- It is a criminal offence to assault someone
- You can be found guilty of assault if you use force against another person or threaten force against another person
- Depending on what form of assault you have been charged with, you may face a fine, imprisonment, or both
- There are very limited circumstances where assault is lawful
In New South Wales, an act of assault is considered a criminal offence. There are various forms of assault that a person can be charged with, all of which are set out in the Crimes Act 1900 (NSW). The various offences of assaults committed against a person and the associated maximum penalties are set out below:
|What type of Assault?||Where is it in the Crimes Act?||Which Court?||What is the Maximum Penalty?|
|Common Assault||Section 61||Local Court||Imprisonment for 2 years and/or a fine of 50 penalty units|
|Common Assault||Section 61||District Court (upon election by the prosecution)||Imprisonment for 2 years|
|Assault Occasioning Actual Bodily Harm||Section 59||Local Court||Imprisonment for 2 years and/or a fine of 50 penalty units|
|Assault Occasioning Actual Bodily Harm||Section 59||District Court (upon election by the prosecution)||Imprisonment for 5 years|
|Assault Occasioning Grievous Bodily Harm||Sections 33 and 35||District Court or Supreme Court||Depending on the circumstances and the offence, imprisonment for between 10 years and 25 years|
The Crimes Act 1900 (NSW) also includes particulars offences for assaults committed against a specific type of person, for example against the police, and for assaults committed with a particular intention.
What is Considered an Assault?
In New South Wales, an assault can be:
- A striking, touching or application of force against another person (Use of Force)
- Any act which causes another person to fear immediate and unlawful violence (Threaten of Force)
What is Common Assault?
An act of common assault generally involves no injury to the victim, or injuries that are not serious or lasting in nature. Examples of common assault include, but are not limited to:
- Oral or physical threats of violence e.g. raising your fist and threatening to punch someone
- Spitting on someone
- Poking someone with a stick
- Throwing an item at another person, regardless of whether it hits them or not
- Physically restraining someone against their will
What is Actual Bodily Harm?
Actual bodily harm includes such harm that interferes with the health or comfort of the victim. Examples of actual bodily harm include, but are not limited to:
- Psychological injury
What is Grievous Bodily Harm?
Grievous bodily harm requires a serious or permanent injury to the victim. Examples of grievous bodily harm include, but are not limited to:
- Fractures or significant injuries requiring surgery
- Loss of sight
- Any permanent or serious disfiguring
- The destruction of a foetus in a pregnant woman
- Any grievous bodily disease
What does the Prosecution Need to Prove?
For a person to be found guilty of common assault, the prosecution needs to prove:
- That the defendant used, or threatened to use, physical force against another person that was, or would be, unlawful; and
- That the physical force was either intentional or reckless.
For a person to be found guilty of assault occasioning actual bodily harm, the prosecution needs to prove the elements of common assault and that the victim has sustained actual bodily harm.
For an act of assault occasioning grievous bodily harm, the prosecution needs to prove the elements of common assault and that the victim has sustained grievous bodily harm. Under the Crimes Act 1900 (NSW), grievous bodily harm may be caused by any unlawful act, or omission.
What are the Defences?
There are some limited lawful defences to an act of assault. The 3 main defences are:
- Lawful excuse/consent à actions that may ordinarily constitute an assault will not be unlawful if there is an agreement to the physical contact. Examples of such circumstances include when a doctor or surgeon treats a patient, or during the playing of a sport
- Lawful chastisement à in New South Wales, parents are entitled to use reasonable and moderate force to physically discipline their children. Section 61AA of the Crimes Act 1900 (NSW) sets out what is lawful when physically punishing a child.
- Self Defence à A person is not criminally responsible for an assault if the act was made in self-defence. Section 418 of the Crimes Act 1900 (NSW) sets out that for a self-defence to be available, the person must believe that their actions were necessary to defend themselves or another person, to prevent or terminate the unlawful deprivation of their liberty or the liberty of another person, 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 criminal trespass. The conduct which constitutes self-defence must also be a reasonable response in the circumstances as he or she perceives them.
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