Does a smack on the bottom constitute common assault?

23rd Nov 2021

Annabel Bassil was managing a Sydney bar when a man she didn’t know smacked her on the bottom, an action that landed him in court for common assault.

Upon being smacked, the 22-year-old was shaken and reduced to tears and felt violated. Police were called and the man was thrown out of the bar. The next day Ms Bassil made a formal police complaint.

‘I had no previous interaction with this customer, he simply walked in, saw me and hit me … which he attempted to justify by saying that it was fine because he had a wife,’ she later posted on Facebook.

Attitudes of male colleagues to the police complaint

While the 41-year-old man laughed it off as just a joke and a friendly pat, Ms Bassil said the smack on her bottom humiliated her, caused her to question her worth and negatively impacted her mental health.

She felt uncomfortable in her workplace, and this became even worse when her male colleagues implied that she was overreacting and wasting her time by pursuing the common assault matter in court.

‘At the end of the day, no one has the right to tell me how I should feel or react, and just because this could have been worse, it was still wrong,’ she said in comments that were picked up by the media.

Man found guilty of common assault

When the matter eventually went to court, the man pleaded guilty to common assault. But the trial was by no means easy for Ms Bassil and she was questioned about her height and what she was wearing at the time of the incident.

The man explained he had just discovered that his football team had won and was ‘excited’. The magistrate granted a s10 dismissal, meaning the man was found guilty of common assault, but there was no conviction or sentence.

What is common assault?

Common assault is a serious offence under s61 of the NSW Crimes Act 1900 (Crimes Act), which states: ‘Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for 2 years.’

In practice, common assault applies when a person is struck or touched without permission or lawful excuse, and without this causing significant injuries.

It also applies when threats of violence are made, such as throwing an object at a person (even if it doesn’t connect), or doing something that causes a person to fall over.

Common assault does not apply if the injuries are more than transient or trifling. If they are, more serious assault charges must be brought.

There are exceptions to common assault laws. These include incidents that occur in sport or require medical treatment where there is implied consent, and where contact is accidental or an acceptable part of daily life.

Regarding children, the controversial s61AA of the Crimes Act allows a parent to apply ‘reasonable’ physical punishment to a child in certain circumstances. However, no physical force can be applied to the head or neck.

Importance of seeking legal advice before going to court

Ms Bassil said she received the result she wanted, as she could see that the man was remorseful and understood that he’d made a mistake.

But it should be noted that the court process can be draining and it’s wise to seek legal advice before embarking on such an action.

This is an edited version of an article first published at Stacks Law.

Kelly Brown is a lawyer in the Tamworth office of Stacks Law Firm. She holds a Bachelor of Laws and a Bachelor of Arts majoring in International Studies. Kelly works primarily in conveyancing and in wills and estates. Her work encompasses leases, general property and commercial transactions. Kelly particularly enjoys working on complex property matters and finds it satisfying to help buyers resolve problems with their transactions.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: Assault Criminal law