Common Assault – Section 61 Crimes Act 1900

ByBankstown Criminal Lawyers

Common Assault in a nutshell

A common assault is any action a person makes – either intentionally or recklessly – that causes another person to fear physical violence.

There are essentially two types of common assault.

  1. The first is physical assault.
  2. The second is psychic assault.

Let’s discuss each of these.

Physical Assault

A physical assault includes any physical contact made by one person to the other person who did not consent to the contact. The range of physical contact in a Common Assault charge is wide ranging from a very soft push on the arm, through to a forceful punch to the face with a closed fist.

The physical contact does not need to result in injury (such as bruising) or even pain for a Common Assault charge to be laid.

Psychic Assault

A psychic assault includes any action made by one person toward the other person who became fearful for their physical safety and did not consent to it. Psychic assault can include a wide range of actions such as raising a fist toward someone in a threatening manner (but not hitting them), throwing a plate on the ground and the plate smashing into pieces, thumping your hand on a door loudly whilst yelling.

Those types of actions do not need to result in any physical contact for a Common Assault charge to be laid.

What is the law of common assault?

Section 61 of the Crimes Act 1900 states:

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

So, what must the prosecution prove?

The prosecution must prove beyond a reasonable doubt that you committed the offence. It is important to know that you do not need to prove your innocence. Rather, it is for the prosecution to do all the heavy lifting to prove that you did the act.

The prosecution must do all five of the following things to prove this charge. They are as follows:

  1. Firstly, they must provide evidence that it was actually you there at the place and time the police allege.

AND

  1. Secondly, they must prove that there was an application of either physical contact between you and the other person – OR – you did an act that caused the other person to fear for their personal safety.

AND

  1. Thirdly, the prosecution then has to prove that you did the action either intentionally –  OR – recklessly (meaning that you didn’t really care about the result of your actions)

AND

  1. Fourthly, that the other person did not provide consent to your actions.

AND

  1. Finally, that there was no lawful excuse for your action.

The prosecution must prove each and every one of the above steps beyond reasonable doubt to make out the charge of Common Assault against you. 

Penalties

You will have noticed the wording in section 61 – “…imprisonment for two years”.

It is important to note that the reference of two years is the maximum penalty and that in our experience, that penalty is usually applicable to those persons with very lengthy criminal records. Such people are usually regarded by the Court as not caring about the law or about terms of imprisonment.

Typically, we find for a first offence of common assault, depending on the circumstances, that the Courts tend to deal with by way of no conviction and a good behaviour bond. Other penalties can include a fine, and community service work.

Defences to common assault

There are number of defences that you may rely on to defend the charge of Common Assault.

  1. Self-defence – generally speaking the circumstances where you had no choice but to either strike or scare off another person because you were fearful for yours or someone else’s safety.
  2. The assault was an accident – where the action had no intention or recklessness behind it.
  3. You were acting under duress – where someone else made you perform the assault, and you feared serious consequences should you fail to do so.
  4. You had consent – where the other person gave you consent to physical actions that led to the charge of Common Assault.

Practical examples of Common Assault

Let’s look at some very basic examples of how the above information can be played out.

Fred and Belinda have been in an intimate relationship for the past 12 months. They live together. Their relationship is defined as “domestic” because they are intimately involved with each other. Let’s consider the following scenarios.

Common assault – physical contact

Fred and Belinda were enjoying a few drinks on Saturday night. They got into a heated argument. Fred became very frustrated and shoved Belinda out of the way as he went off to bed. Belinda was stunned and became upset that Fred pushed her away.

  • Could Fred be charged with Common Assault? Yes
  • Why? Because he physically pushed Belinda away. She did not consent to being pushed by Fred.

Common assault – psychic assault

Fred has been under the pump at work. Everything is getting to him. On one morning over breakfast, Belinda insists to Fred that his moods are becoming too much for her, and he needs to change his ways. Fred immediately snaps. Sitting across from Belinda, he stands up from the table and thumps his closed fist on the table hard enough to knock his cup of coffee onto the floor. He storms out of the room and slams the door shut. Belinda is left crying feeling that Fred had intended her to feel scared of him.

  • Could Fred be charged with Common Assault? Yes
  • Why? Because his actions made Belinda feel scared. She did not consent to feeling fearful of Fred.

Common assault – physical contact and self defence

Fred and Belinda were enjoying a few drinks on Saturday night. They got into a heated argument. As Fred was on his way to bed, Belinda picked up a frying pan from the kitchen and confronted Fred with it holding it above his head. Feeling fearful for his safety, Fred immediately shoved Belinda away and she fell onto the lounge. Fred went into the bedroom and locked the door behind him.

  • Could Fred be charged with Common Assault? Yes
  • Why? Because he physically pushed Belinda away. She did not consent to being pushed by Fred.
  • Could Fred rely on self-defence? Yes
  • Why? Because Belinda threatened Fred with physical violence and so Fred pushed Belinda to stop her from hitting him.

Your next steps

If you’ve been charged with Common Assault, give us a call as soon as possible so that we can assess your case and work out which option is right for you.