Criminal Law

Common Assault

Common assault is the least serious of the assault offences and at the same time, the most common form of assault charge that comes before the Courts. Police often charge people with this offence and, in a domestic setting, it will always be accompanied by a domestic AVO. Despite being the least serious form of assault, it can sometimes result in a term of imprisonment upon a finding of guilt. 

When charging someone with Common Assault Police often lay the charge as a "back up" charge to more serious assault charges.

The Law

A common assault offence can be committed in two ways and the elements of the offence are as follows:

1. By physical contact - this means that the accused person is alleged to have physically assaulted the victim, usually by some form of striking. The old, common reference to this type of assault is "battery".

2. By conduct - this is where the accused person's actions are alleged to have caused the victim fear of imminent physical harm.

Generally speaking, a common assault charge by physical striking is laid where the assault does not cause any lasting injury.

Penalties

The maximum penalty for common assault is imprisonment for 2 years.  

Commentary

The obvious forms of common assault usually involve an intentional striking of another, without a lawful excuse. However, it is important to note that a physical assault can be committed in circumstances that most people would not normally consider to be an assault.

There is a misconception that there must be a form of striking or, at the very least, a physical act committed in anger. The law makes it clear that any unwanted form of touching can constitute an assault. The exception is where the touching is incidental to the ordinary course of our daily lives.

An example of a form of assault that can be committed where the touching is not in anger and there is no intention to hurt the other, is where a couple is arguing and, as one party turns to walk away, the other grabs that person's hand and tries to calm that person down.  

The above example and various forms of that example of common assault often occur in a domestic setting.

It is important to take into account the relationship between the parties and the context of the circumstances of the touching to determine whether it can be argued that, despite the common approach taken by police and the Courts, an assault has still not occurred.

The other important aspect of common assault charges is that the prosecution does not need to prove that the accused person intended to physically assault the victim or, did not intend to place the victim in fear of imminent physical harm.

It is sufficient for the prosecution to prove that the accused person was reckless as to whether their actions could result in some form of assault. Although this may appear to be a low threshold to meet, it is important to have a proper understanding of the legal definition of recklessness and how it applies to assault offences.

Self Defence

It is common where allegations of common assault have been made for the accused person to admit to striking the victim, however, still argue that they are not guilty of the offence, due to acting in self-defence.

Pursuant to section 418 of the Crimes Act 1900,

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

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) 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.

When an accused person relies on "self-defence", it is typically on the ground that they were defending themselves. 

It is important to note that the accused person is not required to prove the defence to any requisite standard but instead, needs only to sufficiently raise it based on the evidence in the case. Once self-defence is sufficiently raised, then it is for the prosecution to prove that the accused person was not in fact acting in self-defence.

Despite the availability of the defence and that it may appear that it is an easy process to raise the defence and then succeed in doing so, it is a defence that often fails, particularly if the case is not run properly.

The Court has to first find that the accused person was acting for the purpose of defending themselves but more importantly, that it was necessary to do so. Although this is a subjective test (in other words, it comes down to whether or not in the circumstances the accused person themselves found it necessary to act the way they did), the circumstances may strongly suggest that it was not a necessary act and therefore, it may not be accepted that the accused's actions were in fact perceived as necessary. This part of the defence, however, is difficult to disprove beyond a reasonable doubt.

Where the defence typically fails is during consideration of the second part of the defence - namely, that the accused's actions were reasonable under the circumstances. This is an objective assessment (in other words, it comes down to whether the Court believes that the conduct was reasonable, not the accused), however, must still take into account how the accused person actually perceived the circumstances (even if the circumstances turned out to not be as perceived by the accused).

Careful consideration needs to be given to whether a set of circumstances could give rise to a strong self-defence argument when defending a common assault charge, particularly where a court comes to its own determination as to whether certain actions are a reasonable response to a perceived threat. An argument needs to be carefully crafted to persuade a Court to find that the conduct was first necessary and then reasonable under the circumstances.  

Prime Lawyers have experience in successfully defending common assault charges, either by discrediting the prosecution case or after having argued the availability of self-defence.

If you have been charged with a common assault offence, our experts at Prime Lawyers - Criminal Law Division can help. Contact us to make an appointment with a criminal lawyer at your nearest Prime Lawyers office.

We have criminal lawyers located at Sydney, Parramatta, Chatswood, Sutherland and Wollongong.    

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