The Offence of Common Assault in NSW

Two women have been charged with common assault and using offensive language after they allegedly attacked a man near a bus stop on Gadigal land in the Sydney CBD.

Officers attached to the Sydney City Police Area Command received a report that the women made offensive remarks towards the man at a bus stop in Haymarket at about 3am on Saturday, 25 July 2026.

The 29-year-old man was reported to have been standing at the bus stop near the intersection of Pitt and Barlow streets. The women, aged 26 and 33, are alleged to have then physically attacked the man.

The pair then left the scene on foot, while the man was left behind, having sustained facial injuries during the attack.

Following an investigation, the two women were arrested by NSW police officers at Day Street Police Station at around 2pm on Saturday, 1 August 2026. They were each charged with one count of common assault and another of using offensive language in a public place.

The women were granted conditional bail at the police station and made their initial appearance before Downing Centre Local Court on Wednesday, 2 September 2026.

The offence of common assault

Common assault is an offence contained in section 61 of the Crimes Act 1900 (NSW), which is titled “common assault prosecuted by indictment”. It is an indictable offence which means it is capable of being tried in a higher court, such as the District Court, although when charged by itself or with another less-serious offence such as offensive language is almost always finalised in the Local Court. 

The reason that the indictable offence of common assault is most often dealt with summarily in the Local Court is that it is listed as a table 2 offence, under schedule 1 of the Criminal Procedure Act 1986 (NSW). And table 2 offences are tried summarily in the Local Court unless the prosecution opts for them to be pursued in a higher court, such as the District Court

For the prosecution to establish that the women committed common assault against the man, it must prove beyond a reasonable doubt that they intentionally or recklessly caused the man to feel immediate fear or apprehension of physical violence, or struck or made actual physical contact with him – other than contact expected to occur in everyday life – and also that the man did not consent to the conduct.

So, the offence of common assault can occur without any actual physical contact or injury, it is enough that the other person was intentionally or recklessly made to fear or apprehend immediate physical violence.

A person is reckless if they foresaw that their conduct could cause the other person to fear or apprehend immediate physical violence but went ahead regardless.

Examples of common assault include striking or slapping another without causing significant injury, threatening violence so that the other person takes it seriously, attempting to punch or hit a person with an object regardless of any contact, throwing objects regardless of contact, spitting at another, as well as pushing over a conveyance that the other person is on.

Defence against common assault

The legal defence that gets raised against common assault most often is self-defence, which is contained under section 418 of the Crimes Act. The defence involves the accused claiming that the alleged victim actually threatened or committed violence against them or another initially, and therefore, their actions were justified as they were attempting to protect themselves or the other.

The defence of duress can also be raised to counter a charge of common assault, and it comprises of the accused claiming that they committed their alleged criminal acts, after they’d been threatened or coerced into doing so, via the threat of harm being committed against themselves or a loved one.

Necessity is another defence that can be raised against common assault. It involves the accused claiming that the acts that they’ve subsequently been charged in relation to were perpetrated in an attempt to prevent a greater peril from happening. So, if the two women assaulted the man near the bus stop in an attempt to stop him blowing up a building full of people, this defence may hold.

A further defence that can be raised and the last on this non-exhaustive list is the defence of lawful correction of a minor. This legal defence is set out in section 61AA of the Crimes Act. It can be argued in cases where a parent has committed an act against a child that’s been deemed assault, but the accused argues that it rather comprised of reasonable force that a parent might apply to a child.

Assault and battery

The term “assault and battery” has fallen out of common parlance over recent decades. Under common law, assault and battery comprises of two separate offences.

Assault then means actions causing another to feel apprehension of immediate physical violence, whilst battery is the offence of inflicting actual unlawful force.

However, both battery and assault were incorporated under the one offence of common assault within the first major piece of legislation that consolidated criminal offences in statute law in the colony of NSW, which was the Criminal Law Amendment Act 1883 (NSW).

Common assault was then more concisely set out in the Crimes Act 1900, when it passed both houses of NSW parliament over August and September 1900.