Section 61 of the Crimes Act 1900 (NSW) states:
“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to
imprisonment for two years.”
It was held in R v Ireland [1998] 1 AC 147 that an assault can be defined as an act by which a person
intentionally or recklessly causes another person to apprehend unlawful and immediate violence.
The following elements are required to prove an assault:

An act by the accused which intentionally, or recklessly, causes another person (the
complainant) to apprehend immediate and unlawful violence.

That such conduct of the accused was without the consent of the complainant.

That such conduct was intentional or reckless in the sense that the accused realised that the
complainant might fear that the complainant would then and there be subject to immediate
and unlawful violence and none the less went on and took that risk.

That such conduct be without lawful excuse.

What happens if I am charged with Common Assault?

The first stage is that the police will charge you and issue you with a court attendance notice. The
police can decide to put you on bail or keep you in custody until the court date. If you are kept in
custody, you can make an application where the court can hear your reasons as to why you should
be released and if necessary, set certain conditions for your release such as reporting to the police at
certain times.
At the first court date, you will say whether you plead guilty or not guilty. If you plead not guilty, the
court will set a date for a hearing and a timeline for police to serve their evidence. Evidence and
arguments will then be heard at the hearing.
If you plead guilty, the court can proceed to sentencing, or you can ask for some time to prepare
material that the court can consider when sentencing you such as character references and a letter
of apology.

What are the outcomes if I am found guilty, or plead guilty to a section 61 offence?

The court can impose various penalties if you are found or plead guilty. These may include a fine,
conditional release orders or community corrections orders which are similar to good behaviour
bonds. In some cases, you may be imprisoned.
Pleading guilty can potentially minimise your sentence, as the court can see this as a sign of genuine
remorse for your actions. The court may also grant you more leniency as you are not causing extra
trauma to the victim by bringing them in to give evidence at a trial before the court.
Relevant Cases
Anthony John Matus v R [2015] NSWDC 292
This case was an appeal by an owner of a motor homes business who allegedly assaulted a
customer. The customer and his wife came to pick up a vehicle in which the appellant had
conducted repairs. The customer was not happy with the quality of the work on the vehicle, and as a
result of seeing his dissatisfaction, the appellant became aggressive, pushed the customer and

pulled out wires from the vehicle which he had worked on. He then also proceeded to punching the
customers abdomen four times and cut his face with the vehicle’s keys.
It was ruled that the crown did not prove beyond a reasonable doubt that a common assault was
committed. This was namely due to the fact that the witness statements from other customers
noted that no injuries were seen on the alleged victim’s face. In addition to this, the alleged victim’s
wife was the only witness who was in the immediate presence of the altercation and there was
hence some doubt as to her credibility. The appeal was therefore upheld.
Smith v Regina [2007] NSWCCA 135
The defendant in this case worked as a career of a disabled child. While they were waiting for the
defendant’s sister in a car parking lot, the defendant allegedly gripped the child’s hair, hit her head
on a side window of the vehicle and also slapped her in the face.

The defendant argued that these actions were taken in response to the victim exhibiting aggressive
behaviour, however this was not picked up by the witnesses or security cameras at the time.
The court considered the defendant’s limited education, history of depression, and the impact of his
parents dying a few years ago on his emotional state, as well as the fact that he had no history of
violence at 37 years of age.

The final orders were that an appeal would be granted, and the sentence would be quashed.
Alternatively, the defendant would be given 14 months of imprisonment with a non parole period of
eight months.

If you are charged with Common Assault, it is important to seek advice from Sydney’s best criminal
lawyers to ensure that you understand your possible defenses. Pannu Lawyers extensively practices in
Criminal Law and regularly appear at Courts throughout New South Wales. We are conveniently
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