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Assaults

Assaults are the second most common offences coming before the Local Court of NSW. They are preceded only by drunk/drug driving offences. As such, our solicitors regularly represent individuals either facing charges of assault and battery or who have been the victim of a physical assault. Our legal team is dedicated to preserving your legal rights and providing you with the information and confidence you need to proceed through your legal case. Below is some important information about assaults and battery and the law designed to give you a basic understanding of the various assault types and the likelihood of criminal conviction. Thinking about pressing charges? Or; are you currently facing charges? Let's talk.

What does it mean to be charged with assault and battery?

Assault and battery are distinctly defined in Darby v DPP (2004) 61 NSWLR 558 per Giles JA, as:

“an assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force. There can be an assault without a battery, and there can be a battery without an assault”.

Assaults are covered by section 56-61 of the Crimes Act 1900. Common charges of assault listed include:

  • Assault on person preserving wreck
  • Assault with the intent to commit a serious indictable offence on certain officers
  • Assault occasioning actual bodily harm
  • Assault during public disorder
  • Assault and other actions towards a police officer
  • Assaults at schools
  • Common assaults

For information on sexual assaults click here.

What is the definition of common assault?

A charge of common assault is issued where a physical attack has been made resulting in no bodily harm or injury.

Whosever assaults any person, although not occasioning bodily harm, shall be liable to imprisonment for two years (Section 61, Crimes Act 1900).

What is the penalty for a common assault conviction?

In NSW, a common assault conviction carries a maximum penalty of two years’ imprisonment. Depending on the severity and circumstances of the event, and criminal history of the assailant, the court may choose to impose any of the following penalties:

    • Section 10: the common assault has been proven but dismissed/li>
    • Fine
    • Good behaviour bond
    • Community Service Order
    • Suspended Sentence (a prison term is set but the defendant is allowed to perform a period of probation, successful completion of probationary period will suspend the sentence indefinitely)
    • Intensive Correction Order (periodic detention)
    • Prison Sentence

What actions might be considered common assault?

    • Threatening to harm
    • Spitting on a person
    • Hitting, punching or kicking another person without causing bodily harm

Will a common assault conviction result in a criminal record?

Yes, any defendant found to be guilty of the common assault of another person will have a criminal conviction placed on their record.

What must the police prove to find a defendant guilty of common assault?

The onus in any conviction is on the police to acquire enough evidence to prove that the defendant is guilty of the common assault charge. This involves proving beyond a reasonable doubt that the defendant did strike, intend to injure, or threaten another with violence; that such actions were done so either intentionally or recklessly; that the plaintiff did not provide their consent; and that the assault was done without lawful excuse (self defence, accident etc.)

The meaning of “assault occasioning actual bodily harm”

Actual bodily harm is a physical injury (temporary or permanent) or psychiatric injury (not merely panic or fear) as committed by one person upon another; it is covered by sections 59 (assault occasioning actual bodily harm) and 35 (assault involving wounding) in the Crimes Act 1900.

Section 59, outlines the definition and penalty for assault occasioning actual bodily harm as:

(1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in the company of another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 7 years

What is the penalty for assault occasioning actual bodily harm?

In NSW, an assault occasioning actual bodily harm carries a maximum penalty of five years’ imprisonment, or seven years’ imprisonment if the event has taken place in front of another person. For assault resulting in wounding there is a maximum seven years’ imprisonment, or 10 years if the assault has been carried out in front of another person. Depending on the severity and circumstances of the event, and criminal history of the assailant, the court may choose to impose any of the following penalties:

 

  • Section 10: the common assault has been proven but dismissed
  • Fine
  • Good behaviour bond
  • Community Service Order
  • Suspended Sentence (a prison term is set but the defendant is allowed to perform a period of probation, successful completion of probationary period will suspend the sentence indefinitely)
  • Intensive Correction Order (periodic detention)
  • Home detention
  • Prison Sentence

 

 

What actions define assault occasioning in actual bodily harm?

In order for the charge of assault occasioning actual bodily harm to be complete there must be a) an assault and b) evidence of physical injury. Assault resulting in wounding is defined as the cutting of the interior layer of skin (the dermis). A superficial cut to the outer layer of the skin (the epidermis) is not sufficient.

Under section 4 of the Crimes Act 1900, grievous bodily harm can also include:

the destruction (other than in the course of a medical procedure) of the foetus of a pregnant woman, whether or not the woman suffers any other harm (also see R v King (2003) 59 NSWLR 472; 139 A Crim R 132; [2003] NSWCCA 399), and; any permanent or serious disfiguring of the person, and; any grievous bodily disease (in which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease).

Will a common assault conviction result in a criminal record?

Yes, because of the seriousness of the crime a guilty conviction will most likely result in a criminal record.

What must the police prove to find a defendant guilty of common assault?

The onus in any conviction is on the police to acquire enough evidence to prove that the defendant is guilty of assault occasioning actual bodily harm or wounding. This involves proving beyond a reasonable doubt that the defendant did physically or psychiatrically injure a person; that such actions were done so either intentionally or recklessly; that the plaintiff did not provide their consent; and that the assault was done without lawful excuse (self defence, accident etc.)

What lawful excuses constitute a defence for a common assault or bodily harm assault charge?

It is possible to defend yourself against a common assault or bodily harm assault charge if there is a lawful excuse for your behaviour. These include, but are not limited to:

      • You were defending/protecting another person from the plaintiff
      • You were protecting/defending yourself from the plaintiff
      • You were provoked by the plaintiff
      • It was an accident and therefore you did not intend to harm or injure the plaintiff
      • You were under duress (the plaintiff threatened to harm you or your family)
      • There was an urgent situation in which you believe that you or someone else was in imminent peril and therefore your actions were out of necessity

What’s next? If you’re looking for a criminal defence lawyer to assist or advise in the case of a common assault of assault occasioning actual bodily harm, our team can help. Fill out a contact form, send us an email or give us a call to discuss your case today.