In Queensland, there are three types of assault charges:
- Common Assault
- Assault occasioning bodily harm
- Serious Assault
This article focuses on the first type of assault charge in Queensland, common assault.
Common assault is a misdemeanor indictable offence, which can result in a maximum 3-year imprisonment.
We refer to Common Assault in two forms:
- Direct Application Assault or
- Threatened assault.
Common assault is of less significance than an aggravated or serious assault, which is a crime and can result in imprisonment of up to 14 years.
Common Assault – Direct Application Assault
In Queensland S245(1)CC (Criminal Code) defines Direct Application Assault as occurring when:
- A person strikes touches or moves or applies force either directly or indirectly
- Without the other persons consent OR
- With the other persons consent if the consent was obtained by fraud
When is someone said to be “Applying Force”?
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.
CASE STUDY Fagan v Metro Police Commissioner (1968 3 ALL ER 442)
The accused accidentally drove a police car onto an officer’s foot.
When the accused was asked to remove the car, he mocked the officer and delayed moving
This incident, which began as an accident, then turned into an assault charge
When is it with consent?
Consent can either be expressed or inferred.
An implied consent can stem from acts that are generally 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.
When is it without consent?
The question of whether a force is with or without consent, depends on whether the force is disproportionate or has exceeded that to which consent has been given. This is often a question for the jury.
Common Assault – Threatened Application Assault
In Queensland, S245(2)CC defines Threatened Application Assault as:
- Any bodily act or gesture
- that attempts or threatens to apply force of any kind to another person
- without the other person’s consent
- and person making the attempt or threat has actually or apparently a present ability to carry out the assault
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”.
Does it matter if you don’t intend to carry out the threat?
Even if you don’t intend to carry out the threat, making the threat is enough to warrant an assault charge.
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 be seen as attempting or threatening assault. Additionally, you must create apprehension of violence in the mind of the individual.
Under s4(1) of the Code:
“When a person intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfillment, and manifests the person’s intention by some overt act, but does not fulfill the person’s intention to such an extent to commit the offence, a person is said to attempt to commit the offence.”
Does the complainant have to be aware of the apprehension of violence?
If the complainant is unconscious, asleep or otherwise unaware to the point where apprehension is not possible, they cannot be victim to threatened application assault.
What is an apparent ability?
Having an apparent ability to carry out a threat is enough 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
Charged with Assault and need legal advice? Contact our Brisbane Criminal Defence Lawyers
It is important 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 or you can book a FREE 30-minute initial consultation.
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