Defending Common assault charges in NSW

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Common assault or common assault dv t2 is an offence contrary to section 61 Crimes Act (NSW) 1900 which states:

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

What constitutes an assault?

An assault is any act and not a mere omission to act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence. An assault does not necessarily need to involve physical contact with the person assaulted.

What prosecution need to prove?

There are four elements which must be proved for an act to constitute an assault. They are:

  1. An act by the accused which intentionally, or recklessly, causes another person (the complainant) to apprehend immediate and unlawful violence,
  2. That such conduct of the accused was without the consent of the complainant,
  3. That such conduct was intentional or reckless in the sense that the accused realised that the complainant might fear that the complainant would then and there be subject to immediate and unlawful violence and none the less went on and took that risk, and
  4. That such conduct be without lawful excuse.


Self defence

In NSW, self defence is a statutory defence to a criminal offence which is contained in section 418 Crimes Act (NSW) 1900, which states:

1. A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

2. A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—

  • 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 he or she perceives them.

Self-defence must be raised by the accused to the balance of probabilities and the prosecution then has to prove beyond a reasonable doubt that the accused was not acting in self-defence.


The common law defence of necessity operates where circumstances (natural or human threats) bear upon the accused, inducing the accused to break the law to avoid even more dire consequences.

The defence of necessity will succeed if:

  1. the commission of the crime was necessary, or reasonably believed to have been necessary, for the purpose of avoiding or preventing death or serious injury to himself or herself, or another, and
  2. that necessity was the sine qua non of the commission of the crime, and
  3. the commission of the crime, viewed objectively, was reasonable and proportionate, having regard to the evil to be avoided or prevented.

The accused bears the evidential burden to establish a basis for the defence of necessity.


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:

1. because of threats of death or really serious injury to them or a member of their family, and
2. 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.

Where duress is raised the onus is on the Crown to prove beyond reasonable doubt that the accused was not acting under duress.

Lawful Correction

An accused charged with common assault or common assault dv t2 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:

  1. the force was applied by a parent or person acting as the parent of the child, and
  2. the application of the force was reasonable in the circumstances.

The defence of lawful correction is contained in section 61AA Crimes Act (NSW) 1900.

Facing assault charges can be daunting, but understanding the available defences is a critical step in dealing with the matter. Defendants must work closely with an experienced common assault lawyer to build a strong and effective defence strategy. It is crucial to remember that each case is unique, and seeking professional legal guidance tailored to the specific circumstances is essential for a comprehensive defence.

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