Common assault

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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).

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.

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.

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.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Common Assault can be punished with a prison sentence of up to 2 years or fines of up to $2,200.00.

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.


Some of the possible defences available for those charged with affray can include:

  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
  • If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence” even in situations where “Pre-Emptive Force” is used. Moreover, at times there be a circumstances where you may argue that there was “No duty or need to retreat”.


The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

Common Assault

For common assault offenders 41% received a Good Behaviour Bond.

Possible Penalty's

In NSW, a court can impose any of the following penalties for an Assault charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; or
  • New Conditional release Order (CRO)

Case Studies

Our client was alleged to have pushed his wife over in the house during an argument on a Sunday morning allegedly while our client was sitting in a recliner chair.

There was some evidence of injury of the alleged victims shin however our client, a man with no criminal convictions was emphatic that there was an accident wherein his wife hit her shin on the recliner chair.

Our client was charged with domestic violence common assault.

Fortunately, our client was represented by our senior criminal lawyers at  hearing and through meticulous cross examination and uses of photos and sketches as well as arguing the need to scrutinise evidence very carefully (especially in Domestic Violence Assault Allegations), it was held that our client did not intentionally push his wife and the injury happened exactly as it was proven to occur which was by his wife leaning over him and yelling at him.

The winning blow came with the question “when you say he pushed you was he sitting down”? and with the answer being “yes” allowed the NSW Local Court Magistrate to not hear a long closing argument.

Invariably a not guilty verdict was returned.


Is Common Assault a serious offence?

In NSW, an indictable offence is one that is punishable up to two years in the Local Court or five years in the District Court gaol sentence. It can be found in section 61 of the Crimes Act 1900 (NSW). 

Your sentence outcome by the Local Court (or the District Court) may depend on the seriousness of the offending and a number of other factors in which our Sydney Criminal Lawyers are experts in picking up. The offence itself does not necessarily require any form of physical contact at all. It could simply be a threat of violence. If physical action was involved, the accused may find themselves facing a more serious charge of assault occasioning actual bodily harm 

Examples include threatening harm, spitting, physically assaulting without causing bodily harm, or restraining a person against their will. However, it is important to note that the Local Court has the discretion to not convict a person if persuaded by their criminal lawyer.

What does the Police need to do to prove Common Assault?

In order to prove common assault, the prosecution must demonstrate the following elements beyond reasonable doubt:

  • The defendant acted in such a way as to make the victim anticipate immediate and unlawful violence; 
  • The victim did not consent to the assaulter’s actions; 
  • The defendant’s conduct was intentional or reckless; and
  • The defendant had no lawful excuse for their conduct.

It is important to note that the prosecution does not need to prove that the defendant intended assault. If it can be proved that the accused knowingly acted in a reckless manner that caused another person to fear for their safety, they may be liable. 

It can be difficult to prove that the defendant had intent to commit Common Assault. This is because generally these types of matters do not usually result in actual bodily harm and the prosecution may rely on witnesses or recording devices. Additionally, the Magistrate or judge may need to determine whether or not it is reasonable to consider certain actions deeming them as harmful or otherwise.

What happens if you are convicted of Common Assault?

There are several defences to choose from if you are convicted on a charge of common assault.

  1. Self Defence. The defendant may claim self-defence if they acted in order to:
    • Defend himself or another person; 
    • To prevent or terminate the unlawful deprivation of his or her liberty or that of another person; 
    • To protect property from unlawful taking, destruction, damage or interference; or
    • Prevent or remove criminal trespassers from any land or premises
  1. Duress. A defendant may claim duress if they were forced to commit this action. This may be done so under implied or express threat of death or serious injury.
    • Genuine belief of real that he or she would be soon killed or seriously harmed;
    • Would such threats have driven a reasonable person to do the same; and
    • Could that person avoid such action by way of escape from the threat without damage to him or herself?
  1. Necessity. Similarly to Duress, there are three fundamental factors to the defence of necessity that will be accepted if it was necessary to avoid death or serious injury. 
    • if it was necessary or reasonably believed to avoid death or serious injury;
    • The avoidance or prevention of death or serious injury was the reason for their action; and
    • Objectively, was seen to be reasonable and proportionate, having regards to avoiding or preventing from danger or death

4. Consent. If the other person consented to the action, the defendant will not be found guilty. This defence is commonly used in cases in implied consent regarding for example sports and medicine, where an agreement has been entered into beforehand.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

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. We give a Senior Defence Lawyer guarantee

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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