The hardest part of an assault charge in the first week is not knowing what the police have. You do not get to see the brief of evidence on day one. So you are left guessing at how much trouble you are in, and guessing badly in both directions.
Here is the plain answer. Police do not need an injury and they do not need an independent witness to charge you or to run the case. In a domestic violence matter, the complainant’s recorded statement to police can be played in court as their evidence itself.
This page sets out what usually sits in that brief, what each item is actually worth, what the prosecution has to prove before any of it means a conviction, and the order it all happens in. It is written for anyone facing an assault charge in NSW.
How an assault matter is built, step by step
- The incident is reported. Usually a call to Triple Zero, often on the same night.
- Police gather what they can and take statements. This is where most of the brief is created, within hours.
- Police charge you. In a domestic matter they usually apply for an ADVO at the same time. If you are wondering how little it takes to reach this point, read what evidence police need to charge you.
- The brief of evidence is served on you. This is the first time you see the case in full.
- You enter a plea.
- At hearing, the prosecution has to prove every element beyond reasonable doubt.
Steps 1 to 3 are done. You cannot change them. Everything you do from here works on steps 4 to 6.
What you need before you start
Get these together now, before you talk to anyone about the case.
- Your Court Attendance Notice and the date printed on it.
- A written timeline of the day, done today while your memory is still accurate.
- Any messages or records in full, exported properly, not partial screenshots.
- Contact details for anyone who was present or nearby.
- Any medical or property records connected to the day.
One more thing. You are not obliged to give police an account of what happened, and once you do it forms part of the case. Get advice before you decide either way.
The evidence in the brief, and what each piece is worth
Most articles list evidence types as though they all carry the same weight. They do not. Here they are in the order they actually matter in a New South Wales matter, with what each one proves and where each one commonly falls short.
1. The complainant’s recorded police statement. In a domestic violence matter, this is the single heaviest item. A statement recorded by police can be played in court as the complainant’s evidence in chief, so they do not have to tell the story again from the witness box. It is not automatic. It has to be taken with informed consent, and as soon as practicable after the alleged offence, and the complainant still has to be available for cross-examination (s 289F Criminal Procedure Act 1986 (NSW)). Where it falls short: it is one account, recorded in the middle of a distressing night, and it can be tested on what it does and does not say.
2. The Triple Zero recording. It is contemporaneous, meaning it was created at the time rather than reconstructed later, and that is what gives it force: it captures what was said, by whom, at the moment. Where it falls short: it is one person’s account under pressure, and it often does not establish who did what.
3. Police body-worn video. It records what officers found when they arrived, including what people said and how they presented. Where it falls short: it starts after the event, so it shows the aftermath rather than the incident.
4. Statements from anyone nearby. Neighbours, family members and anyone else in the area regularly end up in the brief. Where it falls short: people who heard something rarely saw it, and hearing an argument through a wall does not identify who did what.
5. Medical records. These show that harm existed and when it was treated. Where it falls short: a record establishes harm, not who caused it, and no record does not mean no charge.
6. Messages and social media. Texts and app messages are used constantly, particularly to show what was said before and after. Where it falls short: a screenshot of part of a thread is worth much less than the full exchange. If this is a live issue for you, read text messages as evidence.
7. Recordings made by one of the parties. Sometimes a party has recorded the conversation. Whether that can be used at all is a separate question, and the answer is not obvious. See a secret recording.
8. Photographs, damaged property and other physical items. Supporting material. It corroborates a version of events. On its own it rarely proves an element.
Here is where a lot of people get caught out. The absence of items 5 and 8 feels like the case is empty. It is not. Items 1 to 4 are enough to run a matter without a single photograph or medical record.
The evidence checklist
Work through this against your own brief when it arrives. For each item, the question in the last column is the one that matters.
| Item | Usually in the brief? | The one question to ask |
|---|---|---|
| Complainant’s recorded statement | Yes, in a domestic matter | Was it taken with informed consent and as soon as practicable? |
| Triple Zero recording | Usually, if a call was made | Does it identify who did what, or only that something happened? |
| Body-worn video | Usually | Does it capture the incident, or only what officers found afterwards? |
| Statements from others nearby | Often | Did they see it, or only hear it? |
| Medical records | Only where treatment was sought | Do they show what harm was treated, and when? |
| Messages and social media | Often | Is the exchange complete, or a partial screenshot? |
| Photographs and physical items | Sometimes | Is it contemporaneous, and does it connect to an element of the offence? |
| Any recording made by a party | Occasionally | Is it admissible in the first place? |
| Your own record of events | Only if you provide it | Is it accurate, dated, and something you are prepared to stand behind? |
Complete, contemporaneous, and clear about who did what. Those three tests are what a defence lawyer applies to every page of a brief.
How to prove assault: what the prosecution actually has to prove
Evidence is not the same as proof. For a common assault charge in NSW, the prosecution has to establish each of the following:
- An act that intentionally or recklessly causes another person to apprehend immediate and unlawful violence, or that applies unlawful physical contact.
- That the other person did not consent to it.
- That you realised that might happen and went ahead anyway.
- That there was no lawful excuse.
That first point is the one people get wrong. Common assault covers both limbs: causing someone to apprehend violence, and unlawful physical contact. Which limb the police are running changes what they have to prove.
(Criminal Trial Courts Bench Book, assault.) Different sources group this ground differently, so you will see it set out as three elements as well as four.
Every one of those elements has to be proved beyond reasonable doubt. If one is not, the court must find you not guilty. That is the gap between a brief that looks bad and a case that succeeds, and it is the whole reason people who assume the worst on day one are often wrong.
What the charge carries
The maximum penalty depends on which offence you have been charged with, not on how the incident felt.
| Offence | Section, Crimes Act 1900 (NSW) | Maximum penalty |
|---|---|---|
| Common assault | s 61 | 2 years imprisonment |
| Assault occasioning actual bodily harm | s 59 | 5 years |
| Reckless wounding | s 35(4) | 7 years |
| Reckless grievous bodily harm | s 35(2) | 10 years |
| Wounding or grievous bodily harm with intent | s 33 | 25 years |
Source: Sentencing Bench Book, assault and wounding offences.
The line between common assault and actual bodily harm turns on the level of harm. Actual bodily harm means harm that is more than momentary or insignificant. That threshold is why two people describing a similar incident can end up facing very different maximums.
These are maximums, not what a Local Court usually imposes. Most common assault matters are dealt with summarily, and the range of outcomes there is much lower than the number in the table. Several of these offences carry a higher maximum again where the offence was committed in company.
So how serious is a common assault charge? Serious enough to be a criminal matter with a conviction and a record attached to it, and serious enough that the ADVO running alongside it can affect where you live and when you see your children. Not so serious that the number at the top of the table is the outcome you should be planning around.
What happens next, and when
The sequence is fixed, even though the dates are not.
- First mention at the Local Court. The date is on your Court Attendance Notice.
- Service of the brief of evidence. The prosecution serves the material it intends to rely on.
- Enter a Plea. You enter a plea of guilty or not guilty.
- Hearing. If you plead not guilty, the matter is listed for hearing and the prosecution has to prove every element.
Police can also continue investigating after a charge is laid. On the investigation side of that, see how long police have to investigate.
The ADVO that comes with it
A domestic assault charge almost always arrives with an ADVO application attached, so you are dealing with two things at once, and the second one catches people off guard.
The same evidence that supports the charge usually supports an application for an Apprehended Domestic Violence Order, filed alongside it. The important part is the standard of proof. A criminal charge has to be proved beyond reasonable doubt. An ADVO only requires the court to be satisfied on the balance of probabilities that the protected person fears a domestic violence offence, or is being intimidated or stalked. For children and some other protected people, actual fear does not have to be established at all. So the order can be made even where the charge does not succeed.
Two things worth being clear about. An ADVO is not a conviction and it does not give you a criminal record. But breaching one is a criminal offence, carrying up to 2 years imprisonment, 50 penalty units, or both. The Local Court sets out how the orders work in plain English on its own page for Apprehended Violence Orders.
Reference for this section: Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 14 and 16.
If both are running against you, my team and I work the two sides together, as AVO lawyers and as domestic violence lawyers, because a decision on one affects the other.
When the complainant wants it dropped
This comes up more than any other question, so let me use a matter my team and I handled.
A man was charged with common assault after a domestic incident. His wife had called police during the night, they attended, they charged him and placed an ADVO. The next day she changed her mind. She told police she did not want him charged and that she wanted him to come home. That should be the end of it, most people would think. It was not. Police pointed to her original statement, the Triple Zero recording, and statements from the neighbours nearby, and said that even without her cooperation they could still run the case.
The lesson is a hard one. Once charges are laid, the decision belongs to police and the prosecution, not to the complainant. Withdrawal of support is relevant, sometimes very relevant, but it does not end the prosecution. There is a separate page on whether an assault charge can be dropped that goes through the process properly.
One related point, because people build their whole case around it and should not. If a complaint was made some time after the alleged incident, a court can be told at a hearing that there may be good reasons for that delay, and that delay does not by itself mean the allegation is false (s 306ZR Criminal Procedure Act 1986 (NSW)). So “she waited three weeks” is not the argument you think it is. It can still matter, but only as part of a broader challenge to reliability, never on its own.
The common defences for assault charges
Once you know what is in the brief, you can work out which defences are actually open to you.
Self-defence
You believed your conduct was necessary to protect yourself, another person, or property, and your response was reasonable in the circumstances as you saw them. Here is the part that is routinely misunderstood: you do not have to prove self-defence. Once it is properly raised, the prosecution has to disprove it beyond reasonable doubt (s 418 and s 419). That is a significant advantage and it is often the strongest position available.
Consent
The other person consented to the contact. This applies in contact sports and consensual rough play. It is generally not available where serious harm resulted.
Lawful correction
Under the Crimes Act, a parent can use force that is reasonable given the child’s age, health and maturity. It is a narrow defence with statutory limits on how force may be applied, and force outside those limits is not lawful correction.
Duress
You were coerced into acting by a threat of death or serious harm to yourself or someone else, and a person of ordinary firmness would have responded the same way. The threshold is high, and a threat of some lesser harm will not be enough.
Accidental actions
The act was unintentional, with no intention to cause harm or to cause the other person to apprehend it. This connects straight back to the elements above, because if intention and recklessness are both absent, an element is missing.
Where this leaves you
You are not in a position to judge the strength of the case yet, and neither is anyone else, because none of you have read the brief. What you can do today is get your own record down while it is accurate, hold off on giving an account until you have advice, and treat the charge and the ADVO as one problem rather than two.
When the brief lands, someone should read it against every element the prosecution has to prove, page by page, and tell you honestly where it is strong and where it is not. That is a conversation, not a commitment. Call 1300 614 732 or send us a message and we will book you a free discovery call. If it turns out you need criminal lawyers alongside the family law side of it, we will tell you that too.
Frequently Asked Questions
What evidence is needed for assault charges in NSW?
There is no fixed list. Police commonly rely on the complainant’s recorded statement, the Triple Zero recording, body-worn video, statements from people nearby, medical records, messages and photographs. In a domestic matter the recorded statement carries the most weight. No single item is required for a charge to be laid.
Can you be charged with assault if there is no injury and no independent witness?
Yes. The question people really ask is, can you be charged with assault without evidence, and the honest answer is that neither an injury nor an independent witness is required. Common assault does not require harm at all. It covers an act that intentionally or recklessly causes another person to apprehend immediate and unlawful violence, as well as unlawful physical contact. A complainant’s account, supported by a Triple Zero call or body-worn video, is frequently the whole basis of a charge.
Can police continue an assault case if the complainant does not want to proceed?
Yes. Once charges are laid the decision belongs to the police and the prosecution. A complainant withdrawing support is relevant, but the case can still run on the original statement, the Triple Zero recording and statements from others. Withdrawing support does not end the prosecution.
What does the prosecution have to prove for common assault?
An act that intentionally or recklessly causes another person to apprehend immediate and unlawful violence, or that applies unlawful physical contact, that the other person did not consent, that you realised it might happen and went ahead anyway, and that there was no lawful excuse. Every element must be proved beyond reasonable doubt.
How to prove assault in NSW: what does the prosecution have to establish?
The same elements, to the criminal standard. The prosecution has to establish the act, the absence of consent, your intention or recklessness, and the absence of lawful excuse, each one beyond reasonable doubt. Evidence in the brief is not proof on its own. It only counts if it goes to one of those elements.
How serious is a common assault charge in NSW?
Serious enough to be a criminal matter carrying a maximum of 2 years imprisonment, a criminal record on conviction, and usually an ADVO alongside it. Most matters are dealt with summarily in the Local Court, where outcomes sit well below that maximum, but it is not something to handle without advice.
Does an ADVO give you a criminal record?
No. An ADVO is a protective order, not a conviction, and it does not create a criminal record on its own. Breaching one is different. A breach is a criminal offence carrying up to 2 years imprisonment, 50 penalty units, or both.
Can a recorded police statement be used instead of the complainant giving evidence?
In a domestic violence matter it can be played as their evidence in chief, if it was taken with informed consent and as soon as practicable after the alleged offence. They must still be available for cross-examination, so it replaces the retelling, not the questioning.
