Can I Be Guilty of Common Assault if There Was No Physical Force Applied?

A 46 year-old dominatrix was found guilty for assaulting a women at the Kink Adelaide adult event.

The Magistrate in the Adelaide Magistrates Court accepted that the 46-year-old dominatrix, who refers to herself as ‘Mistress Gabrielle’, punched and placed a woman known as “Dragon Princess” in a headlock.

The court found that Mistress Gabrielle, during the adult event, behaved in an impulsive manner when she grabbed and pulled Dragon Princess’s hair, before throwing a number of uppercuts at her.

Dragon Princess at the time was a manager in the adult event where she would demonstrate activities and sold bondage equipment.

Mistress Gabrielle completely denied the assault allegations and is intending to appeal.

There are various kinds of common assaults under the law. Some kinds of common assaults will be taken to be more serious than others. This ultimately effects the kind of outcome or penalty the court imposes.

What is an Assault?

An assault can be intentional or reckless. An intentional assault is considered more serious than a reckless assault.

An assault can take place with or without any application of force on another person. Where there is an application of physical force applied, this is known as a “battery”.

Technically, an “assault” and “battery” are separate offences, however, “assault” these days usually includes a “battery”. An assault involving a battery is considered more serious than an assault that doesn’t involve the application of physical force on someone else.

Generally, the more serious the assault is, the heavier the punishment will be imposed by the Court.

The court will look into lots of other highly relevant factors of your case than the assault conduct itself. This includes, the extent of injury or fear caused to the other person, whether you have any previous criminal record(s), the impact of a criminal conviction on your job or travel plans, any premeditation before the assault, and your otherwise good character- the court will read any good character reference letters you hand up, which can assist in getting a more lenient outcome.

For guidance on how to write character letters, see character reference for court assault examples.

A common type of assault that encompasses conduct with or without any application of physical force is “common assault” under section 61 of the Crimes Act 1900 (NSW). Although it carries a maximum penalty of up to 2 years imprisonment and/or a $5,500 fine, the courts generally don’t impose the maximum penalties (which is usually reserved for the most severest cases).

An important principal of law to be aware of is that the Magistrate or Judge is not allowed to consider on a sentence, any matter in your case that could amount to a more serious charge that your charge.

For example, if you are being sentenced for a charge of common assault, the court isn’t allowed to punish you more severely by taking into account the fact that the victim was bleeding from being cut by your actions. This is because, bleeding from cuts to your skin as a result of your assault can amount to a more serious charge, namely, assault occasioning actual bodily harm or wounding. This is known as the De Simoni principle.

Intentional Assault

An assault is any behaviour where you intend to cause the other person to feel immediate fear or any violence. This is referred to as an assault committed intentionally.

This is reflected in the case of R v Venna [1976] QB 421.

Reckless Assault

It’s an assault where, although you didn’t intend to cause immediate violence or fear to the other person, but at the time of your behaviour, you foresaw the likelihood of inflicting that fear or violence on the other person, yet you ignored that risk and behaved in that way anyway. This is referred to as an assault committed ‘recklessly’ and is considered a lesser serious kind of assault than one committed intentionally.

An assault can take place with or without touching the other person.

In fact, spitting at someone is considered an assault- technically, it is a battery because it involves the application of physical force applied. For more information on this, click on our blog, is spitting on someone a crime.

Is it Still an Assault If the Other Person Wasn’t Put in Fear?

For an assault to take place, an assault doesn’t require the other person to actually be put in fear.

Even where the other person wasn’t put in fear, an assault is committed the moment that you commit an act intention or recklessly causing the other person to apprehend fear or violence.

Common Assault Defences

There are a large extent of defences available for a charge of common assault, and include the following:

  • Self Defence in Australia: you will be found not guilty if you committed an act that would otherwise amount to an assault- where you believed it was necessary to protect yourself, and where the court believes that your actions were a reasonable response in the circumstances that you perceived at the time. This defence is available in section 418 of the Crimes Act 1900 (NSW). It is also reflected in the leading case of R v Katarzynski [2002] NSWSC 613.
  • Consent: to be guilty of assault, there must be a finding of no consent. Where the alleged victim consents to an assault, there can generally be no offence of common assault.
  • Accidental contacts: sometimes consent can be implied, or it may fall under an exception. This includes all physical contact considered generally to be acceptable in daily life. For example, bumping into someone in a crowded train would be an exception to an assault.
  • Lawful correction: you will be not guilty of assault where you discipline your child if your conduct was done in a reasonable manner and warranted in all of the circumstances.
  • Where alleged victim was unaware of your actions: generally, it’s not an assault where the alleged victim was unaware of your actions.
  • Inadvertence to the risk of violence or fear: although reckless assault is a crime, it isn’t an assault where you didn’t foresee the possibility of causing fear, but you were merely inadvertent to the risk.
  • Citizens arrest: you will be not guilty of assault where you used reasonable force to make an arrest.

Is Provocation a Defence to Assault Charges?

The law recognises, as did Acting Justice Smart in R v Ferguson [1999] NSWCCA 214 at [29], who said, “it is of the essence of provocation that the acts of others cause offenders to lose their self-control and embark upon criminal conduct often of utmost gravity”.

That case recognises that provocation can reduce the seriousness of the objective seriousness of the assault. This is also reflected in section 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999- that provocation is a feature of a case that can reduce the penalty a court imposes.

Where a defence doesn’t apply to your case, it’s understandable why you would want the court to give a penalty that doesn’t impose a criminal conviction against your name. In those circumstances, it’s highly advisable to get advice and guidance from an experienced criminal defence lawyer.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Australia's Leading Criminal Defence Lawyers, Delivering Exceptional Results in all Australian Courts.

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