The Law, Defences and Penalties for the Offence of Common Assault

by Ugur Nedim & Sonia Hickey
High School

A male teacher from an exclusive private school in Queensland has pleaded guilty to common assault after shoving a female student in the back with his foot.

On 11 October 2021, 41-year old Travis Templar was employed as a teacher at A.B. Patterson College on the Gold Coast when he saw the student throw bread crusts into a garden bed at the school.

He directed the girl to pick up the crusts and, when she leaned down to comply with his direction, the teacher used his foot to drive her into the garden bed while stating “whoop” and laughing.

The teacher considered the conduct to be “friendly banter”, but the girl did not see it that way and complained to the school’s principal, who reported the matter to police.

The student described feeling “shaky” and “anxious”, stating “I never thought a teacher would have the guts to do that”.

She says that, “after the incident then the bell rang to go back to the next class… because I kinda just wanted to forget about it because I had maths up next”.

The teacher was suspended before later having his position terminated by the school.

The student told the police in her statement to police two weeks after the incident, “It makes me feel really anxious if I see him, because he lives on the Gold Coast, because he lives near where I live”.

Plea of guilty

Mr Templar was charged with one count of common assault and pleaded guilty to that offence in Southport Magistrates’ Court on Monday, 27 June 2022.

During the sentencing hearing, presiding Magistrate Jane Bentley said to the defendant, “There is no doubt your behaviour was inappropriate but I accept it was not committed out of malice or anger”.

Her Honour heard that Mr Templar was otherwise a person of good character, having never previously committed a criminal offence, and that he was an “exemplary teacher” slated for a promotion.

The defendant’s lawyer submitted that the “last thing… [his client] wanted to do was to hurt a student”, adding “he accepts his actions were entirely inappropriate”.

A letter of apology and fifteen character references were handed-up to the court which outlined the former teacher’s acceptance of responsibility, his genuine remorse and his otherwise exceptional standing within the community.

Her Honour ultimately imposed a six month good behaviour bond on Mr Templar without recording a criminal conviction against his name.

A former teacher has pleaded guilty to one count of common assault after using his foot to push a child. 

The Southport Magistrates Court has heard that Travis Templar, a former teacher at one of the Gold Coast’s most exclusive private schools, put his foot on the back of a girl as she bent down to pick up her own rubbish from a garden bed at the school. 

According to court testimony, the teacher told the girl to pick up sandwich crusts she had thrown into the garden. As she did so, he put his foot on her back and pushed her saying ‘Whoop’. 

What is a common assault?

A common assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence, or strikes, touches or applies force to another, without legal justification. It cannot be a mere omission.

There does not need to be an intention or power to use violence; it is enough for the other person to believe on reasonable grounds that there is an imminent danger of it.

Any injury caused must be no more than ‘transient or trifling’. If it is more serious, another assault charge will be more appropriate; such as assault occasioning actual bodily harm, reckless wounding or causing grievous bodily harm, or intentional wounding or causing grievous bodily harm.

The offence of common assault in New South Wales 

Common assault is an offence under section 61 of the Crimes Act 1900 (NSW) which carries a maximum penalty of 2 years in prison and/or a fine of $5,500.

To establish the offence, the prosecution must prove beyond a reasonable doubt that:

  1. The defendant committed an act which caused another to apprehend immediate and unlawful violence, or struck, touched or applied force to the other person,
  2. The other person did not consent to the conduct, and
  3. The conduct was intentional or reckless.

The defendant must be acquitted if the prosecution is unable to prove any of these elements to the required standard.

Examples of common assault

The following types of conduct may amount to a common assault:

  • Striking another person without causing any, or any significant, injuries,
  • Threatening immediate violence in such a way the other person believes the threat will be carried through; for example, saying ‘I’m gonna punch you in the face’ while raising a fist and/or moving towards the other person and/or displaying a threatening or angry demeanour,
  • Striking at a person with a fist or object, whether or not contact is made,
  • Throwing an object towards a person, whether or not contact is made,
  • Spitting at another person, whether or not contact is made, and
  • Pushing an animal or other conveyance that the other person is on and thereby causing the other person to fall off.

What are the defences to common assault?

The legal defences to common assault include:

  1. Self-defence

Self-defence the most frequently used defence to common assault charges.

The defence is embodied in section 418 of the Crimes Act 1900 (NSW) which provides that:

“A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) 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.”

As outlined, the defendant’s conduct must have been both necessary to defend him or herself, another person/s or property, and reasonable as he or she saw the situation.

  1. Duress

Duress is where a person is forced into committing a crime.

A person will be acting in duress where his or her actions were performed as a result of implied or express threats of death or really serious injury.

The threats must be such that person of the same maturity and sex as the defendant, and in the same position, would have given in to them.

The defendant will have a defence of duress if three questions are answered in the affirmative:

  1. Were there threats which drove the defendant to genuinely believe he or she would soon be killed or seriously harmed if the assault was not committed?
  2. Would the threats have driven a reasonable person to act in that way?
  3. Could the defendant have avoided committing the assault by escaping from the threats without damage to him or herself?
  1. Necessity

There is an overlap between the defences of duress and necessity, in so far as they both involve breaking the law to avoid even more serious consequences.

The defendant will have a defence of necessity if the following three factors are present:

  1. The assault was necessary, or reasonably believed necessary, to avoid or prevent death or serious injury;
  2. Avoidance or prevention of death or serious injury was the reason for committing the assault;
  3. The assault, viewed objectively, was reasonable and proportionate, having regard to the avoidance or prevention of danger or death.

An example might be pushing people out of the way to escape from an assailant.

  1. Consent

A defence to common assault is that the other person consented to the conduct.

Common examples include implied consent in sport, surgery and medical treatment.

In the context of sport, players can only consent to assault and injury within the rules of the game – for example, tackling another player in a footy game will not be an assault. However, the use of excessive and unnecessary violence may still amount to an assault.

In terms of surgery and other medical treatment, the procedure must be within the contemplation of the patient – anything beyond this case expose the practitioner to criminal liability.

  1. Exigencies of everyday life

In addition, a person will not be guilty of assault if the physical contact was accidental or an acceptable part of daily life.

  1. Lawful correction of a minor

Lawful correction of a minor is a defence contained in section 61AA of the Crimes Act 1900 which states that you are not criminally responsible for an offence arising from applying physical force to a child if:

  1. You were the child’s parent or were acting for the child’s parent
  2. You applied force to punish the child, and
  3. The force was reasonable

A ‘child’ is a person under the age of 18 years.

A person ‘acting for a parent’ is:

  1. The child’s step-parent, or the parent’s de-facto partner or relative, or a person to whom the parent has entrusted the child’s care, and
  2. Who the parent authorises to use physical force to punish the child

In the case of Indigenous persons, a person acting for a parent includes a person recognised by the Indigenous community as having special responsibilities towards the child.

The factors relevant for determining whether the force was ‘reasonable’ are:

  1. The child’s age, health, maturity and other characteristics
  2. The nature of the alleged misbehaviour, and
  3. Any other relevant circumstances

Physical force that is more than trivial or negligible is not reasonable where applied to:

  1. The child’s head or neck, or
  2. Any other part of the child where the harm is likely to last more than a short period of time.

What one may find a joke, another may find hirtful

Mr Templar’s case attests to the fine line that many believe exists between what one person might consider to be ‘joking around’ and what another person finds incredibly offensive or threatening.  

With this in mind, bullying has been on the rise in recent years, with statistics showing that taxpayers are footing the bill for compensation claims by teachers and students suffering psychological damage at schools. The most recent figures show that bullying and harassment cost the NSW state government more than $7 million between 2014 and 2017.

There are serious concerns that issues around intent, consent and personal boundaries need to be better addressed  – both within the school environment and at home.  

Charged with common assault?

If you are going to court for a common assault charge, call us anytime on 9261 8881 to arrange a free first conference where one of our experienced criminal defence lawyers can advise you of your options and the best way forward.

Receive all of our articles weekly

Authors

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 24 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

Your Opinion Matters