Assaults 2018-06-09T14:33:21+00:00

Assaults

There are a number of potential defences available to a person charged with assault. We recommend you contact our office to discuss whether a defence may be available in your circumstances.

Section 335 of the Criminal Code provides that:

Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for three (3) years.

Further, it is a circumstance of aggravation if the alleged assault occurred in a public place while the alleged offender was adversely affected by an intoxicating substance.

The word assault has a broad definition in the Criminal Code. The legislation defines an ‘assault’ as:

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’.

The prosecution must therefore prove, beyond a reasonable doubt, that the accused:

1. Unlawfully,
2. Assaulted (as defined above) another person.

If you are charged or questioned in relation to this offence it is our advice to contact our office immediately to discuss your rights.

An assault occasioning bodily harm builds upon the offence of common assault. Please see our common assault page for the elements of common assault and the definition, as per the Criminal Code, of the word ‘assault’.

Section 339 of the Criminal Code states that:

Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime and is liable to imprisonment for seven (7) years.

Further, it is a circumstance of aggravation if the offender does bodily harm and is or pretends to be armed with any dangerous or offensive weapon or instrument or is in company with 1 or more other person or persons. If one of these circumstances of aggravation is alleged the maximum penalty is increased to ten (10) years imprisonment.

The term ‘bodily harm’ has been questioned in courts for many years. In Scatchard v R the court held that merely causing pain to another does not amount to causing ‘bodily harm’. The alleged ‘bodily harm’ must be an actual bodily injury which interferes with health or comfort.

There are a number of potential defences available to a person charged with assault. We recommend you contact our office to discuss whether a defence may be available in your circumstances.

Section 315A of the Criminal Code states that:

A person commits a crime if—

(a) the person unlawfully chokes, suffocates or strangles another person, without the other person’s consent; and
(b) either—
(i) the person is in a domestic relationship with the other person; or
(ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012 .

In order for the offence to be made out, the Prosecution must prove beyond a reasonable doubt that:

1. The offender unlawfully choked/suffocated/strangled the complainant;
2. The choking/suffocation/strangulation was unlawful;
3. The complainant did not consent;
4. The offender and the complainant were in a domestic relationship with each other.

Further, for the purposes of this offence, the term ‘a domestic relationship’ has the same meaning as in the Domestic and Family Violence Protection Act 2012 namely that:

A relevant relationship is an intimate personal relationship, a family relationship or an informal care relationship.

The act goes on to further define the more specific types of relationships.

Need Help?

Contact Us Immediately