A common assault can include acts of physical violence against others, for example touching or striking someone. It can also include threats of violence if those threats put the victim in fear of immediate physical harm.
It is not necessary to prove an intention to assault the victim. Recklessness is sufficient. For example, if you threaten without intending to put that person in fear, but you “foresaw” the likelihood of causing fear and then decided to ignore that risk, that is sufficient. Generally, the acts alleged must be hostile.
WHAT THE PROSECUTION MUST PROVE
To prove common assault, the prosecution must show beyond reasonable doubt that you:
- Committed an act of physical conduct (touching or striking), or threatened conduct (threats of immediate violence) towards another person; and
- You did so intentionally or recklessly; and
- You did so without the consent of the person; and
- You did so without lawful excuse
One of the most common defences to a charge of common assault is self defence. Self defence is provided for in section 418 of the Crimes Act 1914. To successfully raise self defence, the following must be established:
- that the accused believed that their conduct was necessary to defend themself or another; and,
- what the accused did was a reasonable response in the circumstances as perceived by the accused.
The court looks at what the accused person believed as well as the situation as they perceived it. The court will also consider whether the response of the accused was reasonable. Whether the response was reasonable is a completely objective assessment, however the circumstance as perceived by the accused are considered. Often, although an accused can establish that they believed that they did what was necessary to defend themself, the court will find that their response was excessive in the circumstances and will find their actions were not in self-defence.
Once self defence is sufficiently raised by an accused, the prosecution must disprove it beyond reasonable doubt.
Other defences include lack of any intent or recklessness to assault.
Additionally, often the facts which the prosecution allege are disputed. For example, the accused person denies that the incident actually occurred or occurred exactly how the prosecution allege.
CAN I AVOID A CONVICTION?
As with any offence, even after a finding of guilt a court can still decide not to record a conviction. For information on the sentencing options that do not involve a criminal conviction, click here: NO CONVICTION IN NSW.
However, this sentencing option is not always appropriate or attainable even if an offender has no prior criminal history. This is because a magistrate is required to take into account the following factors when considering sentencing an offender under section 10:
- The person’s character, antecedents, age, health and mental condition;
- The trivial nature of the offence;
- The extenuating circumstances in which the offence was committed; and
- Any other matter that the court thinks proper to consider.
However, it is important to note that this list is not exhaustive, and simply ticking each box will not guarantee an offender receives a section 10.
For FREE initial advice about the prospects of your matter, contact one of our criminal law specialists
WILL I GO TO JAIL?
Upon conviction, a person is liable to imprisonment for up to 2 years. However, the maximum penalty is for the most serious offender and usually reserved for someone who also has a past criminal history.
For the full range of penalties that can be imposed for Common Assault, see our Sentencing Options page.
SHOULD I COMPLETE THE WRITTEN NOTICE OF PLEADING AND NOT ATTEND COURT?
The police will sometimes give you with a yellow “Written Notice of Pleading” form. In certain circumstances, you can indicate on this form that you wish to plead guilty and then send the form to the court.
We do not recommend this. It is always advisable to attend court in person, preferably represented by a lawyer and particularly if you are hoping to avoid a criminal conviction. Remember, this offence carries a maximum penalty of 2 years imprisonment. By attending court, you are showing the magistrate that you take the matter seriously and accept responsibility.
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