Common Assault - Queensland

Common Assault

Section 335 Criminal Code (Qld)

Get informed about the law, defences, and penalties in Queensland

Common assault is a criminal offence, which relates to the unlawful application of force, or threatened application of force in some circumstances, without consent. An assault is unlawful when it is not authorised, justified or excused. In Queensland, the offence of common assault has a maximum penalty of 3 years imprisonment.

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Common Assault

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Common Assault

Anderson Legal defends individuals facing criminal allegations relating to violent offences and misconduct.

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Common Assault

Before you can properly defend yourself against an allegation of any kind, you need to understand it.
This section deals with the following:
Criminal Defence Image

Common Assault

Before you can properly defend yourself against an allegation of any kind, you need to understand it.
This section deals with the following:
Criminal Defence Image

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.

Possible Penalties

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 the 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.

In some cases, a charge of common assault may be substituted for, or charged in addition to, other violent offences. The prosecution may determine that a more or less serious charge may be appropriate, based on the evidence. Such related offences include:

Expert Criminal Defence

Although based in Brisbane, Anderson Legal is frequently engaged to defend people facing criminal allegations across Queensland. If you are dealing with an allegation relating to a common assault charge and seek advice and guidance, Anderson Legal offers comprehensive criminal defence services for its clients. This includes:

  • providing advice relating to allegations made or documents served on our clients;
  • identifying the strengths and weaknesses of the case alleged against our clients;
  • advising clients on options relating to obtaining evidence, including expert evidence;
  • communicating on behalf of its clients with police, courts, and others;
  • resolving, where appropriate, criminal charges through negotiation;
  • representing clients in trials and setnences before all courts; and,
  • filing and litigating appeals against wrongful convictions and unjust sentences.

This firm places an emphasis on providing clear guidance so that our clients are placed in a real position to make informed decisions about their options and their preferred path forward. Anderson Legal provides clear, transparent disclosure of its legal costs at every stage.

  • Andrew Anderson, Legal Director, is an award-winning lawyer who has been independently described by the Courier Mail as “one of the best legal minds” and a “leading corporate and white-collar crime lawyer” (16 December 2021).
  • Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, and multiple other courts dealing with trials and other hearings, Andrew Anderson has a demonstrated record of success in complex and difficult cases.
  • Andrew Anderson has worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from straightforward cases right through to complex homicide trials and appeals.
  • Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Limitations on general information

Each legal issue is unique. The information on this page and website cannot – and is not meant to – substitute legal consultation. It is designed to outline information of a general nature if you want to learn more about common assault charges, particularly as it relates to anybody facing an issue of this kind in Queensland. Anybody dealing with a grievous bodily harm charge ought to obtain expert legal advice and guidance as soon as possible.

No content accessible on the website is created to provide specific legal answers or advice. It is designed to provide general information about legal matters and related concepts. It should not be used as, or in substitute of, your own legal advice or other advice as appropriate.

To the extent allowed by law, no warranty, condition, or guarantee is provided in relation to the accuracy or reliability of any information contained on this site. Content may be changed from time to time without notice.

If you face a grievous bodily harm charge, contact Anderson Legal. This firm provides expert advice and representation for people needing assistance to defend themselves against unjust accusations.

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On-Demand Resources

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On-Demand Resources

Jury TrialsThe Jury Act 1995 (Qld) and Criminal Code 1899 (Qld) set out a range of important procedures relevant to jury trials in Queensland. Having an understanding of jury trial procedures can assist defendants, witnesses and others to know what may occur during a criminal trial.Viewcourt-processestrials-sentences
Sentencing HearingsIn Queensland, the Penalties and Sentences Act 1992 (Qld) sets out a range of sentencing guidelines, possible punishments and procedures relevant to sentencing hearings. Understanding the issues that are relevant to sentencing hearings and what influences outcomes is essential to avoiding unjust penalties and results.Viewcourt-processestrials-sentences
Evidence DisclosureIt is a fundamental to a fair trial that an accused person knows the particulars of the charge they face as well as the potential witnesses and evidence. Evidence disclosure is an essential part of the criminal justice system. Failure to disclose critical evidence can lead to miscarriages of justice, resulting in convictions being quashed.Viewcourt-processesevidence
Criminal AppealsA criminal appeal allows a person to appeal against their conviction or appeal against the severity of their sentence, in an attempt to overturn the result. Appeals often involve complex questions of law or fact. Unlike when the prosecution bears the onus of proof at trial, on appeal, the appellant must demonstrate error.Viewcourt-processescriminal-appeals
Police Seizure of EvidenceThe Police Powers and Responsibilities Act 2000 (Qld) sets out the powers of police to retain, return, and forfeit property that is seized. Important rights exist for individuals and businesses to access seized property, as well as to seek its return through applications and court orders to lessen inconvenience and disruption.Viewpolice-investigationspolice-powers
Cooperating with PoliceSuspects in police investigations are often faced with a choice as to whether to cooperate with the police to any degree. Cooperation with law enforcement agencies can take many forms - it may be minimal and do little to assist the investigation or can involve extensive cooperation or ‘a deal’ that results in a significantly lighter sentence.Viewpolice-investigationscooperating-with-police
The Right to SilenceIn Queensland, the right to silence is recognised as important but it is not an absolute right. While often relevant to police suspects facing questioning, in some situations it can be an offence to not answer questions of a person in authority. In rare cases, unfavourable inferences may be drawn because a defendant remains silent.Viewpolice-investigationscooperating-with-police
WHSQ – Coercive PowersInspectors with Work Health and Safety Queensland (WHSQ) have powers that allow them to compel people to provide information and access to documents and other records, which they may seize. They may also compel people to answer their questions. Getting advice can be crucial to understanding your rights and obligations.Viewcoercive-investigations whswork-health-safety-queensland
CCC – Coercive PowersThe Crime and Corruption Commission (CCC) is an independent agency in Queensland that has responsibility for combating major crime and corruption in Queensland. It has powers of surveillance, investigation and the use of coercive powers to gather intelligence, undertake investigations and manage enforcement proceedings.Viewcoercive-investigations corporate-crimecrime-corruption-commission
ASIC – Coercive PowersThe Australian Securities and Investments Commission (ASIC) has coercive powers to compel the production of documents or other evidence relevant to an investigation. The powers are broad and non-compliance can have criminal consequences. Evidence obtained through such investigations may be used later in court proceedings.Viewcoercive-investigations corporate-crimeaustralian-securities-investments-commission
ACIC – Coercive PowersThe Australian Criminal Intelligence Commission (ACIC), still also referred to as the Australian Crime Commission (ACC), conducts secretive operations and investigations into serious criminal activity. It has the power to compel individuals to participate in examinations and to serve notices to produce documents and other information.Viewcoercive-investigations corporate-crimeaustralian-criminal-intelligence-commission
Industrial ManslaughterIndustrial manslaughter is a relatively new criminal offence in Queensland, having commenced on 23 October 2017. It targets business operators and senior officers in corporations who, through negligence, cause the death of a worker the course of carrying out their work. The maximum penalty is up to 20 years imprisonment.Viewcriminal-offences whshomicide-offences penalties-prosecutions
Unlawful Striking Causing DeathIn Queensland, punishment for unlawful striking causing death carries a maximum penalty of life imprisonment. Introduced to target the prevalence of 'coward punch' deaths, it removes what were common defences in cases where it is alleged the person killed was struck to the head or neck.Viewcriminal-offenceshomicide-offences
ManslaughterManslaughter may be proved in a number of ways, such as by criminal negligence or a deliberate act. An unlawful killing that does not meet the definition of murder may be deemed manslaughter. In Queensland, punishment for manslaughter carries a maximum penalty of life imprisonment.Viewcriminal-offenceshomicide-offences
Proceeds of CrimeProceeds of crime offences exist to make it unlawful to receive or possess property that is tainted by crime. While proceeds of crime laws are often used in relation to drug offences, their reach under the Criminal Proceeds Confiscation Act 2002 (Qld) and Proceeds of Crime Act 2002 (Cth) covers all types of serious criminal offences.Viewcriminal-offencesfraud-and-financial-crimes
FraudFraud is a serious criminal offence in Queensland, which may be punishable by actual imprisonment. The essential element of the charge is proof of 'dishonesty', which requires the prosecution to prove that what a defendant did was dishonest by the standards of ordinary honest people.Viewcriminal-offencesfraud-and-financial-crimes
ExtortionExtortion is a serious criminal offence, which may be punishable by actual imprisonment. While it is most commonly charged when threats of violence are used to blackmail a person to hand over property, other forms of coercion or intimidation can give rise to the offence of extortion in Queensland.Viewcriminal-offencesfraud-and-financial-crimes violent-offences
Centrelink FraudCentrelink fraud (sometimes referred to as 'Welfare Fraud' or 'Social Security Fraud') is regarded as a serious criminal offence in Australia, which is punishable by actual imprisonment. There are a number of different charges that may apply under the Commonwealth Criminal Code for cases of this kind.Viewcriminal-offencesfraud-and-financial-crimes
Drug Importation OffencesDrug importation offences under the Commonwealth Criminal Code can attract some of the highest penalties for drug offences in Australia, which generally reflects the commercial and coordinated efforts involved in such offences. The maximum penalty for importing a commercial quantity of border controlled drugs is life imprisonment.Viewcriminal-offencesdrug-offences
Possessing Dangerous DrugsFor a drug possession case in Queensland, the prosecution sets out to prove that (1) the person charged (2) unlawfully (4) possessed (5) a dangerous drug. Penalties vary considerably, from drug diversion orders in minor cases through to lengthy terms of imprisonment for serious cases of possessing dangerous drugs.Viewcriminal-offencesdrug-offences
Producing Dangerous DrugsProducing dangerous drugs is a serious criminal offence in Queensland. The definition of the word 'produce' in the Drugs Misuse Act (Qld) is extremely broad and allows individuals to be charged with producing a dangerous drug even though there may never be any dangerous drugs actually produced.Viewcriminal-offencesdrug-offences
Supplying Dangerous DrugsSupply dangerous drug charges a serious criminal offences in Queensland, which can be punishable by imprisonment. The definition of 'supply' in the Drugs Misuse Act (Qld) is extremely broad and allows individuals to be charged with supplying a dangerous drug even though there may never be a transaction or actual exchange of drugs.Viewcriminal-offencesdrug-offences
Drug TraffickingFor a drug trafficking case in Queensland, the prosecution sets out to prove that (1) the person charged (2) carried on the business of (3) unlawfully (4) trafficking in a (5) dangerous drug. In Queensland, the maximum penalty for carrying on the business of unlawful trafficking is 25 years' imprisonment.Viewcriminal-offencesdrug-offences
Attempted MurderFor an attempted murder case, the prosecution sets out to prove that the person charged unlawfully attacked or did something to another person with the intention of killing them, using means capable of doing so, but without death resulting. In Queensland, the maximum penalty for attempted murder is life imprisonment.Viewcriminal-offenceshomicide-offences violent-offences
Serious AssaultSerious assault is an offence in Queensland that is commonly charged when police officers are allegedly assaulted in the execution of their duties, the offence is also charged in other circumstances, such as in cases of assaults of elderly people or working corrective services officers.Viewcriminal-offencesviolent-offences
Grievous Bodily HarmIn Queensland, grievous bodily harm is an offence under section 320 of the Criminal Code 1899 (Qld). Suffering life threatening or permanent injuries are examples of grievous bodily harm. The offence is punishable by up to 14 years imprisonment and may be deemed a 'serious violent offence'.Viewcriminal-offencesviolent-offences
Common AssaultCommon assault is a criminal offence, which relates to the unlawful application of force, or threatened application of force in some circumstances, without consent. An assault is unlawful when it is not authorised, justified or excused. In Queensland, the offence of common assault has a maximum penalty of 3 years imprisonment.Viewcriminal-offencesviolent-offences
Unlawful WoundingUnlawful wounding is a serious criminal offence, often punishable by actual imprisonment. The word 'wounding' refers to a break of the true skin, often by a sharp object. A wound may be caused in any number of ways, such as by a knife or a bottle. The maximum penalty is 7 years imprisonment.Viewcriminal-offencesviolent-offences
Assault Occasioning Bodily HarmAssault occasioning bodily harm requires proof of an unlawful assault that caused bodily harm. The term 'bodily harm' refers to any bodily injury that interferes with health or comfort. The maximum penalty is 7 years' imprisonment, although if a circumstance of aggravation applies, it rises to a maximum of 10 years' imprisonment.Viewcriminal-offencesviolent-offences
Malicious Act With IntentMalicious act with intent is a serious criminal offence, generally punishable by actual imprisonment. In Queensland, it generally is charged in cases in which a serious injury has been caused by someone who intended to cause such a result. The maximum penalty for a charge of malicious act with intent is life imprisonment.Viewcriminal-offencesviolent-offences
MurderThere are multiple definitions of what constitutes murder in Queensland, including murder by intentional harm or through ‘reckless indifference’. In Queensland, punishment for murder carries mandatory life imprisonment with a current minimum non-parole period of at least 20 years imprisonment.Viewcriminal-offenceshomicide-offences

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