In New South Wales, the offence of common assault is specified under section 61 of the Crimes Act 1900 (NSW) (Act). Section 61 of the Act provides:

Whoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

Elements of the offence

The prosecution must prove each of the following elements of the offence beyond reasonable doubt:

  • the accused has struck, touched or applied force to the victim, or, threatened the complainant with immediate force;
  • intentionally or recklessly;
  • without consent; and
  • without lawful excuse.

Penalty

The offence of common assault carries with it a maximum penalty of imprisonment for two years.

Court Process

Once you are charged with the offence of common assault, you will be issued with a court attendance notice by the police which must do the following:

  • describe the offence;
  • briefly state the particulars of the alleged offence;
  • state the name of the prosecutor;
  • require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail; and
  • state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear before the court may result in the arrest of the person or in the matter being dealt with in the absence of the person.

You must appear before the court when the matter is first listed. The presiding judicial officer will usually require you to enter a plea of guilty or not guilty to the offence which you have been charged with. You should receive proper legal advice before entering the plea as it can have a significant impact on the outcome of your case. This is because the court is required to take into account the fact that the offender has pleaded guilty and when the offender pleaded guilty when sentencing the offender. However, this does not mean that you should plead guilty at all times.

Depending on the plea which you enter, the court will take the following subsequent steps:

  • Plea of Guilty – The matter will proceed to Sentencing where the court will hear submissions from both sides and hand down the appropriate penalty to the accused. Submitting subjective materials is strongly recommended as it may lead to a better outcome.
  • Plea of Not Guilty – The court will make an order for the prosecution to serve a brief of evidence on you and set the matter down for a Hearing. The brief of evidence has to be served at least 14 days prior to the date of hearing.

Defences

There are defences available to the offence of common assault which, if raised by the defendant and the prosecution cannot disprove them beyond a reasonable doubt, will lead the court to dismiss the case.

  1. Self-defence

Section 418 of the Act provides that:

A person carries out conduct in self-defence if and only if the person believes the conduct is necessary

  • to defend himself or herself or another person;
  • to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person;
  • to protect property from unlawful taking, destruction, damage or interference; or
  • to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

  1. Duress

The court will find that a person has acted under duress if the concerned action has been carried out:

  • due to threats of death or really serious injury to himself or herself of a member of his or her family; and
  • the threats were of such a nature that a person or ordinary firmness and same maturity and gender as the accused and in the accused position would have committed the crime complained of.
  1. Necessity

The court will find that the accused has acted out of necessity if:

  • the criminal act has been done in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he or she was bound to protect;
  • the accused honestly believed on reasonable grounds that he or she was placed in a situation of imminent peril; and
  • the act done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

If you have been charged with common assault, please contact us today to speak to one of our professional criminal lawyers.

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