Can Common Assault Charges Be Dropped in NSW?

Someone has probably already told you this will go away, that they will speak to the police, say they do not want it to continue, and the whole thing stops there. In New South Wales it does not work like that, and I want to be straight with you about it. You cannot drop a common assault charge yourself, and neither can the person who made the complaint. Once police lay a charge, the decision belongs to the prosecution. Common assault charges do get dropped in NSW, though. They are withdrawn before a hearing and dismissed by the court regularly, on grounds that are specific and worth knowing.

If you were charged in the last few days, none of this has settled yet. Knowing where the decision actually sits is what makes the next step clear, and it is the part almost everyone has wrong, so let me put it plainly.

Most people think the victim has the power to drop charges, but in Australia, that’s not how it works. Once police lay charges, it’s no longer the victim versus defendant. It’s the police versus the defendant. And that means the police and the prosecution decide whether the matter goes ahead, not the victim.

Common assault is almost always dealt with summarily, which means your matter sits in the Local Court, and the decision to keep running it or withdraw it sits with the police prosecutor.

When a common assault charge is likely to be dropped, and when it is not

Before any of the explanations, here is the honest version. Read both lists and work out which one your situation sits closer to.

More likely to be dropped

• The evidence does not support a reasonable prospect of conviction.
• There is a self-defence account the prosecution cannot disprove.
• A key witness cannot or will not give evidence, and there is nothing else the prosecution can run the case on.
• Continuing the prosecution is not in the public interest.
• You are eligible for a mental health or cognitive impairment diversion order.

Unlikely to be dropped

• The person who made the complaint has changed their mind, but their original statement, the recording of the call to police and other accounts still stand.
• There is independent evidence, such as CCTV footage or medical records made at the time.
• There is an existing AVO, or the charge arose in a domestic violence context.
• There is a history of similar charges rather than a common assault first offence.

Both lists come out of one test. A prosecutor asks two questions: does the available evidence give a reasonable prospect of conviction, and is a prosecution in the public interest. Both have to hold for the matter to keep running, and the prosecution guidelines published in NSW set it out in those two parts. Everything below is a version of one of those two questions.

The grounds that actually get charges dropped

Common assault sits at section 61 of the Crimes Act 1900 (NSW) and carries a maximum of 2 years imprisonment, which is the honest measure of how serious a common assault charge is (Sentencing Bench Book). These are the grounds a prosecutor will actually act on.

The evidence does not reach the threshold

Reasonable prospects of conviction is a real threshold, not a formality. The prosecution has to prove every element of the offence beyond reasonable doubt, and if the material cannot reach one of them, running the matter is not open to them. What the prosecution has to prove, and the evidence that gets it there, is set out on what evidence is needed for assault charges.

Self-defence

This is the ground I see missed most often. In NSW you are not criminally responsible for conduct carried out in self-defence, and the onus is not on you to prove it. The prosecution has to disprove it beyond reasonable doubt, under sections 418 and 419 of the Crimes Act 1900 (self-defence, Judicial Commission of NSW). That is why a credible self-defence account, put properly and put early, can end a matter well before a hearing.

Continuing is not in the public interest

Public interest is a separate question from the strength of the evidence. A case can clear the evidence limb and still not be worth running, and a prosecutor is entitled to say so. This is the ground that carries the least certainty for you, because it is a judgement call rather than a test you can pass.

Diversion for mental health or cognitive impairment

This is the ground most people have never heard of. In the Local Court a magistrate can dismiss the charge and discharge you into a treatment or support plan of up to 12 months, with no conviction recorded, under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. It covers matters dealt with summarily, which includes common assault. It is not automatic and it is not fast. It needs a report from a psychologist or psychiatrist, and a written plan the court is prepared to accept (NSW Health, forensic provisions).

If the other person wants the charge dropped

This is the question I am asked more than any other, so here is what actually happens next.

Their request matters. It is one of the things a prosecutor weighs, and in some matters it is what tips the public interest question. But it is one factor, not a switch, and nothing pauses while it is considered. We had a matter at our office where the person who made the complaint told police the next day that they had changed their mind and wanted the other person to come home. Police pointed to the original statement, the Triple Zero call, and accounts from people nearby, and said they could still run the case without that person’s cooperation. They do this, because in many instances, people can be coerced, intimidated or threatened to drop the charges, and may still be in danger.

There is still something the other person can do, but it is not a phone call to the officer in charge.

So what can a victim do if they don’t want the case to continue? They can write a statement to the court basically asking for the charges to be dropped.

That document has a name and a form. What it does, what it does not do, and how it is written is set out on the statement of no complaint page. One thing to be clear about on your side: if an AVO is in place, its conditions still apply to you, whatever the other person now wants.

Talking to the prosecution before the hearing

Most of the useful work on a common assault charge happens before anyone stands up in a courtroom. A lawyer can put written representations to the police prosecutor, setting out where the evidence does not reach reasonable prospects, or why continuing is not in the public interest, and asking for the charge to be withdrawn. The same process is used to negotiate the charge itself, or the agreed facts that go with it. This is defendant-side work, done through a lawyer, and it belongs well before a hearing date rather than on the morning of one. The full set of routes a charge can take out of the system is on the ways a charge can end before court. Where an AVO is running alongside the charge, my team and I handle the two together as AVO lawyers, because a decision on one affects the other.

While that work is going on, four things sit with you:

• Get a lawyer involved early, while there is still time to put representations in before a hearing date.
• If you were given bail conditions, comply with every one of them, exactly as written.
• Do not contact the person who made the complaint, directly or through anyone else.
• Keep every message, photo and record you have, including anything that supports your account.

What happens to your record if the charge is dropped

There are two different endings here and they are not the same thing.

If the prosecution withdraws the charge, there is no finding against you and no conviction. The matter ends without a court deciding anything about what happened.

The second ending looks different on paper. A court can find the offence proven and still decline to convict you, dismissing the charge under section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, which also records no conviction (dismissal of charges, Judicial Commission of NSW). A section 14 diversion order lands in the same place on that point: the charge is dismissed, no conviction recorded.

What each of those endings means for a police check, for travel and for work is a longer answer, and it has its own page: what happens when charges are dropped.

Where this leaves you

Go back to the two lists. If your situation sits closer to the first one, there is a case to put forward, and the person to put it to is the prosecutor, in writing, before a hearing date. If it sits closer to the second, the honest work is somewhere else: what the charge is, what the agreed facts say, and what happens from there. Either way it starts with the same conversation, and it is worth having in the first week rather than the week before court.

Call 1300 614 732 or send us a message. The free discovery call runs about ten minutes and costs nothing, and you will come off it knowing which of those two lists your matter is closer to.