Common Assault Elements

Assault is any act by a person of intentionally causing another person fear to apprehend immediate and unlawful violence. According to Section 61 of the Crimes Act 1900 common assault is defined as “whosoever assaults any person although not occasioning actual bodily harm”. Therefore, assault does not necessarily involve any form of physical harm on an individual, however, the fear instilled by the threat of the potential threat of acting violently is the act of assault. Thus it is correct to conclude that physical contact is not a factor in deciding common assault but instilling fear and fright in the victim is. As a result assault can be perpetrated even through a phone call that leads to fear and/or alarm to the recipient of the call amounting to common assault.

The definition of common assault in NSW courts is broken down into three elements. These three elements are of great importance and must be proven beyond reasonable doubt when the accused contests the charges. The three elements are:

• Any act


• By which a person intentionally or recklessly


• Causes another person to apprehend immediate and unlawful violence

Any act – assault generally involves physical action. Thus failing to act is not an assault or where someone is unable to protect a third party from an assault has not committed assault. Thus failure to act is not to commit assault.

Intentionally or recklessly – this is where an individual acts with the express intention of causing fear to the next person and the person in receipt of such acts becomes a victim of immediate and unlawful violence. Therefore, the accused must provoke the state of mind of the victim with the intention of causing fear. The intention of causing fear in the victim does not need to be as a result of hostility but the existence of hostility, and this existence of hostility can be used as evidence showing the differentiation between the threatening acts of assault and the nonthreatening acts.

Recklessly means that the perpetrator knew that the victim would succumb to fear of the immediate and unlawful application of force but the accused acted regardless of this risk. Therefore, the accused may not have intended on instilling fear into the victim but he or she realized that his or her behavior would result in fear and ignored this and continued with his or her behavior.

Apprehend immediate and unlawful violence – the term apprehend here is used to mean ‘to expect something’ and in this case it would be to expect violence. Thus the term immediate is understood by some courts to mean ‘as a fear of violence’ and thus the victim does not know when the violence will occur but is in expectation or anticipation of it being immediate.

Examples of common assault:

• Swinging a fist at someone without striking them


• Throwing an object at a person that misses the person it is intended for
  
  
• Threatening to inflict physical harm to the person

If you have been accused or a victim of common assault contact a law firm of renowned lawyers to represent your interests.

For common assault related matters, the author recommends Etblegal.Com.Au.