Common assault is a criminal offence under section 61 of the Crimes Act 1900 (NSW).  

A common assault can involve an act of physical violence or any act that causes another person to fear immediate and unlawful violence. 

There are various defences to a charge of common assault, the most common of which is self-defence. 

The offence carries a maximum penalty of 2 years imprisonment.

Our Sydney-based criminal lawyers have extensive experience representing persons charged with common assault.  Contact us today on (02) 9268 0444 to arrange a consultation with one of our experienced criminal lawyers. 

What does the prosecution need to prove?

For you to be found guilty of the offence of common assault, the prosecution must prove beyond reasonable doubt the following:

1. You either:

a. committed an act of physical conduct (such as striking, touching or pushing) the complainant, or

b. threatened conduct (whether verbally or otherwise) to make the complainant fear immediate and unlawful violence;

2. You did so intentionally or recklessly;

3. You did so without the consent of the complainant; and

4. You did so without a lawful excuse. 

Examples of common assault

Some common examples of common assault include:

• • Punching, kicking or otherwise striking at someone, even if no contact is made. 
  • Pushing someone.
  • Hitting someone with an object. 
  • Threatening to immediately attack someone. 
  • Raising your fist towards someone in a threatening manner. 
  • Spitting at someone, even if no contact is made. 
  • Looking through a window intending to frighten someone. 
  • Pointing a toy pistol at another person with the intention that the other person will believe it is real.

Can you be guilty of common assault with words alone?

You do not have to make physical contact with someone in order to be guilty of common assault. 

Mere words can constitute an assault if they make the other person fear immediate and unlawful violence.  The most common example of this is a verbal threat. 

Can you be guilty of common assault without injuring someone?

It is not necessary to cause any physical harm to the other person to be guilty of common assault.  

Indeed, if the assault causes actual bodily harm, that will constitute the more serious offence of assault occasioning actual bodily harm, contrary to section 59 of the Crimes Act 1900.

Do you need to intend to harm someone to be guilty of common assault?

It is not always necessary to intend to harm someone in order to be guilty of the offence of common assault. 

To be guilty of common assault, you need to either (a) intend to do the physical act or (b) be reckless about it.  

To commit a common assault intentionally, you must intend to do the physical or other act at the time that you do it.  

To commit a common assault recklessly, you must foresee the likelihood of causing injury or fear and ignore that risk.  

How can you defend a charge of common assault?

There are various ways that you may defend a charge of common assault.  These include the following:

• • You did not do the alleged act. For example, you deny hitting or threatening the complainant. 
  • You did not do the act intentionally or recklessly. For example, you say that the conduct was an accident. 
  • Consent (see below).
  • Self-defence (see below).
  • Duress (see below).
  • Necessity (see below).
  • Lawful correction (see below). 

Our Sydney-based criminal lawyers can advise you as to your prospects of successfully raising any of the above defences. 

Consent

If you do a physical or other act against someone with that person’s consent, you will not be guilty of common assault.   

Consent can be given expressly or impliedly.   

Express consent is where the complainant clearly tells you that they give you permission to do the act.  

Implied consent is where the complainant does not tell you that they give you permission but their consent can be inferred from their conduct or other circumstances.   

An example of implied consent might be if the complainant voluntarily participated in a contact sport with you.  However, a complainant will not consent to being injured in the course of a game if your conduct was not done in legitimate pursuit of the objectives of the game or did not comply with the rules of the game.  

Another example of implied consent is where the physical contact is part of the exigencies of everyday life, such as jostling in a crowd of people or touching someone to get their attention. 

Self-Defence

Self-defence is found in section 418 of the Crimes Act 1900 (NSW).

You will be acting in self-defence if and only if you:

1. Genuinely believe that your conduct is necessary:

– to defend yourself or another person;

– to prevent or terminate the unlawful deprivation of your liberty;

– to protect your 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

2. Your conduct is a reasonable response in the circumstances as you perceive them. 

Once you raise self-defence sufficiently at your hearing, the prosecution then has to disprove it beyond reasonable doubt. 

Self-defence is a complete defence to the offence of common assault.  This means that, if you successfully raise self-defence at a hearing for a charge of common assault, you will be found not guilty.

Duress

The defence of duress applies where you committed the offence of common assault only because another person was subjecting you to a serious threat.  

You will have a defence of duress if and only if:

1. You committed the common assault because of threats made against you or a member of your family;

2. You genuinely believed that if you did not commit the common assault, you or a member of your family would be killed or seriously injured; 

3. The threats were so grave that a person of ordinary firmness and of your sex and maturity would have yielded to the threats in the same way that you did; and

4. You did not have the chance to render the threat ineffective, for example, by going to the police. 

Duress is a complete defence to offence of common assault.  This means that, if you successfully raise duress at a hearing for a charge of common assault, you will be found not guilty.

Once you raise duress sufficiently at your hearing, the prosecution then has to disprove it beyond reasonable doubt.

Duress is a difficult defence to raise and is unsuccessful in most cases.  However, even if you are unsuccessful, you can still rely on evidence of the threats at your sentence hearing to receive leniency.  This is referred to as non-exculpatory duress. 

Necessity

The defence of necessity applies where you commit the offence of common assault because circumstances (natural or human threats) caused you to do so. 

You will have a defence of necessity if and only if:

1. The common assault was necessary, or you reasonably believed it was necessary, to avoid or prevent death or serious injury to yourself or another person;

2. The prevention of death or serious injury was the reason you committed the common assault; and

3. The common assault, viewed objectively, was reasonable and proportionate, having regard to the evil to be avoided or prevented. 

Once you raise necessity sufficiently at your hearing, the prosecution then has to disprove it beyond reasonable doubt.

Necessity is a difficult defence to raise and is unsuccessful in most cases.  However, even if you are unsuccessful, you can still rely on evidence of the circumstances at your sentence hearing to receive leniency.  

Lawful correction

If you are charged with common assault arising from your physical punishment of a child, you may be able to rely on the defence of lawful correction.

Lawful correction is a defence to assault charges that is found in section 61AA of the Crimes Act 1900. 

You will not be guilty of common assault if and only if you:

1. Are the parent or acting for a parent of the child; and

2. The physical force you used was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.

You cannot rely on the defence of lawful correction if the physical force you used was applied to the head or neck of the child or any other part of the child’s body in such a way as to be likely to cause harm to the child that lasts for more than a short period. 

What is the Penalty for Common Assault?

Sentencing options

If you plead guilty or are found guilty of an offence of common assault, the Court must decide what penalty to impose on you. 

There are various penalties that a Court can impose for an offence of common assault, including:

• • Conditional Release Order;
  • Fine;
  • Community Correction Order;
  • Intensive Corrections Order; and
  • Full-time imprisonment. 

The maximum penalty for an offence of common assault is 2 years imprisonment.  

Our Sydney-based criminal lawyers can assist you to receive the most lenient sentence that is possible in all of the circumstances. 

Relevant factors to be considered when sentencing

When the Court decides what penalty to impose for an offence of common assault, it will consider a wide range of factors.  These considerations are generally divided into objective and subjective factors.  

• • What was the nature of the common assault? In general, a strike will usually be more considered more serious than other forms of contact or an assault with mere words.  
  • How many acts of violence were involved? In general, the more acts of violence that constitute the assault, the more serious it will be.  
  • How long did the assault last? In general, the longer the duration of the assault, the more serious it will be. 
  • Was the assault intentional or reckless? In general, an assault will be more serious where it is intentional rather than reckless.  
  • Was the assault planned or spontaneous?  In general, an assault will be more serious where it is premeditated.  
  • What was the motive for the assault?  In general, if you were provoked by the victim, that may reduce your moral culpability.  
  • Were you in the company of another person?  In general, the assault will be more serious if you committed it with one or more other persons.  
  • Where did the assault occur? In general, if the assault occurred at the home of the victim, this will be an aggravating factor.  

Other relevant factors are specific to you, including: 

• • Whether you pleaded guilty;
  • Your age;
  • Whether you are remorseful (sorry) for your conduct;
  • Your criminal record and whether you have any prior convictions;
  • Whether you are otherwise of good character; and
  • Your likelihood of reoffending. 

Can you avoid a criminal conviction? 

As with any offence, the Court has the power to not record any criminal conviction against you for an offence of common assault. 

Under section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court can make any one of the following orders without recording a criminal conviction:

1. Direct that your charge of common assault be dismissed; 

2. Discharge you under a conditional release order; or

3. Discharge you on the condition that you enter into an agreement to participate in an intervention program.

In deciding whether to record a criminal conviction, the Sentencing Magistrate or Judge will consider the objective and subjective factors discussed above as well as the following further factors contained in section 10(3):

(a) Your character, antecedents, age, health and mental condition;

(b) The trivial nature of the offence;

(c) The extenuating circumstances in which the offence was committed; and

(d) The other matter that the Court thinks proper to consider. 

Will you go to jail?

It is uncommon for people to be sentenced to full-time imprisonment for an offence of common assault.  However, it is still possible, especially in cases involving serious examples of common assaults and/or where you already have a record of offences involving violence.  

What sentence do most people receive? 

According to statistics published by the Judicial Commission of New South Wales in relation to all persons sentenced in the Local Court for the offence of common assault:

• • The single most common penalty was a Community Correction Order.
  • Approximately 30% of all offenders avoided a criminal conviction.
  • Just under 7% of all offenders received a sentence of full-time imprisonment.

In which court is a common assault case heard? 

The offence of common assault is a table 2 offence, which means that it can be heard in the Local Court or the District Court. 

The overwhelming majority of common assault cases are prosecuted in the Local Court by the police prosecutors. 

In rare cases, common assault cases are prosecuted in the District Court by the Office of the Director of Public Prosecutions, referred to commonly as the ODPP or DPP. 

How we can help

Our criminal lawyers have extensive experience in common assault matters.  We have appeared in many of Australia’s most high-profile assault cases over the last 12+ years. 

Our experience and expertise enable us to achieve excellent results for clients facing prosecution for common assault offences. 

Our criminal lawyers can assist you through the entire criminal justice process, from the initial police investigation until the conclusion of your case. 

We will provide you with comprehensive advice as to your prospects of successfully defending the charge and what penalty you are likely to receive if you were to plead guilty. 

If you plead not guilty, our criminal lawyers will maximise your prospects of being found not guilty. 

If you plead guilty, we will assist you to achieve the most lenient possible result at your sentencing. 

Key Services

• • Bail/release applications and detention applications 
  • Advising on the prosecution evidence and relevant law, including, the Crimes Act 1900
  • Developing defence litigation strategies
  • Engaging third party experts, such as forensic pathologists, psychologists and psychiatrists
  • Drafting representations to the prosecution to withdraw or downgrade charges
  • Plea negotiations with the prosecution
  • Briefing barristers with expertise in assault matters
  • Appearing at Local Court hearings and District Court trials
  • Appearing at sentence proceedings
  • Appearing at appeals against conviction and sentence

Is there such a thing as a “common assault lawyer”?

You might have seen the websites for some criminal law firms use terms such as “assault lawyers”, “common assault lawyers”, “Sydney common assault lawyers” or “assault lawyers Sydney”.  You should understand that these law firms do this simply for the purpose of search engine optimisation, i.e., to improve their ranking on Google when people use certain search terms, such as “common assault lawyer Sydney”.  

The reality is that there is no such thing as a “common assault lawyer”.  The kind of lawyer that handles common assault cases is a criminal lawyer.