Assault Offences Across Australia

The word ‘assault’ often conjures up images of a physical altercation between two or more people, such as a bar fight or even domestic violence.

Whilst such actions can certainly amount to the offence of assault, the conduct which may amount to assault is far broader than can extend to a range of actions, including some which do not involve physical contact at all.

But it is important to know that simply making unauthorised contact with another person does not necessarily amount to an assault – as this would make living in the modern, congested world impractical and untenable, making ‘criminals’ of us all.

In addition to this, there are a number of legal defences to assault charges which can be relied upon in the event an accusation of intentionally or recklessly inflicting physical harm against another has been levelled against a person, and using these defences can mean that person is not considered to be legally responsible for conduct which would otherwise amount to assault.

Here’s a summary of the law, defences and penalties for assault charges in Australia.

What is assault?

Broadly speaking, the criminal offence of assault occurs where a person makes unauthorised physical contact with another person – other than conduct necessary for the ‘daily exigencies of life‘ (eg where you are in a crowded place) – and that contact is made intentionally or recklessly.

The definition also encompasses the act of intentionally or recklessly causing another person to apprehend immediate and unlawful violence, such as raising a fist in anger or otherwise directly physically threatening another person.

A reference to ‘physical assault’ generally refers to acts of physical violence that are not sexual in nature.

Physical assault may, however, occur within the context of other offences, for example within the context of a property-related crime such as the offence of robbery.

Under the law, the maximum penalties that can be applied are generally determine by two factors: the degree of harm allegedly inflicted and the state of mind of the perpetrator.

In terms of the former, degrees of harm inflicted include conduct encompassed by the offences of:

• Common assault: which occurs when a person intentionally or recklessly causes another person to apprehend immediate and unlawful violence. When this act results in the physical touching of another, it’s sometimes referred to as a ‘battery’.
• Assault occasioning actual bodily harm (ABH): which is a assault that causes some level of non trivial harm, including bruises or light scratches.
• Wounding: which is an assault that causes some penetration of the surface of the skin, including deep cuts and lacerations.
• Assault occasioning grievous bodily harm (GBH): which is a assault that results in “really serious injury” including disfigurement, unconsciousness or other serious harm.

In some jurisdictions, assaults are graded more simply on the basis of causing either “injury” or “serious injury”.

In terms of the latter, states of mind are reflected in the following sub-offences:

• Intentionally causing ABH, wounding or GBH: where the person wishes to cause that type of injury.
• Recklessly causing ABH, wounding or GBH: where the person does an action with foresight that a particular type of injury could result, for example: pushing another person onto the ground knowing that wounding could occur.
• Negligently causing ABH, wounding or GBH: where person owes another person an obligation to take due care  (a ‘duty of care’) and causes injury as a result of their carelessness (‘breaches their duty of care’).

Current assault laws in Australia

Every State and Territory has a stand alone criminal offence for common assault, with more specific offences related to assault occasioning harm.

New South Wales assault laws

Under NSW criminal law, section 61 of the Crimes Act 1900 (NSW) outlines the offence of common assault. The section reads:

Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

Common assault can include a range of different behaviours like kicking, pushing, punching and spitting, but to be defined as common assault, there must be no actual physical harm caused, or only a very small amount.

Threatening to hurt another person can also be classified as common assault, even in cases where no physical contact is made. Common assault comes with a maximum prison sentence of two years, and is usually treated as a summary offence, although it can be dealt with as an indictable offence as well.

Further assault offences include:

• Assault occasioning actual bodily harm under section 59 of the Act
• Recklessly wounding or causing grievous bodily harm under section 35 of the Act.
• Intentionally wounding or causing grievous bodily harm under section 33 of the Act.

Victoria

Under VIC criminal law, the offence of assault is outlined under section 31  of the Crimes Act 1958 (VIC). The section reads:

(1)     A person who—

(a)     assaults or threatens to assault another person with intent to commit an indictable offence; or

(b)     assaults or threatens to assault, resists or intentionally obstructs an emergency worker on duty or a youth justice custodial worker on duty, or a custodial officer on duty, knowing or being reckless as to whether the person was an emergency worker or a youth justice custodial worker or a custodial officer; or

(ba)     assaults or threatens to assault, resists or intentionally obstructs a person lawfully assisting an emergency worker on duty or a youth justice custodial worker on duty, or a custodial officer on duty, knowing or being reckless as to whether the person was assisting an emergency worker or a youth justice custodial worker or a custodial officer; or

(c)     assaults or threatens to assault a person with intent to resist or prevent the lawful apprehension or detention of a person—

is guilty of an indictable offence.

Queensland

Under Qld criminal law, the offence of assault is outlined under section 246 of the Qld Criminal Code. The section reads:

(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.

Tasmania

Under Tas criminal law, the offence of assault is outlined under section 184 of the Tas Criminal Code. The section reads:

Any person who unlawfully assaults another is guilty of a crime.

Australian Capital Territory

Under ACT criminal law, the offence of assault outlined under section 26 of the Crimes Act 1900 (ACT). The section reads:

(1)     A person who assaults another person is guilty of an offence punishable, on conviction, by imprisonment for 2 years.

(2)     However, for an aggravated offence against this section, the maximum penalty is imprisonment for 3 years.

Northern Territory

Under NT criminal law, the offence of assault is outlined under section 188 of the NT Criminal Code. The section reads:

(1)     Any person who unlawfully assaults another is guilty of an offence and, if no greater punishment is provided, is liable to imprisonment for one year.

(2)     If the person assaulted:

(a)     suffers harm;

(b)     is a female and the offender is a male;

(c)     is under the age of 16 years and the offender is an adult;

(d)     is unable because of infirmity, age, physique, situation or other disability effectually to defend himself or to retaliate;

(e)     is a member of the Legislative Assembly, the House of Representatives or the Senate and the assault is committed because of such membership;

(f)     is assisting a public sector employee in carrying out the public sector employee’s duties;

(fa)     is assisting a justice of the peace in carrying out the justice’s functions;

(g)     is engaged in the lawful service of any court document or in the lawful execution of any process against any property or in making a lawful distress;

(h)     has done an act in the execution of any duty imposed on him by law and the assault is committed because of such act;

(j)     is assaulted in pursuance of any unlawful conspiracy;

(k)     is indecently assaulted; or

(m)     is threatened with a firearm or other dangerous or offensive weapon,

the offender is guilty of an offence and is liable to imprisonment for 5 years.

South Australia

Under SA criminal law, the offence of assault is outlined under section 20 of the Criminal Law Consolidation Act 1935 (SA). The section reads:

(1)         A person commits an assault if the person, without the consent of another person (the “victim”)—

(a)         intentionally applies force (directly or indirectly) to the victim; or

(b)         intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or

(c)         threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—

(i)         the person who makes the threat is in a position to carry out the threat and intends to do so; or

(ii)         there is a real possibility that the person will carry out the threat; or

(d)         does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or

(e)         accosts or impedes another in a threatening manner.

(2)         However—

(a)         conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and

(b)         conduct that is justified or excused by law cannot amount to an assault.

(3)         A person who commits an assault is guilty of an offence.

Western Australia

Under WA criminal law, the offence of assault is outlined under section 223 of the WA Criminal Code. The section reads:

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

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.

What’s the punishment for assault in Australia?

Punishment for NSW assault offence

The maximum penalty for committing an assault offence under the NSW criminal law is 2  years imprisonment.

Punishment for Victorian assault offence

The maximum penalty for the assault offence is 5 years imprisonment.

Punishment for Queensland assault offence

The maximum penalty for the assault offence is 3 years imprisonment.

Punishment for Tasmanian assault offences

The maximum penalty for the ACT assault offence is 21 years imprisonment.

Punishment for Australian Capital Territory assault offence

The maximum penalty for the ACT assault offence is 3 years imprisonment.

Punishment for Northern Territory assault offence

The maximum penalty for the NT assault offence is 5 years imprisonment.

Punishment for South Australian assault offence

The maximum penalty for the SA assault offence is 2 years imprisonment.

Punishment for Western Australian assault offences

The maximum penalty for the WA assault offence is 18 months imprisonment or a fine of $18,000.

Defences to Australian assault offences

In addition to the requirement that the prosecution must prove each element of the relevant offence, it must also disprove beyond reasonable doubt any of the following defences if properly raised:

• Self-defence, this is the most frequently-used defence to assault charges and is where your actions were reasonable and proportionate to defend yourself or another person or persons (eg where a person attacks you or someone nearby and your actions are to protect yourself or the other person, and you do not use more force than is necessary to subdue the other person).
• Duress, which is where you  engaged in the conduct because you were compelled to do it under an imminent threat of serious harm to yourself or another person or persons, and there was no reasonable way for you to avert the threat (an extreme example of this would be where a person holds a knife to your throat and says they will stab you unless you hit another person).
• Necessity, where your conduct was necessary to avert serious danger (eg where you were running to get away from someone who is trying to seriously hurt you and you have to push people out of the way).

There are a number of additional ways to overcome assault charges, including putting the prosecution to proof regarding the evidence and raising a lack of criminal culpability through establishing ‘automatism’ (eg if you hurt someone while having an uncontrollable fit or while asleep).

There is also a specific defence that applies to parents and guardians who use physical force as a means of disciplining their children,. This defence is known as ‘lawful correction‘.

Charged with assault?

If you have been accused of assault and require the assistance of lawyers who are vastly experienced and have an outstanding track record of defending these cases, call Sydney Criminal Lawyers® 24/7 on (02) 9261 8881 to arrange a free first conference.