Common Assault

What is common assault?

The offence of Common Assault is found at section 61 of the Crimes Act 1900.

Common Assault is the least serious of all assault charges. It does not require any injury to be incurred and can be committed by words.

It is not unusual for common assault charges to be defended as the offence can be difficult to prove as there are often no independent witnesses (in one on one cases the courts are required to exercise special caution before making a finding of guilt) and there are usually no injuries to corroborate the version given by the alleged victim.

If you are charged with the offence of Common Assault, your options will normally be to plead guilty or not guilty.

Pleading not guilty

You will be found not guilty of the offence of Common Assault if the police cannot prove beyond reasonable doubt:

  1. You assaulted the victim. An assault is the intentional or reckless application of force to the person of another or any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence, including words.

Recklessness in terms of assault is established where the accused foresees the likelihood of inflicting injury or fear, and ignores the risk.

The act of an assault must be a hostile one. It must be made in “an angry, revengeful, rude, insolent or hostile manner” and it is not necessarily a battery to make contact with another for some purpose in which the person being touched has or could have an interest or benefit of his own, if none of the other features of battery are present.

Physical contact which is an inevitable part of the exigencies of everyday life does not amount to an assault either because of implied consent or because there is an exception to assault embracing all physical contact which is generally acceptable as part in the conduct of daily life.

If the police are able to prove the above elements beyond reasonable doubt, you will still be found not guilty if any of the following defences can be established:

Contact our offices in Sydney, Parramatta, Blacktown or Redfern to organise a time for one of our criminal lawyers to advise you of your prospects of successfully defending the charge of Common Assault.

Pleading guilty

If you agree that you have committed the offence (and the police are able to prove so), it is best to plead guilty as you will normally receive a discount on sentence and it will demonstrate remorse and contrition. Alternatively, it may be the case that one of our experienced solicitors can negotiate with prosecutors for you to plead guilty to less serious facts or even a less serious charge.

Common Assault carries a maximum penalty of 2 years imprisonment; however, this penalty is typically reserved for the worst offenders. Our solicitors have a proven track record of not only keeping our clients out of gaol but also, depending on the seriousness of the allegation, having the offence dealt with by way of section 10 of the Crimes (Sentencing Procedure) Act, meaning no conviction will be recorded, there is no other penalty and you will have no criminal record. To find out more about a section 10, click here.

Penalties that a court can impose in NSW are:

Case Study

AC Law Group represented a father charged with striking his daughter in the eye. The police charged him after the daughter told a teacher her father had hit her when quizzed about a small red mark under her eye. The Accused man gave an interview to the offence where he admitted causing the injury but denied doing so intentionally and said he was just trying to remove the crying child’s hands from over her eyes. Our solicitor argued the assault was not intentional and nor was it reckless because the father would never have touched his daughter if he foresaw there being any risk it would cause her injury. The Magistrate agreed and found him not guilty.

Case Study 2

AC Law Group represented a man charged with pushing a bar tender over at a pub. Our solicitor had the facts heavily amended prior to the first court appearance based on his viewing of CCTV. The amendments changed the facts from a premeditated assault to an impulsive one. The Magistrate agreed the assault was at the lowest end, he dismissed the charge pursuant to section 10, meaning no conviction was recorded.

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