By: Andrew Anderson
Published: 25 November 2020
Published: 25 November 2020
By: Andrew Anderson
Serious Assault – 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.
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 serious assault.
If you face a serious 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.
- Serious Assault – Queensland
- Queensland Law
- Possible Defences
- Penalties & Sentences
- Significant Cases
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
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.
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:
- The person charged applied force to the alleged victim; or,
- The person charged threatened to apply force to the alleged victim, having a present ability, or apparent present ability, to do so; and,
- The person charged did not have consent for the force used, or threatened application of force, against the victim; and,
- The alleged victim was a police officer; and,
- 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:
- 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;
- The person charged caused bodily harm to the police officer; or,
- 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.
The ‘presumption of innocence’
When people think about a ‘defence’ to a charge, such as serious 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 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 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 ‘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  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.
Penalties & Sentences
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.
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:
- 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.
- 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.
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  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  QCA 1.
The law involving charges of serious assault has involved a number of significant legal decisions over time, including in the High Court of Australia. These decisions, among others, shape the advice of lawyers who are called to represent individuals charged with serious assault.
High Court of Australia
In R v Reynhoudt  HCA 23, a majority in the High Court of Australia cited with approval the following statement of law regarding the ‘knowledge’ required for a serious assault on a police officer:
The charge was not assaulting them knowing them to be in execution of their duty, but assaulting them being in the execution of their duty.
This reported statement from an old English case (Reg. v. Forbes and Webb (1865) 10 Cox CC 362) continues to be applied as as a correct statement of the law regarding assaults on police under section 340 of the Criminal Code (Qld).
Queensland Court of Appeal
Following Queensland Parliament increasing the maximum penalty for some serious assaults from 7 years’ imprisonment to 14 years’ imprisonment, the Queensland Court of Appeal considered an appeal by the Queensland Police Service against the sentence imposed in the Magistrates Court. In Queensland Police Service v Terare  QCA 260, the Court of Appeal stated:
The legislature in increasing the maximum penalty clearly intended that sentencing courts should impose significantly heavier penalties in respect of serious assaults committed on police officers acting in the execution of their duty where, as here, the offender applies a bodily fluid to the police officer. As this Court identified in R v CBI, this increase in maximum penalty can be expected to produce a general increase in severity of sentences, rendering earlier cases of limited utility as comparable sentencing decisions. But that does not mean that a sentence of actual imprisonment is inevitable in every case, even where, as here, the maximum penalty has been increased from seven to 14 years imprisonment.
The following violent offences are possible charges that may be substituted for, or charged in addition to, a charge of grievous bodily harm: