physical contact. What are examples of common assault? The following:
- Threatening to hurt another person
- Raising a fist towards a person
- Throwing an object directly at another person regardless of whether or not it touches another person
- Restraining someone without their permission and against their will
- Spitting on someone else
- Slapping some person
- Punching or hitting someone
- Kicking some person
Assault Occasioning Actual Bodily Harm
Section 59 of the Crimes Act 1900 (NSW) outlines the offence of assault occasioning actual bodily harm. This Section states that whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.
This is difference from common assault. Common assault is a less serious offence as compared to assault occasioning actual bodily harm or grievous bodily harm (GBH).
Common Assault Charges: Burden of Proof
In order for someone to receive common assault charges, the prosecution has to prove beyond a reasonable doubt that:
- the person threatened someone else (the complainant) with immediate violence;
- they applied physical force to someone else and they did this recklessly or intentionally;
- they did this without the person’s consent;
- they did this without any lawful excuse.
Common Assault Charges: Possible Defences
There can be some possible defences to common assault charges. This includes:
- Self-defence
- Duress
- Lawful correction
Self-Defence
Self-defence enables an individual to be acquitted of an offence if their actions were undertaken to safeguard themselves or another person.
Section 418 of the Crimes Act 1900 (NSW) delineates a two-stage test for self-defence:
- The accused must sincerely believe that it was imperative for them to take action to:
- Defend themselves or another person; OR
- Prevent themselves or another person from being unlawfully detained; OR
- Safeguard their property from being taken, destroyed, damaged, or tampered with; OR
- Avert a trespass.
- The actions of the accused must be deemed a reasonable response given the circumstances as perceived by them.
Self-defence is commonly invoked in cases involving charges of domestic violence assault, common assault, and grievous bodily harm assaults.
Upon the assertion of self-defence by the accused, the burden shifts to the prosecution, requiring them to establish beyond a reasonable doubt that the accused was not acting in self-defence.
Courts take into consideration the individual’s mental state at the time of their actions. This encompasses factors such as age, health, gender, and the environment in which the events unfolded.
Duress
According to section 418 of the Crimes Act 1900, an individual can be acquitted of a common assault charge if their actions were influenced by duress. Duress occurs when a person faces severe threats compelling them to comply with another person’s demands. If the act was solely performed due to the accused being under duress, and the threat was substantial enough that an average person would have succumbed to it under similar circumstances, a comprehensive defence is admissible.
Lawful Correction
Section 61AA of the Crimes Act 1900 outlines that an individual facing charges of assaulting a child can present a defence of lawful correction.
To substantiate this defence, the accused must demonstrate:
- a) The force employed on the child was intended as a form of disciplinary action;
- b) The force was administered by the parent or someone acting on behalf of the parent;
- c) The force was reasonable, considering the child’s physical and mental characteristics, their actions, or other relevant circumstances.
Authorities will deem the use of force unreasonable if:
- a) It is directed at the child’s neck or head, unless the force was trivial or negligible.
- b) The force is likely to cause harm to the child lasting more than a brief period.
Importance of Seeking Legal Advice from Criminal Defence Lawyers
At JB Solicitors, our criminal defence lawyers have the experience of dealing with a wide variety of matters. We can assist you with a range of legal issues including drink driving, common assault charges, drug possession charges, grievous bodily harm charges, or speeding.
For more information, you can contact our team here.
