The Offence of Common Assault in NSW: Section 61 of the Crimes Act 1900

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Waverley courthouse

It has been reported that former German soccer international, and Liverpool and Newcastle Premier League midfielder, Dietmar Hamann was arrested on Friday night after an altercation with his girlfriend at a home in Bronte.

The 45-year old was charged with common assault and an application was made against him for an apprehended domestic violence order (ADVO), before he was released from the police station on bail.

Police were called once again to the premises just hours later, arresting Mr Harmann at 2.15am on Saturday morning and charging him with contravening the ADVO.

The former soccer star, who enjoyed a stellar professional career in Europe, was refused police bail over allegations of striking his girlfriend and appeared before Magistrate Michael Price later that morning.

He was ultimately granted bail on condition that he surrenders his passport and reports to Waverley Police Station each Monday and Friday.

The case is next listed before Waverley Local Court on Thursday, 27 June 2019.

The offence of common assault in New South Wales.

Common assault is an offence under section 61 of the Crimes Act 1900 (NSW), which states that:

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

What does the offence involve?

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.

Case study

In the case of Zanker v Vartzokas (1988) 34 A Crim R 11, a young woman accepted a lift from a man in a van. While travelling, the driver offered the woman money in exchange for sexual favours. The woman refused.

The driver began steadily accelerating and the woman demanded to be let out of the vehicle. The man then stated, “I’m going to take you to my mate’s house. He will really fix you up.”

The woman jumped out of the van while it was travelling at a speed of approximately 60km/h, and was injured.

The court found that the man’s actions were sufficient to constitute an assault because “so long as she was imprisoned by the defendant… [a] present fear of relatively immediate imminent violence was instilled in her mind from the moment the words were uttered and that fear was kept alive in her mind, in the continuing present, by continuing progress, with her as prisoner, towards the house where the feared sexual violence was to occur”.

What does the prosecution have to prove?

To establish the offence of common assault, the prosecution must prove each of the following four elements (or ingredients) beyond a reasonable doubt:

  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,
  3. The conduct was intentional or reckless,
  4. The conduct was without lawful excuse.

The defendant must be acquitted if the prosecution is unable to prove any of the 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?

There are a range of legal defences to assault charges which, if raised by the defence and not refuted beyond a reasonable doubt by the prosecution, will lead to an acquittal.

These 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?
  4. 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.

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.

Can I smack my child?

In the context of disciplining children, section 61AA of the Crimes Act 1900 (NSW) contains the defence of ‘law correction’ which provides that a parent, or person acting in place of a parent, is not guilty of assaulting a child if the force was applied for the purpose of punishment and ‘was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances’

The defence is not available where the force was applied to any part of the head or neck of the child, or to any other part of the body in such a way as to be likely to cause harm that lasts for more than a short period.

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.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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