SERIOUS ASSAULT

WHAT THE LAW SAYS ABOUT SERIOUS ASSAULT IN QLD

 

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.

…….

(2) A prisoner who unlawfully assaults a working corrective services officer commits a crime.

(2AA) 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.

WHAT THE POLICE MUST PROVE

 

We first need to understand what an “assault” is in Queensland. Section 245 of the Queensland Criminal Code defines an assault as:

“(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.”

With this definition of an assault, we know it includes:

1. Striking, touching, or moving, or otherwise applying force of any kind to another person directly or indirectly; and
2. Without the person’s consent, or with the other person’s consent if it is obtained by fraud.

Or

1. By some bodily act or gesture you attempt or threaten to apply force of any kind to another person;
2. Without the person’s consent; and
3. Under such circumstances where you actually or apparently had the ability to effect the assault.

Having discussed the definition of what an assault is, lets look at what the prosecution must  prove beyond reasonable doubt.

 

(1)(a) Assault with intent to commit a crime or prevent lawful arrest

1. The defendant assaulted another person;
2. The defendant had the intention of committing a crime.

 

Or

 

1. The defendant assaulted another person;
2. The defendant had the intention of resisting or preventing the lawful arrest or detention of himself or herself or of any other person.

 

(1)(b) Assault police officer executing their duty or person aiding police officer

 

1. The defendant assaulted, resisted or wilfully obstructed the complainant.

2. The complainant was a police officer.

3. The complainant police officer was acting in the execution of the officer’s duty.

 

Or

 

1. The defendant assaulted, resisted or wilfully obstructed the complainant.

2. The complainant was aiding a police officer.

3. The police officer was acting in the execution of the officer’s duty.

 

(1)(c) Assault on person performing a duty

1. The defendant unlawfully assaulted the complainant.
2. The complainant at the time of the assault was performing a duty imposed on them by law.

 

(1)(d) Assault on person who had performed a duty

1. The defendant assaulted the complainant.
2. The defendant assaulted the complainant because the complainant had performed a duty imposed on them by law.

 

(1)(f) Assault person pursuing unlawful conspiracy

1. The defendant assaulted the complainant.
2. The defendant assaulted the complainant because the defendant was pursuing an unlawful conspiracy in relation to 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.

 

(1)(g) Assault involving a complainant 60 years or older

1. The defendant unlawfully assaulted the complainant.
2. The complainant was 60 years or older.

 

(1)(h) Assault complainant relying on assistance

1. The defendant unlawfully assaulted the complainant.
2. The complainant relied on a guide, hearing or assistance dog, wheelchair or other remedial device (e.g. walking frame, caliper, walking stick and artificial limb).

 

(2) – Corrective Services Officer

1. The defendant was a prisoner.
2. The defendant unlawfully assaulted the complainant.
3. The complainant was a working corrective services officer.

 

(2)(AA) Assault a public officer

 

1. The defendant assaulted, resisted or wilfully obstructed the complainant.

2. The complainant was a public officer.

3. The complainant public officer was performing a function of the officer’s office.

 

Or

 

1. The defendant assaulted the complainant.

2. The complainant was a public officer.

3. The defendant assaulted the complainant public officer because the public officer had performed a function of the officer’s office.

 

WHAT IS THE MAXIMUM PENALTY FOR SERIOUS ASSAULT?

 

The maximum penalty for serious assault in Queensland varies.

 

The maximum penalty for serious assault is 14 years imprisonment if the complainant is a police officer, and the defendant:

(i) bites or spits on the police officer or throws at, or in any way applies to, the police

officer a bodily fluid or faeces;

(ii) causes bodily harm to the police officer;

(iii) is, or pretends to be, armed with a dangerous or offensive weapon or instrument.

 

The maximum penalty for serious assault is 14 years imprisonment if the complainant is a corrective services officer and the defendant:

(i) bites or spits on the corrective services
officer or throws at, or in any way applies to, the corrective services officer a bodily fluid or faeces;
(ii)  causes bodily harm to the corrective
services officer;
(iii)  is, or pretends to be, armed with a
dangerous or offensive weapon or instrument.

 

The maximum penalty for serious assault is 14 years imprisonment if the complainant is a public officer, and the defendant:

(i) bites or spits on the public officer or throws at, or in any way applies to, the public officer a bodily fluid or faeces;

(ii) causes bodily harm to the public officer;

(iii) is, or pretends to be, armed with a dangerous or offensive weapon or instrument.

 

If none of the above apply, then the maximum penalty is 7 years imprisonment.

 

WHICH COURT WILL HEAR THE MATTER?

 

Serious assault can be heard in the Magistrates Court or the District Court. The prosecution get to say where the charge is finalised.

 

POSSIBLE DEFENCES TO A CHARGE OF SERIOUS ASSAULT

 

The onus is on the prosecution to prove you committed the serious assault beyond reasonable doubt. Their job is to show the assault was unlawful, not authorised or excused at law. The job of your criminal lawyer is to analyse the evidence and see if there are any defences you may have. If you can raise a defence, then the Court should not convict you of the offence. Therefore, it is important you get seek legal advice, and not just plead guilty to the charge.

 

1. The defendant did not assault the complainant.

 

2. The complainant police officer was not executing their duty.

 

3. Accident- you didn’t intend, nor was it reasonably foreseeable you would have assaulted the person.

 

4. Self-defence- you assaulted the person because you were defending yourself.

 

5. Self-defence of another person- you assaulted the person because you were defending someone else.

 

6. Extraordinary emergency.

 

7. Unwilled act.

 

 

WHAT YOU SHOULD DO IF CHARGED WITH SERIOUS ASSAULT

If you have charged with serious assault, get legal advice now. Every criminal offence is serious and can have serious consequences for you. You need the experience of the Criminal Lawyers Brisbane Group in your corner fighting for you. Pick up the phone and dial (07) 3153 6215 or fill out the form below for a free no-obligation chat. Contacting us may be the best thing you do.