Assault
Common Assault
Assault Occasioning Bodily Harm
Serious Assault
Grievous Bodily Harm
Torture
Wounding
Assault
Assault is defined in s245 of the Criminal Code (Qld). Assault can involve either an actual physical application of force or an attempted or threatened application of force. Assault can be made out where the elements of the following are proven:
- The striking, touching, moving or application of force of any kind to the person of another ;
- Either directly or indirectly;
- Without consent or with consent, if consent is obtained by fraud.
Or
- By any bodily act or gesture;
- Attempts or threatens to apply force of any kind to the person of another;
- Without consent;
- In circumstances where the person making the attempt or threat, has an actual or apparent present ability to effect that purpose.
The words ‘applies force’ includes applying heat, light, electrical force, odour, gas or any substance or thing if applied in such a degree as to cause injury or personal discomfort.
Assault is made an offence under the Criminal Code in s335 Common Assault, s339 Assault occasioning bodily harm and s340 Serious Assault.
Common Assault
Common assault is defined in s 335 as any person who unlawfully assaults another person. An assault is unlawful unless it is authorised or justified by law, and the application of force can still be unlawful even if done with the consent of the other person.
The maximum penalty for common assault is 3 years.
An example of common assault would be pointing a loaded firearm at another, or pointing an unloaded firearm at another and pretending it is loaded (Brady v Schatzel [1911] St R Qd 206). Another example of common assault would be spitting on another person (R v Benson (QCA, No 304 of 1994, 22 August 1994, unreported)).
Assault occasioning bodily harm
Assault occasioning bodily harm makes it an offence to unlawfully assault another person and thereby doing bodily harm. The maximum penalty for assault occasioning bodily harm is 7 years. However if the person is or pretends to be armed with an offensive or dangerous weapon or is in company of on or more other persons they will be liable for up to ten years imprisonment.
Bodily harm is defined to mean any bodily injury which interferes with health or comfort. In Scatchard v R (1987) 27 A Crim R 136 it was found that a sensation of pain alone without an identifiable bodily injury was not sufficient to constitute bodily harm. Further the term in R v Chan-Fook (1994) 99 Cr App Rep 147 was found to include psychiatric injury arising from an identifiable clinical condition, however this does not include emotions such as fear or distress.
The issue of consent can be relevant to assault occasioning bodily harm. If there was consent to the assault the relevant question becomes whether the degree of violence used exceeded that which consent was given for (Lergesner v Carroll [1991] 1 Qd R 206). An example of assault occasioning bodily harm was found in R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105, where the accused poured boiling water over the victim.
Serious Assault
Serious assault makes it an offence for any person to:
- Assault another with an intent to commit a crime, or with the intent to prevent or resist the lawful arrest or detention of themselves or of any other persons.
- Assault, resists or wilfully obstruct a police officer while acting in the execution of their duty or any person acting in aid of a police officer.
- Unlawfully assault a person while they are performing a duty imposed on them by law.
- Assault any person in pursuance of an unlawful conspiracy.
- Unlawfully assault any person 60yrs or older.
- Unlawfully assault any person who relies on a guide, hearing or assistance dog, wheelchair or other remedial device.
The maximum penalty for serious assault is 7 years.
For Serious Assault it is not necessary for the accused to have knowledge that the person they assaulted was a police officer or that they were in execution of their duty (R v Reynhoudt (1962) 107 CLR 381). The word ‘obstruct’ can mean any act that makes it more difficult for a police officer to carry out their duty (Hinchliffe v Sheldon [1955] 3 All ER 406). An example of serious assault can be found in R v TT [2009] QCA 199 where appellant assaulted someone who was reliant upon a wheelchair.
Grievous Bodily Harm
It is an offence under s320 to do grievous bodily harm. Grievous Bodily harm is defined to mean either:
- The loss of a distinct part or organ of the body.
- Serious disfigurement.
- Any bodily injury that if left untreated, would endanger or be likely to endanger or be likely to endanger life or cause, or be likely to cause permanent injury to health.
It is irrelevant whether treatment is or could have been available. The maximum penalty for doing grievous bodily harm is 14 years.
An example of Grievous bodily harm would be ‘glassing’ someone which results in severe lacerations to the face resulting in significant permanent scarring (R v Berryman (2005) 159 A Crim R 65).
Torture
It is an offence under s320A to torture another person. Here, torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts done on one or more than one occasion. Pain and suffering includes; physical, mental, psychological or emotional pain or suffering, whether temporary or permanent.
The maximum penalty for torture is 14 years.
An example of torture can be found in R v Geddes; Ex parte A-G (1999) 106 A Crim R 14 - where the accused was convicted for torturing an 18-20 month year old infant for three months, by doing acts such as; putting faeces into the mouth of the child, holding the child under water until he saw bubbles coming out of the child’s mouth, winding the child by punching him under the chest.
Wounding
It is an offence under s323 to unlawfully wound another. It was accepted in R v Jervis [1993] 1 Qd R 643 that the word ‘wounding ‘ was given its ordinary meaning which requires that the skin must be broken.
The maximum penalty is 7 years.
An example of wounding can be found in R v Meehan [1996] QCA 215 when the defendant stabbed the victim. In R v Toohey [2001] QCA 149 an offence of wounding was found where the applicant hit the complainant with a broken glass across the arm, causing injuries and the skin to be broken. |
