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Charged with Assault? Brisbane Criminal Lawyers provide the law and defences

We aim to deliver Just, Redemptive Outcomes®

What is an Assault?

From a late-night altercation in a pub, to stepping in and protecting someone else in a dispute, there are many reasons why you may have been charged with assault. However, being issued an assault charge does not mean you are guilty of the charge; even what appears to be the most open-and-shut assault cases will usually involve substantial question of law and should be considered carefully by a qualified Brisbane Criminal Lawyer.

There are two types of assault charges. The first is what is referred to as common assault, which is a misdemeanour punishable by up to 3 years’ imprisonment. The second is aggravated or serious assault, which is usually in connection to another crime of specific intent.

Common Assault

Classified as a misdemeanor, Common assault is an indictable offence that attracts a maximum sentence of 3 years imprisonment. We refer to Common Assault in two forms: direct application assault or threatened assault. It is of less significance than an aggravated or serious assault, which is a crime and can result in imprisonment of up to 14 years.

Direct Application Assault

In Queensland, Direct Application Assault is defined as:

“A person who strikes, touches, or moves, or otherwise applies force of any kind to, the person of another, either directly or indirectly, without the other person’s consent, or with the other person’s consent if the consent is obtained by fraud.”
S245(1)CC

When will I been deemed to be “Applying Force”?

Under the Code, applying force includes applying heat, light, electricity or any other substance to such a degree as to cause injury or personal discomfort. The application of force does not become assault until the necessary intention to inflict unlawful force is formed. For example, in the case of Fagan v Metro Police Commissioner, the accused accidentally drove a police car onto an officer’s foot, but when he was asked to remove it he mocked the man and delayed moving – thus turning an accident into an assault charge.

When is it without consent?

According to Broughy v R, consent can either be expressed or inferred. An implied consent can stem from acts that are deemed to be done reasonably in the “common intercourse of life” and “not disproportionate” to the occasion. For example, these could include non-hostile acts such as patting someone on the back or moving with the crowd at a music concert. Determining whether the force is disproportionate, or has exceeded that to which consent has been given, is a question for the jury. Consent is dealt with in further detail as an assault defence, which you can read on further below.

Threatened Application Assault

In Queensland, Threatened Application Assault is defined as:

“Any bodily act or gesture that attempts or threatens to apply force of any kind to the person of another without the other person’s consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect the person’s purpose.”
S245(2)CC

What is a bodily act or gesture?

A bodily act or gesture must be associated with words that indicate you have an intention of assaulting someone. The test for this is whether an ordinary person might reasonably consider your words, combined with the act or gesture, to construe an intention of assault. This threat can be conditional, for example, “If you don’t do this, I will knock you out”.

It is irrelevant whether you can carry out the threat or not; making the threat is sufficient.

What is attempting or threatening?

If you have the intention to apply force or make the victim believe that the threat will be carried out, this could constitute as attempting or threatening assault.

Under s4(1) of the Code:

When a person intending to commit an offence, begins to put the persons intention into execution by means adapted to its fulfillment, and manifests the persons intention by some overt act, but does not fulfill the persons intention to such an extent to commit the offence, a person is said to attempt to commit the offence.”

Additionally, you must create apprehension of violence in the mind of the individual. Therefore, if the person is unconscious, asleep or otherwise inhibited to the point where apprehension is not possible, they cannot be victim to threatened application assault.

What is an actual or apparent ability?

Having an apparent ability to carry out a threat is sufficient to be considered as threatened assault. For example, if you were to threaten someone with an unloaded gun, it would still qualify as an apparent ability to carry out the threat – unless they were aware it was unloaded. This awareness would be essential in disproving this element of an assault charge.

Aggravated or Serious Assault

Under the Criminal Code, aggravated or serious assault is a crime and those found guilty can face up to 14 years imprisonment. An aggravated or serious assault charge is usually made in addition to another crime, and it is essential that you get detailed advice from a good criminal defence lawyer if you face any serious assault charge.

Assault Occasioning Bodily Harm

The Code states that:

Anyone who unlawfully assaults another and thereby does him bodily harm is guilty of a crime.”
(s339(1) CC)

For you to be guilty of aggravated assault occasioning bodily harm, the victim must have received an injury which interfered with their health or comfort. As was the case in Lergesner v Carroll, this can even include a black eye or bloodied nose. However, a mere sensation of pain is not bodily harm – there must be a lasting effect and/or continuing pain from an injury for the bodily harm to be a legitimate element of the assault charge.

Assault with Weapons and/or Company

If you are armed with, or pretend to be armed with, any dangerous or offensive weapon or instrument, or are in company with 1 or more other person or persons, and commit an assault, you are liable for imprisonment according to s339(3) of the Code. The same applies if you are in the company of 1 or more other person or persons and this proximity had the coercive effect of reassuring you, or intimidating the victim.

Assaults on Police

Under the Code, if a person assaults, resists or wilfully obstructs a police officer while acting in the execution of the officer’s duty, they can be charged and face up to 7 years imprisonment. The Court consider “assaults, resists or wilfully obstructs” to include biting, spitting, and throwing bodily fluids or faeces: s340(2AA).

It is usually not a defence that you did not know the officer was a police officer, as according to R v K, a police officer acts in the execution of their duty “from the moment they embark on a lawful task until it is completed.” However, a defence may arise if the police officer in question exceeded their duty.

Other Aggravated and Serious Assaults

The following are a number of other acts that fall under aggravated or serious assault:

  • Assault with intent to commit rape;
  • Indecent assault;
  • Assault in interference with trade or work;
  • Assault with intent to steal, including that accompanied by violence;
  • Assaulting another with the intent to commit a crime, or to prevent lawful arrest;
  • Assaulting someone who is lawfully undertaking a process against any property; and
  • Assaulting someone aged 60 years or more, or someone relying on a guide dog, wheelchair or remedial device.

If you have been charged with Assault and need legal advice, contact our Brisbane criminal defence lawyers

It is imperative that you obtain legal advice as soon as possible if you or anyone you know has been charged with assault.  To speak to one of our Criminal defence lawyers, call us on (07) 3252 0011 and book an appointment with our client engagement team.

What defences do I have to an assault charge?

If you (or someone you know) are charged with assault and you believe you acted in either:

  • self-defence
  • you were provoked
  • it was an accident
  • or your feel that there should be a defence for your actions

there are ways which can overcome the assault charge, which we detail in this article.

A good criminal defence lawyer can assist in defending you under any number of these defences if necessary.

Consent

Under the Criminal Code 1899 (Qld), criminal responsibility for assault can be circumvented if the prosecution cannot establish a lack of consent on the part of the victim. For example, in Kimmorley v Atherton, the victim consented to being photographed but not being kissed. The two accused photographed each other kissing the victim, and were initially convicted of unlawful assault. However on appeal, the court stated that the act of kissing very rarely involved express consent, and was normally implied or tacit. There was therefore no indication of a lack of implied or tacit consent in this instance of assault, and was deemed to be a defence.

A person cannot be criminally responsible for unintended contact as a result of implied or tacit consent which occurs in everyday life, like jostling in a busy queue or bumping someone on the street. However, implied or tacit consent does not cover all incidences. For example, bodily harm can be consented to, but the question that must be considered is whether the degree of violence received was appropriate to the consent that was given (Lergesner v Carroll).

Mistake

Mistake is a defence concerned solely with assault or resisting a police officer. Under s24 of the Code, if an accused had an honest and reasonable but mistaken belief that the person was not a police officer or that he or she was engaged in the execution of his or her duty, then such a belief will act as a defence to the charge of assault once the evidential onus is satisfied. It is then a matter for the prosecution to negative beyond reasonable doubt.

Provocation

Under the Code, provocation provides a complete excuse with relation to assault. While not making the act lawful, it does absolve you of any criminal responsibility with relation to the assault. It cannot however be relied upon if you are charged with bodily harm, grievous bodily harm (GBH) or wounding. The definition of provocation under the code is:

“Any wrongful act or insult of such a nature as to be likely, when done to an ordinary person…to deprive them of the power of self-control, and to induce to person to assault the person by whom the act is done.” (S268 Code)

This means there must be both a loss of self control and provocative conduct for any claim of provocation to have merit. The evidential onus in on the accused in seeking to use provocation, which means you must bring evidence sufficient to satisfy the court that there is a reasonable claim. The onus is then on the prosecution to disprove the claim.

Self Defence

Self-defence is provided for in s271-273 of the Code. This covers both your self-defence, and defence of another. Unlike provocation, self-defence is a complete defence to any assault charge. The use of self-defence which results in damage to property is also excusable if that damage was incurred in the protection of oneself, another or even property. Furthermore, the prosecution carries the “burden of proof” for the excuse of self-defence, which means they must prove beyond reasonable doubt that the assault was not in self-defence.

There are two distinct limbs to self-defence for an assault charge. If you provoked the assault, it will be necessary to establish that the individual you provoked responded with “such violence as to cause reasonable apprehension of death or GBH,” and that you responded by using force reasonably necessary for your preservation, including force that resulted in death or GBH.

If however there was no provocation, the law is similar, except that whatever action you take is deemed lawful as long as it is to the extent “reasonably necessary” to make an effectual defence against the assault (as opposed to provoked assault, which begins with an unlawful action). For the court to determine whether the assault was provoked, they will have mind to the factors detailed above in “Provocation”.

There is a substantive question of law around the force used in response and the definition of “reasonably necessary”. The court applies an objective test in making this determination. In Hagarty, the two elements to look at were said to be:

  • What was the likely attack?
  • Was the response reasonable necessary to make effectual defence against that attack?

For an unprovoked assault, the court will also have mind to any alternate strategies that may have been used in response, any prior acts of the victim, the presence of domestic violence in the situation and the need for retreat. In the case of a self defence that has resulted in death or GBH, they will undertake a subjective analysis to determine whether you believed, on reasonable grounds, that the level of force used was necessary for you to survive the assault.

For a provoked assault, the court will also have mind to apprehension, whether there was a belief that the force was necessary, the need for retreat, excessive force and the limitations that are placed by law on defensive force in a provoked assault.

There are also distinct legal questions to be addressed where there is a mistaken belief of the amount of force required, protection of property, or where the self-defence is a defence of another; however that is outside the scope of this article.

Additional Defences

To absolve a person of criminal responsibility for an assault charge, we consider the broad range of possible excuses in addition to the above defences. These include:

  • Extraordinary emergency
  • Insanity
  • Immature age
  • Compulsion;
  • Arrest of the wrong person;
  • Surgical procedure; and
  • Defence of property.

Do I need to have the intention of assaulting someone for the charge to be successful?

We consider two examples in this instance, whereby Criminal Code 1899 (Qld), intention is not listed as a requirement.

In Burton v Davies, a driver accidentally accelerated and dragged a girl along outside with his truck, and the court upheld the assault charge even without intent. However in another case, R v McIver, the court determined that a charge of assault inherently implies intent.

The necessity of intent causes confusion and determining its relevance is complex requiring detailed legal considerations based on facts. The general rule of thumb, is that if you intended to apply force unlawfully or acted recklessly, you have assaulted someone.

For an example of acting recklessly, the case of Venna is instructive. A conviction of assault occasioning bodily harm was upheld where upon arrest, the accused “lashed out wildly with his legs and kicked the hand of one of the police officers.” The accused attempted to argue that he was kicking out in an attempt to rise from the ground, but was held to be guilty because his kicking out was reckless in nature.

Further, assault under the Code is not an offence of specific intention, and so a technical assault arises whenever there is an application of force. However, you will not necessarily be guilty of assault under the Code for simply applying force; the application of force must be both unlawful and lacking consent before any assault charge can be satisfied. This gives rise to the defences of authorisation, justification or excuse, dealt with earlier in the article.

If you have been charged with assault and need to consider an assault defence, contact us

If you or anyone you know has been charged with assault, it is imperative that you obtain legal advice as soon as possible. To speak to one of our Brisbane Criminal Lawyers, book an appointment on (07) 3252 0011 with one of our client engagement team today.