Understanding the Common Assault Law


We are all aware that physically attacking other people is a criminal offense, but how far can one get away with playground taunts, verbal threats, or a little rough and tumble action? If you aren’t aware of the common assault law in New South Wales, it’s time to educate yourself on what the law constitutes to dodge clear of any legal issues arising from petty brawls (even ones that didn’t actually happen). Here’s what you need to know about the laws on common assault to stay on the right side of the legal system.

The layman definition for common assault is that it can be explained as a minor attack that does not do significant harm or the threat of such an attack. Any assault cases which actually result in actual bodily harm will in most cases fall under more serious charges, so common assault isn’t a law that most people are well-acquainted with. But there are instances when it does come into play, and rightfully so. Common assault law exists to protect people from milder cases of assault that aggressors often get away with, and it covers any act that fulfills four defining criteria.

What classifies as common assault?

A case for common assault arises when four criteria can be proven logically (or in law terms, beyond a reasonable doubt). We will break down the criteria into simpler terms so you have a better idea of what counts as common assault.

First of all, there has to be an act of violence. This can be either tangible, such as a direct hit or even the act of spitting, or it can even be the threat of action. For example, raising a fist in an attack counts as a threat, even if there is no actual physical contact. Verbal threats of physical violence count as well, when they are said in conjunction with threatening actions such as shoving or other aggressive behavior.

Secondly, for an act to fall under a case of common assault, the person being attacked or threatened has to be unconsenting towards this attack. These criteria may sound absurdly obvious, but it means that the law does not apply to cases where the victim is participating in sports of a rougher nature, such as rugby, in which case the nature of the game makes aggressive behavior consensual.

The third criteria for an act to be classified as common assault pertains to the motive behind the act — it has to be either committed with intent or recklessness. The fourth and final criterion is that the act cannot have any lawful excuse behind it.

While not many of us in New South Wales may know of the common assault law, the criteria for a case to be invoked under the law are clear and simple to understand. It’s clear that mild acts of aggression such as a small push and shove along a school hallway or in a bar could probably get one charged for common assault, but the issue will lie in proving the four criteria. When the term “beyond a reasonable doubt” is used, you can generally expect that the proof has to be solid enough for the case to take hold. Naturally, the next question that arises is: what happens when one is actually convicted for common assault?

How common assault cases are handled

The law for common assault is codified under Section 61 of the Crimes Act 1900 (NSW) and the maximum penalty stated is two years’ imprisonment, or a fine of up to $5000, or both. But the actual penalties tend to be of a more rehabilitative nature, with sentences often including community correction orders.

The hearing of common assault cases takes place in Local Courts, where the case will be heard before a magistrate, regardless of whether the accused pleads guilty or not. From there, the case can either be settled within the Local Court or escalated to a District Court where a judge will hear the case when the accused pleads guilty. A jury will only be called in if the accused pleads not guilty.

While the proof arguing for common assault cases is usually airtight in order for the case to even land, there are a number of ways in which an accused can defend himself or herself and plead not guilty.

Defense against Common Assault

There are four defenses that one can use to plead not guilty when accused of common assault. The first and most frequently used defense is that of self-defense, which is quite self-explanatory though it must be noted that in order for the defense to work, self-defense has to be both necessary and reasonable in the context of the common assault. Self-defense can apply to protect oneself, someone else, or a property.

The next defense is that of duress. An act will not be considered common assault if the perpetrator of the act was forced to commit the act under threats to his or her safety. The conduct has to be strictly logical for a person under such circumstances in order for this defense to be invoked.

The third defense is that of necessity, which is similar to duress except instead of acting under threats to his or her safety, the perpetrator committed the common assault act in order to prevent more serious consequences such as injury or death to either the perpetrator or the victim of common assault.

The final defense is that of consent, which links back to the four criteria needed for a common assault case to be considered in court. For example, participating in sports that involve some elements of roughing up will be considered consent.

Staying on the Right Side of the Common Assault Law

The NSW common assault law is a pretty straightforward one to understand, but the legal outcomes of every case always depend on circumstances. Reaching out to a criminal lawyer for advice is always the best way to get more insightful advice on how to deal with the law if you are ever charged with it.

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