Introduction

In New South Wales (NSW), assault is recognised under both criminal law and civil law, but it is important to understand that these are distinct legal frameworks. Assault as a criminal offence is governed by the Crimes Act 1900 (NSW), and is dealt with by the criminal justice system with the aim to prosecute and punish an offender. Conversely, civil law addresses assault as a tort, focusing on resolving disputes between individuals and providing remedies to victims.

For those navigating the legal system in NSW, it is vital to know the differences between civil and criminal assault proceedings. The purpose of criminal proceedings is to punish an offender, which may result in penalties such as imprisonment or fines. Civil proceedings, on the other hand, aim to compensate the plaintiff for harm suffered, and the standard of proof differs, requiring proof beyond reasonable doubt in criminal cases, and on the balance of probabilities in civil cases. This guide will explore these key differences, offering expert tips to help individuals understand and navigate both civil and criminal assault cases in NSW.

Understanding Assault in Criminal Law in NSW

Defining Criminal Assault under the Crimes Act 1900

In NSW, assault is a criminal offence defined within the Crimes Act 1900 (NSW). 

There are three main categories of criminal assault, including:

• Common assault. Considered the least serious form of assault, it is prosecuted under section 61 of the Crimes Act 1900 (NSW). These cases are typically managed in the Local Court, although the prosecution retains the discretion to have a common assault matter heard in the District Court. Common assault occurs when there is no injury, or injuries are minor and require minimal medical attention. It can also involve a threat of violence, if the person making the threat had the apparent ability to carry it out. However, a general threat of future harm is insufficient; the threat must create an immediate fear that is sustained to constitute assault. In NSW, common assault carries a maximum penalty of two years imprisonment.

• Assault Occasioning Actual Bodily Harm. Section 59 of the Crimes Act 1900 (NSW) deals with assault occasioning actual bodily harm. The legal definition of “actual bodily harm” has been established through case law and encompasses any hurt or injury that interferes with the health or comfort of the person assaulted. Notably, this can also include recognisable psychiatric illnesses, such as severe depressive illness or anxiety disorder, directly caused by the assault. Similar to common assault, the prosecution can choose to have these cases heard in the District Court. The maximum penalty for assault occasioning actual bodily harm is five years in prison, or seven if in the company of another person or persons.

• Grievous Bodily Harm and Wounding. Offences relating to grievous bodily harm and wounding, along with their corresponding penalties, are detailed in the Crimes Act 1900 (NSW) between sections 33 and 54. Grievous bodily harm is legally defined as permanent or serious disfiguring of a person, the termination of a woman’s pregnancy (irrespective of other injuries), or causing a person to contract a grievous bodily disease. The maximum penalty is 25 years imprisonment, and is considered a grave crime.

Elements Police Must Prove for a Criminal Offence of Assault

When an individual pleads not guilty to common assault, the police prosecution bears the burden to prove several elements beyond a reasonable doubt. These elements are:

• Apprehension of or Actual Immediate Unlawful Violence: The accused must have acted in a manner that caused another person to genuinely believe they were about to be subjected to immediate and unlawful violence, or actually be subjected to it. This action must be shown to be either intentional or reckless, not merely accidental. That is, there needs to be a mens rea, or criminal intent.
• Lack of Consent: The prosecution must demonstrate that the alleged victim did not consent to or agree with the actions of the accused.
• Awareness of Potential Fear: It must be proven that the accused was aware that their actions could cause the other person to fear immediate and unlawful violence, yet they proceeded with those actions regardless.
• Absence of Lawful Excuse: The prosecution must negate any lawful excuse for the accused’s actions.

Unless the police can successfully prove each of these elements beyond reasonable doubt, the court is legally bound to find the accused not guilty. For assault offences beyond common assault, the police may also have to prove additional factors, such as the presence and extent of injury.

Understanding Assault in Civil Law

Defining Civil Assault as a Tort of Trespass to Person

In civil law, assault is recognised as a tort, specifically within the realm of trespass to person. Torts of trespass to person, including assault, battery, and false imprisonment, are designed to protect an individual’s right to physical integrity under civil law. These torts are considered ‘actionable per se’, meaning a person can pursue a claim without needing to demonstrate actual damage, loss, or harm. To succeed in a civil assault claim, it must be proven ‘on the balance of probabilities’ that the trespass occurred.

The tort of civil assault occurs when someone intentionally creates an apprehension in another person of imminent harmful or offensive physical contact. Notably, physical contact is not a requirement for civil assault to be established. Instead, the focus is on the victim’s anticipation of immediate unlawful contact.

The Focus on Apprehension of Contact in Civil Cases

Civil assault in law is fundamentally concerned with the apprehension of imminent contact. It is the impact of the threat on the victim’s state of mind that is crucial, rather than whether the defendant actually intends to, or is capable of, carrying out the threat. The necessary intent for civil assault is the desire to create apprehension of physical contact, not necessarily the intention to inflict actual physical harm.

To illustrate, consider the case of State of NSW v Ibbett (2005) 65 NSWLR 168. In this instance, a police officer pointed a gun at Mrs. Ibbett, an elderly woman, and demanded she open a door. The court determined this act constituted civil assault because it justifiably caused Mrs Ibbett to have an immediate apprehension of harm, even though the officer’s intention may not have been to cause physical injury, but to gain entry. This case highlights that the tort of civil assault centres on the plaintiff’s reasonable apprehension of immediate harm, not the defendant’s intention to cause harm.

Key Differences Between Civil and Criminal Assault Proceedings

Purpose and Objectives: Compensation vs Punishment

The primary difference between civil and criminal assault proceedings lies in their fundamental purpose. Criminal law and civil law approach assault from distinct perspectives, leading to different objectives in each type of proceeding.

In criminal law, assault is considered a criminal offence against the community. The objective of criminal proceedings is to prosecute and punish the offender for committing a crime. This punishment may take various forms, such as imprisonment or fines, aiming to deter the offender and others from similar actions, thereby upholding the law and protecting society.

Civil law, on the other hand, addresses assault as a tort, specifically trespass to person. Civil proceedings are initiated by the plaintiff, the person who has been assaulted, against the defendant, the alleged offender. The purpose of a civil case is not to punish the defendant in the same way as criminal law. Instead, civil law seeks to provide compensation to the victim for the harm and losses they have suffered as a result of the assault. This compensation aims to restore the plaintiff to the position they were in before the assault, as much as possible through financial means.

Standard of Proof: Balance of Probabilities vs Beyond Reasonable Doubt

Another key difference between civil and criminal assault cases is the standard of proof required for a case to be successful. The standard of proof is the level of certainty that the court must reach in order to make a finding in favour of the prosecution in a criminal case or the plaintiff in a civil case.

In criminal proceedings, the standard of proof is ‘beyond reasonable doubt’. This is a very high standard, meaning the prosecution must present enough evidence to convince the court that there is no other logical explanation that can be derived from the facts except that the defendant committed the criminal offence. If there is any reasonable doubt in the court’s mind as to whether the defendant committed the assault, the defendant must be found not guilty.

In civil proceedings, including civil assault claims, the standard of proof is lower; it is ‘on the balance of probabilities’. This means that the plaintiff must demonstrate that it is more probable than not that the assault occurred and that the defendant is liable. In other words, the court must be satisfied that there is a greater than 50% chance that the plaintiff’s version of events is true. This lower standard of proof in civil cases reflects the different objectives, focusing on resolving disputes between individuals and providing compensation rather than imposing criminal penalties.

Case Examples Illustrating Civil and Criminal Assault

Gardiner v Doerr [2022] QSC 188: Civil Battery Claim After Criminal Acquittal

The case of Gardiner v Doerr provides a clear example of a civil battery claim succeeding even after a criminal acquittal. In this instance, Ms. Gardiner initiated a civil claim against Mr. Doerr for trespass to person, specifically battery, following Mr. Doerr’s acquittal in criminal proceedings related to the same incident. The court found Mr. Doerr liable for battery, determining that his actions constituted an intentional act causing direct physical contact with Ms. Gardiner that was offensive and likely to cause injury or affront.

Ms. Gardiner was awarded significant compensation, totalling $967,113.40, which included various types of damages:

• General damages: $8,410.00 for pain and suffering.
• Past and future economic loss: A substantial amount covering lost income and superannuation, totalling $759,506.00.
• Gratuitous services: $35,560.00 for care and assistance received.
• Out-of-pocket expenses: $28,437.40 for past and future medical and related costs.
• Aggravated damages: $67,600.00, awarded due to the heightened injury caused by the manner of the defendant’s actions and defence.
• Exemplary damages: $67,600.00, as Mr. Doerr had not been criminally punished, and the court aimed to deter such conduct.

This case highlights that civil and criminal proceedings are distinct. A civil court can find a defendant liable for a tort like battery and award damages even if the same defendant was acquitted of criminal charges. It should be noted that while the torts of battery and assault are different, in criminal proceedings, battery has become a redundant term, and assault now encompasses both the threat and use of force. The focus in civil law is on compensating the plaintiff for harm suffered, using a lower standard of proof (‘on the balance of probabilities’) compared to criminal law (‘beyond reasonable doubt’).

State of NSW v Ibbett (2005) 65 NSWLR 168: Civil Assault with Police Misconduct

The case State of NSW v Ibbett (2005) 65 NSWLR 168 illustrates civil assault in the context of police misconduct and the crucial element of reasonable apprehension. In this case, police officers pursued Mr. Ibbett to his home, where he lived with his elderly mother, Mrs. Ibbett. One officer unlawfully entered their property and proceeded to arrest Mr. Ibbett in the garage.

During this event, Mrs. Ibbett came into the garage, and the police officer pointed a gun at her, demanding, “Open the bloody door and let my mate in”. Mrs. Ibbett, who had never encountered a firearm before, was understandably terrified. The court determined that the police officer’s actions constituted civil assault.

The court’s reasoning was based on the following points:

• Unlawful presence: The police officers were on the property without legal justification.
• Reasonable apprehension: The confrontation, specifically the officer pointing a gun at Mrs. Ibbett, was sufficient to cause a reasonable apprehension of immediate harm in Mrs. Ibbett.
• Focus on apprehension: Civil assault is concerned with the victim’s apprehension of imminent contact, not necessarily the intention to cause physical harm.

The Court of Appeal upheld the trial judge’s finding of civil assault and increased the damages awarded to Mrs. Ibbett. This case underscores that in civil assault, the emphasis is on the plaintiff’s reasonable apprehension of imminent harmful contact due to the defendant’s actions, even in the absence of physical contact or intent to cause injury.

Defences in Both Civil and Criminal Assault Cases in NSW

Self-Defence

Self-defence is a recognised defence in both civil and criminal cases of assault in NSW. This defence is applicable when a person believes their actions are necessary to protect themselves or another person. It also extends to preventing unlawful deprivation of liberty, or protecting property from unlawful damage.

For self-defence to be valid, the action taken must be a reasonable response in the circumstances as the person perceived them. If self-defence is raised in a criminal case, the prosecution must prove beyond reasonable doubt that the person was not acting in self-defence. They need to demonstrate that the accused did not genuinely believe their actions were necessary or that their actions were not a reasonable response to the perceived threat.

Consent

Consent can also serve as a defence in both civil and criminal assault cases. If a person consents to actions that might otherwise be considered assault, then those actions do not legally constitute assault. However, the defence of consent has limitations. It does not apply in situations deemed unlawful or where the assault results in serious harm. See our article on sadomasochism and whether you can consent to assault to learn more.

Conclusion

Civil and criminal assault proceedings in NSW address different aspects of the same wrongful behaviour. Criminal law aims to prosecute and punish assault as a criminal offence against the community, with penalties such as imprisonment or fines. Civil law, however, focuses on assault as a tort, seeking to resolve disputes between individuals and compensate victims for the harm they have suffered. Understanding these differences is crucial for anyone involved in assault cases in NSW, whether as a victim seeking compensation or as a defendant navigating criminal charges.

Navigating the complexities of civil and criminal law requires expert legal advice. If you are facing assault charges or considering a civil claim in Sydney, it is important to seek guidance from a criminal lawyer or civil solicitor experienced in assault matters. Contact Daoud Legal today to explore your options and receive tailored legal advice to navigate your legal issues effectively.

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