A common assault is any unauthorised touching, or act that causes another to apprehend immediate unlawful violence.
The offence of common assault is contained in section 61 of the Crimes Act 1900.
To be found guilty of common assault, the prosecution will need to prove the following four matters beyond a reasonable doubt:
1. That there was an act by the defendant which intentionally, or recklessly, caused another person to apprehend immediate and unlawful violence.
2. That such conduct occurred without the consent of the complainant.
3. That such conduct was intentional or reckless in the sense that the defendant 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.
4. That such conduct was without lawful excuse.
When is a common assault charge used?
A charge of common assault will normally be brought when there is no injury caused, or where any injury is no more than ‘transient or trifling’; in other words, every minor.
If a more significant injury is caused, the prosecution may bring one of the following charges.
- Assault occasioning actual bodily harm.
- Wounding or grievous bodily harm with intent.
- Reckless grievous bodily harm or wounding.
When can I charged with common assault?
A common assault can occur without any touching at all; the other person need only apprehend immediate and unlawful violence.
For example, if you feint towards someone suggesting an imminent punch or attack, that act alone amounts to an assault if the person to whom it was directed feared violence. It does not matter that you did not actually carry out a physical attack.
The following acts have been found to amount to an assault:
- Striking at a person with a stick or a fist, even though there is no contact,
- drawing a weapon such as a knife or throwing a bottle or glass with intent to wound or strike; or any other like act indicating an intention to use violence against another.
- Striking a horse and causing the rider to fall ie an indirect act that causes immediate injury.
- An unlawful imprisonment, including detention of a child after school hours by a master, without lawful authority.
Penalties for common assault
The maximum penalty for common assault is a fine of up to $5,500, and/or a maximum prison sentence of two years.
Sentencing for this offence varies, you can alternatively face a good behaviour bond, a fine, or avoid a criminal record altogether if there are good reasons for dealing with you in that manner.
Convictions can have an ongoing impact on your personal life, travel or business, so it’s a good idea to get specialist legal advice as soon as possible.
A good defence lawyer can advocate for your interests in order to have the charge withdrawn or thrown out of court if you wish to plead not guilty, or push to avoid a criminal record altogether if you wish to plead guilty.