Understanding the Law of Common Assault – What to Know.

Being charged with any assault charge can be a daunting experience, and a person who finds themselves before the Courts for an assault may be surprised to learn how broad the kinds of conduct that may amount to an assault can be.

Assault cases range from relatively low levels of severity to extremely violent. Regardless of the degree, however, all cases of assault require expert legal advice from a criminal lawyer to know where you stand and what options are available to you, as these cases are usually not as straightforward as they may seem at first glance.

Such is the case when a person is charged with a common assault charge, which is the lowest level of seriousness for an assault offence. If you are accused of common assault, it is important for you to know the pertaining laws that surround it and to get legal advice as soon as possible.

We will walk you through what you need to know in the sections below.

What constitutes common assault?

In the often-cited decision of Edwards v Police (SA) (1998) 71 SASR 493, the following elements or ingredients of an assault offence were explained by the Court:

1. The physical element (actus reus) of an assault where there is no actual physical contact is an act of the defendant raising in the mind of the victim the fear of immediate violence to him, that is to say, the fear of any unlawful physical contact.
2. The mental element (mens rea) of an assault is the defendant’s intention to produce that expectation in the victim’s mind.
3. Alternatively, a reckless assault can occur where the defendant whilst not desiring to cause such fear realises that his conduct may do so and persists with it.

So, a common assault can be any act causing the alleged victim to fear immediate violence, with that act having been performed either intentionally or recklessly.

Some examples of what may be considered a common assault include:

1. Punching, kicking or pushing another person without causing actual bodily harm.
2. Attempting to strike at a person even when no physical contact occurred in such a way that caused the victim to fear immediate violence.
3. Pointing a loaded firearm at a victim (Pemble v The Queen).
4. Spitting at a person (Neal v The Queen).

To prove that common assault took place, the prosecution must prove beyond a reasonable doubt the following:

1. That there was an act by the defendant which caused the victim to fear immediate violence to them.
2. That the act was carried out either intentionally or recklessly.
3. That the assault took place without the consent of the victim
4. That the defendant had no lawful excuse to assault the victim

What is the punishment for common assault?

The maximum available penalty for common assault offences charged in the Australian Capital Territory pursuant to Section 26 of the Crimes Act 1900 (ACT) or charged in New South Wales pursuant to Section 61 of the Crimes Act 1900 (NSW) is imprisonment for up to two years.

A court could impose any of the following penalties upon the recording of a criminal conviction:

1. Imprisonment (suspended sentence (ACT only) or to be served full-time)
2. An intensive correction order;
3. A community corrections order (NSW only)
4. A community service order;
5. A good behaviour order;
6. A fine.

A court may also consider that it has power to find a common assault offence proven but nonetheless dismiss the charge without proceeding to record a conviction pursuant to Section 17 of the Crimes (Sentencing) Act 2005 in the Australian Capital Territory or pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999 in New South Wales.

The possibility of not only having a conviction recorded on your criminal record but also facing some sort of penalty is a scary prospect for most people who find themselves before the Courts. Even a criminal conviction can severely impair a person’s ability to find employment and travel.

What to Do If You Are Facing Charges

In the event that you are are facing common assault charges, your best recourse is to obtain urgent legal advice.

When you meet your lawyer, don’t just start telling your story. Let your lawyer ask you questions because a good criminal lawyer knows the right questions to ask in order to find out the information they need to advise you properly. What you tell your lawyer may make it harder for them to defend you properly if you say too much.

Conclusion

If you have been charged with common assault, you will need the help of an expert criminal lawyer who is capable of getting you the best possible outcome.

Despite being the least serious assault offence somebody can be charged with, common assault is treated very seriously in the Australian Capital Territory and New South Wales, and we would be more than happy to guide you through the Court process and advise you what you need to do next.

We are leading criminal lawyers serving Canberra, Queanbeyan, Goulburn, Wollongong, Yass, and surrounding locations in Australia. Get in touch with us today if you need expert legal advice in your criminal case.