Is Consent a Defence to Assault? (Qld)

The Criminal Code Act 1899 outlines a number of assault offences that a person can commit against another person in Queensland. These offences vary in seriousness, scope and punishment. There are a number of legal defences that can be relied on in relation to an assault charge, including self-defence, accident and duress. This article examines the question of whether the consent of the alleged victim can be used as a defence to an assault charge.

What constitutes an assault?

Section 245 of the Act defines ‘assault’ as follows:

“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.”

In its simplest form, an assault is a ‘common assault’. A common assault is an assault that occurs without any circumstances of aggravation, such as the victim sustaining harm or the use of a weapon.

The elements of a common assault can be broken down as follows:

1. A person (the defendant) struck, touched, or applied force to another (the complainant), or threatened the complainant with immediate violence (in circumstances that made the complainant believe that the defendant had the ability to carry out the threat);
2. The defendant did so intentionally or recklessly;
3. The defendant did so without consent; and
4. The defendant did so without lawful justification or excuse

In order for a court to convict a person on a charge of common assault, the police must prove beyond a reasonable doubt that all of these elements have been satisfied.

More serious assault offences include offences such as assault occasioning bodily harm, serious assaults and sexual assaults. In sexual assault matters, the absence of consent by the alleged victim is an essential element.

Is consent a defence to assault?

For many years, whether a person could consent to assault was an ongoing subject of debate in criminal law. The 1991 Queensland Court of Appeal decision of Lergesner v Carroll [1991] 1 Qd.R. 206 provided some much-needed clarity on the subject.

In that case, the court allowed an appeal against conviction by a man who had been convicted of an assault occasioning bodily harm. The man argued that the magistrate had failed to properly consider the issue of consent. It was at that time established that consent may operate as a defence to a charge of assault occasioning bodily harm.

The issue of consent as a defence is more clearly established in some situations than it is in others. For example, it is much easier to infer the consent of participants of a well-organised contact sport than it would be in a situation where two strangers decide to fight one another in public.

A person cannot consent to serious harm

It is worth noting that consent will not create a defence to serious harm done to another person. In cases where an application of force falls in some way under the definition of an assault (as outlined above), then the presence or absence of consent will determine the criminality of the application of force. However, consent cannot be used as a defence for more serious assault offences such as unlawful wounding or unlawfully causing grievous bodily harm.

Whether consent forms a valid defence to a charge of assault varies from state to state. However, most states have adopted the legal principle that a person can never validly consent to serious harm.

Legislation and consent to assaults

Section 246 of the Queensland Criminal Code states:

(1) An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by law.

(2) The application of force by one person to the person of another may be unlawful, although it is done with the consent of that other person.

Similar provisions exist in the Western Australian Criminal Code at sections 222 and 223.

Case law on consenting to assaults

Court decisions have further endorsed consent as a defence to both common assault and assault occasioning bodily harm. In the 1991 decision of Lergesner v Carroll, the court concluded:

“…the legislature has set limits in the area where a person can consent to conduct. Beyond this limit it becomes irrelevant whether the conduct involved an assault, as an incident of it, or whether it involved conduct that was consented to. Relevant examples include grievous bodily harm (s 320) and wounding (s 323)”

Accordingly, whilst the absence of consent is a required element for offences such as common assault and assault occasioning bodily harm, the defence does not extend to offences involving serious and/or permanent injury.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.