Common Assault Charge Withdrawn in NSW: Lawful Correction Defence Leads to Dismissal

When a person is charged with common assault in New South Wales, the immediate reaction is often fear that a conviction is unavoidable. Many assume that once police become involved, the outcome is largely predetermined.

However, that is not how the law operates. At National Criminal Lawyers®, led by Principal Lawyer Michael Moussa, we regularly act in matters where the alleged conduct is accepted, but the law provides a complete defence.

This case study is a clear example of how a properly applied legal defence resulted in both a common assault charge and an associated AVO being withdrawn.

What is Common Assault in NSW?

Common assault is governed by section 61 of the Crimes Act 1900 (NSW).  

The offence can include any intentional or reckless act of violence, including a strike. Importantly, the law does not require injury for a charge to be laid.

However, what many people do not realise is that even where physical contact occurs, it is not automatically unlawful. This raises an important question: can a person commit an act that would otherwise be assault, but still be legally justified?

The Allegations and Accepted Conduct

In this case, the allegation arose within a family setting involving a teenager residing in the same household with his step father. Unlike many defended matters, the conduct itself was not entirely disputed. It was accepted that there was a brief physical strike during the course of a verbal disagreement.

There were no allegations of excessive violence, no injuries, and no ongoing pattern of abusive behaviour. The incident was isolated and occurred in a highly contextual family environment. The accused had no prior criminal history and had otherwise complied with all legal obligations.

This leads to a critical issue that often arises in criminal law: does every physical act, even a minor one, amount to a criminal offence?

Police Response and the AVO Application

Police proceeded with a charge of common assault and sought an Apprehended Domestic Violence Order (AVO). This approach is consistent with current policing practices in New South Wales, particularly in domestic-related matters where authorities often err on the side of caution.

An important aspect of this case was the relationship between the stepfather and stepson, which added a layer of legal and social complexity to the matter.

Unlike biological parent-child relationships, step-parent dynamics can vary significantly depending on the level of responsibility, authority, and day-to-day involvement in the child’s upbringing.

In many households, a stepfather assumes a parental role that includes guidance, discipline, and care, particularly where they are acting in loco parentis (in the place of a parent).

However, this role is not always clearly defined in law or universally accepted in practice, which can create tension when issues of discipline arise.

This raised an important question: to what extent should a step-parent be entitled to exercise corrective discipline in the same way as a biological parent?

In this case, the relationship was one where the stepfather had an active and ongoing role in the child’s life, which became highly relevant when considering whether the conduct fell within the scope of lawful correction under section 61AA of the Crimes Act 1900 (NSW).

The Key Legal Issue: Was the Conduct Unlawful?

The central issue in this case was not whether the act occurred, but whether it was legally justified. This distinction is crucial. Criminal liability depends not just on what happened, but whether the law permits it in the circumstances.

At National Criminal Lawyers®, Principal Lawyer Michael Moussa identified that the case turned on the application of section 61AA of the Crimes Act 1900 (NSW), which provides a defence of lawful correction.

Lawful Correction Under Section 61AA

Section 61AA recognises that a person may apply reasonable force to a child for corrective purposes, provided the force is not excessive and does not involve certain prohibited conduct. The defence is tightly regulated and often misunderstood by the public.

In this matter, it was argued that the strike:

• Occurred in the context of discipline;  
• Was brief and controlled;
• Did not cause injury; and/or
• Did not involve any prohibited form of force

The defence therefore submitted that the relationship also fell squarely within the scope of lawful correction.

This raises an important and often debated question: where should the law draw the line between discipline and criminal conduct?

Additional Evidentiary Considerations

While the lawful correction defence was central, other evidentiary issues further weakened the prosecution case. There were inconsistencies in the complainant’s account and a delay in reporting the incident. There was also an absence of independent corroboration or medical evidence.

Data from the NSW Bureau of Crime Statistics and Research (BOCSAR), such as inconsistency and delay can significantly affect the strength of a prosecution case. These factors reinforced the defence position that the matter should not proceed.

Representations by National Criminal Lawyers®

After a detailed analysis of the evidence and applicable law, National Criminal Lawyers® prepared formal representations to the prosecution. These submissions argued that although the act was accepted, it was not unlawful due to the operation of section 61AA, and therefore the essential element of assault could not be established.

It was further submitted that continuing the prosecution would not be in the public interest. This is a critical aspect of criminal defence that is often overlooked. Many matters can be resolved at this stage without the need for a defended hearing if the legal issues are clearly articulated.

The Outcome: Charges and AVO Withdrawn

Following consideration of these representations, police withdrew the common assault charge as well as the AVO application. The matter was dismissed without any finding of guilt.

This outcome demonstrates a key principle of criminal law: even where conduct is admitted, it may still be lawful. It also highlights the importance of identifying and properly advancing applicable legal defences.

Why This Case Matters

This case is particularly significant because it challenges a common misconception that any physical contact will result in a criminal conviction. In reality, the law is far more nuanced. The defence of lawful correction continues to play an important role in cases involving family dynamics and disciplinary conduct.

It also raises an important public question: should every instance of physical discipline be treated as a criminal offence, or does the law appropriately allow for context and reasonableness?

The Importance of Strategic Criminal Defence

The result in this matter was not accidental. It was achieved through a strategic and legally precise defence led by Michael Moussa of National Criminal Lawyers®. By focusing on the correct legal issue,  whether the conduct was unlawful, the defence was able to resolve the matter without the need for a contested hearing.

For individuals facing similar allegations, this case highlights the importance of obtaining early advice from an experienced Sydney Criminal Lawyers. Understanding the available defences and how they apply to your specific circumstances can be the difference between conviction and withdrawal.

Why National Criminal Lawyers®?

This case ultimately demonstrates that criminal liability depends not just on what happened, but on how the law applies to those facts. Even where an act such as a strike is admitted, it does not automatically follow that a criminal offence has been committed.

At National Criminal Lawyers®, we are committed to ensuring that every case is examined in detail and defended with precision. As this matter shows, the correct legal argument, properly presented, can lead to the complete withdrawal of charges.

What are your thoughts on this issue? Should the law continue to recognise lawful correction, or should all forms of physical discipline be criminalised? The answer is not always straightforward, and it is a discussion worth having.