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s335 Criminal Code 1899 makes it an offence to unlawfully assault a person.
What the prosecution must prove.
The prosecution must prove that:
1. The defendant assaulted the complainant;
2. The assault was unlawful;
What it means.
At law an assault includes striking, touching, moving or otherwise applying force of any kind to someone else directly or indirectly without consent. Examples of assault extend to blowing in someone’s face. It is not necessary that the application of force be violent. Gently hugging someone with consent can be an assault.
An attempt or threat by any bodily act or gesture to apply force of any kind to the person without consent but only if there is an apparent ability to carry through the threat. A simple example is someone raising their fist in anger. The gesture threatens striking. There is an ability to swing a punch.
The act or gesture itself, taken together with the context, must convey the threat. For example, the Queensland Court of Appeal ruled that handing over a note containing a threat during a robbery did not amount to an assault because the act of handing over the note did not convey a threat.
Mere words, no matter how threatening, do not constitute an assault on their own.
Threatening words can be taken into account in determining whether a bodily act amounts to a threat of violence. Walking towards someone does not itself amount to an assault. Walking towards someone whilst making verbal threats can amount to an assault.
An assault is not unlawful if there is consent. A person must consent to the application of force and the extent of the force. If the force exceeds the consent there is no consent and it is unlawful.
The law provides that we all impliedly consent to a certain amount of touching in day to day life. An example is being jostled on crowded public transport.
Another example of implied consent is contact sport. A punch in boxing and a tackle in football are assaults and would be unlawful but for the fact players are taken to consent. That consent is limited to the application of force within the rules of the game. Although hardly ever prosecuted at a professional level, punching a player during a game of football is an unlawful assault.
The available defences.
Self-defence or defence of another
The usual penalties.
The maximum penalty for the criminal offence of Common Assault is 3 years imprisonment.
The maximum penalty is a poor numerical indicator of sentences usually imposed. It plays a very important role in setting the seriousness of an offence but the maximum penalty is hardly ever imposed.
A court must impose a community service order in addition to any other penalty if the offence was committed in a public place whilst intoxicated by drugs or alcohol. This only applies if these circumstances are expressly alleged in the wording of the charge and either admitted or proved beyond reasonable doubt.
The law mandates a court must impose a community service order in addition to any other penalty if the offence was committed within or in a public place whilst intoxicated by drugs or alcohol. This only applies if these circumstances are expressly alleged in the wording of the charge and either admitted or proved beyond reasonable doubt.
The penalty for a first offence of this nature is usually a fine. It would be very unusual for a Court to impose a sentence of imprisonment for a first offence.
Factors that affect the appropriate penalty include the nature of the force, the extent of the force (was it a single or multiple blows), the circumstance of the victim and the context. Assaults in a domestic context are viewed seriously.