Charged with common assault in NSW.

The legislative source.

The offence has two limbs: a physical assault (actual contact, however slight) or a psychic assault (an act causing the complainant to apprehend immediate and unlawful force). Mens rea is intention or recklessness as to the act constituting the assault.

Common assault is a Table 2 offence under Schedule 1 of the Criminal Procedure Act 1986 (NSW). That means it is dealt with summarily in the Local Court unless the prosecution elects to commit it for trial in the District Court. Election is rare and is reserved for matters where the conduct is at the upper end of common assault and the Local Court jurisdictional limit is not enough.

Penalties and likely outcomes.

Maximum and likely range.

Maximum penalty two years imprisonment. In the Local Court the realistic range for a first-offence common assault, on a plea, is a CRO without or with conviction, a Community Correction Order (CCO), or a fine. Imprisonment is rare but possible where there are aggravating circumstances (DV setting, family violence, vulnerable victim, breach of a court order, group attack, premeditation).

Section 10 is available.

For a first-offence common assault with no injury, no DV element, and a strong subjective case, a section 10(1)(b) CRO without conviction is achievable. The application is built on character references, a contrition statement, and where appropriate, evidence of treatment (anger management, AOD counselling).

DV-related common assault.

Where the assault occurs in a domestic violence context (against a partner, family member, or household member), the matter attracts the regime in Part 13A of the Crimes (Domestic and Personal Violence) Act 2007. A Provisional AVO is invariably in place. Section 10 is harder to obtain. The court will not impose a fine without considering the offender's capacity to pay where the offender resides with the protected person.

Defences and arguments worth running.

Self-defence.

The most commonly run defence. Under section 418 of the Crimes Act 1900, a person carries out an act in self-defence if and only if the person believes the conduct is necessary to defend themselves or another and the conduct is a reasonable response in the circumstances as the person perceives them. Once raised, the Crown must negative self-defence beyond reasonable doubt.

Consent.

Limited application. Consent is a defence to a sporting injury or a tattoo, but not to an assault arising from a fight outside those contexts. The leading authority is R v Brown [1994] 1 AC 212 (read with the NSW position).

Lack of mens rea.

Where the contact was accidental (a stumble into the complainant, an inadvertent touch), the intention or recklessness element is not made out.

Identity.

In bar fights and group altercations, identification is often the live issue. The Crown must prove the accused was the assailant. CCTV, eyewitness reliability, and clothing descriptions are tested.

What we do for clients facing this charge.

The first decision is whether to plead. Common assault matters resolve on a plea in most cases that reach the Local Court. The defended hearing rate is meaningful and the acquittal rate in well-run defended matters is significant where self-defence or identification is the live issue.

If you plead.

The objective is the lowest possible outcome. For a first-offence non-DV common assault with no injury, the target is a section 10(1)(b) CRO without conviction. The subjective case is everything. Character references, contrition, restorative justice where the complainant is willing, and evidence of remediation. The sentencing submission is built around the seriousness factors in s 21A of the Crimes (Sentencing Procedure) Act 1999 and the objective and subjective features of the matter.

If you defend.

The brief is obtained and analysed. Statements from the complainant and any independent witnesses are read closely. CCTV is requested. The defended hearing is run with a clear theory of the case. Self-defence is by far the most common defence; identification is the second most common.

What we tell clients on the first call.

The practical detail below is not legal advice for your matter. It is the version of the conversation the firm typically has with a client charged with common assault in the first hour.

What evidence police usually rely on.

The complainant's statement, body-worn video from attending officers, photographs of any injuries, treating-doctor records, and any witnesses present at the scene. CCTV from the location is often subpoenaed.

What to bring to the first consultation.

• The Court Attendance Notice (or charge sheet) and any bail papers.
• Anything police gave you in writing — fact sheet, certificate of analysis, search warrant copy, property seizure record.
• A short written timeline of the day, in your own words.
• A list of every person present, in the order you say events occurred; any photographs you took of marks, surroundings, or injuries to you.

Common mistakes in the first twenty-four hours.

• Talking to anyone other than your lawyer about the matter. Friends, family, co-accused and social media are not privileged.
• Deleting messages, photographs, posts or browser history. The trail left by deletion is often more damaging than what was there.
• Contacting the complainant or any prosecution witness, even through a third party.
• Sending an apology to the complainant. Even a well-intentioned message becomes prosecution evidence.

What not to say to police without advice.

You must give your name and address. You do not have to answer anything else, and in most cases you should not. The standard answer is: “I do not wish to answer questions. I want to speak to my lawyer.” Section 89 of the Evidence Act 1995 (NSW) protects silence; the narrow section 89A exception applies only on indictable matters and only where a special caution has been given in the presence of an Australian lawyer.

The timeline you can expect.

From charge to first court appearance is typically two to six weeks in the Local Court and longer where the matter is indictable. The brief of evidence is served by the prosecutor on a date set at the first mention. From service of the brief to first reply is typically twenty-eight days. Defended hearings and committals are then listed weeks or months out depending on the court list.

When an early plea may or may not be appropriate.

An early plea attracts a sentencing discount of up to twenty-five per cent if entered at the first available opportunity, but it locks in a conviction. The firm does not advise an early plea before the brief is served and read. An early plea makes sense where consent is not in issue, the injury is at the low end, and the realistic best outcome on the facts is a section 10 or a non-conviction CRO. Otherwise the brief is read first.

Court-specific notes.

If the matter is listed at the Downing Centre, Parramatta, Penrith, Burwood, Manly, Newtown, Waverley, Hornsby or Sutherland Local Court, the firm appears in person. Wollongong Local Court matters are run from the firm's Wollongong office. ACT Magistrates Court and ACT Supreme Court matters are run from chambers; the firm appears in person at all ACT mentions.

Recent outcomes · common assault matters.

Anonymised outcomes from the firm's matter set. Names, dates beyond the year, and identifying details have been altered or omitted to preserve client confidentiality. Each result was determined on the particular facts and is not a guarantee of any future outcome.

Court	Detail	Plea / hearing	Outcome
Downing Centre Local	1st offence · pub setting	Plea	s 10(1)(b) CRO 12 months, no conviction
Parramatta Local	1st offence · DV-related	Plea	CCO 18 months, supervision, $0 fine
Wollongong Local	1st offence · road rage	Hearing	Not guilty · self-defence made out
Burwood Local	2nd offence	Plea	CCO 24 months, anger management ordered, $800 fine
Manly Local	1st offence · spit	Plea	s 10(1)(b) CRO 18 months, no conviction
Newtown Local	1st offence · mental-health context	Plea + s 14 MHCIFP application	Charge dismissed under s 14 with conditional treatment plan
Waverley Local	1st offence · identification disputed	Hearing	Not guilty · identification not made out on CCTV
Sutherland Local	1st offence · family setting	Plea	CRO with conviction 12 months, restorative justice attended
Hornsby Local	1st offence · push at school pickup	Plea	s 10(1)(b) CRO 9 months, no conviction

Frequently asked.

Will I get a criminal record?

Only if you are convicted. A section 10(1)(b) CRO does not record a conviction. A CRO with conviction or a CCO records a conviction. Where you have a strong subjective case and no aggravating circumstances, a section 10 outcome is realistic.

What if the complainant does not want to proceed?

The decision to continue is the prosecution's, not the complainant's. In DV matters, the police prosecutor is unlikely to discontinue without instructions from the Police Domestic Violence Liaison Officer and approval from the police prosecutor's supervisor. We can correspond with the prosecutor about the complainant's position. A signed retraction is not enough.

Can I have the AVO removed?

A Provisional AVO becomes interim on first mention. An interim AVO becomes a final AVO at the determination of the related criminal proceeding. If the criminal matter is dismissed, the AVO can be opposed. If the criminal matter results in a finding of guilt, a final AVO is invariably made.

Will this affect my employment?

A criminal conviction may be relevant to a working with children check, a security licence, a financial services licence, and many other accreditations. A section 10 result has no employment consequence in most cases.

Should I make a statement to police?

No. The right to silence applies. Any statement you make at the police station can become evidence against you. Phone us before you say anything beyond your name and address.

Can I claim it was self-defence?

Self-defence is a complete defence under section 418. Whether it is available on the facts of your matter is one of the first questions we answer at conference.