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Assault in New South Wales
In New South Wales the various offences of assault are set out in the Crimes Act 1900. Assaults are divided into two general categories: common assault and aggravated assaults. In New South Wales, an assault is not only the crime of hurting someone without a lawful purpose but it can also be any act, but not a failure to act, which causes another person to fear immediate and unlawful violence.
For a person to be found guilty of an assault the prosecution needs to prove two things: firstly, that the defendant used or threatened to use physical force against another person that was or would be unlawful, and secondly, that the physical force was either intentional (rather than accidental) or reckless. An injury is caused recklessly if the person realised that harm may possibly be caused by their actions, but went ahead anyway.
Common assaults are charged under s 61 of the Crimes Act 1900 and are usually dealt with by a Local Court; however the prosecution can elect to have them dealt with in the District Court.
An assault is a Common Assault when it results in no injury, or in injuries that are not serious and require very little medical treatment. Common assault can also include threats of violence, if the person making the threat has the ability to carry them out. A general threat that something might happen in the future is not enough to be an assault. If, however, the threats create an immediate fear that continues, then that may constitute an assault. In New South Wales, common assault carries a maximum sentence of two years imprisonment or fines of up to $2,200.00.
Aggravated assault is a term used to cover a range of serious assault offences. Sections 32 to 54 of the Crimes Act 1900 deal with most of the aggravated assault offences. These assaults are categorised by the degree of injury that is caused.
Actual bodily harm
Assault occasioning actual bodily harm is dealt with in s 59 of the Crimes Act 1900. What constitutes “actual bodily harm” has been decided by the courts in case law. It includes any hurt or injury that interferes with the health or comfort of the person assaulted. It can also include a recognisable psychiatric illness, such as a severe depressive illness or anxiety disorder that is caused by the assault. As with common assault, the prosecution can elect to have it dealt with in the District Court. It carries a maximum penalty of 7 years in prison.
Grievous bodily harm
In New South Wales, the offences relating to grievous bodily harm and wounding and the penalties that they carry are set out in the Crimes Act 1900 between sections 33 and 54. The word grievous means really serious, but the injury does not need to be permanent, or long lasting or life threatening.
It also includes the termination of a woman’s unborn child, whether or not she suffers any other injury, any permanent or serious disfiguring of a person, and causing any person to contract any grievous bodily disease.
Wounding is dealt with in section 33 or section 35 of the Crimes Act 1900. Wounding means that more than just the top layer of skin is broken by the act.
Penalties for Wounding and Grievous Bodily Harm
Wounding and Grievous Bodily Harm offences will almost always result in jail sentences on conviction. The maximum penalties range between 10 years and 25 years imprisonment. They are all strictly indictable offences and cannot be heard in a Local Court, but must be committed to a District or Supreme Court. Most also carry Standard Non-Parole periods, which are the minimum times that are to be spent in custody without parole.
Lawful Excuse Defence
The Lawful Excuse Defence is available in circumstances where a person comes into physical contact with another (sometimes causing pain), and there is agreement to the physical contact, such as a doctor or dentist treating a patient or in the playing of a sport. However, in sport, if the player were to make contact outside of the rules of the sport – such as an illegal tackle- and that results in the other player being injured, then it might constitute an assault.
Actions that might constitute an assault at law will not constitute an assault if there is consent to them, such as in the playing of sports (the “consent defence”). However, the consent defence does not apply in unlawful situations or situations which the degree of harm is very severe.
Lawful Chastisement Defence
In New South Wales, parents have always been entitled to use reasonable and moderate force to physically discipline their children. In the year 2000, s 61AA was put into the Crimes Act 1900 and sets out what is lawful when physically punishing a child. The level of force used must be reasonable, must not be to the head or neck and must only last for a short time. A useful article which discusses what is acceptable and why is published by the Australian Institute of Family Studies here
Self-defence is outlined in section 418 of the Crimes Act 1900. It is a defence to the charge if the person believes that their actions were necessary to defend either themselves or another person, or to prevent or stop the unlawful deprivation of their liberty or that of another, or to protect property from being taken, destroyed or damaged unlawfully, or to prevent or stop a criminal trespass. The action they take must be a reasonable response in the circumstances as they understand them. If self-defence is raised as a defence to a charge of assault, then it is up to the prosecution to prove that the person was not acting in self-defence by proving that they did not genuinely believe that it was necessary to do what they did, or that what they did was not reasonable in response to the danger as they understood it.
The defence of Intoxication does not apply for most types of assault offences. It only applies for offences which are set out in section 428B of the Crimes Act 1900, for example maliciously inflict grievous bodily harm with intent. The court can take into account how intoxicated the person who committed the offence was when deciding whether the police have proved they formed the intention to bring about a specific result. Intoxication is not a defence if the person became intoxicated to help them commit the offence.
Watch the video below to know more about the Assault Charges in Australia: