Barsha Defence Lawyers

Common Assault

The offence of Common Assault found in section 61 of the Crimes Act 1900 (NSW) which deems a person guilty if they have committed any act which causes a person to apprehend immediate and unlawful violence. 

You could be charged with Common Assault if:

  1. You strike another person with a fist;
  2. You shove or push another person;
  3. You throw an object at another person (even if it misses); 
  4. You raise your hand to strike a person (even if no contact is made);

What must the prosecution prove?

Since this offence is dealt with in the criminal jurisdiction, the burden of proof for establishing this offence rests solely with the Prosecution.

The prosecution must prove the following beyond reasonable doubt:

  • You assaulted a person;
  • You intentionally or recklessly caused that person to apprehend immediate and unlawful violence. 
  • The other person did not consent.

What are the maximum penalties for this offence?

The maximum penalties for Common Assault in NSW is:

  •  A fine of $5,500.00; and/or
  • Two years imprisonment.

What is Self-Defence?

Self-Defence is a complete defence at law to certain criminal charges. If proven, it will require a verdict of ‘not-guilty’.

The defence is found in section 418 of the Crimes Act 1900 (NSW) which states that you are not criminally responsible for an offence if:

  1. You believed your conduct was necessary:
    • To defend yourself or another person, or
    • To prevent the unlawful deprivation of your liberty or another person’s, or
    • To protect your property from being taken, destroyed, damaged or interfered with, or
    • To prevent criminal trespass to your land, or remove a person criminally trespassing, and
  2. Your conduct was a reasonable response in the circumstances as you perceived them.

To rely on self-defence, there must be evidence capable of supporting a reasonable inference that you acted in accordance with the section.

Once self-defence is raised, the prosecution must disprove it ‘beyond reasonable doubt’ if it is unable to do so, you are entitled to an acquittal.

Self-defence is not available where you used force that involved the reckless or intentional infliction of death only to:

  1. Protect property, or
  2. Prevent or remove a criminal trespass.

What Conduct Could Be Considered Common Assault?

Use of Force

In the context of common assault, the victim does not need to sustain any harm or injury. Any application of force, even the slightest touch, can lead to a common assault charge. Examples of such conduct include punching, spitting, or poking someone with a stick.

Threat of Force

Physical contact with the victim is not a prerequisite for common assault. Simply raising your fist and threatening to punch someone is enough to warrant an assault charge.

Which Court Will Hear My Assault Charge?

Common assault will ordinarily be dealt with in the Local Court. In rare circumstances, it may be heard in the District Court, but this would usually only occur if a defendant is also charged with further more serious offences that must be dealt with by the District Court.

Common assault, is a serious offence that carries significant penalties. At Barsha Defence Lawyers, we understand the complexities surrounding assault charges and are here to provide expert legal assistance tailored to your unique circumstances.

The offence of common assault occurs when a person engages in conduct that inflicts harm or instils fear in another person. This can include physical force applied directly or actions that cause someone to fear immediate violence. Importantly, even if there is no intention to cause harm or fear, one can still be found guilty of common assault if the foreseeable likelihood of injury or fear was disregarded.

What Are the Defences for Common Assault?

Defences may include self-defence, denial of the allegation, lack of intent, duress, necessity, mental illness, or actions occurring in the course of everyday life.

What are your options at Law?

If you are facing charges of Common Assault, the team at Barsha Defence Lawyers can exercise the following options on your behalf to protect your interests:
  1. Negotiate with prosecutors to withdraw or amend the charges.
  2. Plead not guilty to the charges and present a case at a Hearing/Trial to challenge the prosecution’s case.
  3. Plead guilty to the charges but dispute the facts alleged at a “disputed facts hearing”.
  4. Plead guilty to the charges and the facts at a Sentencing hearing with an objective to obtain the most lenient penalty available. 

If you agree that you have committed the offence and/or the police are able to establish the offence, it is best to plead guilty at the earliest possible opportunity to receive the maximum discount. The maximum discount available for an early plea of guilty is 25% of the sentence the Court is minded to impose.

Generally, if you are guilty of an offence and would like to avoid a criminal conviction, it is preferable that you enter a plea of guilty at the earliest opportunity.

Is Common Assault a serious offence?

Understanding Indictable Offences in NSW

In NSW, an indictable offence is one that is punishable by up to two years in the Local Court or up to five years in the District Court. These offences are outlined in section 61 of the Crimes Act 1900 (NSW).

The outcome of your sentence in the Local Court or District Court can depend on the seriousness of the offence and several other factors, which our Sydney Criminal Lawyers are adept at identifying. Importantly, an indictable offence does not necessarily require physical contact; it can also include threats of violence. If physical action is involved, the accused may face more severe charges, such as assault occasioning actual bodily harm.

Examples of indictable offences include threatening harm, spitting, physically assaulting without causing bodily harm, or restraining a person against their will. It is also important to note that the Local Court has the discretion to not convict a person if their criminal lawyer can effectively persuade the court.

Case Study

Our client, a man in his 50s, faced three charges of domestic violence under the Crimes Act 1900 (NSW): assault occasioning actual bodily harm, intentionally choking a person with recklessness, and intentionally choking a person without consent.

Our client, a first-generation immigrant from the Middle East, was a respected engineer in his field.

Upon reviewing the evidence brief, our lawyer identified procedural errors during the complainant’s recorded interview. These included leading questions by the police officer and the absence of an interpreter despite the complainant’s limited English proficiency.

We sent a letter to the police arguing that the charges should be withdrawn due to concerns about the admissibility of the recorded interview. We proposed replacing the charges with a single charge of common assault, but the prosecution rejected our request.

During the hearing, the complainant was cross-examined by Michael Barsha. At morning tea, the prosecutor inquired if we still wished to pursue our initial representations, which our client confirmed. All original charges were withdrawn and replaced with a charge of common assault, though the prosecution maintained the factual basis.

Upon sentencing, our client was convicted and fined $2,200.00.

Mr. Michael Barsha suggested the possibility of an appeal, which our client agreed to pursue. Dr. Yohan Smith, a forensic psychiatrist, prepared a report indicating our client had been prescribed Fluoxetine shortly before the incident, affecting his mental and physical state.

Subsequently, Mr. Michael Barsha applied for a conviction appeal to seek a Section 14 application. Despite opposition from the ODPP, Mr. Michael Barsha presented compelling arguments in the District Court.

Ultimately, Judge Hoy overturned the local court’s decision, granting a Section 14 application for our client.

Have You Been Charged with Common Assault?

Facing common assault charges can be a daunting and stressful experience. It’s essential to have the right legal representation to guide you through the complexities of the legal process and to ensure that your rights are protected every step of the way. At Barsha Defence Lawyers, we specialize in criminal defence and have a proven track record of successfully handling common assault cases.

Why Choose Us?

  • Expert Legal Advice: Our lawyers at Barsha Defence Lawyers will thoroughly assess your case, identify the best defence strategies, and provide you with clear, honest advice.

  • Personalized Representation: At Barsha Defence Lawyers, we tailor our approach to meet your unique needs and circumstances, ensuring that your defence is as strong as possible.

  • Aggressive Advocacy: The team at Barsha Defence Lawyers is committed to vigorously defending your rights in court, negotiating with prosecutors, and striving for the best possible outcome.

  • Support and Guidance: We understand the stress that comes with facing criminal charges and are here to support you every step of the way.

Don’t Face It Alone

If you or a loved one has been charged with common assault, it’s crucial to act quickly and secure the best legal representation. The team at Barsha Defence Lawyers is ready to advocate for you, protect your rights, and help you achieve the most favorable resolution.

Contact Barsha Defence Lawyers Today

Don’t wait to get the help you need. Contact Barsha Defence Lawyers today to book your first free consultation. Let us provide you with the expert legal representation you deserve. Call [Phone Number] or visit [Website] to schedule your appointment and take the first step towards securing your future.