Does a smack on the bottom constitute common assault?
Annabel Bassil was managing a Sydney bar when a man she didn’t know smacked her on the bum, an action that landed him in court for common assault.
Upon being smacked, the 22-year-old was shaken, 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 said on Facebook.
Attitudes of male colleagues to bar manager’s 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. (See Sydney bar manager takes man who ‘smacked’ her bottom to court and wins, news.com.au, August 2020.)
Patron found guilty of common assault
When the matter eventually got to court, the man pleaded guilty to common assault. But the court case wasn’t easy for Ms Bassil, where she was questioned about her height and what she was wearing.
The man explained he had just heard his football team had won and he was “excited”. The magistrate granted a section 10 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 section 61 of the NSW Crimes Act 1900. It states: “‘Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.”
In practice, “common assault” applies when a person is struck or touched without permission or lawful excuse and without it 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 section 61AA 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 prior to going to court
Ms Bassil said she got the result she wanted, as she could see the man was remorseful and understood that he’d made a mistake.
But the court process can be draining. It’s wise to get legal advice before embarking on such an action.