Assault charges in Queensland are considered very serious as they involve offences against the person. They are dealt with under Part 5 of the Criminal Code 1899.
The primary assault offences are contained in Chapter 30 of the Criminal Code under section 335 for common assault, section 340 for serious assault and section 352 for sexual assault.
The elements required to prove an assault charge in Queensland vary depending on the type and seriousness of the offence.
Definition of Assault
Assault is defined in section 245 of the Criminal Code and includes actual forceful contact with another person or threatened forceful contact. In Queensland, physical assault will be made out if there is an act of striking, touching, or moving, or the application of force of any kind to another person, either directly or indirectly, without the consent of the person, or with their consent if that consent is obtained by fraud or duress.
An act of threatened assault will be made out if, through any bodily act or gesture, a person attempts or threatens to apply force of any kind to a person without consent.
It is important to note that the application of force includes the application of light, heat, electricity, smell, gas or any substance that will cause injury or personal discomfort.
In Queensland, a common assault charge carries a maximum penalty of 3 years imprisonment and is dealt with in the Magistrates Court.
You may be charged with common assault in circumstances where the other person has sustained only minor injuries or where you have threatened to assault someone. As an example, people have been charged with common assault for acts such as pointing a toy pistol at a taxi driver and spitting on another person.
If you assaulted the person while you were affected by drugs or alcohol and while you were in a public place, the offence is considered aggravated and may result in a community service order in addition to a term of imprisonment.
Assault Occasioning Bodily Harm
Assault occasioning bodily harm occurs where the person assaulted has sustained more serious injuries; that is, the offender has caused them actual bodily harm. ‘Bodily harm’ is defined in the Criminal Code as any bodily injury that interferes with health or comfort.
This offence carries a maximum penalty of 7 years imprisonment and is dealt with in either the Magistrates Court or the District Court. However, the penalty may be raised to a maximum of 10 years imprisonment if the person who committed the assault is, or pretends to be, armed with a weapon or is in the company of one or more other persons.
A charge of serious assault in Queensland can occur when you:
- assault someone if it is your intention to also commit another crime
- resist your arrest or detention, or that of someone else, by police
- assault, resist, or wilfully obstruct a police officer
- assault a person while they are performing a legal duty
- assault a person in order to commit an unlawful conspiracy
- assault someone who is 60 years or older, or
- assault a person who is disabled or who relies on a remedial device or guide or assistance dog.
The maximum penalty for serious assault in Queensland is 7 years imprisonment. However, this penalty may be raised to 14 years imprisonment if the offender bites or spits at a police officer, or in any way applies bodily fluid or faeces to the police officer.
Another type of assault charge in Queensland is sexual assault. This is generally defined as any unwanted sexual or indecent act on another person, but may also include forcing another to perform or witness an indecent act without their consent.
The maximum penalty for this type of offence is 10 years imprisonment. However, this sentence may be raised to 14 years imprisonment if the assault includes any oral sexual contact.
The defences most frequently used against a charge of assault include provocation and self-defence.
Under section 269 of the Criminal Code, a person may succeed in the defence of provocation if it is proven, among other things, that the offender was provoked into committing the assault and that the provocation deprived the offender of their power of self-control.
If the accused raises evidence of provocation, it is then for the prosecution to prove, beyond reasonable doubt, that provocation does not apply.
An offender may also rely on one of the self-defence provisions in sections 271 and 272 of the Criminal Code if it is proven, among other things, that the force used was reasonably necessary to defend themselves against an assault and that the force used was not intended or likely to cause death or grievous bodily harm. If death or grievous bodily harm was caused by the use of force, the offender must prove that the force was necessary as the nature of the assault against them caused a reasonable apprehension of death or grievous bodily harm.
Once self-defence is relied upon, it is up to the prosecution to satisfy the jury beyond reasonable doubt that the defence does not apply.
Watch the video below to find out more about Assault Charges in Australia: