Assault occurs where a person intentionally or recklessly causes another person to fear immediate violence, which may or may not involve the use of force. Force can include hitting, punching, striking, kicking, pushing, poking, touching or indeed any application of force – it does not matter whether it is soft or hard or whether injury occurs.

There are different categories of assault – some of those reflect the degree of injury and aggravation – such as Assault Occasioning Actual Bodily Harm, Malicious Wounding, Maliciously or Recklessly Inflict Grievous Bodily Harm. Others reflect the nature of the assault such as Sexual Assault and Indecent Assault. There are also offences where a person is assaulted during the course of their occupation – such as Assault Police.

Assault is known at law as an indictable offence that can be dealt with summarily. This means that a typical assault charge can be disposed of in the Local Court. Some of the more serious assault charges however are dealt with in the District Court upon indictment.

 

Common Assault

Section 61 of the Crimes Act 1900 (NSW) states the nature and penalty of common assault as follows:

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”.

It is not necessary for physical assault or actual bodily harm to have occurred in order for the offence of common assault to be made out.

The offence can arise where an act produces immediate fear or apprehension of violence. The threat of physical violence may be enough to establish the offence of common assault.

 

Assault vs Battery

While the offence of assault can occur through a threat of physical violence that produces fear in a person, battery refers to the actual physical impact which is painful, harmful, violent or offensive.

Assault and battery are often paired together as one offence because when someone commits battery they usually have the intent to harm, and threaten the person before committing the physical act.

The NSW Criminal Trials Courts Bench Book states the following:

Battery is the actual infliction of unlawful force on another. But the word “assault” has come to describe both offences: see DPP v JWH (unrep NSWSC, 17 Oct 1997).

 

Aggravated Assault

There are a number of circumstances that “aggravate” a charge of assault, such as when another person is present, or when a weapon is used.

If an offence is aggravated, the potential penalties are more severe and imprisonment is more likely.

Any assault offence can be aggravated, but the most common examples are common assault, assault occasioning actual bodily harm, reckless wounding, recklessly inflict grievous bodily harm and assault police.

 

Assault Occasioning Actual Bodily Harm

The offence of assault occasioning actual bodily harm is contained in section 59 of the Crimes Act 1900 which states:

Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.

If the offence is committed in the company of another person or persons, the accused is liable to imprisonment for seven years.

Section 59 does not define actual bodily harm, however typical examples of injuries that are capable of amounting to actual bodily harm include scratches and bruises: McIntyre v R (2009) 198 A Crim R 549 at [44].

Not only is the degree of violence involved considered, but also the actual damage that occurred. For example a person may push another, with the result that the person falls on their head and sustains very serious injuries.

Actual bodily harm may also have been occasioned where a victim has been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind: Li v R [2005] NSWCCA 442 at [45].

 

Specialist Assault Lawyers in Sydney

Our assault lawyers will give you specialist legal advice as to how your matter is likely to be dealt with, including potential penalties, likely penalties, advise you of your anticipated costs etc.

We can also provide you with accurate advice of the defences to assault charges – including Self Defence (which includes defending another person or property); Duress; and Necessity. You might not be guilty of an assault for other reasons, including that your actions did not amount to an assault, or the actions were accidental but not reckless – such as bumping into someone in a crowded street.

We might even be able to assist you in avoiding a conviction with a Section 10.

The penalties for assault upon conviction include monetary fines and potentially imprisonment.

Assault and Related Offences Case Studies

What is the difference between assault and assault occasioning actual bodily harm?

Actual bodily harm means an injury results from the assault – it can include bruising, a cut, scratches, welts etc. An assault (simpliciter) does not involve an injury.

How far can you go in self defence?

You are entitled to defend yourself, defend another person and defend property – but if your actions are unreasonable and excessive, then assault can still be committed. For instance, if someone pokes you in the chest, you do not have a right to belt them over the head with a baseball bat!

How do you establish self defence?

It is a 2 tier test. Firstly, you must establish that you believed it was necessary to do what you did in the circumstances as you perceived them (including when intoxicated); and secondly, your actions must be considered reasonable by the hypothetical objective observer. Self defence is specifically set out in the Crimes Act.