Assault Lawyers | Assault Charges

Sydney Criminal Lawyers are experts in assault cases.

Our barristers and solicitors have successfully defended clients charged with all categories of assault charges over many years.
 
We can accurately advise you about your particular assault charge, your options, any available defences and the likely result.

If you wish to plead 'not guilty', we will use our vast experience in assault cases to fight for the withdrawal of your charges.
 
We can do this by writing to the prosecution and formally requesting withdrawal on the basis that:

• You have a valid defence such as self-defence, duress, necessity or lawful correction (see below); and/or
• They cannot prove the case against you because a 'necessary element' of the particular offence is missing; for example, where they cannot sufficiently prove 'actual bodily harm' (in s59 cases), or 'recklessness' (in s35 cases), or 'intent' (in s33 cases), or than an officer was acting 'in the execution of duty' (in s60 & 58 cases).

If your case nevertheless proceeds to a 'defended hearing' or 'jury trial', you can rest assured that an experienced Accredited Criminal Law Specialist will fight to prove your innocence in Court.

If you wish to plead 'guilty', we will work hard to get you the best possible result in the shortest possible time.

We can do this by:

• Persuading police to accept less serious assault charges (e.g. 'common assault' rather than 'assault occasioning actual bodily harm'), or even to withdraw all charges and accept an A.V.O.-only;
• Persuading police to delete or amend certain parts of their 'full facts' (ie the allegations contained in the police papers). For example, we can ask police to delete words such as '... the accused then punched the victim to the head' and to replace them with words such as 'the accused then pushed the victim'. This can make your case much less serious;
• Preparing your 'sentencing' thoroughly and guaranteeing than an Accredited Criminal Law Specialist will represent you in court. This will maximise your chances of getting a 'Section 10' (no criminal conviction).

'Common Assault' is any act which involves: 

        (a) touching another person without his or her consent, or 
        (b) putting another person in fear for his or her immediate physical safety.

This means that a 'common assault' can occur even if there is no physical contact at all.

However, there must either be:
 
        (a) an intention to touch or cause immediate fear to the other person, or 
        (b) recklessness as to whether or not the act would cause contact with, or fear to, the other person.

There is no 'common assault' if the other person consents to the contact and the contact is not made in anger, unless that contact is intended or likely to cause bodily harm.

This means that contact during sport does not amount to a 'common assault', unless the specific contact is intended or likely to cause injury.

For example, tackling a person in rugby does not amount to 'common assault', but intentionally or recklessly elbowing or punching another player can constitute a 'common assault'.

Examples of 'common assault' include:

     -    pushing, grabbing, squeezing, punching, kicking or any other unauthorised contact with another,
     -    raising a fist at another with the intention to cause fear,
     -    spitting at another, whether or not contact is made, 
     -    looking through a window with the intention to cause fear,
     -    pointing a toy weapon at another with the intention of causing that person to believe it is real,
     -    throwing an item at another in anger, whether or not contact is made,
     -    inflicting bodily harm on another (eg cutting, stabbing) even if they ask for it to be done.

 Examples of conduct not amounting to 'common assault' include: 

     -     threatening telephone calls, where the caller threatens future violence (eg 'I'm gonna make your life hell'). 
           However, such conduct is illegal under other laws;
     -     generally playing sports according to the rules; 
     -     causing another to consume a poison. However, such conduct is illegal under other laws; 
     -     contact which cannot be helped, eg in crowds, accidental contact etc.

The maximum penalty for 'common assault' is: 

     -    12 months imprisonment and/or $2,200.00 fine when dealt with in the Local Court; or 
     -    2 years imprisonment when dealt with in the District Court.
 
'Common assault' will always be dealt with in the Local Court unless the prosecution 'elects' (chooses) to have it dealt with in the District Court.

'Assault Occasioning Actual Bodily Harm' (or AOABH) is an assault that causes:
 
'any hurt or injury calculated to interfere with the health or comfort of the victim, but such hurt or injury need not be permanent but must be more than merely transient or trifling'.

There does not have to be an intention to cause the 'actual bodily harm', but there must be an 'assault' (see 'common assault' above).

Examples of 'actual bodily harm' include:

    -    any bruising, cuts, lasting redness or swelling or scratches or grazing, 
    -    lasting sprains,
    -    lasting (but not necessarily permanent) loss of vision,
    -    any fracture.

Examples of 'harm or injury' not amounting to 'actual bodily harm' include:

    -    redness or swelling or scratches or grazes that go away quickly, 
    -    minor sprains that go away quickly,
    -    loss of vision that goes away quickly.

Emotional harm is not 'actual bodily harm' unless it is psychiatric harm; which is very serious mental injury.

The maximum penalty for 'assault occasioning actual bodily harm' is:

    -    2 years imprisonment and/or $5,500.00 fine when dealt with in the Local Court; or
    -    5 years imprisonment when dealt with in the District Court.

'Assault Occasioning Actual Bodily Harm' will always be dealt with in the Local Court unless the prosecution 'elects' (chooses) to have it dealt with in the District Court. 

Assaults against police are treated especially seriously by the courts.

Section 60 of the Crimes Act 1900 provides that:

s60(1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer's duty, although no actual harm is occasioned to the officer, is liable to imprisonment for 5 years.

The maximum penalty is increased to 7 years where the conduct occurs during a 'public disorder' (eg a riot) (s60(1A)).

s60(2) A person who assaults a police officer while in the execution of the officer's duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years.

The maximum penalty is increased to 9 years where the conduct occurs during a 'public disorder'(s60(2A)).

There is a 'standard non-parole period' of 3 years for offences under s60(2), which means that a person found 'guilty' should generally be imprisoned for 3 years.

s60(3) A person who recklessly by any means: 

        (a) wounds a police officer, or
        (b) inflicts grievous bodily harm on a police officer,

while in the execution of the officer's duty is liable to imprisonment for 12 years.

The maximum penalty is increased to 14 years where the conduct occurs during a 'public disorder' (s60(3A).

There is a 'standard non-parole period' of 5 years for offences under s60(3).

It is not necessary for the prosecution to prove that the person knew that the victim was a police officer.

In order to prove that a person 'intimidated' a police officer, the prosecution must show that the person's conduct:

        (a) induced fear in the police officer, or
        (b) affected the police officer's conduct. 
 
Generally, 'assault police' offences only apply to police officers who are acting 'in execution of their duty'.

However, section 60(4) provides that they also apply to acts against police officers not acting in the course of duty if the act was carried out:

        (a) as a consequence of, or in retaliation for, actions undertaken by that police officer in the execution of duty; or
        (b) because the officer is a police officer.

Section 58 of the Crimes Act 1900 makes it an offence to 'resist', 'hinder' or 'wilfully obstruct' a police officer in execution of his or her duty.

The maximum penalty is:

    -    12 months imprisonment and/or $2,200.00 fine when dealt with in the Local Court; or
    -    5 years imprisonment when dealt with in the District Court.

'Resisting' implies the use of force to oppose 'some course of action which the person resisted [ie the police officer] is attempting to pursue'.

So, pulling away from an officer, throwing oneself to the ground, twisting away etc can all constitute 'resisting'.

However, a person cannot be guilty of 'resisting' if the arrest was unlawful.

'Hindering' is any active interference or obstruction which makes the duty of the police officer substantially more difficult.

Offences under section 58 will always be dealt with in the Local Court unless the prosecution elects (chooses) to have it dealt with in the District Court.

Section 35 of the Crimes Act provides that any person who 'recklessly' 'wounds' or 'causes grievous bodily harm' to another is guilty of an offence.

A 'Reckless' act is one that is more than just 'careless' or 'negligent' but less than 'intentional'.

There must be some 'foresight of the possibility' of a 'wound' or 'grievous bodily harm'. 

This means the person knew - or should have known - that a possible consequence of his or her act was that a 'wound' or 'grievous bodily harm' would occur.

'Grievous Bodily Harm' is bodily harm of a really serious kind. The Crimes Act defines it as including:

        (a) the destruction (other than in the course of medical procedure) of the foetus of a pregnant woman;
        (b) any permanent or serious disfiguring of the person, and
        (c) any grievous bodily disease.

However, the above list is not exhaustive and the courts have found that many other serious injuries are to be considered 'grievous'.

Some examples of 'grievous bodily harm' include:

        - significant damage to internal organs such as the kidneys, liver, heart, lungs etc,
        - serious bone fractures, especially those that require surgery and/or cause long-term impairment,
        - life-threatening injuries, such as wounds that sever blood vessels and cause heavy blood loss,
        - partial but permanent loss of vision,
        - any permanent facial disfigurement, even if it can be remedied with plastic surgery
        - any passing of a serious disease such as HIV or Hepatitis B,
        - killing an unborn baby.

'Wounding' is any injury that breaks both layers of the skin; being the 'epidermis' (outer layer) and 'dermis' (inner layer).

This means that internal bleeding is not a 'wound', unless there is also a complete breaking of the skin.

Examples of 'wounding' include:

        - a punch, kick, bite or scratch that causes a 'split' lip or other breaking of both layers of the skin,
        - stab, cut or other penetrating wound caused by a weapon or any other object,
        - pulling of hair that causes bleeding.

The maximum penalties are:

        - for 'recklessly wounding': 7 years imprisonment
        - for 'reckless wounding in company': 10 years imprisonment
        - for 'recklessly cause grievous bodily arm': 10 years imprisonment
        - for 'recklessly cause grievous bodily harm in company': 14 years imprisonment                 

However, the maximum penalty is 2 years imprisonment when dealt with in the Local Court.

Section 33 of the Crimes Act provides that any person who 'wounds' or 'causes grievous bodily harm' to another 'with intent to do so' is guilty of an offence.

To be found 'guilty' of this offence, the prosecution must prove 'beyond reasonable doubt' that the person in fact 'intended' to 'wound' or 'cause grievous bodily harm'; which can be difficult to prove.

For this reason, section 33 charges are often withdrawn and replaced with less serious charges, such as 'assault occasioning actual bodily harm'.

A person's state of intoxication may be relevant in assessing whether that person could have formed the requisite 'intent'. 

In other words, a person may simply have been too drunk to have intended to cause the 'wounding' or 'grievous bodily harm'.

Section 33 is a 'strictly indictable' offence, which means that it can only be finalised in the District or Supreme Court.

The maximum penalty is 25 years imprisonment.
 
The offence also carries a 'standard non-parole period' of 7 years; which means that a person found 'guilty' should generally be imprisoned for 7 years.

As to the meaning of 'wound' and 'grievous bodily harm', see Section 35 above.

The most common defences to assault are:

        -        Self-Defence,
        -        Duress, 
        -        Necessity, and
        -        Lawful Correction

Self-Defence

Self-defence is the most frequently used defence to assault charges.

Section 418 of the Crimes Act provides that:

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:

(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land oe premises or to remove a person committing any such trespass

and the conduct is a reasonable response in the circumstances as he or she perceives them.

This means that a person cannot be found guilty of assault if:

(a) he/she genuinely believed that the assault was necessary to defend him/herself, or another person, or property, and
(b) the assault was a reasonable response to a perceived threat.

If the possibility of self-defence arises in an assault case, the defendant must be found 'not guilty' unless the prosecution can prove 'beyond reasonable doubt' that:

(a) he/she did not genuinely believe that the assault was in self-defence; or
(b) the assault was not a reasonable response to a perceived threat.

Sydney Criminal Lawyers consistently wins assault cases on the basis that the prosecution is unable to prove the above.

We also frequently have cases 'dropped' after advising the prosecution that they will be unable to disprove the possibility of self-defence.

Duress

'Duress' is where a person is forced to undertake an act under the threat of death or serious harm.

An example might be where an armed bank robber warns a staff member that they will be stabbed or shot unless they restrain or strike an uncooperative customer.

If the possibility of 'duress' arises in an assault charge, the defendant must be found 'not guilty' unless the prosecution can prove 'beyond reasonable doubt' that:

(a) there is no reasonable possibility that the assault was committed by reason of a threat of death or serious injury, or
(b) there is no reasonable possibility that an ordinary person would have committed such an assault, or
(c) he/she failed to take advantage of a reasonable opportunity to render the threat ineffective.   

An important question is whether the defendant could have run away or called police.

Necessity 

'Necessity' is where a person undertakes an emergency act because he/she believes it must be done to prevent death or serious injury to him/herself or another.

An example might be where a customer during a bank robbery pushes and strikes people while running away believing that the robbers are in pursuit.

If the possibility of 'necessity' arises in an assault case, the defendant must be found 'not guilty' unless the prosecution can prove beyond reasonable doubt that:

(a)  sudden or extraordinary circumstances did not exist, and
(b) committing the assault/s was not the only reasonable way to deal with that emergency, and
(c) the conduct was not a reasonalble response to that emergency.

Lawful Correction

'Lawful Correction' is a defence to assault of a child by its parent or a pupil by its teacher.

Section 60AA of the Crimes Act provides that:

(1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of punishment of the child, but only if:

(a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.

The assault must be therefore reasonable and warranted in the circumstances, and the age and health of the child must be considered.

The assault must be administered with a proper instrument and in a decent manner.

Examples of 'lawful correction' include:

        -    smacking a young child's bottom as punishment, provided that excessive force is not used,
        -    physically retraining a child, again provided that excessive force is not use,
        -    pushing a child towards his/her room, again as long as there is no excessive force,

Examples of conduct exceeding 'lawful correction' include:

        -    striking a child excessively,
        -    raising a fist at a child in anger,
        -    punching or kicking a child.