Assault Laws in Australia: Definitions and Defences

by The FindLaw Team

The crime of assault can be both treated as a summary offence, or in more serious cases as an indictable offence in a District or Supreme Court of a State. The criminal codes of each State outline what are the elements that make up an assault, as well as the categories in which an assault may fall under in the various criminal codes.

How is an assault defined in the law?

A useful starting off point in identifying how an assault is defined by the various criminal codes is Queensland’s definition. The Criminal Code in s 245 defines assault as the following:

(1) 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.

Additionally, all State criminal codes have further definitions of actions that may constitute an assault, such as causing physical discomfort by the use of: heat, light, electrical force, and odorous gases.

Can an assault ever be consensual?

Actions that normally would be considered as assault in law, would not be considered as such if there has been consent. However, assaults that cause bodily harm due to the excessive use of force may still be a crime under the criminal codes of the States.

Are verbal threats considered an assault?

Threats to seriously injure, or kill another person is considered as an assault, but the threat has to create a fear that it would be carried out. Threats that are unlikely or impossible would not normally be considered as an assault. Threatening to kill or injure someone is a crime that is not taken lightly by the states. In Victoria for example, threats to kill as spelled out in s 20 of the Crimes Act carries with it a maximum of 10 years imprisonment if it is real, rather than fanciful.

What are the defences against assault?

A successful defence against assault can either reduce the penalties, or lead to an acquittal if a complete defence was established. Defences generally speaking are made when an individual has no other option but to defend themselves in the manner they did. This may mean that there was a threat either against themselves, or another person from unlawful deprivation of liberty, and there was no other option available in preventing an assault but to defend themselves in the manner they have.

Actions that aren’t defences in assault

Legislation in the state's criminal codes outline that the defence should be proportional to the crime and not be excessive. An example of use of force that is excessive can be seen in s 420 of the Crimes Act in New South Wales. The Act states that if the protection of property or prevention of a trespasser from entering private land causes death, no defence from assault is available in the circumstances because the use of force was not proportional to the actual act.

Assault has many elements that are far too extensive to cover in this article. For anyone that needs assistance in regards to crimes of assault, seek immediate legal assistance.



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