Assault Charges


BRISBANE LAWYERS

AITKEN WHYTE LAWYERS BRISBANE – CRIMINAL DEFENCE LAWYERS AND SOLICITORS FOR BRISBANE, QUEENSLAND

In QLD, when a person allegedly assaults another, the charge they receive will depend on:

  1. the injury(s) sustained by the victim; and
  2. the victim’s circumstances.

There are several offences police can charge a person with, which vary in severity. All these charges, however, are considered violence offences. The Courts, therefore, take such offending seriously.

There are steps you can take to demonstrate to the Court why you should receive the minimum sentence. It is important to undertake full and proper preparation in the lead up to your Court date.

Aitken Whyte Lawyers can assist you to prepare and advocate on your behalf. Our criminal lawyers have extensive experience representing clients for offences of this nature.

We will also fight for and defend your rights if you believe you have a defence and wish to plead not guilty.

Our lawyers have successfully acted for clients to have charges downgraded through negotiation. We can walk you through each of your options before you decide whether you would like to go to trial.

We have also run successful trials on these offences. This includes defending charges before the District Court at Brisbane for:

  • grievous bodily harm; and
  • assault occasioning bodily harm;

where the jury found our client not guilty.

If you would like to discuss your charge and options, call 07 3229 4459 to speak directly with a criminal lawyer.

What Is the Definition of Assault?

s245 of the Criminal Code (Qld) provides a definition of “assault“.

Assault” can involve either:

  • an actual physical application of force; or
  • an attempted or threatened application of force.

The prosecution can make out assault by proving the following elements:

  1. the striking, touching, moving or application of force of any kind to the person of another;
  2. either directly or indirectly;
  3. without consent or with consent, if consent is obtained by fraud.

The prosecution can also make it out where a person:

  1. by any bodily act or gesture;
  2. attempts or threatens to apply force of any kind to the person of another;
  3. without consent; and
  4. actually or apparently has a present ability to affect the attempt or threat.

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.

It is important to note that “assault” covers not just physical altercations. It can also include threats to apply physical force.

Assault is an offence under the Criminal Code in:

Below are descriptions of some of the offences a person may be charged with.

Common Assault

Common assault is defined in s335 of the Criminal Code as:

Any person who unlawfully assaults another

Queensland Criminal Code 1899 Section 335

An assault is “unlawful” unless it is authorised or justified by law (i.e., unless a defence applies). The application of force can still be unlawful even if done with the consent of the other person.

Maximum Penalty for Common Assault

The maximum penalty for common assault is 3 years imprisonment.

Examples Of Common Assault

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.

(See Brady v Schatzel [1911] St R Qd 206).

Another example of common assault would be spitting on another person. (See R v Benson (QCA, No 304 of 1994, 22 August 1994, unreported)).

Assault Occasioning Bodily Harm

Assault occasioning bodily harm (AOBH) makes it an offence to:

unlawfully (assault) another and thereby (do) the other person bodily harm

Queensland Criminal Code 1899 Section 339
Maximum Penalty for Assault Occasioning Bodily Harm

The maximum penalty for assault occasioning bodily harm is 7 years imprisonment.

However, a person will be liable for up to ten years imprisonment if the person:

  • is or pretends to be armed with an offensive or dangerous weapon; or
  • is in the company of one or more other persons.
What Is “Bodily Harm”?

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 was not enough to constitute bodily harm. There must be an identifiable bodily injury.

The meaning of the term was further expanded on in R v Chan-Fook (1994) 99 Cr App Rep 147. This case found it includes psychiatric injury arising from an identifiable clinical condition. This does not, however, extend to emotions such as fear or distress.

Relevance Of Consent

The issue of consent can be relevant to assault occasioning bodily harm.

There may be times where there was consent to the assault (a professional fight, for example). The relevant question then shifts. The Court must determine if the degree of violence used exceeded what the victim gave consent to. (See Lergesner v Carroll [1991] 1 Qd R 206).

Example Of Assault Occasioning Bodily Harm

An example of assault occasioning bodily harm was found in R v Fairbrother; ex parte A-G (Qld) [2005] QCA 105. AOBH occurred when 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;
  • assault another to prevent or resist the lawful arrest or detention of themselves;
  • assault another with an intent to prevent or resist the lawful arrest of any other persons;
  • assault, resist, or wilfully obstruct a police officer while they are executing their duty;
  • assault, resist, or wilfully obstruct 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 60 years of age or older; or
  • unlawfully assault any person who relies on a guide, hearing, or assistance dog;
  • unlawfully assault any person who relies on a wheelchair; or
  • unlawfully assault any person who relies on another remedial device.
Maximum Penalty for Serious Assault

The maximum penalty for serious assault is 7 years imprisonment.

Assault Police

For serious assault, it is not necessary for the accused to have knowledge that:

  • the person they assaulted was a police officer; or
  • that the police officer was acting in the execution of their duty.

(See R v Reynhoudt (1962) 107 CLR 381).

Police would charge a person with serious assault of a police officer if they were to, for example:

  • punch a police officer; or
  • spit on a police officer, noting that the act of spitting on a civilian would form the offence of common assault.

The Courts consider this a serious crime.

For more minor infractions, a person may be charged with assault or obstruct police. We discuss the details of this offence further below.

Example Of Serious Assault

An example of serious assault can be found in R v TT [2009] QCA 199. The appellant assaulted someone who was reliant upon a wheelchair.

Grievous Bodily Harm

It is an offence under s320 of the Criminal Code to do grievous bodily harm to another.

What Is “Grievous” Bodily Harm?

Grievous bodily harm is defined to mean either:

  • the loss of a distinct part or organ of the body;
  • serious disfigurement; or
  • any bodily injury that if left untreated, would either:
    • 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.

Maximum Penalty for Grievous Bodily Harm

The maximum penalty for doing grievous bodily harm is 14 years imprisonment.

Example Of Grievous Bodily Harm

An example of grievous bodily harm could be “glassing” someone. This may result in severe lacerations to the face and significant permanent scarring. (See R v Berryman (2005) 159 A Crim R 65).

Torture

It is an offence under s320A of the Criminal Code to torture another person.

What Is “Torture”?

Here, torture means:

the intentional infliction of severe pain or suffering on a person by an act or series of acts done on 1 or more than 1 occasion

Queensland Criminal Code 1899 Section 320A

Pain and suffering” include pain and suffering, whether temporary or permanent, that is:

  • physical;
  • mental;
  • psychological; or
  • emotional.
Maximum Penalty for Torture

The maximum penalty for torture is 14 years imprisonment.

Example Of Torture

An example of torture can be found in R v Geddes; Ex parte A-G (1999) 106 A Crim R 14. The accused was convicted for torturing an 18 to 20-month year old infant for three months. Acts found to be torture included:

  • putting faeces into the mouth of the child;
  • holding the child under water until the accused saw bubbles coming out of the child’s mouth; and
  • winding the child by punching him under the chest.

Wounding

It is an offence under s323 of the Criminal Code to unlawfully wound another.

What Is “Wounding”?

It was accepted in R v Jervis [1993] 1 Qd R 643 that the word “wounding” carries its ordinary meaning. This requires that the skin must be broken.

Maximum Penalty for Wounding

The maximum penalty is 7 years imprisonment.

Examples Of Wounding

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. The applicant hit the complainant with a broken glass across the arm. This caused injuries and the skin to be broken.

Assault Or Obstruct a Police Officer

It is a separate offence under s790 of the Police Powers and Responsibilities Act to:

  • assault a police officer while they are performing their duties; or
  • obstruct a police officer while they are performing their duties.

Assault here has the same meaning as in the Criminal Code, as outlined above.

What Does It Mean to Obstruct a Police Officer?

The word “obstruct” can mean any act that makes it more difficult for a police officer to carry out their duty. (See Hinchliffe v Sheldon [1955] 3 All ER 406).

Animals In Police Work

This charge can also be laid for the obstruction of a police dog or police horse.

If:

  • a person obstructs such a police animal;
  • while the animal is under the control of a police officer in the performance of the officer’s duty;

the person is taken to have obstructed the officer.

Maximum Penalty for Assaulting or Obstructing A Police Officer

The maximum penalty for this offence, without aggravating features, is 6 months imprisonment. If, however, the offence took place:

  • within a licenced premises; or
  • the vicinity of a licenced premises;

the maximum penalty increases to 12 months imprisonment.

Appearing In Court | Focused on Results

When appearing before the Court, you likely want to do everything you can to achieve the best outcome. Engaging a skilled lawyer experienced with these offences will make a difference.

The preparation you do and the information presented to the Court will have an impact on the penalty.

Aitken Whyte Lawyers Brisbane are focused on results.

Our Brisbane criminal lawyers are skilled and passionate advocates. As criminal law experts, we have experience appearing for all offences outlined above.

Call Aitken Whyte Lawyers Brisbane on 07 3229 4459 for:

  • guidance through the Court process;
  • legal advice on your options or prospects; and
  • representation in Court.

We appear in all Courts across South East Queensland. Our lawyers can assist with all criminal law matters.

Office Location and Contact Details

Brisbane

Aitken Whyte Lawyers Brisbane
2/414 Upper Roma Street
Brisbane QLD 4000

Ph: 07 3229 4459
Fax: +617 3211 9311
E: enquiries@awbrisbanelawyers.com.au





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