• Alyce Cooper

Why is it assault when you haven’t touched anyone? And what’s affray?


Alyce Cooper, our Hawkesbury-based legal expert, lays down the law...



Why am I charged with common assault when I didn’t touch anyone – is a question I get asked regularly by clients.


The fact is, you could wave a piece of wood at a person, without touching them, or simply threaten violence and you could be charged with common assault.


Let’s see how this works, and what the defence might be.


The charge of common assault falls under Section 61 of the Crimes Act 1900 (NSW) and states:

“Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”


To be found guilty of common assault, the Prosecution must prove the following beyond a reasonable doubt:

  • that the accused applied physical force to another person; or

  • that the accused threatened another with immediate violence; and this was done:

  • intentionally or recklessly; and

  • without the person’s consent; and

  • without lawful excuse


So, that’s where waving a piece of wood at a person, without touching them, or simply threatening violence, can lead to a charge of common assault.


And common assault is not only for physical threats of violence.


If you punch, spit or slap someone you can also be charged with common assault, so long as you do not cause bodily harm. If there is bodily harm, you are usually charged with more serious offences.


The maximum penalty for common assault is two years’ imprisonment and/or a fine of $5500.

I recently ran a Not Guilty Plea for a client charged with common assault and affray.


Affray is, in my opinion, usually a back-up charge by the Prosecution if you are charged with that and common assault together.


Affray is made out if a Court finds beyond a reasonable doubt that the conduct of the accused was such as to leave a reasonable person in fear of his or her own safety.


Examples include a riot, road rage, or a fight in a public place.


At the beginning of my Hearing, the Police said if a Guilty Plea to Affray was made they would withdraw the common assault charge. I did not accept this, so it went to a Hearing, where the full facts are laid out.


The Hearing ran before a Magistrate and my client was ultimately found not guilty by the Court, based on self-defence.


Essentially, my client was approached by a member of the public at a set of traffic lights, and water was poured over my client. My client got out of the vehicle and a physical and verbal altercation occurred. It was quite surprising that my client was charged and not the other parties involved, as they were the ones to approach my client initially.


There are numerous defences available to you if you are charged with assault, these include self-defence, an accident, and acting under duress.


Interestingly, section 61AA of the Crimes Act contains the defence of ‘law correction’ which states that a parent, or person acting in place of a parent, is not guilty of assaulting a child if the force was applied for the purpose of punishment and ‘was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances’.


However, if the force is applied to any part of the head or neck of the child, or to any other part of the body that causes harm that lasts for more than a short period, the defence of law correction is not available.


If you are charged with common assault, you should seek legal advice to find out the potential defences, or even if it is a guilty plea, seek advice on mitigating factors for your sentence.


Alyce Cooper is the Principal Solicitor at AKC Legal. Ms Cooper specialises in traffic law, criminal law, civil law, family law, Estate Planning and Probate matters.

The contents of this article should not be construed as specific legal advice to any individual reader’s situation. If you would like legal advice tailored to your situation, please contact AKC Legal on 0401 451 322.










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