Different offences relating to assault exist in different states and territories of Australia. In all jurisdictions, there are common assaults as well as more serious assaults where the victim suffered bodily harm or grievous bodily harm. There are also specific offences in each state and territory relating to assaults on police and assault with intent to commit another offence. This page outlines the assault offences in each state and territory.
What is an assault?
An assault occurs when a person either:
- Applies force to another person without the other person’s consent; or
- Causes another person to apprehend the immediate application of force to them without their consent.
It can consist of a push, punch or slap. It can also consist of an act that does not involve actual physical contact, such as raising a fist to another person as if to strike them.
What is harm?
While a common assault does not require the victim to suffer harm, some assault offences involve the infliction of actual bodily harm, grievous bodily harm or another specified type of harm.
The definitions of actual bodily harm and grievous bodily harm from different states and territories. Many states also have an offence called unlawful wounding. This offence involves harm to a victim that involves the victim’s skin being broken.
Assault offences in Queensland
In Queensland, the Criminal Code Act 1899 set out the penalties for common assault, assault occasioning bodily harm (AOBH), unlawful wounding, unlawfully doing grievous bodily harm and serious assault.
Common assault is always dealt with in the Magistrates Court. AOBH and unlawful wounding may be dealt with either by a magistrate or in a higher court. Unlawfully doing grievous bodily harm may only be dealt with on indictment (in a higher court).
Assault offences in New South Wales
Common assault is a summary offence, while the other offences are indictable offences. In cases where no harm is inflicted, the offender will generally be charged with common assault.
Assault offences in the ACT
Assault offences in Victoria
In Victoria, the Crimes Act 1958 contains the offences of assault police, assault with intent to commit an indictable offence and recklessly or intentionally causing injury. Unlawful assault, which is the most basic assault offence in Victoria, can be found in the Summary Offences Act 1966.
Assault offences in Western Australia
In Western Australia, the Criminal Code Act Compilation Act 1913 contains the offences of common assault, assault occasioning bodily harm, assault with intent, serious assault and causing grievous bodily harm.
A person may contest a charge by relying on a legal or a factual defence. Some of these defences are outlined below.
The defence of self-defence
In all jurisdictions, self-defence is a defence to any offence involving the unlawful use of force. The law recognizes that a person must be allowed to act defensively when faced with a physical threat.
The defence of domestic discipline
In all states and territories, a person is permitted to use reasonable force to discipline a child if they are the child’s parent or are acting for the child’s parent.
The defence of mental impairment
In all jurisdictions, a person has a full defence to a criminal offence if they were so mentally impaired that they could not understand or control their actions. However, this defence is framed differently in different states and territories. A person may rely on this defence if they were mentally ill (temporarily or permanently) intellectually impaired.
The defence of immature age
If a person under the age of 14 is charged with an assault offence, they may be able to rely on the defence of immature age.
In Australia, the age of criminal liability is 10. A child under 10 cannot be found guilty of an offence.
A child between 10 and 14 can only be found guilty of an offence if the prosecution can establish that they were capable of understanding that their actions were wrong.
The defence of provocation
In Queensland, provocation is also a defence to an assault charge. However, this defence is not available in any other state or territory.
A person may also contest a charge by relying on a factual defence such as an alibi. Other factual defences include that the elements of an assault are not made out or that the victim did not sustain harm (for offences where harm is required).
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.