COMMON ASSAULT

Apprehended Violence Order

What is Common Assault?

Common Assault is a crime in New South Wales under section 61 of the Crimes Act 1900. The charge was defined in the case of R v Venna [1976] QB 421 as:

“Any act which intentionally or recklessly causes another person to apprehend immediate and unlawful violence”.

Common Assault is about the Victim’s fear. It does not necessarily require physical contact or injury to the Victim (e.g. if you threaten to hurt the Victim, but do not actually hurt them, you can still be guilty of Common Assault).

If a physical injury is involved, you are more likely to be charged with Assault Occasioning Actual Bodily Harm, or Assault Occasioning Grievous Bodily Harm.

Because it does not require physical contact, Common Assault is considered the least serious form of assault. However, it is a serious offence, punishable by up to two years imprisonment.

To be found guilty of Common Assault, you do not need to have intended your actions. Common Assault can be reckless, e.g. if you know your conduct might cause the Victim fear. However, the Victim’s fear does not need to be based in reality. In the case of R v Everingham (1949) 66 WN (NSW) 22, the defendant was guilty of Common Assault for pointing a toy pistol at the Victim, because he intended that the Victim would believe it was a real gun.

Examples of Common Assault:

  • Inflicting violence on the Victim without causing injury, e.g. slapping them.
  • Threatening immediate violence, e.g. pointing a gun at the Victim and telling them you will shoot them.
  • Spitting, or attempting to spit at the Victim.

What the Prosecution need to prove:

For you to be found guilty of Common Assault, the Police and Prosecutor must prove beyond a reasonable doubt that:

  1. You committed an act which caused the Victim to apprehend (fear) immediate and unlawful violence, or struck, touched or applied force to the Victim; AND
  2. Your actions were intentional or reckless; AND
  3. The Victim did not Consent to your actions; AND
  4. You did not have a lawful excuse.

Which Court will your Common Assault case be heard in?

In New South Wales, Common Assault charges are usually finalised in the Local Court, before a Local Court Magistrate. However, the Prosecution may elect to commit a Common Assault charge to the District Court. In the District Court, if you enter a plea of not guilty, the charge will be determined at a trial before a District Court Judge and jury. Sentences in the District Court are determined by a District Court Judge alone.

Defences to the charge of Common Assault:

  • The Prosecution cannot prove the elements of the offence of Common Assault.
  • Self-defence.
  • You are defending another person from the Victim.
  • The Victim consented (express or implied consent), e.g. the Common Assault happened during a sports game, if your actions first complied with the rules of the game and second was in legitimate pursuit of the objects of the game.
  • Everyday Life Defence: When the assault was part of the physical contact which is an inevitable part of everyday life, e.g. bumping into someone on public transport.
  • You acted under Duress.
  • You acted out of Necessity.

Maximum sentences for Common Assault charges:

Imprisonment for a maximum of two years, and a maximum fine of 50 penalty units, which is $5,500.

Don’t panic. Maximum sentences are usually reserved for the worst type of offending, when a defendant has a long criminal history. If you decide to plead guilty to a charge of Common Assault, your lawyer will help you identify mitigating factors the sentencing court will take into account. For more on likely sentencing considerations and outcomes for Common Assault offences in your circumstances, see our sentencing information.

Guess what:

Looking through a window, attempting to scare someone can constitute Common Assault.

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