Assault
offences

Assault offences

Assault offences

Introduction to Assault

After drink driving offences, assault offences are generally the most common offences prosecuted in Australia. Offences gathered under the umbrella of "assault" take many forms. Some target specific victims while others require proof of a specific harm. Assault laws are similar but not identical from state to state.

This eBook provides a basic overview of criminal offences that involve assault. It does not attempt a complete description of every offence in every state that carries harm to another person as an element. In addition, this eBook does not provide legal advice. Legal advice can only be given by a lawyer who understands the law in the state where the offence allegedly occurred and who applies that law to the specific facts of your case. If you have been accused of assault or if you believe that you will be facing an assault charge, you should talk to a lawyer in the state where the alleged offence occurred.

2. What is an assault?

At one point in Australia, there was a distinction between battery, which involves an infliction of physical harm upon another person, and assault, which involves a threat or attempt to harm another person. That distinction has largely disappeared from the criminal law, which usually treats battery as a form of assault.

State laws define many different offences that are founded on the crime of assault. The crimes and potential punishments may depend upon the victim who was targeted and upon the degree of physical harm (if any) inflicted. Some crimes with serious (or potentially serious) consequences, including murder, endangering life, dangerous driving, and offences involving firearms, could be viewed as forms of assault, but they are beyond the scope of this eBook. The offence of affray, which is similar to rioting or fighting in a public place, is a form of assault but it generally regarded as a crime against public order rather than a crime against an individual, and is therefore beyond the scope of this eBook.

Different states define and categorize the different forms of assault in different ways. They also give different names to similar offences. The traditional (common law) definitions and names of assault offences are generally used in this eBook. Variations in the traditional definition of the offence are noted when they are significant.

3. Common assault

"Common assault" might involve, but does not require, unwanted physical contact with another person. A common assault is any act that intentionally or recklessly causes another person to fear immediate and unlawful violence. The offence therefore requires proof that:

  • The accused made another person fear that imminent physical violence or unlawful physical contact; and
  • The accused intended that the other person would experience that fear or (in the case or reckless assault) realizes that his conduct is provoking that fear and persists in the conduct.

A more modern view of common assault, adopted in Queensland, South Australia, and Western Australia, replaces the requirement that a victim feel fear with a requirement that the accused had the ability to carry out the threatened harm.

A common assault might include physical contact such as poking or shoving. Physical contact that causes pain or injury is usually treated as a more serious offence (described in sections 4 and 5 of this eBook).

Immediacy and awareness

In states where fear is an element of common assault, the offence does not occur unless the victim fears immediate or imminent violence. It is not enough to prove that the victim feared being injured at some time in the future. In addition, since the offence requires proof that the accused instilled fear in the victim, no assault occurs unless the victim was aware of the accused's actions.

Unlawfulness

An assault requires unlawful physical contact or a fear of unlawful physical contact. If the accused acts in self-defense or if the alleged victim has consented to the accused's conduct (for example, by agreeing to fight or by playing a contact sport according to the rules), the accused is acting lawfully and no assault occurs. Consent obtained by fraud, however, may not be available as a defence.

Assault by words alone

Most assaults occur when the accused throws a punch or otherwise engages in threatening behavior. It is possible, however, for threatening words to constitute an assault if threats of physical violence create a fear that the words will immediately be followed by an act of physical violence, or (in some states) if the accused has the apparent ability to carry out the threat.

Reckless assault

In some states, a reckless assault occurs when the accused, without intending to provoke fear, foresees the likelihood of causing fear or injury but ignores that risk and continues to engage in the conduct that provokes the fear. The accused must be aware that fear is a potential consequence of his or her conduct before a reckless assault can occur.

State laws

Some states distinguish between a threat to kill and a threat to injure. Some states view stalking as a more serious form of common assault. Some states have merged common assault and assault occasioning bodily harm into a single statute that can be violated in alternative ways.

State laws that make common assault an offence include:

NSW: Crimes Act 1900, section 61
VIC: Crimes Act 1958, sections 20, 21, 21A
QLD: Criminal Code Act 1899 (Criminal Code), sections 245, 335, 359
SA: Criminal Law Consolidation Act 1935, section 19, 20
WA: Criminal Code Act Compilation Act 1913, sections 222, 223, 313

4. Assault occasioning actual bodily harm

An assault occasioning (or causing) actual bodily harm requires that:

  • The accused assaulted the victim (as assault is defined by state law); and
  • The assault caused actual bodily harm.

Actual bodily harm

Actual bodily harm includes any infliction of injury or pain. Australian courts generally agree that the term also includes psychiatric injury, provided it is more severe than the ordinary emotions of fear or panic.

State laws

State laws that make assault occasioning bodily harm an offence include:

NSW: Crimes Act 1900, section 59
VIC: Crimes Act 1958, section 18
QLD: Criminal Code Act 1899 (Criminal Code), sections 245, 339
SA: Criminal Law Consolidation Act 1935, sections 20, 24
WA: Criminal Code Act Compilation Act 1913, sections 222, 317

5. Assaults that cause wounding or serious bodily harm

Some offences are similar to assault occasioning bodily harm, but carry more severe penalties because they require a more serious form of bodily harm. Those offences typically require:

  • Wounding - cutting the interior layer of the skin (the dermis); or
  • Grievous or serious bodily harm - inflicting a serious disfigurement, a serious disease, the loss of a fetus, or some other very serious injury.

Like other forms of assault, these offences may be committed by individuals who are acting intentionally or recklessly. Different penalties may apply depending upon the accused's state of mind.

State laws

State laws that define offences involving wounding or grievous bodily harm include:

NSW: Crimes Act 1900, sections 33, 35
VIC: Crimes Act 1958, sections 16, 17
QLD: Criminal Code, sections 317, 323
SA: Criminal Law Consolidation Act 1935, section 23
WA: Criminal Code Act Compilation Act 1913, sections 297, 301

6. Assault with intent to commit an indictable offence

When an assault is committed with the intent to commit an indictable offence, the offence of assault is more serious. An indictable offence is a serious crime that is prosecuted by indictment. For example, if the accused assaulted a victim with the intent to commit the offence of robbery, the accused has committed an assault with the intent to commit an indictable offence.

State laws

Some states substitute "crime" for "indictable offence." State laws governing assault with intent to commit a crime or indictable offence include:

NSW: Crimes Act 1900, section 58
VIC: Crimes Act 1958, section 31
QLD: Criminal Code, section 340
WA: Criminal Code Act Compilation Act 1913, section 317A

7. Assault against police officers

A variety of laws make it an offence to commit an assault upon a police officer. Related laws specifically prohibit:

  • Using force to resist an officer who is executing his or her duty.
  • Using force to obstruct an officer who is executing his or her duty.
  • Assaulting any person with the intent to prevent an officer from apprehending or detaining that person.
  • Throwing something at an officer who is executing his or her duty.
  • Stalking, harassing, or intimidating an officer who is executing his or her duty.
  • Assaulting an officer during a public disorder where the officer is executing is or her duty.

Potential penalties usually increase if the assault causes bodily harm to the officer. If the assault causes a wound or other serious bodily harm, penalties increase further.

Executing duty

The law does not require proof that the accused knew that the officer was executing his or her duty at the time of the assault, as long as the officer was in fact executing his or her duty. An officer is considered to be executing his or her duty even if the officer is off duty, provided that the assault is carried out because the victim is a police officer or as retaliation for actions undertaken by the officer in the execution of his or her duty.

Resistance

It is illegal to resist actions that the police lawfully take in the performance of their duty. It is not illegal to resist unlawful actions. If an officer is trying to drown you, for instance, you can use reasonable force to resist that unlawful action.

Obstruction

Any action that interferes with an officer's lawful execution of his or her duty is considered an obstruction.

State laws

State laws that pertain to assaulting a police officer include:

NSW: Crimes Act 1900, sections 58, 60
VIC: Crimes Act 1958, sections 30, 31
QLD: Criminal Code Act 1899 (Criminal Code), section 340
SA: Criminal Law Consolidation Act 1935, sections 19, 5AA
WA: Criminal Code Act Compilation Act 1913, sections 317a, 318

8. Assaults against other protected persons

Some states have enacted laws making assault a more serious crime when the victim is considered to be particularly vulnerable or in need of protection. Depending on the state, those victims might include:

  • Members of the clergy
  • Students and school staff members
  • Public officials
  • Elderly persons
  • Disabled persons
  • Children
  • Spouses
  • Aircraft crew
  • Ambulance crew
  • Firefighters
  • Healthcare workers
  • Persons who are attempting to preserve, salvage, or rescue a maritime vessel
  • Persons driving ferries, trains, or public transportation vehicles

State laws

State laws governing assaults upon protected persons include:

NSW: Crimes Act 1900, sections 56, 57, 60E
QLD: Criminal Code Act 1899 (Criminal Code), section 338A, 340
SA: Criminal Law Consolidation Act 1935, sections 19, 5AA
WA: Criminal Code Act Compilation Act 1913, sections 317A, 318

9. Sexual assaults

Sexual assaults include rape (sexual intercourse without consent) as well as unwanted touching of intimate body parts. They also include molestation or other sexual acts involving minors. Some offences involving indecent behaviour might be considered a form of sexual assault. Some defences that are commonly available against assault charges may not be available when certain sexual assault offences (particularly those involving a minor) are charged.

The law of sexual assault is complicated and beyond the scope of this brief eBook. If you are charged with or suspected of a sexual assault, you should seek the advice of a lawyer.

The laws governing sexual assault offences are too extensive to list here. Some examples of the basic laws making sexual assault (rape) an offence are:

NSW: Crimes Act 1900, section 61I
VIC: Crimes Act 1958, section 38
QLD: Criminal Code, section 349
SA: Criminal Law Consolidation Act 1935, section 48
WA: Criminal Code Act Compilation Act 1913, section 325

10. Defences 

A number of defences may be raised to assault offences, although not every defence is applicable to every offence in every state. Potential defences include:

  • The alleged victim consented to the accused's actions.
  • The alleged victim provoked the accused's actions.
  • The accused acted in self-defence.
  • The physical contact was socially acceptable (for instance, mild shoving while moving through a crowded area).
  • Mental illness prevented the accused from forming the requisite state of mind.
  • The alleged act was a lawful correction of a child's behaviour by a parent.
  • The alleged victim is making a false or mistaken accusation.
  • The accused has been mistakenly identified.
  • The accused's actions were accidental, not intentional or the result of reckless conduct.

The defences to assault are too complex to discuss in detail here. If you have been, or think you might be, accused of an offence involving assault and want to know whether you have a defence, you should consult with a lawyer.

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