Serious Assault Lawyers Queensland

Serious Assault

Section 340 Criminal Code (Qld)

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

Serious assault is a serious criminal offence, which may be punishable by actual imprisonment. While it is most 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.

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Serious Assault

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Serious Assault

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

On-Demand Resources

View our growing library of articles and webinars, which are accessible no matter the time of day or night.

Free Consultation

Anderson Legal provides a free, no-obligation consultation to understand whether this firm can assist you.

Serious 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

Serious 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 340 Criminal Code (Qld)

Section 340 of the Criminal Code makes serious assault an offence in Queensland. The law states:

340 Serious assaults

(1) Any person who—

(a) assaults another 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

(f) assaults any person in pursuance of any unlawful conspiracy respecting any manufacture, trade, business, or occupation, or respecting any person or persons concerned or employed in any manufacture, trade, business, or occupation, or the wages of any such person or persons; 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;

is guilty of a crime.

Section 340 of the Criminal Code makes serious assault an offence with respect to ‘public officers’ in the following circumstances:

A person who—

(a) unlawfully assaults, or resists or wilfully obstructs, a public officer while the officer is performing a function of the officer’s office; or

Example— A person unlawfully assaults an authorised officer under the Child Protection Act 1999 while the officer is investigating an allegation of harm to a child under that Act.

(b) assaults a public officer because the officer has performed a function of the officer’s office;

commits a crime.

Serious Assault: Definitions

Assault

Section 245 of the Criminal Code defines ‘assault’ to be 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.

Public Officer

Section 340 of the Criminal Code defines ‘public officer’ to be as follows:

public officer includes—

(a) a member, officer or employee of a service established for a public purpose under an Act; and

Example of a service— Queensland Ambulance Service established under the Ambulance Service Act 1991

(b) a health service employee under the Hospital and Health Boards Act 2011; and

(c) an authorised officer under the Child Protection Act 1999; and

(d) a transit officer under the Transport Operations (Passenger Transport) Act 1994.

Working Corrective Services Officer

Section 340 of the Criminal Code defines ‘working corrective services officer’ to be as follows:

working corrective services officer means a corrective services officer present at a corrective services facility in his or her capacity as a corrective services officer.

Assaults on Police: 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 serious assault involving an alleged assault on a police officer are as follows:

  1. The person charged applied force to the alleged victim; or,
  2. The person charged threatened to apply force to the alleged victim, having a present ability, or apparent present ability, to do so; and,
  3. The person charged did not have consent for the force used, or threatened application of force, against the victim; and,
  4. The alleged victim was a police officer; and,
  5. The police officer was acting in the execution of his or her duty.

For a serious assault involving an alleged assault on a police officer, it is an aggravating circumstance (leading to an increase in penalty) if the prosecution proves any of the following:

  1. The person charged bit or spat on the police officer, or threw at, or in any way applied to, the police officer any bodily fluid or faeces;
  2. The person charged caused bodily harm to the police officer; or,
  3. The person charged was, or pretended to be, armed with a dangerous or offensive weapon or instrument.

A minimum penalty applies (involving mandatory community service) if the prosecution proves that the offence was committed in a public place while the person charged was adversely affected by an intoxicating substance.

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 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 serious assault, they generally think 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 serious 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 has 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 from being lost or destroyed.

Common defences for ‘serious assault’

In contrast to offences like common assault or assault occasioning bodily harm, serious assault does not contain the element that the assault occurred ‘unlawfully’. As such, where a serious assault charge concerns an alleged assault on a police officer, it is common for cases to be litigated as to whether the prosecution can prove the police officer was acting within the execution of their duties. While it is not necessarily a defence that the person charged did not know the person assaulted was a police officer (R v Reynhoudt [1962] HCA 23), a defence may arise going to an honest and reasonable but mistaken belief as to whether the police officer’s acts were within the execution of his or her duty can arise.

The various ways in which a ‘serious assault’ may arise and the different elements that the prosecution needs to prove means there are numerous possible defences that may arise. 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 serious assault should seek early, authoritative advice from an experienced criminal lawyer to understand their legal position.


Possible Penalties

Maximum Penalty

The maximum penalty for serious assault is 7 years’ imprisonment. However, the maximum penalty increases to 14 year’s imprisonment for convictions involving certain circumstances of aggravation, such as for spitting or biting on a working corrective services officer or a police officer.

Minimum Penalty

While many offences under Queensland law do not carry mandatory minimum sentences, serious assault does when a person is convicted of one of two circumstances 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.
  2. When a person is convicted of committing the offence and the serious organised crime circumstance of aggravation applies, 7 years’ imprisonment is automatically imposed cumulatively on the sentence the court decides. The 7 years’ imprisonment must be served wholly in prison, on top of whatever other penalty is set by the court.

Sentencing in Queensland

For a charge of serious 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

With respect to the types of penalties and sentences imposed for serious assaults, there is a broad range. With respect to serious assaults on police, it was said by the Chief Justice in R v King [2008] QCA 1 (prior to the maximum penalty being raised for spitting on police):

One begins with the proposition that those who treat a police officer in this way should ordinarily expect to be imprisoned, meaning actual imprisonment. Police officers carry out duties which are usually onerous and often dangerous. It is abhorrent that a police officer responsibly going about his or her business be subject to the indignity and risk of being spat upon. The risk in contemporary society relates obviously to communicable disease. Related to the indignity is the display of contempt for civil authority which will often be involved in these incidents. An appropriate level of deterrence will in such cases usually be secured only through actual imprisonment of the offender.

Experience shows that serious assaults, particularly where an assault on a police officer is involved, are met with significant penalties in courts throughout Queensland. Although by no means inevitable, it is not uncommon that a person with no criminal history is sentenced to actual imprisonment for an assault on a police officer, as occurred in the case of R v King [2008] QCA 1.

In some cases, a charge of serious 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. Related violent 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 serious 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.
  • Prior to operating a law firm, Andrew Anderson 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 serious assault charges, particularly as it relates to anybody facing an issue of this kind in Queensland. Anybody dealing with a serious assault 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 serious assault 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

View below the on-demand resources of this firm.
On-Demand Resources

On-Demand Resources

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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
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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
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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
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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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