Assault
Type 1;
1. Applies force either directly or indirectly
2. without consent (or with consent that is obtained by fraud - pretending to be a doctor)
1.
2.
3.
4.
Type 2;
Bodily act or gesture (raising your fist towards somebody)
Attempts or threatens to apply force
without the persons consent
has actually or apparently the present ability to effect the persons purpose
BASICALLY
Type 1: Applying force
Type 2: Attempting or threatening to apply force.
Offences
1. Assault based (can consent to) i.e. implied or tacit consent
a. Sexual assault
b. Serious assault
c. AOBH (some type of mark is left i.e. red mark around neck)
d. Common assault
2. Injury based (cannot consent to)
a. GBH
b. Specific intent
c. Torture
d. Causing GBH
e. Wounding
'grievous bodily harm' defined by s1;
(a) the loss of a distinct part or an organ of the body; or (liver stabbed or someone is poisoned and lose
function of an organ)
(b) serious disfigurement; or (no definition for this - a acid burn etc)
(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life,
or cause or be likely to cause permanent injury to health; Whether or not treatment is or could have
been available





GBH sub para (c)
Bodily injury if left untreated would endanger life or;
likely to endanger life or;
cause permanent injury to health or;
likely to cause permanent injury to health
Death has not occurred
Consenting to - Tattoos, piercing
Wilson - brands his wife
Difference between assault based and injury based is that consent is immaterial to injury based.
I.
Assault Based Offences
(CAN Consent to)
1. Common Assault - s335
1. Assault Occasioning
Bodily Harm (AOBH) s339



7 yrs max
First level of injury
With an accomplice, or a weapon
max increases to 10 yrs
1. Serious Assault - s340


7 yrs max
Typically assaulting a class of persons
- police officers, people over the age
of 60, vulnerable people




10 yrs max
covered in week 6
There still must be an assault
I.
Sexual Assault - s352
Injury Based Offences
(CANNOT consent to)
1. Unlawfully wounding - s323


7 yrs max
Typically reserved for stabbings
1. Grievous Bodily Harm (GBH) s320

14 yrs max
1. Acts Intended To Cause GBH
& Other Malicious Act - s317


max life
Cocktail offence / Pick intent &
Mix it with specific outcome
1. Torture - s320A

14 yrs max
1. Disabling in Order To Commit
Indictable Offence - s315
 NEW

s315A Choking, suffocation or
strangulation in a domestic
setting
 7 yrs max
s316 Stupefying in order to
commit indictable offence
 max life
s316 Unlawful Drink Spiking
 5 yrs max



Negligently causing bodily
harm - s328
- 2 yrs max
- not tested
ASSAULT - Definition and elements
The crown must prove beyond a reasonable doubt that there was no consent.
2 Categories of offences
1. Assault based (can consent to)(i.e. sports)
2. Injury based
The distinction between these two offences is consent
Definition of Assault (NOT THE CAHARGEABLE OFFENCE) - s245(1)
Provides there are two types of assault.
S245(1)
[Type 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
[Type 2] 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.
s245(2)
applies force includes the case of applying heat, light, electrical force, gas, odour, or any other
substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
Elements of a Assault
Type 1
1. Applies force either directly or indirectly
2. without consent (or with consent that is obtained by fraud - pretending to be a doctor)
or
Type 2
1. Bodily act or gesture (fingering someone = is an example of a bodily act. However probably not
an assault)
2. attempts or threatens to apply force
3. without the persons consent
4. has actually or apparently the present ability to effect the persons purpose
Assaults are broken down into 2 categories (just separate definitions)
Type 1: Application of Force
1. Strikes, touches, moves or otherwise applies force
2. Without consent of the other person
Type 2: Attempt or threaten to apply force (Don't have to make contact with the other person)
1. Bodily act OR gesture
i.
Must be by the bodily act you are attempting to threaten to apply force
ii.
R v Agius [2015] QCA 277 (BY bodily act or gesture)
2. Attempts OR threatens to apply force to the person
i.
Attempt = Swinging or spitting at someone and missing
3. without consent
4. Actual Or apparent present ability to effect purpose
i.
if it is apparent that you cannot effect the purpose that does not constitute an assault.
ii.
Objectively viewed.
iii.
Hall v Fonceca [1983] WAR 309 - words by themselves are insufficient to constitute an
assault
iv.
Gestures by themselves might be insufficient
R v Agius [2015] QCA 277 - Must be BY the bodily act or gesture. / Gave a note with a threat
 Passed a note to a pharmacist "Immediately, 2x 80 mg Oxycontin, 2x 40 MG'' Please matter of
life and death and no one gets hurt.
 Is the passing of a note not constitute a bodily act or gesture?
 [The Court] that by passing the note he had threatened to apply force.
[24]
 This was not the case that the assault and the threat were constituted by the same act.
 The act of handing over the note was the means of communicating and implied threat, clearly
there was
no threat to apply force "by" that act itself
Hall v Fonceca [1983] WAR 309 - Raising hand can constitute an assault
 2 friends were drinking after hockey. Started to argue, at which point they both stood up
 Fonceca who is the respondent, said 'watch it' shaking his finger at Hall
 Hall pushed Fonceca in the shoulder and said 'get away'
 Hall then moved his right arm seeming as if he was about to raise it.
 Fonceca interpreted as Halls preparation to strike a blow, Fonceca swung first and knocked Hall
to the floor
 Hall sustained a very serious injury. suffered a hemorrhage
 Fonceca argued the punch was self defence. Hall's movement with his arm & language being
used constituted an assault
 [The Court] Halls movement taken with his words amounted to an assault to which Fonceca had
the right to self defence.
Sub Elements of an Assault
1. Direct vs Indirect application of force
S245(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
s245(2)
applies force includes the case of applying heat, light, electrical force, gas, odour, or any other
substance or thing whatever if applied in such a degree as to cause injury or personal discomfort.
Croft v Blair QCA (unreported 15 December 1989)
 Dog biting = indirect application of force.
Fagan v Metropolitan Commissioner of Police [1069] 1 QB 439
 Man drives onto the foot of a police officer
2. Actual or Apparent Present Ability - (rubber guns that look real)
s245 links the attempt or threat by bodily act or gesture to apply force with the actual or
apparent present ability.
Brady v Schatzel [1911] St R Qd 206
 Fake gun, toy gun = assault
Rozsa v Samuels [1969] SASR 205
 Taxi case - where cab drivers made a conditional threat by pulling a knife on the other driver
 'Move your cab or I will stab you'
 Conditional threats do suffice as an assault.
Zanker v Vartzokas (1988) 34 A Crim 11
 He offered to give a ride to someone, asks her for sexual favours - 'I will take you to my mates
house and he will really fix you up'
 she jumped out of the car.
 Claim for false imprisonment and assault. The assault is the threat of taking her to his mates
house. She doesn’t know where the mates house is or how long until they get there
 [The Court] held that it was an assault
But ‘present ability’ does not always mean an apprehension of immediate personal violence.
Secretary (1996) 86 A Crim R 119
3. Without Consent
All assaults must occur without consent, and consent can not have been obtained by fraud: s245(1).


Implied consent - Handshake example - sticking hand out to shake hand = implied
Tacit consent - Don't do anything other than be - i.e. pick up a baby to feed them
Consent can be express, implied or tacit –
Kimmorley v Atherton; Ex parte Atherton [1971] Qd R 117 - Still authoritative on the meaning of implied
/ tacit consent
Kissing case
 Kissed one of the chaps, and then the second chap kisses her and relied on implied/tacit consent
 R v Gee [2016] QSC 23 has recent analysis for 'implied consent'
 Trial for attempted murder of a toddler: inserted coins into a baby's mouth trying to kill
him
Not an assault if it were necessary for common intercourse of life:
Horan and Ferguson (1994) QCA 375
 Multiple accounts of touching alleged against a teacher
 Touching on the back, moving their arms, pat on the bum
 Some of the counts were considered implied consent on behalf of the students.
Boughey v R (1986) 161 CLR 10 - HCA Authority on hopping on and off of the bus.
 [23] - 'The effect of this provision is to exclude from an "assault", for the purposes of the Code,
commonplace, intentional but non-hostile acts such as patting another on
the shoulder
to attract attention or pushing between others to alight from a crowded
bus. Such acts are,
if committed inoffensively, regarded by the common law as ordinary
incidents of social
intercourse which do not, without more, constitute battery'
 [24] - 'be it never so small", will constitute common law battery if it is "actually done to the
Person
of a Man, in an angry, or revengeful, or rude, or insolent Manner, as by
Spitting in his Face, or any
way touching him in Anger, or violently justling him out of the Way"'
Mistaken Consent - Defence for Assault based offence s 24(1)
s 24(1) - Honest and reasonable but mistaken belief of consent may be a defence
‘A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in
the existence of any state of things is not criminally responsible for the act or omission to any greater
extent than if the real state of things had been such as the person believed to exist.’
Lergesner v Carroll [1990] 49 A Crim R 51 - Authority for what constitutes bodily harm
 Two police officers are arguing over mangos
 Defendant said "do you want to go outside on the grass and settle this"
 Victim says "No, we will settle it here now" after a pause "well…"
 Defendant punched the victim
 [The Court]
 first issue whether there was consent : The court of appeal felt that the magistrate
erred by not first considering whether or not there had been consent by virtue of 'well…'
.

second issue appellate court found: was in not allowing the defendant to rely on mistaken fact
as a defence
Intention?
There is no specific requirement to prove intent within the elements.
Hall v Fonceca [1983] WAR 309
 Essentially it is implied that when you swing your intention is to apply force.
An actual application of force does not appear to require intention. Section245(1) makes no mention of
a requirement of intention.
BUT
An attempt or threat to apply force does requires intention to achieve that result as intention is implied
into the provision: Hall v Fonceca [1983] WAR 309
4. Unlawful Assault (definition) - s 246
s246(1) An assault is unlawful and constitutes an offence unless it is authorised or justified or excused by
law.
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.
For example:
“authorised” a policeman in execution of his/her duty;
“justified” would be self defence; or
“excused” would be the defence of accident.
I.
ASSAULT BASED OFFENCES (CAN CONSENT TO)(CHARGEABLE)
1. Common Assault - s335

S335 - Any person who unlawfully (s246) assaults (s245) another is guilty of a misdemeanour
and is liable, if no greater
punishment is provided, to imprisonment for 3 years.
2. Assault Occasioning Bodily Harm (AOBH) - s339


S339(1) Any person who unlawfully (s246) assaults (s245) another and thereby does him bodily
harm is guilty
of a crime and is liable to imprisonment for 7 years.
Bodily harm is a mark left on the body

S339(3) Circumstances of aggravation
(3) If the offender does bodily harm, and is or pretends to be armed with any dangerous or offensive
weapon or instrument or is in company with 1 or more other person or persons, the offender is liable
to imprisonment for 10 years.
(4) The Penalties and Sentences Act 1992, sections 108B and 161Q also state a circumstance of
aggravation for an offence against this section.
(5) An indictment charging an offence against this section with the circumstance of aggravation
stated in the Penalties and Sentences Act 1992, section161Q may not be presented without the
consent of a Crown Law Officer.
Bodily Harm - You can consent to bodily harm
S1 defines Bodily harm as
“any bodily injury which interferes with health or comfort”

Police will take pictures or ask you to take pictures to preserve evidence.
Scatchard v R (1987) 27 A Crim R 136 - Bodily harm was defined
 Somebody was put in a headlock
 Red marks were present around the victims neck
 The mere sensation of pain without any marks does not constitute bodily harm
Lergesner v Carroll [1990] 49 A Crim R 51 read in CM
R v Mallard [1998] QCA 59
 Drunk man punched bouncer in the face
 Later that night somebody bottled the bouncer.
 Because the victim had subsequently sustained more serious injuries it was very
difficult to prove that in fact mallard had caused any marks.
3. Serious Assaults - s340
Has a provision for assaults against class of persons - police, elderly etc
i.e.
Assault with intent to commit a crime
Assault, resist or willfully obstruct a police officer acting in the execution of the officer’s duty
Assault on a person aged 60 or more, etc
Max 7 years
R v Reynhoudt (1962) 107 CLR 381
Kenlin v Gardiner [1967] 2 QB 510
 If a police officer is undercover and you assault them, you will still be liable for serious assault
even if they were in plain clothes
 s24(1) - mistake of fact, 'I thought they were a regular person'. HAS to be a positive belief
 however, if the undercover officer told you 'I am just a truck driver' that would
constitute a
positive belief
s340 (1) Any person who—
(a) assaults another with intent to commit a crime, or with intent to resist or prevent the lawful arrest or
detention of himself or herself or of any other person; or
(b) assaults, resists, or wilfully obstructs, a police officer while acting in the execution of the officer’s
duty, or any person acting in aid of a police officer while so acting; or
(c) unlawfully assaults any person while the person is performing a duty imposed on the person by law;
or
(d) assaults any person because the person has performed a duty imposed on the person by law; or
(f) assaults any person in pursuance of any unlawful conspiracy respecting any manufacture, trade,
business, or occupation, or respecting any person or persons concerned or employed in any
manufacture, trade, business, or occupation, or the wages of any such person or persons; or
(g) unlawfully assaults any person who is 60 years or more; or
(h) unlawfully assaults any person who relies on a guide, hearing or assistance dog, wheelchair or other
remedial device;
II.
INJURY BASED OFFENCES (CANNOT CONSENT TO)(CHARGEABLE)
'Unlawful' is not defined by law for injury based offences
Houghton v R [2004] WASCA 20 - 'unlawful' means 'prohibited by law' or 'not excused'
[39] In that regard I note the concern expressed in argument for the applicant that unless "unlawfully"
means contrary to some positive law, the causing of serious injury on the sporting field may constitute
unlawfully doing grievous bodily harm. I think it may. While one may consent, by participation in a
sporting contest, to the application of force by other players, so that such application of force will not
constitute an assault as defined by the Code, s 222, non-consent is not an element of the offence of
doing grievous bodily harm and it will not be rendered lawful by consent to an activity which causes
it: cf Attorney-General's Reference (No 6 of 1980) [1981] QB 715, 719;
Lergesner v Carroll [1991] 1 Qd R 206, 217-8.
4. Wounding - s 323 - i.e. Stabbings
S323 (1) A person who unlawfully (s246) wounds anyone else commits a misdemeanour. Maximum
penalty--7 years imprisonment.
Common Law Requirements: Must see blood, breaks the true layer of skin (all epidermal layers)
Elements
1. Breaches all the layers of skin;
2. Must see blood
R v Da Costa [2005] QCA 385
Devine v R (1983) 2 A Crim R 45
Jervis (1993) 56 A Crim R 374 - The authority that we have to see blood
5. Grievous Bodily Harm - s320 (Grievous = Serious)
S320 Any person who unlawfully (s246) does grievous bodily harm (s1) to another is guilty of a crime
and is liable to imprisonment for 14 years.
s1 - defines 'grievous bodily harm' means;
(a) the loss of a distinct part or an organ of the body; or (liver stabbed or someone is poisoned and lose
function of an organ)
(b) serious disfigurement; or (no definition for this - a acid burn etc)
(c) any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger
life, or cause or be likely to cause permanent injury to health; (can be broken down) Whether or not
treatment is or could have been available
s1 GBH sub para (c)
 Bodily injury if left untreated would endanger life or;
 likely to endanger life or;
 cause permanent injury to health or;
 likely to cause permanent injury to health
Assessed at the time of the injury  Doctor can say 'it was likely to endanger life'
R v Lobston [1983] 2 Qd R 720
R v Lovell; Ex parte AG (Qld) [2015] QCA 136
Hind and Harwood v R (1995)80 A Crim R 105
“likely to endanger” has been held to mean “a substantial - a real not remote”- chance
Consent is immaterial:
 Lergesner v Carroll [1990] 49 A Crim R 51
6. Acts Intended To Cause Grievous Bodily Harm & Other Malicious Acts - s317 (very serious
offence) (pick and mix provision)
Any of these intents
(a) To maim, disfigure or disable
(b) To do GBH or transmit a serious disease
(c) To resist or prevent arrest or detention
(d) To resist or prevent public officer acting in accordance with lawful authority
‘Maim’ is interference with a person’s capacity to fight: R v Woodward [1970] QWN 30
“Disfigure” = an external injury which detracts from one’s personal appearance, and
“Disable” = create a permanent disability and not merely a temporary disability
Consent immaterial: Lergesner v Carroll [1990] 49 A Crim R 51
With any of these harms
(e) Wounds, does GBH, transmits serious disease
(f) Strikes or attempts to strike with projectile
(g) Causes explosion
(h) Sends explosive or dangerous or noxious thing,
(i) or such causes thing to be taken or received
(j) Puts or places corrosive fluid or destructive or explosive substance in a place
(k) Casts or throws such fluid or substance upon any person
Note: we will learn later in the course that s28(3) says that evidence of intoxication can be led in relation
to offences of ‘specific intent’ e.g ss302(1)(a), 317, 320A
s317 - covers intentional transmission of a serious disease.
s1 Definition of 'serious disease'
'a disease that would if left untreated, be of such a nature as toa. cause or be likely to cause any loss of a distinct part or organ of the body; or
b. cause or be likely to cause serious disfigurement; or
c. endanger or be likely to endanger life, or to cause or be likely to cause permanent injury to
health
R v Reid (2006) QCA 202
Zaburoni v The Queen [2016] HCA 12
 case where the guy transmitted HIV
7. Torture - s320A
S320A - Max 14 years
(1) A person who tortures another person commits a crime;
(2) In this section-pain or suffering includes physical, mental, psychological or emotional pain or suffering, whether
temporary or permanent. torture means the intentional infliction of severe pain or suffering on a
person by an act or series of acts done on 1 or more than 1 occasion.
Ping [2005] QCA 472
 Deck hand that has a traumatic time
 Put starfishes on him etc
 Needs to be the intention on the part of the accused.
 [The Court] had to decide whether there was intent
(1) A person who tortures another person commits a crime. Maximum penalty—14 years imprisonment.
(1A) The Penalties and Sentences Act 1992, section 161Q states a circumstance of aggravation for an
offence against this section.
(1B) An indictment charging an offence against this section with the circumstance of aggravation stated
in the Penalties and Sentences Act 1992, section161Q may not be presented without the consent of a
Crown Law Officer.
(2) In this section—
pain or suffering includes physical, mental, psychological or emotional pain or suffering, whether
temporary or permanent.
torture means the intentional infliction of severe pain or suffering on a person by an act or series of acts
done on 1 or more than 1 occasion.
When to charge injury-based offence rather than AOBH
Harm inflicted may be wounding or GBH rather than mere bodily harm
o s 323 or 320 instead of s 339
Infliction of bodily harm may involve criminal negligence rather than intentional violence
o s 328/323/320 instead of s 339
8. Disabling in order to commit indictable offence - S315 (New Offence in Qld)
Any person who, by any means calculated to choke, suffocate, or strangle, and with intent to
commit or to facilitate the commission of an indictable offence, or to facilitate the flight of an
offender after the commission or attempted commission of an indictable offence, renders or
attempts to render any person incapable of resistance, is guilty of a crime, and is liable to
imprisonment for life.
315A CHOKING, SUFFOCATION OR STRANGULATION IN A DOMESTIC SETTING
(1) A person commits a crime if—
(a) the person unlawfully chokes, suffocates or strangles another person, without the other person’s
consent; and
(b) either—
(i) the person is in a domestic relationship with the other person; or
(ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and
Family Violence Protection Act 2012 .
Penalty: Maximum penalty—7 years imprisonment.
(2) An assault is not an element of an offence against subsection (1).
R v HBZ [2020] QCA 73