Assault offences are some of the most charged offences in New South Wales. In a large part, this is due to the broad scope of what constitutes assault.

The seriousness of the assault varies substantially and so many factors vary from case to case. There are a number of offences that a person may be charged with relating to an alleged assault.

They include:

  • Common Assault
  • Assault occasioning Actual Bodily harm
  • Recklessly causing Grievous Bodily Harm & Wounding offences
  • Assault causing death
  • Aggravated assault causing death

COMMON ASSAULT

THE OFFENCE

Section 61 of the Crimes Act 1900 (NSW) provides an offence of an assault that does not result in bodily harm. This is called common assault. The prosecution must prove the following elements beyond a reasonable doubt in order to convict a person of this offence:

  • That the accused person acted in a way that either:
    • Actually inflicted unlawful force upon another person; OR;
    • Caused another person to fear immediate and unlawful personal violence
  • That the conduct was without the consent of the other person
  • That the conduct was carried out either:
    • Intentionally OR;
    • Recklessly
  • That the conduct was without a lawful excuse

WHAT IS AN ASSAULT?

As suggested by the first element, the term ‘assault’ goes beyond that of the application of force and extends to recklessly causing the imminent apprehension of violence (The Queen v Phillips (1971) 45 ALR 467).

COMMON EXAMPLES OF COMMON ASSAULT

  • A punch, slap, push or kick where no injury occurs as a result of the contact; or
  • Spitting on another person
  • Making a threat to hurt another person

ASSAULT OCCASIONING ACTUAL BODILY HARM

THE OFFENCES

Section 59 of the Crimes Act 1900 (NSW) provides two different offences related to Assault occasioning actual bodily harm (‘ABH’).

  • Assault occasioning actual bodily harm – Section 59(1) Crimes Act 1900 (NSW)
  • Assault occasioning actual bodily harm in company – Section 59(2) Crimes Act 1900 (NSW)

For both offences, the prosecution is required to prove the following beyond reasonable doubt:

  • That the accused person acted in a way that either:
    • Actually inflicted unlawful force upon another person; OR;
    • Caused another person to fear immediate and unlawful personal violence
  • That the conduct was without the consent of the other person
  • That the conduct was carried out either:
    • Intentionally OR;
    • Recklessly
  • That actual bodily harm was caused as a result of the assault.
  • (For the section 59(2) offence) – the assault occurred in company
  • That the conduct was without a lawful excuse

WHAT IS ACTUAL BODILY HARM?

So, what is ABH? Two principles guide the understanding of what may constitute ABH:

  • ABH is taken to include any hurt or injury calculated to interfere with the health or comfort of the victim (R v Lardner (unreported NSWCCA 10/9/98)).
  • the injury must be something more than transient or trifling but less than grievous bodily harm (McIntyre v R (2009) 198 A Crim R 549 at [44]. Typical examples of injuries that amount to ABH would be deep scratches or bruises.

Once again, the definition of assault extends beyond the actual infliction of unlawful force and it, in theory, does extend to the imminent apprehension of unlawful force.

The obvious difficulty is, how can a person cause ABH without actually inflicting unlawful force? The answer to that is that serious psychological injury may in some circumstances amount to ABH (Li v R [2005] NSWCCA 442 at [45]. Consequently, the imminent apprehension of unlawful force may in rare circumstances be acknowledged to constitute ABH.

COMMON EXAMPLES OF ASSAULT OCCASIONING ABH

  • A punch, slap, push or kick where a scratch or bruise occurs as a result of the conduct
  • A punch, slap, push or kick where no scratch or bruise occurs as a result of the conduct, but serious psychological injury occurs as a result of the conduct
  • A threat of a serious nature where a serious psychological injury occurs as a result of the conduct

RECKLESSLY CAUSING GRIEVOUS BODILY HARM & WOUNDING OFFENCES

THE OFFENCES

Section 35 of the Crimes Act 1900 (NSW) provides four offences related to assault occasioning Grievous bodily harm (‘GBH’) or wounding.

  • Recklessly causing grievous bodily harm in company – section 35(1) Crimes Act 1900 (NSW)
  • Recklessly causing grievous bodily harm – section 35 (2) Crimes Act 1900 (NSW)
  • Recklessly wound in company – section 35(3) Crimes Act 1900 (NSW)
  • Reckless wounding – section 35(4) Crimes Act 1900 (NSW)

For all four offences, the prosecution must prove the following beyond reasonable doubt:

  • That the accused acted in a way which either;
    • Inflicted grievous bodily harm on another person; or
    • Caused a wound
  • The conduct was caused by the accused person’s recklessness
  • (For the section 35(1) & 35(3) offences) – the assault occurred in company

Further to this, Section 33 of the Crimes Act 1900 (NSW) provides an offence for either:

  • Intending to cause GBH
  • Intending to resist arrest

and wounding or causing GBH to any other person.

For this offence, the prosecution must prove the following:

  • That you acted in a way which either:
    • Inflicted grievous bodily harm on another person; or
    • Caused a wound
  • The conduct was intentional or you intentionally resisted arrest

WHAT IS GRIEVOUS BODILY HARM?

GBH is defined by section 4(1) of the Crimes Act 1900 (NSW), it includes any permanent or serious disfigurement of the person, the destruction of a foetus and any grievous bodily disease”. It is not limited to this and may also extend to a grievous bodily disease.

WHAT ARE COMMON EXAMPLES OF ASSAULT OCCASIONING GBH?

  • A punch, slap, push or kick where a broken tooth, bone or internal bleeding results from the conduct.
  • The reckless infection of another person with a potential life-threatening sexually transmitted infection.

WHAT IS WOUNDING?

Wounding is not defined by the Crimes Act 1900 (NSW), but the courts have defined it as follows:

  • It involves the breaking of the skin (R v Sheppard [2003] NSWCCCA 351 at [31]).
  • Even if the breaking of the skin is small or insignificant, the definition is still satisfied (R v Hooper [2004] NSWCCA 10 at [36]).
  • It need not be caused by a weapon (R v Sheppard [2003] NSWCCA 351 at [32]

WHAT ARE COMMON EXAMPLES OF WOUNDING

  • A punch, slap, push, scratch or kick that results in a breaking of the skin such as a busted lip or a cut.
  • The reckless use of a knife or other sharp object results in a breaking of the skin such as a busted lip or a cut.

ASSAULT CAUSING DEATH & AGGRAVATED ASSAULT CAUSING DEATH

THE OFFENCES:

Since 2014, Section 25A of the Crimes Act 1900 (NSW) has prescribed two offences for Assault causing death.

  • Assault causing death – Section 25A(1) Crimes Act 1900 (NSW)
  • Aggravated assault causing death – Section 25A(2) Crimes Act 1900 (NSW)

For both offences, the prosecution is required to prove the following beyond reasonable doubt:

  • That the accused person assaulted another person:
  • The assault was by hitting another person with any part of the accused person’s body or an object held by the accused
  • The assault was not authorised or executed by law
  • The assault caused the other persons death
  • (For the s 25A (2) offence) the person was 18 years or older AND was intoxicated at the time of the assault.

ASSAULT CHARGES PENALTIES

A total of ten offences are listed above relating to various different assault offences, each offence carries with it a different penalty. For all offences dealt with in the local court, the maximum penalty is 2 years imprisonment. For matters dealt with in the District or Supreme Court (on indictment), the maximum penalty is as displayed below.

Offence

Summarily dealt with

Dealt with on Indictment

Common Assault

2 years imprisonment; AND/OR

$5,500 fine

2 years imprisonment

Assault ABH

2 years imprisonment; AND/OR

$5,500 fine

5 years imprisonment

Assault ABH in Company

2 years imprisonment; AND/OR

$5,500 fine

7 years imprisonment

Reckless infliction of GBH

2 years imprisonment; AND/OR

$5,500 fine

10 years imprisonment (Standard Non-parole period 4 years)

Reckless infliction of GBH in company

2 years imprisonment; AND/OR

$5,500 fine

14 years (Standard Non-parole period 5 years)

Reckless wounding

2 years imprisonment; AND/OR

$5,500 fine

7 years imprisonment (Standard non-parole period 3 years)

Reckless wounding in company

2 years imprisonment; AND/OR

$5,500 fine

10 years imprisonment (Standard non-parole period 4 years)

Wound or inflict GBH with intent to cause GBH or resist arrest

N/A

25 years imprisonment (Standard non-parole period 10 years)

Assault causing death

N/A

20 years imprisonment

Aggravated Assault causing death

N/A

25 years imprisonment

The maximum penalties are reserved for the “worst category” of offenders (Veen v The Queen (No 2) (1988) 164 CLR 465 at 478) and are not commonly utilised by the court. A court has the discretion to sentence an offender in accordance with the Crimes (Sentencing Procedure) Act 1998 (NSW).

ASSAULT CHARGES DEFENCES

DURESS

The defence of duress is available in circumstances where the accused person is threatened in a way where they are forced to commit a crime against their will. It requires four things to be shown, once the defence is raised, the prosecution must disprove beyond reasonable doubt that the defendant was not acting under duress:

  • An actual threat was made to the accused
  • The threat was serious enough to justify the accused’s actions
  • The threat was acting on the mind of the accused at the time of the offence
  • The threat was continuing

NECESSITY

The defence of necessity is available in circumstances where the accused is incited in some way (often by a threat or identification of potential harm) to break the law to avoid even more dire consequences. The defendant must show the following (R v Loughnan [1981] VR 443 at [448]:

  • The criminal act must have been done in order to avoid consequences of irreparable evil upon the accused or others whom they were bound to protect
  • The accused must honestly have believed on reasonable grounds that they were placed in a situation of imminent peril; and
  • The acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided

SELF DEFENCE

The accused must show two things, firstly that there is a reasonable possibility that the accused genuinely believed in the circumstances their conduct was necessary for any of the following reasons:

  • To defend themselves or another person
  • To prevent or terminate the unlawful deprivation of their liberty
  • 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 trespass

Secondly, the accused’s response must be reasonable in the circumstances as they perceived them taking into consideration things such as the circumstances of the encounter, the age, gender, health etc. of the defendant/alleged victim. Once self-defence is raised, the prosecution must prove beyond reasonable doubt that the accused did not act in self-defence.

LAWFUL CORRECTION

In criminal proceedings against a person arising out of the application of physical force of a child, a person has a legal defence if the force was applied for the purpose of the punishment of the child, so long as

  • The physical force was applied by the parent of the child or person acting as the parent of a child; and
  • The application of force was reasonable having regard to the age, health maturity and other characteristics of the child and nature of the behaviour of the child.

The application of force is not reasonable if it is applied to any part of the head or neck of the child or is likely to cause harm to the child for more than a short period.

OFFENCES OFTEN ASSOCIATED WITH ASSAULT OFFENCES

In addition, a person may also be charged with other offences which are often associated with assault offences. They include:

  • Affray
  • Riot
  • Stalk/Intimidate
  • Use carriage service to threaten, harass, offend or menace
  • Choke, Suffocate or Strangulation without consent
  • Assault police officer in the execution of duties
  • Destroy/damage property

Next Steps

It can be very stressful and upsetting being charged with common assault, but you can rest easy and trust the experienced defence team at Australian Criminal Defence to go above and beyond to ensure that you get the best possible outcome in your case.

Why Choose Australian Criminal Defence?

When charged with a criminal offence, it can be one of the most daunting experiences of your life and going to court often requires you to have a capable and dedicated legal team behind you that can guide you throughout your court proceedings.

Australian Criminal Defence offer our clients a very high level of client satisfaction and provide our clients with regular updates regarding their cases.

We are passionate about providing our clients with the highest levels of service. Our law firm offers our clients fixed fees so our clients know exactly what they will pay for their matter on the very first conference with our team.

Providing fixed fees early ensures transparency in our client relationships and allows our clients to make the best decision about which legal representation they choose. Australian Criminal Defence are specialist lawyers in criminal law and have gained their experience having appeared before all courts at all levels in all jurisdictions in Australia.

Each of our lawyers appears before courts on a daily basis and have done so for over 10 years. Our criminal defence lawyers are familiar with the Magistrates and Judges and have earned the respect of the bench over many years.

Australian Criminal Defence work only with the most respected and qualified team of barristers and brief the most reputable experts who are often engaged to provide assistance on our matters.

Assault Charges Case Studies

  • Our client was charged with 11 counts of common assault. Our client denied the allegations. The matter proceeded to a defended hearing at the Downing Centre Local Court. After a two day hearing the magistrate dismissed all charges.
  • Our client was charged with the assault occasioning actual bodily harm.  Our client denied the allegation. The matter proceeded to a defended hearing  Waverley Local Court. After a one day hearing the magistrate agreed with our team that the prosecution failed to prove their case. The charge was dismissed.
  • Our client was charged with recklessly causing grievous bodily harm and assualt occasioning actual bodily harm. Our client denied the allegation. The matter proceeded to a defended hearing at Blacktown Local Court.  After a one day hearing the magistrate dismissed both charges.

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