Definition of Assault
Under s 245(1) of the Criminal Code Act 1899 (Qld), ‘[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, or who by any bodily act or gesture 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, is said to assault that other person, and the act is called an assault’.
The term ‘applies force includes the case of applying heat, light, electrical force, gas, odour, or any other substance or thing whatever if applied in such a degree as to cause injury or personal discomfort’ (s 245(2)).
The word ‘assault’ has been held to have a very wide definition. If a person presents an unloaded gun or imitation firearm at another person, this could be held to be an assault. However, words not accompanied by some bodily act or gesture indicating an intention to assault would not be held as assault.
Assault is an offence
Under s 246:
(1) ‘An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.
(2) The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person’.
Normally, consent is relevant (e.g. a boxing match) but not where the consent is obtained by fraud or the complainant is not legally allowed to consent (e.g. in certain sexual offences where age is relevant).
Common assault ‘Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for 3 years’ (s 335).
Aggravated assault
While there is no specific offence of aggravated assault, the Criminal Code has previously provided, in certain circumstances of aggravation, increased penalties on summary conviction for assault. The penalty for common assault was increased from one to three years’ imprisonment from 1 July 1997. This gives the court greater scope for variation in sentencing, depending on the nature of the assault and any alleged circumstances of aggravation.
Circumstances of aggravation have previously included where the:
• assault was of a sexual nature
• person assaulted was a child under 16
• person assaulted was a female
• person assaulted was a male child under the age of 14 years.
Assault occasioning bodily harm
Under s 339:
(1) ‘Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime, and is liable to imprisonment for 7 years.
(3) If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive weapon or
instrument or is in company with 1 or more other person or persons, the offender is liable to imprisonment for
10 years’.
‘Bodily harm’ is defined as ‘any bodily injury which interferes with health or comfort’ (s 1).
The sensation of pain without ‘bodily injury’ is not sufficient to constitute bodily harm (see R v Scatchard (1987) 27 A Crim R 136). However, if the bodily injury results in:
(a) ‘the loss of a distinct part or organ of the body; or
(b) serious disfigurement; or
(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health;
whether or not treatment is or could have been available’, it comes under the definition of ‘grievous bodily harm’ (s 1).
Serious assaults
Section 340 of the Criminal Code provides examples of assaults that are deemed to be serious assaults. These
include when a person:
a. assaults…with intent to commit a crime, or with intent to resist or prevent the lawful arrest or detention of
himself or herself or of any other person; or
b. assaults, resists or wilfully obstructs a police officer while acting in the execution of the officer’s duty, or any person acting in aid of a police officer while so acting; or
c. unlawfully assaults any person while the person is performing a duty imposed on the person by law; or
d. assaults any person because the person has performed a duty imposed on the person by law; or…
g. unlawfully assaults any person who is 60 years or more; or
h. unlawfully assaults any person who relies on a guide, hearing or assistance dog, wheelchair or other remedial
device’ (s 340).
If convicted of a serious assault, an offender is liable to seven years’ imprisonment. A charge of serious assault must be dealt with summarily if the prosecutor elects (s 552A(a)).
Defences
There are a number of defence available in Assault matters these include, but not limited to, provocation and self defence. For more information please contact our office.