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 essentially 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 serious assault, which is usually in connection to another crime of specific intent.
Common assault is, as the name suggests, the most common form of assault. It comes in two forms; direct application assault or threatened assault. It an indictable offence, but is classified as a misdemeanour, meaning it attracts a maximum sentence of 3 years imprisonment. This is significantly smaller 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.”
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?
Consent can either be express or inferred, and acts that are deemed to be done reasonably in the “common intercourse of life” and “not disproportionate” to the occasion have implied consent according to Broughy v R. For example, these could include non-hostile acts such as patting someone on the back or moving with the crowd at a music concert. Whether the force is disproportionate, or has exceeded that to which consent has been given, is a question for jury. Consent is dealt with in further detail as an assault defence, you can access that article here.
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.”
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?
To be attempting or threatening assault, you must have the intention to apply force, or at the very least make the victim believe that the threat will be carried out. 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.”
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?
An apparent ability to carry out a threat is sufficient to satisfy the requirements of 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
As detailed above, aggravated or serious assault is a crime under the Criminal Code and those found guilty can face up to 14 years imprisonment. An aggravated or serious assault charge is usually made in conjunction with another crime, and it is essential that you get detailed advice from assault lawyers with 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.”
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. It is sufficient that there was proximity with another person to the coercive effect of emboldening or 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. Conduct the court considers “assaults, resists or wilfully obstructs” includes 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
There are a number of other acts that will be deemed to fall under aggravated of serious assault. They include:
- 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 expert lawyers
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, please book an appointment on (07) 3252 0011.