Assault Defence – What Possible Defence Do I Have to an Assault Charge?

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Many people who are charged with assault feel they have been hard done by. Whether they were acting in self-defence, under provocation, or by accident, they feel like there should be a defence for their actions. If you (or someone you know) are in a situation like this, there are ways to overcome the assault charge. These are detailed in this article. A qualified Brisbane Criminal 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.

Implied or tacit consent extends to removing criminal responsibility for inadvertent contact which occurs in the course of everyday life, like jostling in a busy queue or bumping someone on the street. However, implied or tacit consent does not cover all eventualities. 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

In addition to the above defences, there are a broad range of other possible excuses which will absolve a person of criminal responsibility for an assault charge. 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?

Under the Criminal Code 1899 (Qld), intention is not listed as a requirement. For example, 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.

This confusion around the necessity of intent can make determining its relevance quite complex, and is usually a question for detailed legal consideration based on the 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 in 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 Business Development Officers today.
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