Common Assault is an offence under Section 61 of the Crimes Act 1900 which carries a maximum penalty of 2 years in prison and/or a fine of $5,500.

It is all about whether actions caused somebody to fear some form of personal violence. You must have known your actions would cause the other person to fear immediate violence or have not been concerned about whether it did or not.

Police must prove three things for the charge of Common Assault beyond a reasonable doubt:

1. That your actions caused another person to fear immediate and unlawful violence OR that you touched another person without their permission;

You don’t have to touch somebody for an common assault to occur but any threat must be immediate. Even slight touching can be common assault.

1. That the other person did not consent to your actions

If there is physical contact, then the prosecution must prove that the other person did not give you permission to touch them.

3. That your actions were intentional or reckless.

Brushing shoulders with somebody on a bus or bumping into them accidentally in a big crowd will not normally constitute common assault.

If your actions were reckless and resulted in physical contact, the prosecution has to prove that you realised that your actions may have resulted in some form of physical contact, however slight.

Accidental contact would not normally constitute common assault.

The maximum penalty for common assault is 2 years’ imprisonment and/or a fine of up to $5,500.

A section 9 good behaviour bond is the most common penalty. This is a criminal conviction with bond that can last up to five years.

You can be sentenced to a conditional release order which is a bond without criminal conviction. These bonds can be up to two years in duration. No criminal conviction recorded is a good outcome and legal representation can help.

A good behaviour bond means that you must not commit any further offences while the bond is in place. Bonds can have conditions you must obey.

Breach a bond and you risk being called before the court and resentenced.

If you had a lawful excuse you will be found not guilty if your defence is accepted in court. Available defences are:

Self defence

Self defence can be raised if:

1 – you were acting to protect yourself, somebody else, or your property.

2 – you honestly believed you were acting reasonably in taking the action you did. Even if you were mistaken in your belief, you can still rely on this defence as long as you honestly and reasonably believed that you had to act in self defence.

There are some qualifiers. Your actions have to have been proportionate to the threat. If you were drunk or using drugs and your level of intoxication caused you to misinterpret the threat, you may not be able to rely on this defence.

Duress

This defence can be raised where somebody forced you to commit the crime against your will. You have to show evidence:

1 – that an actual threat was made and it was ongoing. Text messages, phone conversations, or testimony in court can all be used. It is irrelevant whether the threat could be carried out. You just have to have genuinely believed in the threat.

2 – Of a death threat or threat of serious injury to you or your family. The threat must have been so menacing that it would have deprived any person of your age and gender of their free will and left no option but for you to assault the person you are accused of assaulting.

Necessity

This defence can be difficult to prove and is rarely used. I you raise it, the prosecution must prove beyond reasonable doubt (more than 50% likelihood) that there was no immediate danger to you.

No threat has to be present but there must have been some reason that left you no option but to assault somebody. For example, you were being restrained by somebody who was unaware there was fire in the building you were trying to exit and you had to assault them to break free and make your way to safety.

You will need evidence to show:

1. you acted to avoid death or serious injury or other serious, irreversible consequences to you or somebody else.
2. you honestly and reasonably believed the threat or situation existed
3. you acted in a manner that was proportionate and reasonable in the circumstances

Lawful Correction

Of a child

Crimes Act 1900 Section 61AA provides the defence of lawful correction of a child under 18 by way of punishment only if:

1(a) the physical force was applied by the parent of the child or by a person action for the parent of the child, and

1(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.

2 Unless the force applied is negligible, it is not reasonable if the force is applied to the child’s head or neck or to any part of the body where any harm caused lasts for more than a short period.