Consent to a Fight: Why “We Both Agreed” Often Fails as a Defence in NSW

One of the most persistent myths in criminal law is this:

“If we both agreed to fight, it can’t be assault.”

It feels intuitive. Two adults. Mutual hostility. No complaint. No victim.

Yet in NSW criminal law, consent to violence is tightly restricted, and in many situations, legally irrelevant. Each year, people are convicted of assault despite both participants saying the fight was “mutual”, “consensual”, or “just between us”.

This article explains:

• how assault and common assault are defined in NSW
• the limits of consent in criminal law
• what Judicial Commission sentencing materials say about public-place violence
• when consent can operate as a defence, and when it cannot
• why “mutual combat” rarely saves defendants in court

The Starting Point: What Is Assault in NSW?

Under NSW law, assault does not require serious injury.

At its lowest level, common assault is established where a person:

• intentionally or recklessly
• applies unlawful force to another, or
• causes another to apprehend immediate unlawful violence

This includes:

• punching
• pushing
• slapping
• grappling
• even minimal physical contact, if unlawful

Importantly, harm is not required. The offence focuses on unlawful force, not outcome.

This matters because many people assume:

“No one was hurt, so it can’t be assault.”

Legally, that assumption is wrong.

Where Consent Fits, and Why It’s Not What People Think

Consent can be relevant in assault law, but only within narrow boundaries.

At common law, consent may negate unlawfulness only where the level of force falls within socially accepted limits. Outside those limits, consent is legally ineffective.

This is not a moral judgment. It is a public-order rule.

Courts consistently emphasise that the criminal law exists to protect public peace, not merely private autonomy.

Judicial Commission Guidance: Public Violence Is Treated Differently

The Judicial Commission of NSW (JudCom) repeatedly stresses that violence in public places attracts heightened concern.

JudCom sentencing principles for assault offences emphasise:

• general deterrence
• protection of the public
• condemnation of street violence
• prevention of escalation

From a sentencing perspective, it does not matter that:

• both parties were willing
• both threw punches
• no complaint was made
• the matter began as a “fair fight”

Courts treat public fights as threats to community safety, not private disputes.

This is why “consensual fights” regularly result in convictions.

The “Mutual Combat” Argument, Why Courts Reject It

Defendants often raise what is informally called “mutual combat”:

“We both agreed to fight.”

NSW courts have consistently rejected this as a general defence.

The reasoning is straightforward:

• Allowing consensual fighting would legitimise street violence
• Consent cannot justify conduct likely to cause injury
• Public order cannot depend on private agreements to fight

Once violence crosses a threshold of potential harm, consent no longer operates.

This applies even where:

• the fight was pre-arranged
• there was no weapon
• both parties were equally involved

The Legal Limits of Consent: Where It Can Operate

Consent is not irrelevant in all assault cases. It may operate where:

1. The Conduct Is Inherently Non-Violent or Trivial

Minor, everyday contact, such as jostling in crowds or sporting contact, is implicitly consented to.

This is not a defence so much as a recognition that the force is lawful.

2. Recognised Sporting Contexts

Consent may apply in organised sports where:

• the activity is lawful
• participants accept inherent risks
• conduct stays within the rules of the game

However:

• violence outside the rules
• deliberate attacks
• retaliatory strikes

fall outside consent and may still constitute assault.

3. Lawful Physical Contact with Social Utility

Certain contexts (e.g. medical procedures, lawful restraint) rely on consent or legal justification.

These are highly regulated exceptions, not general principles.

Where Consent Fails Completely

Consent does not operate where the conduct involves:

• intentional or reckless infliction of bodily harm
• violence likely to cause injury
• use of weapons
• sustained or repeated blows
• public disorder

This means that even common assault can fall outside consent if:

• the force was more than trivial
• the context was volatile or public
• the risk of harm was obvious

Courts assess not what participants thought, but what the conduct objectively involved.

Alcohol and Consent: A Dangerous Combination

Alcohol plays a central role in most “mutual fight” cases.

Legally:

• intoxication does not expand consent
• intoxication often undermines the reliability of claimed agreement
• courts treat alcohol-fuelled violence as aggravating, not mitigating

JudCom sentencing remarks regularly note that alcohol:

• increases unpredictability
• escalates minor disputes
• heightens public risk

A fight agreed to while intoxicated is not treated as a valid exercise of autonomy.

Why Police Charge Both Parties

Another common misconception is:

“If we both fought, police won’t charge either of us.”

In reality:

• police may charge both parties
• police may charge one, based on evidence
• lack of a complaint is irrelevant

Assault is an offence against the state, not just against the victim.

This explains why people are shocked to be charged after:

• shaking hands
• apologising
• agreeing not to pursue the matter

Once police observe or investigate an assault, the decision to prosecute is institutional, not personal.

Evidentiary Reality: Why Admissions Are So Dangerous

In “consensual fight” cases, evidence often consists of:

• CCTV
• bystander footage
• police body-worn video
• admissions made at the scene

Statements like:

• “We both wanted it”
• “It was just a fight”
• “We agreed to sort it out”

are often used by the prosecution to prove:

• intentional application of force
• absence of lawful excuse

Ironically, claiming mutual agreement can strengthen the prosecution case.

Defences That Are Recognised in Law

Rather than relying on consent, viable defence avenues may include:

1. Self-Defence

If one party acted to defend themselves, property, or another person, self-defence may apply, even if the confrontation was mutual at some point.

This turns on:

• necessity
• proportionality
• reasonableness

Self-defence is fact-sensitive, but far stronger than “we agreed”.

2. Lack of Intent or Recklessness

If the prosecution cannot prove the mental element, the offence fails.

This may arise where:

• contact was accidental
• force was misinterpreted
• evidence is ambiguous

3. Public Order Mischaracterisation

In some cases, conduct is exaggerated by witnesses or police and does not meet the legal threshold for assault.

Challenging the characterisation of behaviour can be decisive.

Sentencing: How Courts View “Consensual” Fights

JudCom sentencing principles indicate that courts focus on:

• public risk
• need for deterrence
• escalation potential
• prior history
• role of alcohol

Claims of mutual agreement rarely reduce penalties. In some cases, courts view them as aggravating, because they demonstrate deliberate engagement in violence.

The Deeper Principle: Why Consent Is Limited at All

At a theoretical level, NSW assault law reflects a fundamental principle:

Private consent cannot license public violence.

The law prioritises:

• social order
• safety of bystanders
• predictability of public spaces

This is why criminal law diverges sharply from everyday moral intuition in this area.

Final Thoughts: Why “We Both Agreed” Is a Legal Trap

Consent feels like common sense. In assault law, it is anything but.

Many people:

• admit guilt too early
• misunderstand their legal position
• rely on a defence that does not exist

If you are facing an assault charge arising from a fight, especially in a public place, it is critical to understand that consent is not the shield people think it is.

Speaking with an experienced criminal defence lawyer before making statements can make the difference between dismissal and conviction.

📞 Call National Criminal Lawyers® on 1800 CRIM LAW
Because common sense is not always the law.