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Monday, 14 September 2020 17:28

Defences to an Assault Charge

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Defences to an assault charge

Understanding Legal Defences to Assault Charge in Queensland: A Comprehensive Guide

When charged with assault in Queensland, knowing your defences is crucial. This article cuts straight to the chase, offering an understanding of defences to assault charge in Queensland, such as self-defence and the nuances of provocation. Read on to equip yourself with the knowledge to navigate your defence strategically.


Key Takeaways

  • Assault charges in Queensland are governed by Part 5 of the Criminal Code 1899 and can range from common assault to serious and sexual assault, with penalties varying from fines to life imprisonment depending on the offence’s severity.

  • Legal defences against assault charges include provocation, where the assault is a direct response to a wrongful act or insult, and self-defence, which must involve reasonable and proportionate force to protect oneself or others from imminent threat.

  • The court process for more serious assault offences in Queensland includes a Committal Hearing in the Magistrates Court, followed by a trial or sentence in the District Court, where evidence such as medical reports and expert evaluations play a critical role in determining the case outcome.


Understanding Assault Charges in Queensland

The specific provisions under Part 5 of the Criminal Code 1899 govern assault charges in Queensland. These criminal law regulations outline the legal parameters for prosecuting individuals involved in assault cases. These charges typically manifest in two categories: The first category includes common assault, assault occasioning bodily harm, serious assault and grievous bodily harm, the second category are sexual assault. Each of these assault offences carries varying levels of severity, with penalties ranging from fines to imprisonment. Understanding these assault charges is the first step in navigating any legal proceedings related to assault.

The essence of an assault offence in Queensland revolves around the application of force or threat of such application, without the consent of the other party. Consent, when operating in a legal context, can serve as a defence to an assault charge, particularly in cases of assault occasioning bodily harm.


Common Assault

Common assault, as the name suggests, is one of the most frequently encountered assault offences. It encompasses situations where the victim sustains minor injuries or even situations where no physical injuries are present, as opposed to more severe cases like bodily harm assault. Examples of common assaults include spitting on someone or threatening them with a fake weapon. In these instances, a person assaults another individual without causing significant bodily harm, often in an unprovoked assault scenario.

However, despite the term ‘common’, this offence should not be taken lightly. In Queensland, the maximum penalty for common assault is three years imprisonment, showcasing the seriousness with which the legal system treats even minor offences related to assault.

We have a dedicated common assault page


Assault occasioning bodily harm

An assault occasioning bodily harm occurs where the person assaulted has suffered injuries that fall within the definition of bodily harm. In Queensland “Bodily harm” means any injury which interferes with health or comfort.

The maximum sentence for assault occasioning bodily harm is 7 years but where the offender is armed or is in company with one or more persons, at the time the assault is being committed the assault becomes aggravated in which case the maximum sentence will be 10 years imprisonment.

The matter is dealt with in either the Magistrates Court or the District Court.

This charge often results in a prison sentence but in the right circumstances that sentence can be wholly suspended or a person could undertake parole instead of serving time in jail.

We have a dedicated assault occasioning bodily harm page.


Grievous bodily harm

Grievous bodily harm is something more serious than a mere wounding or a bodily harm, and is defined as the loss of a distinct part of an organ of the body, serious disfigurement or any bodily injury of such nature that, if left untreated, would endanger or be likely to endanger life or cause or be likely to cause permanent injury to health.

This type of charge is very serious and can only be finalised in the District Court.

Generally a person charged with this offence would expect to obtain a jail sentence.

We have a dedicated grievous bodily harm page


Serious Assault

Unlike common assault, serious assault in Queensland involves:

  • an assault with an intent to commit a crime or resist lawful arrest

  • cases where a police officer or other emergency workers performing their duties is assaulted, resisted, or wilfully obstructed

  • offences against a person performing a duty imposed by law.

The severity of serious assault is underscored by its penalties. In Queensland, the maximum penalty for serious assault is generally seven years of imprisonment. This is a serious offense that carries significant consequences. However, this penalty can increase to 14 years if the offender:

  • bites or spits on a police officer

  • causes bodily harm

  • is armed with a dangerous weapon during the assault

  • applies bodily fluid or faeces to a police officer.


Sexual Assault

Sexual assault in Queensland covers a wide range of non-consensual acts, including but not limited to touching, kissing, and sexual intercourse. The absence of consent from the alleged victim forms the crux of a sexual assault charge.

Penalties for sexual assault are severe, with the maximum penalty typically being 10 years imprisonment. However, the penalty can escalate to life imprisonment if the act is committed with an offensive weapon or in the company of another person.


Key Defences to Assault Charges

While assault charges carry significant consequences, there are legal defences available that can significantly affect the legal outcome, potentially reducing the severity of the charges or penalties. Two of the most common defences used against assault charges are provocation and self-defence.

Provocation is a defence used when the accused was provoked into committing the assault due to any wrongful act or insult from the person assaulted. On the other hand, self-defence is invoked when the accused’s actions were in response to an imminent threat, aiming to protect themselves or another person. Successfully using these defences can lead to an acquittal or result in a lesser sentence for the accused.



The defence of provocation revolves around:

  • a wrongful act or insult that is likely to deprive an ordinary person of self-control, inducing them to commit assault

  • the accused must demonstrate that they lost their self-control due to the provocative conduct from the person assaulted

  • the reaction to the provocation must be immediate, showcasing that there was no reasonable time for the defendant to regain self-control.

However, the defence of provocation has its limitations. The response to the provocation must not be excessive, i.e., it should not intend to cause death or grievous bodily harm. Also, the provocation must be directed at the defendant.

Provocation is not a defence when charged with grievous bodily harm or wounding.



Self-defence is a fundamental right under Queensland law. An individual can use reasonable force, which must be both reasonable and necessary, to protect oneself or another person from an unlawful assault. The degree of force used must be proportionate to the perceived threat.

In cases of provoked assault, the law allows self-defence if the person believes they are in danger of being killed or seriously injured, provided that the defensive force used is reasonable and does not intend to kill or cause grievous harm. The prosecution bears the legal burden of disproving a self-defence claim, which must satisfy the court beyond a reasonable doubt.

Unprovoked Assault

Under section 271 of the Criminal Code an individual can use as much force as is reasonably necessary to defend themselves against an unprovoked assault. The force used must be proportionate to the perceived threat. This means that the use of force must be less than or equivalent to the force of the assault.

Provoked Assault

Under section 272 of the Criminal Code if a person assaults someone or provokes an assault that person may then use reasonable force to protect themselves if the other person responded with such violence that the person who provoked it would reasonably fear they may suffer death or grievous bodily harm.

This defence is not open to a person who’s initial assault or provocation is done with the intent to kill or do grievous bodily harm or where they use force which could cause death of grievous bodily harm prior to it being necessary.

assault queensland

Additional Legal Defences

Apart from provocation and self-defence, there are other legal defences that can be used in assault cases. These include acting in aid of others, extraordinary emergency, and insanity or mental health. These defences provide a broader perspective on the various avenues available for individuals facing assault charges.

However, the applicability of these defences is based on specific circumstances and conditions. For instance, the defence of moveable property allows the use of reasonably necessary force to defend possession of moveable property. Another interesting defence is the ‘mistake of fact’ defence, which is based on an honest and reasonable mistake of fact about a situation.


Mistake of Fact

If the defendant assaulted someone under an honest and reasonable, but mistaken, belief that things mistakenly believed to exist, they are not criminally responsible to any greater extent than if the real state of things had been such as he believed to exist.

A mere mistake is not enough, the mistaken belief must have been both honest and reasonable.


Acting in Aid of Others

Acting in aid of others is a legal defence that permits a person to use a similar degree of force to protect another person from an assault. This defence is based on the principle of good faith, meaning that the actions of the defendant must align with genuine intentions to protect the person being attacked, and be of such a nature that they are reasonable and proportionate.

The defence of acting in aid of others applies when defending another person from an assault, with the use of force being reasonable and not excessive given the circumstances. Essentially, where self-defence is justifiable, the same degree of force may be used by someone acting in good faith to aid another person.


Extraordinary Emergency

The defence of extraordinary emergency is invoked in response to an unexpected situation of such nature that the accused believes an emergency exists and their actions are necessary to prevent death or serious injury. This defence requires the accused to prove that there were no other reasonable alternatives available, and such action was a reasonable response to the emergency.

The evaluation of the defence of emergency involves considering:

  • What would have been expected from an average person

  • With a normal level of self-control

  • Situated in the same unexpected and emergent circumstances as appeared to the accused at the time.

The prosecution bears the criminal responsibility of disproving this defence beyond a reasonable doubt.


Insanity and Mental Health

Insanity and mental health defences hinge on the mental state or capacity of the accused at the time of the offence. The accused must prove on the balance of probabilities that they were of unsound mind when the offence was committed. The defendant bears the responsibility of providing sufficient evidence supporting their claim of mental unsoundness during the incident.

If the accused is acquitted on grounds of insanity, they may be subjected to the Mental Health Act 2016, which could lead to the imposition of a Forensic Order or Treatment Support Order. The Mental Health Court decides if an individual was mentally fit at the time of the offense and if they are able to stand trial. It is the authority responsible for these determinations.


The Role of Evidence in Assault Defence Cases

Evidence plays a crucial role in shaping the outcome of assault defence cases. Medical evidence provides a factual basis for incident reconstruction and is essential in formulating a legal defence. For instance, in asserting self-defence, the prosecution must disprove this claim beyond reasonable doubt, taking into account factors such as prior victim behaviour, the nature of the accused’s response, and the possibility of retreat.


The Court Process

The court process for assault charges can include the following steps:

  1. Committal Hearing in the Magistrates Court to determine if there is enough evidence for a trial.

  2. If there is sufficient evidence, the case may be committed to the District Court for trial.

  3. In the District Court, a Judge and possibly a jury will decide the accused’s guilt or innocence.

That process applies to the more serious assault charges like grievous bodily harm or serious assault.  Charges such as common assault can only be dealt with in the Magstrates court while assault occasioning bodily harm the choice of whether to hear the matter in the Magstrates Court or District court is up to the defendant.



Understanding the nuances of assault charges and their defences in Queensland is crucial for anyone navigating these legal waters. This article provided an in-depth exploration of the various assault charges, including common assault, serious assault, and sexual assault, and their associated penalties. It also delved into the key defences of provocation and self-defence, along with additional defences like acting in aid of others, extraordinary emergency, and insanity or mental health.

The importance of evidence in assault defence cases cannot be overstated, as it forms the backbone of any defence strategy. Finally, understanding the court process and potential outcomes can help prepare individuals for what lies ahead in their legal journey. Remember, every case is unique, and the information provided here should serve as a guide rather than an absolute truth. Always seek legal advice relevant to your specific case.


Frequently Asked Questions

What is the provocation defence in Qld?

In Queensland, the provocation defence is based on the definition of provocation as a wrongful act or insult likely to induce an ordinary person to assault, with the response being in the heat of the moment and proportionate to the provocation. This information provides the basis for understanding the provocation defence in Queensland.

What are the elements of assault in Qld?

In Queensland, assault includes the act of striking, touching, moving, or applying force to another person, as defined in section 245 of the Criminal Code Act 1899. This encompasses the use of substances or objects causing injury or personal discomfort.


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Read 6228 times Last modified on Friday, 01 March 2024 13:25
Steven Brough

Steven Brough is a criminal defence lawyer and founder of Clarity Law with over 22 years experience he has appeared in almost every court in Queensland representing clients charged with criminal offences and getting them the best outcome possible.