Common Assault

Published: 25 November 2020
Published: 25 November 2020
Andrew Anderson, Legal DirectorBy: Andrew Anderson

Common Assault – Queensland

Common assault is a criminal offence, which may be punishable by actual imprisonment. An assault is unlawful when it is not authorised, justified or excused. The maximum penalty is 3 years’ imprisonment.

Each legal issue is unique. This information cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature to people who want to learn more about the offence of common assault in Queensland.

If you face a common assault charge, contact Anderson Legal. This firm provides expert advice and representation. Andrew Anderson is a former Principal Crown Prosecutor and is recognised as a leading criminal defence lawyer in Queensland. He has substantial experience in assisting individuals with charges of this nature.

Queensland Law

Section 335 Criminal Code (Qld)

Section 335 of the Criminal Code makes common assault an offence in Queensland. The law states:

335 Common assault

(1) 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.

(2) The Penalties and Sentences Act 1992, section 108B states a circumstance of aggravation for an offence against this section.

The reference to s. 108B relates to mandatory community service being ordered when the offence is committed in a public place while the person is adversely affected by drugs or alcohol. It is in addition to any other penalty imposed.

An assault is unlawful in the following circumstances:

246 Assaults unlawful

(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.

Assault: Definition

Section 245 of the Criminal Code (Qld) defines common assault as follows:

Definition of assault

(1) 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.

(2) In this section—

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.

Common Assault: Elements

For every criminal charge in Queensland, there are ‘elements’ that the prosecution must prove beyond reasonable doubt. Failure to prove just one element means the person charged must be found not guilty. Sometimes there will be an alternative offence that a person may then be found guilty of instead if proof of the primary charge fails.

There are different ways elements may be expressed, depending on the issues in a given case. However, elements the prosecution must always prove for a charge of common assault are as follows:

  1. The defendant applied force to the alleged victim (the act); or,
  2. The defendant threatened to apply force with a present ability, or apparent ability, to do so (the act); and,
  3. The act occurred without the consent of the alleged victim; and,
  4. The assault was unlawful.

In cases where multiple defendants are charged, Queensland law makes it possible for more than one person to be found guilty for the commission of an offence. For instance, a person may be found guilty if they aided or encouraged another person to do the act that constituted the assault.

In some cases, the prosecution will also be required to prove any circumstances of aggravation relied upon, which for this charge is limited to mandatory community service being ordered when the offence is committed in a public place while the person is adversely affected by drugs or alcohol. The penalty for that circumstance of aggravation is ordered in addition to any other penalty imposed.

In reviewing an individual case, the work of a criminal lawyer often begins with a careful analysis of the evidence to determine the strengths and weaknesses of the prosecution case and, in particular, its ability to prove each element of the offence.

Possible Defences

The ‘presumption of innocence’

When people think about a ‘defence’ to a charge, such as common assault, they generally thinking about what makes them ‘not guilty’ of the offence. However, it is for the prosecution to prove they are guilty – and to do so beyond a reasonable doubt. The presumption of innocence means that the defendant carries no onus of proof. What that means in practical terms is that it is for the prosecution to disprove any defences raised on the evidence.

For a charge of common assault, the prosecution must prove the elements of the offence beyond reasonable doubt. However, it must also exclude all defences that may apply beyond reasonable doubt. Of course, a defendant may give or call evidence that points to their innocence. The decision to give or call evidence does not shift the onus of proof away from the prosecution.

How are defences raised on the evidence?

A defence may be raised on the evidence of both the prosecution and the defence. That is, people who give witness statements to police may indicate that an event occurred accidentally, or a person appeared to act in self-defence. Generally speaking, the prosecution have an obligation to call all material witnesses at a trial – even those unfavourable to its case. Alternatively, a person charged with an offence may also call their own witnesses at a trial, which may provide the basis for a defence to be raised.

One of the important roles of a criminal lawyer is to identify, as early as possible, the relevant defences that may apply in a given case. The reason it is important to do it as early as possible is to ensure relevant witnesses are found while matters are freshest in their mind, or to prevent other evidence being lost or destroyed.

Common defences for ‘common assault’

The law requires the prosecution to prove that the assault was caused ‘unlawfully’. That means if the prosecution cannot disprove the act or omission was authorised, justified or excused by law, the person charged must be found not guilty. In Queensland, possible defences include:

  • Accident
  • Defence of another
  • Extraordinary emergency
  • Insanity
  • Mistake of fact
  • Prevention of the repetition of an insult
  • Provocation
  • Self defence
  • Unwilled act

Amongst the most important advice a lawyer can provide is whether or not a defence applies to an individual case. In some cases, multiple defences may apply. In others, no defence may be considered viable. Certain defences cannot operate together. For this reason, anybody facing a charge of common assault should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.

Penalties & Sentences

Maximum Penalty

The maximum penalty for common assault in Queensland is 3 years’ imprisonment.

Minimum Penalty

While many offences under Queensland law do not carry mandatory minimum sentences, common assault does when a person is convicted of the circumstance of aggravation:

  1. When a person is convicted of committing the offence in a public place while adversely affected by an intoxicating substance, besides whatever other penalty may be imposed by the court, a community service order of up to 240 hours must also be ordered.

Sentencing in Queensland

For a charge of common assault, the Penalties and Sentences Act 1992 (Qld) sets out a range of relevant sentencing considerations, including that the principle that imprisonment should be imposed as a last resort does not apply. For a violent offence, the law states that the court must have primary regard to the following considerations:

  • the risk of physical harm to any members of the community if a custodial sentence were not imposed;
  • the need to protect any members of the community from that risk;
  • the personal circumstances of any victim of the offence;
  • the circumstances of the offence, including the death of or any injury to a member of the public or any loss or damage resulting from the offence;
  • the nature or extent of the violence used, or intended to be used, in the commission of the offence;
  • any disregard by the offender for the interests of public safety;
  • the past record of the offender, including any attempted rehabilitation and the number of previous offences of any type committed;
  • the antecedents, age and character of the offender;
  • any remorse or lack of remorse of the offender;
  • any medical, psychiatric, prison or other relevant report in relation to the offender;
  • anything else about the safety of members of the community that the sentencing court considers relevant.

If the offence is classified as a ‘domestic violence offence’, then the court will treat that as an aggravating factor unless exceptional circumstances are shown. Due to the number of issues that can aggravate or mitigate the punishment imposed by a court, experience shows that the earlier a person facing a charge obtains sound advice from an experienced lawyer, the better their chance of securing the best outcome possible for their situation.

Possible Outcomes

Even if a person is ‘guilty’ of the offence, for a charge of common assault it is possible, in some cases, to resolve the case through justice mediation. As an alternative to litigating the charge through the criminal justice system, justice mediation can carry benefits to both defendants and victims of crime.

Generally, a charge of common assault is dealt with in the Magistrates Court in Queensland. If a person is found not guilty, it is possible to apply for an order requiring police to pay certain costs associated with defending the charge. Such applications are permitted by the Justices Act (Qld), which also sets out criteria a magistrate must consider when determining any question of costs. For a person who is convicted following a trial or who pleads guilty, there are many possible penalty outcomes for a charge of common assault. Penalties may range from an absolute discharge right through to actual imprisonment. Due to the extremely broad nature of how the offence may be committed, the facts and circumstances associated with the offence, as well as the personal factors of a defendant, significantly influence the outcomes.

An example of the serious penalties that can follow a charge of common assault may be seen in the case of R v Taputoro [2007] QCA 29, where an appeal was dismissed against sentence of six months imprisonment suspended after four months following a trial. It was said by the President of the Court of Appeal:

This was a serious example of an assault. His Honour rightly noted that violence like this, so often present around nightclubs, is an issue of community concern. The conduct of which the appellant was convicted warranted a salutary deterrent penalty. The appellant was a mature man, working at the time of the offence as a security guard. He showed no remorse for his conduct and did not have as a mitigating factor a timely guilty plea or co-operation with the administration of justice.

Grievous bodily harm convictions commonly involve sentences of imprisonment. In some cases, immediate parole or a full suspension of the imprisonment may be possible. In other cases, a person may see the offence deemed a ‘serious violent offence’ by the court, which mandates an offender serve 80% of the imprisonment before they are eligible for release. Imprisonment is by no means the only sentencing option available to a court. For instance, in Queensland Court of Appeal decision in 2013 (R v Charles [2013] QCA 362), a community service order was determined to be the appropriate sentence.

Significant Cases

The charge of common assault has involved a number of significant legal decisions over time. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with common assault.

Queensland Court of Appeal

In R v Agius [2015] QCA 277, the Queensland Court of Appeal considered the question of whether handing a note to another person, containing an implied threat, was sufficient to prove the element of ‘assault’ as defined in section 245 Criminal Code (Qld). The Court explained at paragraph [20] of the judgment:

The starting point is that words alone are insufficient to amount to the requisite conduct comprising an attempt or threat to apply force for the purposes of the second limb definition of assault; that is made clear by the wording of the second limb which requires that there be a “bodily act or gesture”. Secondly, the use of the word “by” in s 245 is significant. What is required is that there is the attempt or threat “by” some act or gesture to apply force to another.

[Footnotes omitted]

After stated that words alone cannot constitute an assault, accompanying words may “add a further dimension rendering the act or gesture threatening”. After examining the law, the Court concluded at paragraph [22]:

There must be a bodily act or gesture of the requisite nature, which may be associated with the words, indicating an intention to assault or which an ordinary person might reasonably construe as indicating such an intention.

Having reached those conclusions, the Court allowed the appeal as it found that the appellant, handing over a note containing an implied threat was not a threat to apply force “by” that act itself. On that basis, the Queensland Court of Appeal allowed the appeal and ordered an acquittal.

Queensland Magistrates Court

In a case where police failed to prove a charge of assault occasioning bodily harm (Queensland Police v Timbrell [2016] QMC 17), a question arose as to whether the defendant could be convicted of the lesser offence of common assault in circumstances where it was not specifically charged. Section 575 of the Criminal Code (Qld) allows for a person to be convicted of a lesser offence than the one charged (even though it was not specifically charged by police), however that law was found to only apply to cases tried on indictment. Given the charge was being dealt with in the Magistrates Court, it was found that section 575 had no application and therefore the defendant could not be convicted of common assault in that case.

The following violent offences are possible charges that may be substituted for, or charged in addition to, a charge of common assault:

Common Assault - Criminal Law Expertise