Under Section 61 of the Crimes Act 1900 (NSW), common assault involves the intentional or reckless application of force to another person without their consent. Moreover, it also includes the threat of applying such force to such a person.
This can include punching, kicking, slapping, or any other form of physical contact intended to cause harm or injury to the victim. The offence also includes actions such as spitting, throwing objects or making gestures that threaten or intimidate the victim.
Types of Common Assault
Common assault can take many forms, and the following are some of the most common types:
Verbal assault involves the use of words to threaten or intimidate another person. This can include shouting, swearing, or making derogatory comments. Verbal assault can cause emotional harm and be a criminal offence if the words constitute intimidation.
This involves any form of unwanted sexual contact or activity, such as groping, fondling, or rape, which can be a traumatic experience for the victim. Sexual assault is a criminal offence in New South Wales and carries severe penalties.
This occurs within a domestic setting, typically between intimate partners or family members. Domestic violence is a severe issue in Australia, with many cases reported yearly. Domestic assault can result in physical, emotional, and psychological harm to the victim.
Assault Occasioning Actual Bodily Harm (AOABH)
Assault Occasioning Actual Bodily Harm occurs when an assault causes physical harm to the victim, such as bruising, cuts, or broken bones. The offender may be charged with AOABH if they intentionally or recklessly cause damage.
Penalties for Common Assault
The penalties depend on the severity of the offence and the circumstances surrounding it.
- If the assault is a summary offence, it can result in a maximum penalty of two years imprisonment.
- If classified as an indictable offence, it can result in a maximum penalty of seven years imprisonment.
- If it is an assault occasioning actual bodily harm, it can result in a maximum penalty of five years imprisonment.
Court Process for Common Assault
Step 1: Arrest and Charge
The first step in the court process is being arrested and charged with common assault. This usually happens when the police have reasonable grounds to suspect you have committed an assault.
Step 2: Bail Hearing
Once you have been charged, the arresting officer will take you to a local police station, where you can apply for bail. A bail hearing will take place where a judge will determine whether or not you will be granted bail. If granted bail, you will be released from custody with certain conditions.
Step 3: First Court Appearance
Your first court appearance will be in the Local Court, and they will inform you of the formal charges. During this appearance, you must enter a guilty or not guilty plea. If you plead guilty, the matter will proceed to sentencing. The matter will be adjourned for a hearing if you plead not guilty.
Step 4: Hearing
If you plead not guilty, the court will schedule a hearing where the prosecution will present evidence against you. You can present your evidence and cross-examine the prosecution’s witnesses. The judge will then determine whether or not you are guilty of the crime.
Step 5: Sentencing
If you plead guilty or are found guilty, the matter will proceed to sentencing. The judge will consider a range of factors, including the seriousness of the offence, your criminal history, and any mitigating factors. The judge will then determine your sentence, including a fine or imprisonment.
Step 6: Appeal
If you are not happy with the outcome of your case, you may be able to appeal the decision. You can seek legal advice to determine whether or not you have grounds for an appeal.
Defences Available to the Accused
Several defences are available to either reduce or completely dismiss the charges.
Self-defence involves using force to defend oneself from harm or the threat of harm. To successfully claim self-defence, the accused must have believed they were in danger and that the force used was necessary and reasonable.
Lawful Correction Defence
A person has a defence to an assault charge under section 61AA of the Crimes Act 1900 if a child allegedly commits the assault, they were the child’s parent or acting on behalf of a parent, and the force used was reasonable, taking into account the child’s age, health, maturity, and other characteristics, as well as the nature of the misbehaviour.
The Defence of Duress
A person is not guilty of a common assault under Section 418 of the Crimes Act 1900 if there is coercion by another person into acting that way. A person is under duress when threatened with grave consequences if they refuse to comply with another person’s requests. A full defence is applicable if it was an act of desperation and the threat was severe enough that a regular person would have complied with it in the same situation.
The Elements of the Crime
Common assault is an offence under section 61 of the Crimes Act 1900 (NSW). To be found guilty of this crime, the prosecution must prove beyond reasonable doubt that you:
1. Committed an Act of Assault
Assault is an act that causes another person to fear immediate and unlawful violence. It is important to note that the law does not require actual physical contact for an assault to occur.
2. Had the Intention to Assault
This means you intended to cause the other person to fear immediate and unlawful violence. If you have a lawful excuse and did not intend to assault, there would be no conviction.
3. The Act of Assault was Unlawful
The act of assault was not in self-defence or defence of another person. If you can prove that the act of assault was in self-defence, you may be able to avoid a criminal conviction.
The Prosecution’s Burden of Proof
To secure a conviction, the prosecution must prove all three elements of the offence beyond reasonable doubt. This means that the prosecution must convince the Supreme or Local Court that there is no reasonable doubt that you committed an act of assault, intended to assault and that the act was unlawful. If the prosecution cannot prove these elements, you cannot be found guilty of this crime.
Seeking Legal Help from Expert Criminal Lawyers
For the victim, the experience of being assaulted can be traumatic and can result in physical injuries, grievous bodily harm, psychological harm, and long-term consequences such as post-traumatic stress disorder (PTSD).
Victims may also experience a loss of confidence, fear, and anxiety, requiring ongoing support and counselling to help them recover from their ordeal. For the offender, the consequences of committing assault can be equally severe.
In addition to facing legal penalties, offenders may experience feelings of guilt, shame, and remorse and suffer from the social stigma associated with being a convicted criminal.
If you have been charged with common assault, it is essential to seek legal advice as soon as possible. Our criminal lawyers at JB Solicitors can help you understand the charges against you and the potential penalties.
Contact our team of Sydney criminal lawyers today.