COMMON ASSAULT | SECTION 61 CRIMES ACT 1900
Common assault
Common assault is an offence under section 61 Crimes Act 1900 which states:
Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.
An assault can be any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence.
If you have been charged with common assault, the prosecution must prove beyond a reasonable doubt:
- An act which intentionally, or recklessly, causes another person (the complainant) to apprehend immediate and unlawful violence, and
- The act was without the consent of the complainant, and
- The act was intentional or reckless, and
- The act was without lawful excuse.
There is no requirement that the act be physical or make contact with another person for the offence of common assault to be made out.
If the allegation is one of actual physical force, then the prosecution must prove beyond a reasonable doubt:
- A striking, touching or application of force by the accused to another person (the complainant), and
- The act was without the consent of the complainant, and
- The act was intentional or reckless, and
- The act was without lawful excuse.
Standard of proof
In criminal proceedings, all the elements of an offence must be proved beyond a reasonable doubt by the prosecution.
The Courts have held that the expression “proved beyond reasonable doubt” mean exactly what they say – proof beyond reasonable doubt. This is the highest standard of proof known to the law. The test in a criminal case is not whether the accused is probably guilty. In a criminal case the prosecution must prove the accused’s guilt beyond reasonable doubt. A suspicion, even a strong suspicion, that the accused may be guilty is not enough. Further a decision that the accused has probably committed the offence also falls short of what is required to prove an offence beyond reasonable doubt.
COMMON ASSAULT DV T2 | COMMON ASSAULT DOMESTIC VIOLENCE
If the other person (the complainant) and the accused are in a domestic relationship, the accused will be charged with common assault charge DV related. The common assault penalty remains the same, however the Court process will be different and the domestic violence charge will accompany with it a provisional apprehended domestic violence order (ADVO).
More information on ADVO can be accessed here.
COMMON ASSAULT | TABLE 2 OFFENCE (T2)
Common assault or common assault DV are both Table 2 (T2) offences which means that the offence will usually be dealt with at the Local Courts of NSW before a Magistrate in absence of a jury unless the prosecuting authority elects to have the offence dealt with on indictment at the District Court before a Judge and a jury.
COMMON ASSAULT | DEFENCES
Self Defence
An accused acting in self-defence is not criminally responsible for the offence.
An accused carries out the conduct constituting the offence in self-defence if the person believes that the conduct is necessary to:
- to defend himself or herself or another person, or
- to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
- to protect property from unlawful taking, destruction, damage, or interference, or
- to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
AND the conduct is a reasonable response in the circumstances as the accused perceives them.
DEFENCE OF LAWFUL CORRECTION
An accused charged with common assault arising out of application of physical force to a child, can rely on the defence of lawful correction if the physical force was applied for punishment of the child but only if:
- the force was applied by a parent or person acting as the parent of the child, and
- the application of the force was reasonable in the circumstances.
Duress
The law recognises that in some cases someone who commits what would otherwise be a crime should be excused for having done so. The law recognises that sometimes people really do not have a choice and their choices have been overborne by a serious threat to either them or their family.
There are three elements which make up the defence of duress.
A person acts under duress, and therefore will not be held to be criminally responsible if that person’s actions were performed:
- because of threats of death or really serious injury to them or a member of their family,
- being threats of such a nature that a person:
- of ordinary firmness and strength of will, and
- of the same maturity and sex as the accused, and
- in the accused’s position,
- would have given in to them and committed the crime demanded of them.
The above should not be treated as legal advice but general information.
For a free consultation with a Criminal Lawyer in Sydney, call AMA Legal on (02) 8610 3764.
