Common Assault or Battery :
Under Australian criminal law, a distinction is made between common assault and aggravated assault.
An aggravated assault comprises of the same elements required of common assault, but will be classified as such due to the presence of aggravating factors, for example: a serious injury inflicted on the victim.
Common assaults however, lack these aggravating factors and do not normally result in the victim being seriously harmed but nonetheless, strict and undesirable penalties still apply.
Most individuals perceive common assault to merely construe direct and violent physical contact with another. What many don’t know is that also provoking a sense of fear of impending harm in someone else can also constitute as a form of assault and thus, it is of great importance for one to educate themselves in the elements that comprise common assault and ascertain what behaviour can be considered as such.
Common assaults are primarily addressed under section 61 of the Crimes Act 1900 (NSW), which reads:
“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”.
A common assault that involves force and contact is referred to as a ‘battery’.
In order to constitute a battery, there must be either:
1. An intentional application of unlawful contact without the consent of the victim:
For example: While at a party, Mark sees his girlfriend Kate speaking quietly and laughing in the corner with her ex boyfriend, Daniel. Mark approaches them and aggressively pushes Daniel away from Kate. Because Mark walked directly up to Daniel and inflicted unlawful contact upon him by pushing him, Mark has just committed an intentional battery on Daniel.
2. Or, a reckless application of unlawful contact without the consent of the victim:
For example: After Mark pushed him, Daniel retaliated and started shoving Mark back. The two continued to scuffle in the middle of a room full of people. As a result, Daniel accidentally elbows Kate in the stomach. By being aware of the risk that his actions could potentially harm someone but choosing to continue with them anyway, Daniel has just committed a reckless battery on Kate.
The other arm of common assault is referred to as ‘psychic assault’.
There is no contact involved, but the victim must suffer from a reasonable apprehension of imminent unlawful contact after being threatened by the accused. In order to constitute psychic assault, the accused must have either:
1. Intentionally created the apprehension of imminent unlawful contact:
For example: Amy and Stephanie are having a heated disagreement. Amy stands up and begins hurling personal insults to Stephanie about her appearance. In anger, Stephanie tells Amy that if she does not stop she will “slap her so hard it will knock her teeth out”. Amy immediately stops talking and sits back down. By intentionally making Amy feel that she was going to be harmed, Stephanie has committed an intentional psychic assault against Amy.
2. Or, recklessly created the apprehension of imminent unlawful contact:
For example: Instead of threatening Amy with violence, in the heat of their argument, Stephanie decides to instead pick up the glass next to her and throw it directly at the wall right next to where Amy is standing. Amy is not hurt but fears that if things continue, she might be harmed. By throwing the glass next to Amy, Stephanie did not intend to harm her but was aware that this would frighten Amy into thinking that Stephanie will harm her. Therefore, Stephanie has committed a reckless psychic assault against Amy.
The difference between an intentional and reckless act is important.
Intent is not something that is exclusively required in order to be found liable for assault, being reckless will also suffice and will attract the same penalties.
If you need assistance with an assault matter : Call ETB Legal on (02) 9188 9669 or Mobile: 0412 915 247