What is a common assault?

In Queensland, there are three types of assault charges:

    1. Common Assault
    1. Assault occasioning bodily harm
    1. Serious Assault

This article focuses on the first type of assault charge in Queensland, common assault.  


Common Assault 

Common assault is a misdemeanor indictable offence, which can result in a maximum 3-year imprisonment. 

We refer to Common Assault in two forms:  

    • Direct Application Assault or
    • Threatened assault.

 Common assault is of less significance than an aggravated or serious assault, which is a crime and can result in imprisonment of up to 14 years. 


 Common Assault – Direct Application Assault 

In Queensland S245(1)CC (Criminal Code) defines Direct Application Assault as occurring when: 

    •  A person strikes touches or moves or applies force either directly or indirectly 
    • Without the other persons consent OR 
    • With the other persons consent if the consent was obtained by fraud  


 When is someone said to be “Applying Force”? 

Applying force includes applying heat, light, electricity or any other substance to such a degree as to cause injury or personal discomfort.  

The application of force does not become assault until the necessary intention to inflict unlawful force is formed.  

CASE STUDY Fagan v Metro Police Commissioner (1968 3 ALL ER 442) 

The accused accidentally drove a police car onto an officer’s foot.  

When the accused was asked to remove the car, he mocked the officer and delayed moving  

This incident, which began as an accident, then turned into an assault charge  


When is it with consent? 

Consent can either be expressed or inferred.   

An implied consent can stem from acts that are generally done reasonably in the “common intercourse of life” and “not disproportionate” to the occasion.  

For example, these could include non-hostile acts such as patting someone on the back or moving with the crowd at a music concert.  


When is it without consent? 

The question of whether a force is with or without consent, depends on whether the force is disproportionate or has exceeded that to which consent has been given. This is often a question for the jury.  


Common Assault – Threatened Application Assault 

In Queensland, S245(2)CC defines Threatened Application Assault as: 

    •  Any bodily act or gesture  
    • that attempts or threatens to apply force of any kind to another person  
    • without the other person’s consent  
    • and person making the attempt or threat has actually or apparently a present ability to carry out the assault   


What is a bodily act or gesture? 

A bodily act or gesture must be associated with words that indicate you have an intention of assaulting someone.  

The test for this is whether an ordinary person might reasonably consider your words, combined with the act or gesture, to construe an intention of assault.  

This threat can be conditional, for example, “If you don’t do this, I will knock you out”. 


Does it matter if you don’t intend to carry out the threat?  

Even if you don’t intend to carry out the threat, making the threat is enough to warrant an assault charge.  


What is attempting or threatening? 

If you have the intention to apply force or make the victim believe that the threat will be carried out, this could be seen as attempting or threatening assault. Additionally, you must create apprehension of violence in the mind of the individual. 

Under s4(1) of the Code: 

“When a person intending to commit an offence, begins to put the person’s intention into execution by means adapted to its fulfillment, and manifests the person’s intention by some overt act, but does not fulfill the person’s intention to such an extent to commit the offence, a person is said to attempt to commit the offence.” 


Does the complainant have to be aware of the apprehension of violence?  

If the complainant is unconscious, asleep or otherwise unaware to the point where apprehension is not possible, they cannot be victim to threatened application assault. 


What is an apparent ability? 

Having an apparent ability to carry out a threat is enough to be considered as threatened assault.  

For example, if you were to threaten someone with an unloaded gun, it would still qualify as an apparent ability to carry out the threat – unless they were aware it was unloaded. This awareness would be essential in disproving this element of an assault charge 

Charged with Assault and need legal advice? Contact our Brisbane Criminal Defence Lawyers 

It is important that you obtain legal advice as soon as possible if you or anyone you know has been charged with assault.   

To speak to one of our Criminal Defence Lawyers, call us on (07) 3252 0011 or you can book a FREE 30-minute initial consultation.  


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What defences do I have to an assault charge?

In Queensland, there are three types of assault charges:

  1. Common Assault
  2. Assault occasioning bodily harm
  3. Serious Assault

These are serious criminal offences as all assault charges may attract a term of imprisonment.

This article focuses on two common defences to assault: Provocation and Self-defence.



What is Provocation? 

According to s268 of the Queensland Criminal Code, provocation is:

“Any wrongful act or insult of such a nature as to be likely, when done to an ordinary person…to deprive them of the power of self-control, and to induce to person to assault the person by whom the act is done.” 

This means there must be both a loss of self control and provocative conduct for any claim of provocation to have merit.


Does Provocation provide a complete excuse? 

Under the Code, provocation provides a complete defence with relation to assault.

This means that although it doesn’t make the act lawful, it does absolve you of any criminal responsibility with relation to the assault.


When is Provocation unavailable as a defence? 

If you are charged with bodily harm, grievous bodily harm (GBH) or wounding you cannot rely on provocation. It can also provide a partial defence for a murder charge.


Who must prove the Provocation defence? 

If you want to rely on a provocation defence for an assault charge you must bring evidence to satisfy the court that there is a reasonable claim. The prosecution will then have to disprove this claim.



What is Self-Defence? 

Self-Defence is outlined in s271272 and s273 of Queensland Criminal Code 1899.

Self-Defence provides a defence which permits a person to physically defend with themselves, another, or property using reasonable force.


Who must prove Self-Defence?

If you’ve been charged with assault and want to rely on self-defence, you will firstly need to point to enough evidence to raise this defence. If you provided enough evidence for this defence to be raised, the prosecution must then prove beyond reasonable doubt that the assault was not in self-defence.


Section 272 Provoked Assault 

If you provoked the assault, it will be necessary to establish that the individual you provoked responded with:

  1. Such violence as to cause reasonable apprehension of death or GBH,” and that;
  2. You responded by using force reasonably necessary for your preservation, including force that resulted in death or GBH.


For a provoked assault, the court will also consider:

    • Did the accused believe that the force was necessary
    • Need for retreat
    • Excessive force
    • Limitations that are placed by law on defensive force in a provoked assault.


Section 272 Unprovoked Assault 

If there was no provocation, whatever action you take is deemed lawful as long as it is to the extent “reasonably necessary” to make an effectual defence against the assault (as opposed to provoked assault, which begins with an unlawful action).

For the court to determine whether the assault was provoked, they will have mind to the factors detailed above in “Provocation”.

For an unprovoked assault, the court will also consider:

    • Other alternate strategies that may have been used in response
    • Prior acts of the victim
    • Presence of domestic violence in the situation
    • need for retreat.


What is “reasonably necessary”?

The court applies an objective test in determining whether something is reasonably necessary and considers the following questions:

    • What was the likely attack?
    • Was the response reasonably necessary to make effectual defence against that attack?


What if the Self-Defence causes death of Grievous Bodily Harm (GBH)? 

In the case of a self-defence that has resulted in death or GBH, the court will undertake a subjective analysis to determine whether you believed, on reasonable grounds, that the level of force used was necessary for you to survive the assault.

There are also distinct legal questions to be addressed where there is a mistaken belief of the amount of force required, protection of property, or where the self-defence is a defence of another. To find out more, contact our criminal defence lawyers..


Additional Defences 

To absolve a person of criminal responsibility for an assault charge, we consider the broad range of possible other excuses and defences in addition to the above defences. These include:

    • Extraordinary emergency
    • Insanity
    • Immature age
    • Compulsion
    • Arrest of the wrong person
    • Surgical procedure
    • Defence of property
    • Consent
    • Mistake


Charged with Assault and need legal advice? Contact our Brisbane Criminal Defence Lawyers

It is important that you obtain legal advice as soon as possible if you or anyone you know has had an assault charge.

To speak to one of our Criminal Defence Lawyers, call us on (07) 3252 0011 or you can book a FREE 30-minute initial consultation.


Helpful Links