Common Assault
Common Assault Charges in NSW: What You Need to Know
Common Assault under section 61 of the Crimes Act 1900 (NSW) is treated seriously by the courts. While it is a summary offence usually dealt with in the Local Court, a conviction can still lead to a criminal record and penalties including imprisonment. Understanding how this offence is prosecuted and defended is critical to achieving the best outcome.
- Common Assault can arise from actions such as threatening gestures, pushing, slapping, spitting, or throwing objects, even if no injury is caused.
- The prosecution must prove that the act was intentional or reckless, and carried out without lawful excuse or consent.
- Penalties can range from fines and community-based orders to imprisonment, with sentencing depending on the circumstances and whether it is a first offence.
At Brightstone Defence Criminal Lawyers, we have extensive experience representing clients charged with common assault across NSW. Our team understands how these matters are prosecuted, how to identify weaknesses in the evidence, and how to negotiate with police and prosecutors to have charges reduced, withdrawn, or penalties minimised. Early legal advice can make a crucial difference to your case.
In New South Wales, Common Assault occurs when a person intentionally or recklessly causes another person to fear immediate and unlawful violence, or makes unauthorised physical contact without consent. Notably, actual physical injury is not required, mere apprehension of harm or unwanted physical contact (such as pushing or slapping) can suffice.
Common Assault is one of the most basic and common criminal offences under Australian law. It involves either:
- A physical act creates fear of immediate violence), or
- Physically applying force to someone without their consent, even if no injury occurs.
Under section 61 of the Crimes Act 1900 (NSW):
"Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years."
This means that no actual injury is required, the offence can be committed by actions like:
- Raising a fist in a threatening manner
- Slapping someone
- Shoving or pushing
- Spitting on someone
- Throw an object violently towards someone
Elements the Prosecution Must Prove
To secure a conviction, the prosecution must establish beyond a reasonable doubt that:
- the accused applied force to another person, or caused fear of immediate violence;
- the act was intentional or reckless; and
- the act was without lawful excuse or consent.
Possible Defences
Several defences may apply depending on the circumstances:
Self-Defence
- You acted to protect yourself, your property, or another person.
- Your belief that your actions were necessary must be reasonable.
- The prosecution must prove beyond a reasonable doubt that you were not acting in self-defence.
Duress
- You were threatened or coerced into committing the act.
- The threat must be serious enough to override your free will.
- The prosecution must prove that you were not under duress.
Necessity
- You acted to avoid serious and imminent harm.
- Your actions must have been reasonable under the circumstances.
Reasonable Discipline (in cases involving adults disciplining children)
- The force used must be reasonable and appropriate for discipline.
Potential Penalties
Common Assault is considered a summary offence, meaning it is dealt with in the Local Court. The maximum penalty is 2 years’ imprisonment and/or a fine of up to$5,500. However, courts often impose alternative penalties such as a Conditional Release Order (CRO), Community Correction Order (CCO), or inappropriate cases, dismiss the matter under section 10, particularly for first-time offenders with mitigating circumstances.
Possible penalties include:
- Section 10 dismissal (no conviction recorded)
- Conditional Release Order
- Community Correction Order (CCO)
- Intensive Correction Order (ICO)
- Imprisonment
Legal Process
& Options
Being charged with Common Assault can have serious consequences, including a criminal record that affects employment, visas, and professional licences. Having an experienced criminal lawyer can significantly improve your chances of securing a better outcome, including having charges reduced, withdrawn, or avoiding a conviction altogether.
Pleading
Not Guilty
If you believe the prosecution cannot prove all elements of the charge beyond a reasonable doubt, you may plead not guilty. Our experienced criminal defence lawyers will challenge the evidence and build a strong defence strategy.
If the prosecution fails to prove its case, you will be found not guilty.
Pleading
Guilty
If you choose to plead guilty, your case will proceed directly to sentencing. Pleading guilty early may:
- Reduce legal costs
- Show remorse, potentially leading to a more lenient penalty
- Increase the likelihood of receiving a Section 10 dismissal or Conditional Release Order, avoiding a criminal record
Before pleading guilty, consult with an experienced criminal defence lawyer to explore all available options.
- No
Physical contact is not always necessary. You can be charged with common assault simply for threatening or attempting to cause harm, as long as the victim had a reasonable fear of immediate violence.
- Yes
A conviction for common assault will result in a criminal record, which can affect your employment, travel, and future opportunities.
However, it may be possible to avoid a conviction if the court is persuaded to deal with the matter under Section 10.
Once charges are laid, it is up to the police or prosecution to proceed or withdraw them, not the victim. While a victim’s wishes may be taken into account, the decision to continue lies with the Director of Public Prosecutions (DPP) or NSW Police.
- Yes
A verbal threat can amount to common assault if it causes the victim to fear immediate and unlawful violence.
The threat must be serious enough and made in a context where the victim genuinely believes harm could occur imminently.
The main difference lies in the extent of injury. Common assault does not require proof of injury, while AOABH involves physical harm that is more than transient or trifling, such as bruises, cuts, or psychological trauma. AOABH carries heavier penalties.
You should not be found guilty if you acted in lawful self-defence. The court will consider whether you believed the force was necessary and whether your response was proportionate. This is a common and valid legal defence.
- No
Injury is not required. Common assault can occur from a threatening gesture, a slap, a shove, or any act that causes another person to fear unlawful force or experience minor physical contact without consent.
Failing to attend court may result in a warrant for your arrest being issued. It is crucial that you appear in court on the specified date or arrange legal representation to act on your behalf if possible. Always contact the court or your lawyer if you’re unsure.
- Yes, but only at the discretion of the police or the prosecution.
If there is insufficient evidence or the alleged victim refuses to cooperate, the prosecution may withdraw the charge upon the negotiation between the lawyer and the police. However, charges can still proceed even without the victim’s support.
- Yes, courts in NSW can issue a non-conviction outcome under Section 10 of the Crimes(Sentencing Procedure) Act 1999.
This means you are found guilty but no conviction is recorded. This may be more likely if the offence was minor and you have no prior record.
Common Assault involves causing fear orapprehension of immediate violence or minor physical contact withoutsignificant injury. AOABH involves an assault that causes actual physicalinjury beyond minor or transient harm.
“Actual bodily harm” includes injuries that interfere with the health or comfort of the victim and are more than insignificant. Examples include:
- Bruising or swelling
- Lacerations or cuts
- Nosebleeds
- Yes, it isan indictable offence.
However, it is triable summarily in the Local Court under certain conditions (depending on seriousness and election by the prosecution or defence).
- Yes
If a single punch causes injuries such as bruising, lacerations, or a nosebleed, it may be sufficient to support an AOABH charge.
This offence occurs when a person:
- Assaults, resists, hinders, obstructs, or intimidates a police officer,
- While that officer is acting in the execution of their duty.
It is covered under Section 58 of the Crimes Act 1900 (NSW). It includes physical force, verbal threats, or any act that interferes with an officer’s lawful role.
Resisting refers to any physical or active opposition to a lawful police action (e.g., pulling away during arrest). Hindering may involve more passive interference, such as:
- Giving false information
- Blocking police from accessing a location
- Encouraging someone else to resist arrest
- No
The officer does not need to be in uniform, but they must identify themselves clearly as a police officer.
The offence only applies when the officer is lawfully performing their duties (e.g. not off-duty or acting unlawfully).
If you can prove that you reasonably believed your actions were necessary to defend yourself or another, you may have a valid self-defence argument. This defence must be carefully supported by the circumstances and facts.
To be found reckless, the court must find that a reasonable person in your position would have realised there was a substantial risk of causing serious injury. If the risk was not obvious or foreseeable, that may be a defence. A classic example could be, one threw a glass bottle towards another person’s face, which caused a blind eye. A reasonable person would realise the eye could have been injured by do so.
In some cases, legal representatives can negotiate with the prosecution to reduce the charge to assault occasioning actual bodily harm (AOABH) or common assault, depending on the injury, evidence, and intent.
"Wounding" involves breaking both the inner and outer layers of the skin (e.g. a deep cut or puncture), while "GBH" involves more severe or permanent injuries.
Wounding with intent is serious, but GBH with intent usually results in harsher penalties due to the greater level of harm caused.
“To cause GBH or wounding with intent” means the prosecution must prove that the accused deliberately intended to cause serious harm or injury to another person, not just acted recklessly.
It is important to note that intent is a crucial element and must be proven beyond reasonable doubt.
- Yes
If the prosecution can prove there was intent to cause GBH or wounding even if the harm wasn’t permanent or as severe as intended you can still be convicted under Section 33 of the Crimes Act 1900(NSW).
- Yes
- A Criminal lawyer can help you by:
- Explaining your rights and the legal process.
- Assessing whether you have valid defence.
- Negotiating with prosecutors to reduce charges or penalties.
- Preparing your case for court and advocating on your behalf.
- Helping minimise the impact on your future, such as avoiding a criminal record.
- Early legal advice can significantly improve your chances of a favourable outcome.
You should contact a criminal lawyer as soon as you are charged, approached by police, or if you believe you may be under investigation.
Early legal advice is critical in protecting your rights and preparing your defence.
- Look for a criminal lawyer with proven experience in defending assault and violence offences, strong knowledge of local courts, and a history of achieving successful results for clients.
- No
Physical contact is not always necessary. You can be charged with common assault simply for threatening or attempting to cause harm, as long as the victim had a reasonable fear of immediate violence.
- Yes
A conviction for common assault will result in a criminal record, which can affect your employment, travel, and future opportunities.
However, it may be possible to avoid a conviction if the court is persuaded to deal with the matter under Section 10.
Once charges are laid, it is up to the police or prosecution to proceed or withdraw them, not the victim. While a victim’s wishes may be taken into account, the decision to continue lies with the Director of Public Prosecutions (DPP) or NSW Police.
- Yes
A verbal threat can amount to common assault if it causes the victim to fear immediate and unlawful violence.
The threat must be serious enough and made in a context where the victim genuinely believes harm could occur imminently.
The main difference lies in the extent of injury. Common assault does not require proof of injury, while AOABH involves physical harm that is more than transient or trifling, such as bruises, cuts, or psychological trauma. AOABH carries heavier penalties.
You should not be found guilty if you acted in lawful self-defence. The court will consider whether you believed the force was necessary and whether your response was proportionate. This is a common and valid legal defence.
- No
Injury is not required. Common assault can occur from a threatening gesture, a slap, a shove, or any act that causes another person to fear unlawful force or experience minor physical contact without consent.
Failing to attend court may result in a warrant for your arrest being issued. It is crucial that you appear in court on the specified date or arrange legal representation to act on your behalf if possible. Always contact the court or your lawyer if you’re unsure.
- Yes, but only at the discretion of the police or the prosecution.
If there is insufficient evidence or the alleged victim refuses to cooperate, the prosecution may withdraw the charge upon the negotiation between the lawyer and the police. However, charges can still proceed even without the victim’s support.
- Yes, courts in NSW can issue a non-conviction outcome under Section 10 of the Crimes(Sentencing Procedure) Act 1999.
This means you are found guilty but no conviction is recorded. This may be more likely if the offence was minor and you have no prior record.
- Yes
- A Criminal lawyer can help you by:
- Explaining your rights and the legal process.
- Assessing whether you have valid defence.
- Negotiating with prosecutors to reduce charges or penalties.
- Preparing your case for court and advocating on your behalf.
- Helping minimise the impact on your future, such as avoiding a criminal record.
- Early legal advice can significantly improve your chances of a favourable outcome.
You should contact a criminal lawyer as soon as you are charged, approached by police, or if you believe you may be under investigation.
Early legal advice is critical in protecting your rights and preparing your defence.
- Look for a criminal lawyer with proven experience in defending assault and violence offences, strong knowledge of local courts, and a history of achieving successful results for clients.
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