When personal violence occurs between two or more people, the legal outcomes can go a number of ways. This is due to the fact that assault can take a variety of forms and the injuries caused can vary from case to case. This article will provide a brief overview of the offence known as ‘common assault’.
Central elements of common assault
Personal violence offences are regarded as particularly serious by both the community and the judicial system. Within any personal violence offence, the whole sequence of events surrounding an assault is carefully considered. Several key elements including the defendant’s intent, the violence involved, and the extent of harm will all be closely examined by any court dealing with a common assault charge.
Gauging 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 an interesting point that no actual bodily harm needs to be present for the offence of common assault to be established. In fact, actual bodily harm cannot be used to strengthen a case of common assault, this is known as the Di Simoni Principle.
Is physical assault necessary for a common assault charge?
It is not necessary for physical assault to have occurred in order for the offence of common assault to be made out. This might seem counter-intuitive; how can an assault related offence be established without an actual ‘assault’ occurring?
It is certainly true that proof of physical contact (known as battery) can result in a finding of common assault. However, established case law tells us that the offence of common assault can also arise where an act produces immediate fear or apprehension of violence. In this way, the threat of physical violence can, in certain circumstances, be enough to establish common assault.
Sentence for first offence of common assault
Down to the details
How different levels of assault are dealt with by the courts can vary between Australian jurisdictions. After any altercation, direct and professional expertise is required to assist with unravelling and explaining the legal elements. A seemingly simple concept such as assault can be surprisingly complex when viewed through the lens of law. In the case of common assault, the added complications of fear of violence versus actual bodily harm can be challenging to sort through.
Common assault case examples
Nyman Gibson Miralis provides expert advice and representation in assault cases. We are experienced in distinguishing the subtle variations between different assault offences; including how the variables of intent, violence and injuries are likely to be weighed in each case.
Contact us if you require assistance.