What is an “assault”?
Under the Criminal Code (Qld) any physical contact that occurs without the recipients consent is taken to be an assault on that person.
In some cases an assault does not even need to involve physical contact. Section 245(1) of the Criminal Code (Qld) provides that a bodily act or gesture that attempts or threatens to apply physical force without consent will also be considered to be an assault.
I’ve been charged with “common assault”. What does this mean?
Section 335 of the Criminal Code (Qld) makes it an offence to unlawfully assault another person.
This is the least serious assault-related offence.
It is important to clarify the specific offence that you have been charged with. In some circumstances you can be charged with a “serious” rather than “common assault”. Visit our “serious assault” page for more information about this offence.
See what the law says about Common Assault.
What penalty will I be given if I plead or am found guilty of “common assault”?
The maximum penalty is 3 years imprisonment. While the legislation sets out the maximum penalties for offences, when deciding what penalty should be imposed in each individual case the court is required to take in to account the nature of the offence, your unique personal circumstances and any criminal history.
To get a better idea of the penalties that a court might impose in your case it will be necessary for a solicitor to discuss your matter with you and gain a better understanding of your circumstances.
Under new legislation there are mandatory sentences that apply in circumstances where you have committed the assault in a public place while intoxicated. In such circumstances the court must require you, as part of your penalty, to perform community service.
Our solicitors have extensive experience in this area and will be able to assist you in making sure you get the best result when your charge is finalised. For more information on factors that courts will consider when deciding your penalty see our sentencing page.
What if the victim was also involved in the incident?
In some circumstances you may be able to argue that the complainant consented to the assault. This has been raised in situations when both the person charged and the complainant took steps to voluntarily enter in to a fight and neither used excessive force.
Another example of consent to an assault is when playing a contact sport. In these circumstances it may be possible to argue that the complainant impliedly gave consent for the physical contact by agreeing to participate in the game.
These are just some examples of the potential arguments that may be available to a person charged with an assault offence.
Do I have any other options?
In some circumstances your matter may be appropriate for referral to Justice Mediation.
This is a process in which you and the complainant attend a meeting organised by an independent third party to discuss the incident and the impact it has had on the complainant.
An important part of this mediation is discussing how you can make amends for your behaviour. This might involve the payment of money to the complainant.
Often when the justice mediation process is successful the prosecutor will discontinue the court proceedings against you.
Your matter must be referred to Justice Mediation by either the court, Police Prosecution Corp or the Office of the Director of Public Prosecutions. The complainant and police must agree to participate in the process.
A benefit of having a solicitor is that, in appropriate matters, they are able to effectively negotiate with the court and prosecutors to convince them to have a matter referred to this process.
Are there any defences I can raise?
There are a number of possible defences that you may be able to raise when charged with common assault. Some of these include;
- Self defence
A common defence raised is provocation. This is relevant where the assault occurred as a result of some provocation by the victim that had deprived you of the power of self-control and resulted in you acting before there was time for your passion to cool. The amount of force you used must have been proportionate to the provocation and you cannot have intended to, or used force that would likely, cause death or grievous bodily harm to the victim.
Successfully raising this defence is complex and requires you to satisfy the court of a number of complex issues such as:
- Was the provocative conduct serious enough that the reasonable person would be induced to assault the complainant?
- Had there been a complete loss of self-control when you carried out the assault?
- Was the force you used proportionate with the seriousness of the provocative conduct?
If you believe there may be a defence, such as provocation, available to you it is always advisable to speak with a solicitor about your chances of success.
What do I do if police ask me to come in and speak with them about an assault?
It is important to remember your right to silence (see our “your rights” page for more information).
There are different kinds of assault and violence offences. If you decide to speak with police there is a real risk that you may unintentionally provide them with evidence that allows them to charge you with a more serious offence or additional charges.
Our advice to clients is always to be cooperative and respectful with police but to exercise your right to silence when they ask you questions. You should speak with a lawyer as soon as possible after police contact you.
How will a lawyer help me with my common assault charge?
There are a number of benefits to engaging a lawyer to act for you on your assault charge. Our solicitors are highly experienced in these matters and can provide you with:
- Expert advice about the strength of the prosecution’s case and your prospects of successfully fighting the charge.
- A representative who can attend court on your behalf (and save you from having to attend and speak for yourself on every court date).
- Years of experience in successfully negotiating with prosecution on our clients’ charges.
- An experienced court room advocate who can effectively present your case and submit to the court relevant, persuasive information designed to minimise your penalty.