Assault

Understanding Section 59 and 61 of the Crimes Act (NSW).

 

The Crimes Act 1900 (NSW) governs the legislation concerning criminal offences in New South Wales, Australia. Sections 61 and 59 of the Act focus on different types of assault, each with specific elements that the prosecution must establish to secure a conviction. This article outlines what the prosecution must prove for each section and explores the defences that an accused person may raise.

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​Section 61: Common Assault

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Section 61 of the Crimes Act (NSW) pertains to common assault. Common assault involves the application of intentional or reckless force to another person without their consent. It can also include the threat of force if the victim reasonably believes that the threat will be carried out.

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Prosecution Requirements

 

​To convict an individual under Section 61 for assault, the prosecution must prove the following key elements beyond a reasonable doubt:

• Application of Force: The accused applied force to the victim or threatened to apply force.

• Intent or Recklessness: The accused intended to apply force or was reckless as to whether their actions would result in force being applied.

• Lack of Consent: The force was applied or threatened without the victim's consent.

• Immediate Fear: If the offence involves the threat of force, the victim must have reasonably feared that the threat would be carried out immediately.

Possible Defences

Several defences can be raised against a charge under Section 61, including:

• Consent: If the accused can show that the victim consented to the application of force, this may serve as a defence.

• Self-Defence: The accused may argue that they were acting in self-defence, provided their response was reasonable and proportionate to the threat they faced.

• Accident: If the force was applied accidentally without any intent or recklessness, the accused may use this defence.

• Mistake: The accused may claim that they honestly and reasonably believed that the victim consented to the force.

Section 59: Assault Occasioning Actual Bodily Harm

 

Section 59 of the Crimes Act (NSW) deals with assault occasioning actual bodily harm. This offence involves an assault that results in some form of physical injury to the victim.

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Prosecution Requirements

To secure a conviction under Section 59 for assault occasioning actual bodily harm, the prosecution must establish the following elements beyond a reasonable doubt:

• Assault: The accused committed an assault as defined under Section 61.

• Actual Bodily Harm: The assault resulted in actual bodily harm to the victim. This harm must be more than trivial or transient and can include cuts, bruises, or more serious injuries.

• Intent or Recklessness: The accused intended to cause harm or was reckless as to whether their actions would cause harm.

 

Possible Defences

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Defences against a charge under Section 59 may include:

• Consent: If the victim consented to the assault, the accused may use this as a defence. However, consent to bodily harm is a complex area, and not all forms of consent will be valid.

• Self-Defence: The accused can claim self-defence if they can demonstrate that their actions were necessary to protect themselves and were proportionate to the threat faced.

• Accident: If the bodily harm resulted accidentally, without any intention or recklessness, this may serve as a defence.

• Mistake: The accused may argue that they honestly and reasonably believed that the victim consented to the assault.

• Medical Treatment: In some cases, an accused person may argue that the bodily harm resulted from a medical procedure carried out with the victim's consent.

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What Sentencing Options Can The Court Impose

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While the offences carry possible terms of imprisonment, they will be most likely dealt wiht by way of alternative means such as:

1. Section 10 dismissal without conviction. This is where the Court finds the offence proven but dismisses the charges against you meaning that it will not go on your criminal record;

2. Conditional Release Order- The Court can place you on an Order to be of good behaviour and other orders that the court deems fit;

3. Community Corrections Orders- For serious matters the Court may place you on an Order administered by the Community Corrections Office which can include various terms;

4. Intensive Corrections Orders- This is a jail sentence but served in the community and is also administered by the Community Corrections Office. 

5. Fine

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What sentence you get will be determined by a number of factors including your existing criminal record, the seriousness of your offence, and other factors particular to your case however all sentencing options are used in destroy and damage property cases.

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John Vizzone, barrister, is an experienced Criminal Lawyer who has represented many clients in such matters across New South Wales. If you have a matter, contact him now for a free quote for him to represent you or call him on 0416167690. 

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