Defences To Assault Charges

Defences To Assault Charges



Assault Charges in Queensland

In Queensland, Chapters 30 and 32 of the Criminal Code 1899 (Qld) (the Criminal Code) address:

  • the different types of assaults police can charge a person with; and
  • the penalties for committing those assaults.

Our article on Assault Charges contains more information about:

  • what actions and circumstances will result in an assault charge;
  • the likely penalties;
  • your options for dealing with a charge of assault; and
  • the steps you can take to minimise any penalty.

Defences To Assault Charges in Queensland

The Criminal Code also states what defences apply to assault.

For a Court to find a person guilty of assault, the prosecution must satisfy all elements of the offence. The burden lies with the prosecution to:

  • satisfy each element beyond a reasonable doubt; and, in most cases
  • disprove, beyond a reasonable doubt, any defence raised.

We discuss some specific defences available below.

If you are unsure whether a defence applies, you should speak to a lawyer about your situation. Our lawyers can:

  • review the evidence put forward by police; and
  • advise you on your prospects of successfully running a defence.

You should contact a lawyer for legal advice as soon as possible if the police have charged you with assault.

What Happens If a Defence Is Successful?

Defences to assault can be complete or partial. If a complete defence is successful, the accused person will be acquitted of the charge. Where a defence is a partial defence, it will diminish a person’s liability. Partial defences often apply to a charge of murder. If there is an applicable defence, it can mean the accused is only guilty of manslaughter.

We discuss specific complete and partial defences in more detail below.

Intention – Unwilled Acts and Unforeseen Consequences

Per section 23(1)(a) of the Criminal Code:

a person is not criminally responsible for—

(a) an act… that occurs independently of the exercise of the person’s will;

Queensland Criminal Code 1899 Section 23

If raised, the prosecution must disprove this defence. This means they must prove to the Court that the assault was a voluntary choice that the defendant made.

Unwilled acts can include:

  • acts the defendant did in their sleep;
  • acts which are a result of the defendant’s medical problem(s) such as seizures, tics, or spasms; and
  • acts due to the defendant’s reflexes.

Section 23(b) of the Criminal Code goes on to state that a person is also not criminally responsible for:

(b) an event that—

(i) the person does not intend or foresee as a possible consequence; and

(j) an ordinary person would not reasonably foresee as a possible consequence.

Queensland Criminal Code 1899 Section 23

There are, however, some exceptions to this defence. The defendant is not absolved of guilt if a victim suffers grievous bodily harm (GBH) or death. In this case, they could not rely on section 23(b) above even if the injuries were unforeseen.

If you believe you may have a defence of intention, it is important to seek legal advice. We recommend you speak to a lawyer at the earliest opportunity and before speaking to the police. You do not want to unintentionally jeopardise any defence you may have.

Your lawyer can:

  • speak to the police on your behalf; and
  • assist you in putting forward any information you may wish to present.


The Criminal Code provides two forms of self-defence defences to assault. These defences relate to:

  • self-defence from an unprovoked assault; and
  • self-defence from a provoked assault.

We discuss both situations below.

Self-Defence Against an Unprovoked Assault

Section 271 of the Criminal Code covers a person who has been the target of an unprovoked attack. In this event, they may legally use as much force as is reasonably required to defend themselves.

However, they must not intend the force used and it must not be likely:

  • to cause death to their assailant; or
  • to cause grievous bodily harm to their assailant.

The exception to this is where the nature of the attack causes the person to reasonably:

  • fear for their life; or
  • believe they will suffer grievous bodily harm.

In this situation, if the person reasonably believes there is no alternative, they may:

  • use any force necessary to defend themselves from death; or
  • use whatever force necessary to defend themselves from grievous bodily harm.

This is the case even if the force is likely to cause the attacker grievous bodily harm or death.

Aitken Whyte Lawyers have successfully run jury trials on the basis of self-defence. We have had clients acquitted of serious charges of:

If you have had to assault another in self-defence, our lawyers can defend you.

Self-Defence Against a Provoked Assault

Section 272 of the Criminal Code relates to a person (person A) who:

  • unlawfully assaults another; or
  • otherwise provokes an assault from another (person B).

In this case, person A may use any degree of force in self-defence needed to preserve themselves if:

  • person B, whom person A assaulted or provoked, responds in a way that causes person A to fear death; or
  • person B responds with such violence that they cause person A to fear grievous bodily harm; and
  • person A reasonably believes they must use that force to defend themselves.

There are limitations on the application of this defence if the force used by person A causes death or GBH.

For person A to rely on this defence in those circumstances, they must have:

  • not begun their assault on person B with the intent to kill or do grievous bodily harm;
  • not used the force which caused death or grievous bodily harm before it became necessary; and
  • declined further conflict and attempted to retreat before such force became necessary.

If person A causes grievous bodily harm or death to person B and all elements above do not apply, there is no defence.

Aiding In Self-Defence

Section 273 of the Criminal Code provides a defence that allows one to aid another in good faith.

It states it is permissible to use force to defend someone else from an assault. Where it is lawful to use force of any degree to defend oneself, it is also lawful to use force to protect another.

Extraordinary Emergency

Section 25 of the Criminal Code covers acts committed in emergency circumstances. It states that a person will not be criminally responsible for something done in:

  • a sudden emergency; or
  • an extraordinary emergency.

The action taken, however, must be something that could be reasonably expected of:

  • an ordinary person; and
  • a person possessing ordinary power of self-control.


In Queensland, “provocation” by a victim can provide a complete defence to assault.

Section 268 of the Criminal Code defines provocation as:

any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under the person’s immediate care, or to whom the person stands in a conjugal, parental, filial, or fraternal, relation, or in the relation of master or servant, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered.

Queensland Criminal Code 1899 Section 268

Section 269 of the Criminal Code goes on to state:

A person is not criminally responsible for an assault committed upon a person who gives the person provocation for the assault

Queensland Criminal Code 1899 Section 269

To rely on this defence, however, the defendant must have:

  • been deprived of the power of self-control by the provocation (act or insult by the victim);
  • acted upon the provocation suddenly and before there was time for their “passion to cool“;
  • used force proportionate to the provocation and that was not intended to, or likely to, cause death or GBH.

The onus is on the prosecution to satisfy a Court or jury that the defence of provocation does not apply.

You should contact a lawyer if you have assaulted someone:

  • after they have provoked you; and
  • have done so in the moment, without time to think.

In this case, a defence of provocation may apply.

Our lawyers can:

  • consider the situation; and
  • advise you on whether this defence is likely to be successful.

You may also be able to negotiate with the prosecution on the basis that a defence would likely succeed at a trial. If you would like legal advice on this, contact one of our criminal lawyers.

Prevention Of Repetition of Insult

Similarly to a defence of provocation, it is a defence for a person to use force necessary to prevent:

  • the repetition of an act of such a nature as to be a provocation for assault; or
  • the repetition of an insult of such a nature as to be a provocation for assault.

To disprove this defence, the prosecution would need to prove that:

  • what the victim did was not provocation; or
  • there was no reasonable possibility of the victim repeating the act or insult.

A defendant may also only rely on this defence if the force used was not intended to, or likely to, cause death or GBH.


Section 27(1) of the Criminal Code states that a person is not criminally liable for an act if, at the time of doing the act:

  • the person is in a state of mental disease; or
  • the person is in a state of natural mental infirmity; and, their mental state is such that it impairs
    • their capacity to understand what they are doing;
    • their capacity to control their actions; or
    • their capacity to know that they should not do the act.

The burden is on the defendant to establish this defence. The accused’s defence team must present evidence to the Court:

  • that the person was mentally unsound at the time of committing the defence; and
  • that the accused’s mental state impaired their ability to make decisions.

Section 27(2) of the Criminal Code addresses those who:

  • do not meet the definition above; but
  • are suffering from delusions at the time of committing the offence.

In such a case, the criminal responsibility would be the same as it would be if the delusions were reality.


In QLD, the age of criminal responsibility is 10 years old. Therefore:

A person under the age of 10 years is not criminally responsible for any act

Queensland Criminal Code 1899 Section 29

Between the ages of 10 and 14, in addition to the elements of the offence, the prosecution must prove:

that at the time of doing the act… the (child) had capacity to know that (they) ought not to do the act

Queensland Criminal Code 1899 Section 29

The presumption is that any child under the age of 14 is not criminally responsible. This will be the case unless the prosecution proves the above beyond a reasonable doubt. It is not necessary for the child to hold actual knowledge that they should not do a certain act. They only need to have the capacity for that knowledge.

Aitken Whyte Lawyers have experience representing juvenile defendants before the Childrens Court.

Our lawyers understand the additional care and compassion required. We can guide children and their parents and caregivers through the court process. We will take the time to clearly explain your child’s options and the likely outcomes. It is important that you and your child:

  • are aware of their rights; and
  • know of everything that can be done to minimise the impact of such a charge on their future.

Inapplicable Defences to An Assault Charge

Ignorance Of the Law

In Queensland, mistaking the law cannot be used as a defence.

Section 22(1) of the Criminal Code states:

Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.

Queensland Criminal Code 1899 Section 22

Knowledge of the law is not an element of assault. Therefore, a person not knowing that assault is an offence cannot be used as a justification.

The exceptions to this are a defence of insanity and children under the age of 14. It is still a defence if a person’s lack of knowledge is due to an unsound mind. Further, it is a defence if a child under 14 did not have the capacity to understand the law.

Intentional Intoxication

A person who has intoxicated themselves cannot use their intoxication as a defence. Voluntary intoxication is when a person has willingly consumed alcohol or drugs. For example, a defence of insanity would not apply if:

  • the person’s mental state was due to their intoxication; and
  • the person caused themselves to become intoxicated.

How We Can Help

Aitken Whyte Lawyers Brisbane are focused on results. Our criminal defence lawyers are experienced Court advocates. We have acted for, and successfully defended, clients charged with serious violence offences.

We will apply our knowledge and skill to your case and can advise you on whether any defence may apply.

In addition to going to trial, we will explain the option of negotiating with the prosecution. We regularly successfully negotiate to have our client’s charges downgraded or discontinued.

You will have the peace of knowing you have engaged a highly experienced legal team to fight for you.

Our lawyers work hand in hand with experienced criminal law barristers. We also have established relationships with experts who provide evidence for assault cases. This includes doctors, specialists, and health professionals we can brief to give evidence. Obtaining reports can assist to argue the factual elements of an offence. For example, arguing that an injury does not meet the definition of grievous bodily harm.

We can help if you are facing a charge of:

Contact us to speak to a criminal lawyers in Brisbane.

Office Location and Contact Details


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

Ph: 07 3229 4459
Fax: +617 3211 9311