Common Assault Charges in a Domestic Violence Context

The same offence — in a different procedural world

Crimes Act 1900 (NSW), s 61: whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for 2 years. Where the complainant is in a domestic relationship with the accused, the charge is prosecuted as a domestic violence offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The elements are identical to common assault anywhere else: an intentional or reckless application of unlawful force, or conduct causing another person to apprehend immediate unlawful violence — no injury required, and no physical contact required. What changes is everything around the charge. A domestic context brings a specialist police response, its own evidence rules, a parallel civil order, a DV flag on any conviction, and a prosecution policy built on the premise that complainants in domestic matters are often under pressure to retract.

People charged after a domestic incident routinely misjudge the matter because they assume the ordinary rules apply. They do not. The three features below are where those misjudgements happen.

The complainant can't drop the charge — the State prosecutes

This is the most important fact on this page, and the most misunderstood. Once police lay the charge, the prosecution belongs to the State. The complainant is a witness in the State's case — not the party bringing it. They cannot withdraw it, "drop" it, or instruct the police prosecutor to discontinue. NSW Police prosecute domestic violence matters under a pro-prosecution policy that anticipates — and is specifically designed to withstand — complainants who later say they do not want the matter to go ahead.

So a partner's statement that they will "withdraw the charges", or a reconciliation in the weeks after the incident, does not end the prosecution. A complainant's genuine wish not to proceed is something the prosecution may weigh, and it can affect how the evidence runs at a hearing — but the decision rests with the prosecution alone, and matters regularly proceed without the complainant's support. Just as importantly: any attempt to encourage the complainant to withdraw is dangerous. It can constitute a fresh offence, and if an AVO is in place, the contact itself can be a breach. The case is resolved through the prosecution, properly — not through the relationship.

The recording made at your door is the prosecution case

In NSW domestic violence proceedings, police can take the complainant's account as a recorded video or audio statement at or near the scene — and that recording can be played in court as all or part of the complainant's evidence-in-chief. These DVEC recordings mean the core of the prosecution case is often captured within hours of the incident: the complainant's account, their demeanour, the state of the house, all on camera.

Two consequences follow. First, the case against you is less dependent on the complainant's later willingness to attend court and repeat the account — another reason "they'll withdraw it" is not a strategy. Second, the recording is a fixed account that can be analysed: inconsistencies with the triple-zero call, the police notebook, the photographs and any injuries (or absence of them) are all testable. The defence work starts with watching that recording closely — not with assumptions about what it says.

The AVO arrives with the charge

When police charge a domestic violence offence in NSW, they are generally required to apply for an Apprehended Domestic Violence Order for the complainant — usually a provisional order made on the spot, before any court has looked at the matter. The AVO is a separate civil order, but it travels with the criminal charge, and its conditions bind you immediately: no further assault or intimidation at minimum, and frequently no contact and exclusion from your own home.

This is where the first week goes wrong for many people. The AVO is breached — often by contact the complainant initiated or welcomed — and a defensible assault charge is suddenly accompanied by a contravention charge that is much harder to answer. Until the order is varied by a court, it means exactly what it says. How the AVO and the charge interact, and whether the order's conditions can be varied, is covered across our AVOs & Protection Orders pages — and it is part of the first conversation in every DV matter we take on.

Penalties — and what the DV flag adds

The maximum penalty is the same as any common assault: 2 years' imprisonment and/or a $5,500 fine (50 penalty units), dealt with in the Local Court. Outcomes range from non-conviction orders under section 10 through fines and Community Correction Orders to imprisonment for serious or repeated conduct.

The domestic context changes the sentencing landscape in real ways. A conviction is recorded as a domestic violence offence, which affects future bail, future sentencing, AVO applications and family law proceedings. Sentencing law requires courts to treat domestic violence with particular seriousness, and magistrates approach non-conviction orders more cautiously than in non-domestic matters — though section 10 remains available in appropriate cases, and a properly prepared subjective case still matters enormously. Every matter turns on its own facts.

Defences — unchanged by the context

• Self-defence — a complete defence, and a common reality in domestic incidents where both parties were physical. Once raised, the prosecution must disprove it beyond reasonable doubt.
• Accident or lack of intent — contact in a confined, heated moment is not automatically deliberate or reckless.
• No apprehension of immediate violence — in no-contact allegations.
• Reliability and consistency — the DVEC recording, the triple-zero call and the statements can be tested against each other and against the physical evidence.

The DV context does not lower the standard of proof, and it does not make allegations unanswerable. It makes the procedure less forgiving of mistakes — which is a reason for early advice, not for pessimism.

How Lenz Legal approaches DV assault charges

These matters arrive as a bundle — a charge, a provisional AVO, bail conditions, sometimes children and a home in the middle of it — and they have to be handled as a bundle. Dean Lenz's first session covers all of it: the immediate AVO and bail position (where you can live, who you can contact), then the evidence — the DVEC recording, the triple-zero call, the photographs — read closely against the elements of s 61.

From there the path is the same disciplined choice as any assault matter: contest the charge where the evidence does not hold, negotiate where it is overstated, or prepare a plea and the strongest available subjective case where it is sound. What is different is the discipline required along the way — strict compliance with the AVO, no informal contact about the case, and no reliance on the hope that the complainant will make it go away. They cannot, and the matters that resolve well are the ones run on that understanding from day one.

If you have been charged after a domestic incident — or police are on their way — get advice before you are interviewed. What is said at the scene, on camera, in the first hour shapes everything that follows.

Common assault (DV) — your questions answered