Assault Laws in NSW: A Comprehensive Guide

Assault is a serious criminal offence that carries extensive legal consequences in New South Wales (NSW).

With years of experience in dealing with matters of assault, we’ve found that understanding the surrounding laws in NSW is crucial for individuals and legal professionals alike.

A proper understanding of NSW’s assault laws not only helps to promote compliance with the legislation and protects the broader community against harm, but it can also prove beneficial to those facing charges.

That’s why we’ve put together an informative overview of assault laws in NSW, referring to the offence of common assault located at Section 61 of the Crimes Act 1900 and covering key elements, definitions, and general principles associated with this offence.

We note that there are other more serious offences of assault ranging from occasioning actual bodily harm to wounding and grievous bodily harm.

As informative as we hope this is, it is important to note that this information is not personalised criminal law advice.

Definition of Assault

A fairly broad term, common assault encompasses any intentional or reckless act that causes another person to reasonably fear immediate and unlawful violence and, if proven, can lead to imprisonment for up to two years. When it comes to assault cases, the emphasis is on the “fear” or “apprehension” of violence being present, rather than physical contact actually occurring.

It’s important to note that in legal terminology, the title, “assault”, is often used interchangeably with the term “battery”, which can cause some confusion if you aren’t familiar with these matters. Simply note that while battery refers to the actual application of unlawful force on another person, both offences are covered under the broader term “assault.”

The Elements of Assault

  1. Apprehension of Immediate and Unlawful Violence

When it comes to assault in NSW, the element of immediacy is crucial. The law recognises that if a threat creates immediate fear or apprehension of physical violence, an assault can occur, even if the victim is uncertain about the exact timing of the violence.

A prime example of this idea was In the case of Zanker v Vartzokas (1988), where a woman accepted a lift from the accused. During the drive, the accused accelerated the van saying: “I’m going to take you to my mate’s house. He will really fix you up,” and so she jumped out of the moving vehicle.

So, what do you think? Was there an immediate fear of violence?

Well, the court found that there was and so the actions constituted an assault. This decision was made on the basis that the complainant was put in fear of relatively immediate imminent violence which continued to have effect as the vehicle continued toward the threatened destination. She was also found to be unlawfully imprisoned by the accused.

As was the course of events in this case, an assault can be established if it is proven that either:

  • by the complainant on reasonable grounds, or
  • a reasonable person believes that they are in danger of immediate violence.

  1. Recklessness in Causing Apprehension of Violence

Interestingly, when no physical force has been applied, an assault can still be established. The prosecution must simply prove that the accused realised the victim might fear immediate and unlawful force but proceeded with the act, nonetheless – that is to say that they were “reckless”.

In the alternative, in cases where physical force is applied, the prosecution must demonstrate that the accused realised the victim might be subjected to unlawful force, regardless of its slightness, due to their actions.

  1. Hostile Intent

While hostile intent, referring to the mindset of the accused, is not always a requirement for assault if proven it can convert an otherwise acceptable act into an assault.

By the same token, unnecessary violence or physical force applied without hostility, such as pushing through a crowd, can still constitute an assault if it exceeds generally acceptable standards of conduct, again determined by the reasonable person test.

Other Considerations in Assault Cases

Consent and Lawful Excuse

Consent and lawful excuses are often significant factors when it comes to assault cases in NSW. The prosecution must prove beyond reasonable doubt that the assault was non-consensual and lacked lawful justification. Under these circumstances, issues of:

  • intention,
  • voluntariness, and
  • self-defence

may arise and require examination according to their own standards during the trial.

What about Verbal Threats and Silence?

When it comes to assault in NSW, it isn’t just sticks and stones that hurt.

Instead, assault can extend beyond physical acts to include situations where words, silence induce fear or apprehension of violence was experienced. Threats made over the phone or actions like silent telephone calls can constitute assaults, depending on the severity and nature of the specific circumstances.

So, what are some examples of assault?

Clearly, assault is a broad term. What actually constitutes an assault is best understood by identifying some common examples, which include:

  • striking
  • touching
  • applying force to another person (even if the aim is missed)
  • drawing a weapon
  • throwing a dangerous object
  • unlawful imprisonment

Any act indicating an intention to use violence can also constitute an assault.

Why is it important to seek professional legal advice?

The above is intended as general information only.

If you’re facing criminal charges or dealing with an assault matter, we understand that this can be an overwhelming and daunting time.

To protect your best interests and achieve the outcomes you deserve, you need to be supported by professional Criminal Law experts who can answer your questions, provide tailored advice and effectively present your case in Court.

This is where our team at Daniel Wakim Law Firm can help.

As NSW Criminal Law Practitioners, we offer expert legal assistance by managing and liaising with police and advising you of your rights at every step along the way. Our goal is to help you navigate your situation so that you can make the right decisions, all without being influenced purely by emotion.

Gain clarity, certainty and confidence when dealing with NSW Criminal law Matters

At Daniel Wakim Law Firm, we can advise of your rights and assist in managing your criminal case to help you achieve a just result.

So, whether you’re looking to have an initial chat about your own matter, or you require ongoing support and assistance for your clients, we’re more than ready to assist you.

Just book a no-obligation, free discussion today to discuss your needs.