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ASSAULT

People generally have their own view about what an assault is. However, the Queensland Criminal Code defines "assault" in somewhat wider terms.

Assault is defined to mean the act of striking, touching, moving, or otherwise applying force of any kind, to the person of another, without the person's consent, or if the consent is obtained by fraud. The force can be applied directly or indirectly.

An assault is also committed where a person, by any bodily act or gesture, attempts or threatens to apply force of any kind to another person, under such circumstances that the person making the attempt or the threat has actually or apparently a present ability to carry out the attempt or the threat.

There are a number of types of assaults under the Criminal Code, and other legislation. Generally, the least serious assault is that of common assault, or assault simpliciter. The maximum penalty for a common assault is three (3) years imprisonment. This offence must be dealt with in the Magistrates Court unless the prosecution elects otherwise.

There are a number of defences for assaults. These defences include provocation, self-defence and accident. 

SERIOUS ASSAULTS, OTHER ASSAULTS AND BODILY HARM

There are a number of assault offences, which are more serious than a common assault. 

Sexual Assaults

If a person indecently assaults another person, or procures a person, without consent, to commit an act of gross indecency, or witness an act of gross indecency, then the person commits a sexual assault. The maximum penalty for such an offence is ten (10) years imprisonment unless there are aggravating circumstances, in which case the maximum period of imprisonment is longer. Some aggravating circumstances are :

  • being armed with a dangerous or offensive weapon (for example a gun, knife, or broken bottle) before, during, or immediately after the sexual assault;
  • committing the sexual assault in company with other people;
  • penetrating the vagina or anus of the victim with an object, or a part of the offender's body other than the penis;
  • oral sex.

It is also an offence to assault someone with intent to commit rape. The maximum period of imprisonment for this offence is fourteen (14) years imprisonment. 

Serious Assaults

A person who commits a serious assault is liable to be imprisoned for up to seven (7) years. Some serious assaults are :

  • assaulting another person with intent to commit a crime, or with intent to resist or prevent the lawful arrest or detention of the person;
  • assaulting a police officer in the execution of his or her duty, or any person acting in the aid of a police officer;
  • assaulting a person who is 60 years old, or older; and
  • assaulting a person who relies on a guide dog, wheelchair or other remedial device. 

Other Assaults

Assaulting a police officer in the execution of his or her duty is also an offence under a number of other acts. The Police Powers and Responsibilities Act provides for maximum penalties of $1500.00, or six (6) months imprisonment for a person who commits this offence. An offence of assaulting police under the Police Powers and Responsibilities Act must be dealt with in the Magistrates Court.

A person who assaults a member of the crew of an aircraft whilst they are performing their duty commits a more serious form of assault, and is liable to a maximum term of imprisonment of up to fourteen (14) years. 

Assault Occasioning Bodily Harm

A person who assaults someone, and that assault causes bodily harm, commits a more serious offence of assault, and is liable to a maximum period of imprisonment of up to seven (7) years. If the person causes bodily harm and is, or pretends to be armed with an offensive weapon, or is in company with one or more other people, then the person is liable to be imprisoned for a maximum of ten (10) years.

A charge of assault occasioning bodily harm can be dealt with in either the Magistrates Court or the District Court, unless there is an aggravated circumstance such as those listed above, in which case it must be dealt with in the District Court. It is up to the person charged to decide in which court the matter will be dealt with. 

UNLAWFUL WOUNDING AND GRIEVOUS BODILY HARM

Wounding

A person who unlawfully wounds another person commits an offence and is liable to a maximum period of imprisonment of up to seven (7) years. Generally, "wounding" is defined as a breaking of the true skin. Wounding generally results in bleeding.

The following non-exhaustive examples generally constitute a wounding :

  • cutting someone with a knife;
  • shooting someone; and
  • smashing a glass into someone, and cutting them.

The above examples may also constitute more serious offences, depending on the circumstances, such as grievous bodily harm or attempted murder.

Charges of wounding can only be dealt with in the District Court which means that they have to proceed by way of a committal hearing in the Magistrates Court. 

Grievous Bodily Harm

A person who does grievous bodily harm to another is guilty of an offence, and is liable to be imprisoned for a maximum period of fourteen (14) years. "Grievous bodily harm" is defined to mean :

  • the loss of a distinct part or an organ of the body; or
  • serious disfigurement; or
  • any bodily injury of such a nature that, if left untreated, would endanger life, or cause or be likely to cause permanent injury to health.

It is irrelevant whether medical treatment is available. 

OTHER VIOLENT OFFENCES

Stupefying and Disabling in Order to Commit an Offence

Any person who, by any means calculated to choke, suffocate or strangle, renders or attempts to render any person incapable of resistance, commits an offence if they do so:

  • with intent to commit or to facilitate the commission of an offence; or
  • to facilitate the flight of an offender after the commission or attempted commission of an offence.

The maximum penalty for these offences is imprisonment for life. 

Maliciously Administering Poison with Intent to Harm

A person who, with intent to injure or annoy another person, causes any poison or other noxious thing to be administered to, or taken by that person, and thereby endangers that person's life, or does the person some grievous bodily harm, commits an offence. The maximum penalty for this offence is fourteen (14) years imprisonment. If the person who administers the poison or noxious thing neither endangers the person or causes grievous bodily harm, then they are guilty of an offence which carries a maximum jail term of seven (7) years. 

Torture

A person who tortures another person commits an offence, and is liable to be imprisoned for up to fourteen (14) years. "Torture" is defined to mean the intentional infliction of severe pain or suffering on a person by an act or series of acts done on one or more than one occasion. "Pain and suffering " includes physical, mental, psychological or emotional pain or suffering, whether temporary or permanent. 

Deprivation of liberty

A person who unlawfully confines or detains another in any place against the other person's will, or deprives the other person of their liberty in any other way, commits an offence and is liable to be imprisoned for up to three (3) years. This offence is sometimes called false imprisonment. 

ROBBERY

Essentially, the offence of robbery is committed if a person steals anything and, at, or immediately before or after stealing the thing, uses or threatens to use violence in order to obtain the thing stolen, or to stop anyone's resisting the theft.

A person convicted of the offence of robbery is liable to be imprisoned for fourteen 14 years. However, if the person is or pretends to be armed with a dangerous or offensive weapon (such as a gun, knife, or syringe), is in company with other people, or uses personal violence, then the person is liable to be imprisoned for life.

The person does not have to actually have a weapon, or intend to use violence. Threatening violence is enough. Also, the value of the property stolen is irrelevant. A person can be convicted of robbery for threatening to use violence to steal $1.00.

The offence of robbery can only be dealt with in the District Court. If a person charged with robbery wishes to dispute the charge, then they must proceed to a trial before a judge and a jury of twelve people.

Before the matter gets to the District Court, it goes to a committal hearing. This is a preliminary hearing before a magistrate where the magistrate must decide whether there is, on the face of it, a case against the person charged.

It should be stressed that robbery is a very serious offence, and most people convicted of the offence of robbery spend substantial periods in jail. Also, magistrates and judges are always reluctant to grant bail to persons who are charged with robbery, especially where there is actual violence committed. 

PROVOCATION

Provocation

The defence of provocation is only available to a person charged with assault and assault occasioning bodily harm. For a person who is charged with an assault to succeed in the defence of provocation, he or she must establish the following :

  • That the person was provoked into committing the assault
  • That the provocation deprived the person of their power of self-control:
  • That the person acted before their passion had time to cool:
  • The force used was not disproportionate to the provocation:
  • The force used was not intended, or was not likely to cause death or grievous bodily harm:

Provocation of a third party

A person may be able to rely on the defence of provocation, when another person is actually the person that the act of provocation is directed to. Examples include the parent, husband, wife, relative or carer defending against an assault to another. 

DEFENCE - SELF-DEFENCE

Most people have their own idea about what self-defence is. However, self-defence, under the Queensland Criminal Code, is quite complicated. The defence of self-defence is divided into self-defence against an unprovoked assault, and self-defence against a provoked assault. 

Self-defence against an unprovoked assault

A person is lawfully able to use such force as is reasonably necessary to make an effectual defence against an assault which has not been provoked, provided the force is not intended, and is not such as is likely to cause death or grievous bodily harm. However, if the nature of the assault against the person is such as to cause a reasonable apprehension of death or grievous bodily harm, and the person using force by way of a defence reasonably believes that they cannot defend themselves other than by using force that may cause death or grievous bodily harm, then they are able to use such force. 

Self-defence against a provoked assault

This applies when the person who has been charged (and is attempting to raise the defence of self-defence) has initially assaulted or provoked the assault from another person. The defence is only available if that other person who was initially provoked responds with such violence as to cause a reasonable apprehension of death or grievous bodily harm. However the defence does not apply if the person seeking to rely on it, first began the assault with intent to kill or do grievous bodily harm.

In any other case the defence is not available to an "instigator/provoker". 

Aiding in self-defence

A person who is acting in good faith in another person's aid is able to raise self-defence on the same basis as the person who they are aiding and can use a like degree of force for the purpose of defending the person. 

Reasonableness

The force used by the person seeking to rely on self-defence must be reasonable. What is reasonable in the circumstances depends on the facts of each case, and is a matter for a jury to decide (or a magistrate, in a Magistrates Court hearing).

Courts recognise that persons defending themselves cannot be expected to weigh up the exact amount of defensive action which is necessary in circumstances where they have to act quickly in a stressful and dangerous situation. The jury (or a magistrate) will give substantial weight to what a person instinctively thought was necessary in determining whether the force used was reasonable. 

Onus of proof

Once the person wishing to rely on self-defence raises it, the prosecution, in order to secure a conviction, must satisfy the jury (or magistrate) beyond a reasonable doubt, that the defence does not apply. In other words, if the jury is satisfied that the accused was acting in self-defence, or if the jury is not satisfied beyond a reasonable doubt that the accused was not acting in self defence, then they must find the accused not guilty. 

DEFENCE - ACCIDENT

The defence of accident applies to most offences, including assaults and violent offences. The Criminal Code states that a person is not criminally responsible for an event which occurs by accident. In law, an event occurs by accident if it is caused by a happening which is not foreseeable by the person doing it, AND it is not reasonably foreseeable by an ordinary person. Whilst this seems relatively straightforward, it is subject to a number of exceptions and qualifications.

A person charged in relation to the death or grievous bodily harm of another person cannot rely on accident if the death or grievous bodily harm occurs because of a defect, weakness or abnormality in that other person (such as an abnormally thin skull), even though the person does not intend or foresee, or cannot reasonably foresee the death or grievous bodily harm.

The defence of accident does not apply to provisions of the Criminal Code relating to negligent acts; for example, the provision of the Code which imposes an obligation upon a person in charge of a dangerous thing to use reasonable care, and take reasonable precautions in using such a thing.

The defence of accident is very complicated. Ultimately, a jury (or a magistrate, in a Magistrates Court hearing) will have to decide on the facts of each case as to whether the defence of accident is established. 

FURTHER INFORMATION 

This Information Outline is available courtesy of AussieLegal's online legal information and law firm referral service.

If you want further information, we recommend contacting the law firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at 3rd floor, Bank of NSW Chambers, 33 Queen Street, Brisbane 4000, or call them on (07) 3229 3166

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become the premier Criminal Defence firm in Queensland, committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.

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