What is an Common Assault ?

An Common Assault is any act (but not a failure to act) where a person intentionally or recklessly causes another person to apprehend immediate and unlawful violence.

An assault charge can still be laid even though violence didn’t occur. It can also include an actual fear of that violence which is the crux of the offence of assault.

Some examples of assault include:

  • Striking at a person with a first or slapping a person;
  • Throwing an object at another person (even if it misses); and/or
  • Unlawful imprisonment of another person

Assaults are divided into different categories – “common assaults” and “aggravated assaults”. This article deals with common assault.

Case law/Jurisdiction
An offence of Common Assault is what is known as a “Table 1” offence under the relevant legislation, which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Department of Public Prosecutions (DPP).

What must the prosecution prove?

Since Common Assault is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of affray.

To establish Common Assault the prosecution must prove each of the following matters beyond reasonable doubt:

  • You assaulted the victim; and
  • Intentionally or recklessly caused another person to apprehend immediate and unlawful violence.

The Law

The Law in relation to Common Assault is found in section 61 of the Crimes Act 1900 (NSW).  It states:

“Whoever assault any person, although not occasioning bodily harm, shall be liable to imprisonment for two years”

An assault is a Common Assault when it results in no injury, or in injuries that are not serious or require very little medical treatment.

Common assault can also include threats of violence, if the person making the threat has the ability to carry them out.

If you are charged with the offence of ASSAULT what are your options?

National Criminal Lawyers have been successful in defending a number of Common Assault charges where the prosecution could not establish each of the elements of Assault. We have also achieved a number of non-convictions for Assault charges.

NCL offer the following options for those who have been charged with Assault:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Case Study

Our client aged in his 50s was charged with 3 counts of domestic violence related offences under the Crimes Act 1900 (NSW). Namely, assault occasioning actual bodily harm, intentionally choke person with recklessness, and intentionally choke person without consent.

Our client is a first-generation immigrant from the Middle East, and worked as a respected engineer in his field of study.

Upon review of the brief of evidence, our lawyer determine that when the alleged complainant was giving evidence by way of a recorded interview, the police did not follow correct procedures in relation to the interview. Amongst the errors by police including the police officer asking the complainant leading questions. Further, it was apparent that the complainant had issues speaking English and the police did not request for the assistance of an interpreter.

A letter was sent to the police informing them that the charges should be withdrawn as there is an argument as to whether the recorded interview is in fact admissible. It was proposed that the police ought to withdraw all charges against our client and have them replaced with one charge of common assault. The prosecution declined our request.

On the day of the hearing, the complainant attended and was cross-examined by Mr. Moussa. During morning tea, the prosecutor asked our office whether we would still be happy to proceed with our initial representations. Our client agreed. All charges were withdrawn and replaced with a common assault. The prosecution was not minded to change the facts.

On sentence our client was convicted and asked to pay a fine of $2,200.00.

Mr Moussa indicated that there are prospects of an appeal. Our client accepted our advice. A report was obtain by Dr. Olav Niellson, forensic psychiatrist. In that report it became apparent that our client was prescribed a medicine called “Fluoxetine” several hours before the offending. This, according to the opinion Dr. Niellson, contributed to mental and physical state our client was undergoing at the time.

Subsequently, Mr Moussa applied for a conviction appeal so that a section 14 application could be made. Although the application was opposed by the ODPP, Mr Moussa made a number of submissions in the District Court.

In the end, Judge Hoy quased the decision of the local court and a Section 14 application is granted to our client.

For more information on what a section 14 application, please click here.

Fequently Asked Questions


Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. Your best chance to get the result you’re after

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. How a Senior Defence Lawyer Can Help You Deal With Criminal Charges

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Common Assault offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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