One Punch Or Coward Punch Laws

Given the increasing number of unnecessary deaths, from unprovoked attacks on our Streets by generally intoxicated males, has prompted the NSW Attorney General, Mr. Greg Smith SC to propose amendments to the Crimes Act 1900. The proposed bill will be based upon the Western Australian so-called “one punch law” which carries a maximum penalty of 10 years imprisonment however, the proposed NSW offence will carry a maximum penalty of 20 years imprisonment. It is anticipated that this new offence/legislation will pass through parliament in the early sittings of 2014.

The proposed offence will be similar to section 281 of the Western Australia Criminal Code 1913, which states:

281. Unlawful assault causing death

(1) If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 10 years.

(2) A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.

The legislation will no doubt send a strong message of general deterrence – as is intended by the NSW Attorney General:

“The new offence and proposed penalty will send the strongest message to violent and drunken thugs that assaulting people is not a rite of passage on a boozy night out – your behaviour can have the most serious consequences and the community expects you to pay a heavy price for your actions.”

“There is community support for creating an offence which explicitly recognises situations where an assault directly or indirectly causes the death of a person. It will also provide clarity about the appropriate charge in ‘one punch’ situations.”

Unfortunately, to the author’s mind this legislation will not go far enough – there will still be a lacuna in the NSW criminal law when it comes to assaults. Currently, in the NSW the relevant offences relating to assault are:

Murder – s18 Punishable by life imprisonment
Manslaughter – s18 Punishable by 25 years imprisonment – s24
Wounding or Grievous bodily harm with intent – s33 Punishable by 25 years imprisonment
Recklessly Cause Grievous bodily harm or wound – s35 Punishable from 7 to 14 years depending upon the offence
Unlawful or negligently causing grievous bodily harm – s54 Punishable by 2 years imprisonment
Assault Occasioning Actual bodily harm – s59 Punishable by 5 to 7 years imprisonment depending upon the offence
Common Assault – s61 Punishable by 2 years imprisonment

It is a basic tenet of the criminal law that a wrongful intention or mens rea is required to be proven before a person is criminally culpable. The intention can be actual intent or recklessness ie. aware of the possibility of the consequences. There are certain exceptions e.g. most traffic offences. Certain offences can limit the intention or mens rea that is required to be proven for example, Assault Occasioning Actual bodily harm. The only intention that is required to be proven is an intention to assault however, the person is guilty of this more serious offence where, as a result actual bodily harm is occasioned. All other criminal offences relating to an assault require a mens rea aspect as to consequences – see Blackwell v R [2011] NSWCCA 93. The gap that currently exists and will still exist relates to offences of assault where grievous bodily harm or wounding is occasioned i.e. where there is no intention beyond an assault to cause such injury. An example of this and where I have represented persons for same – is ‘one punch’ where the victim’s jaw is broken. There were no weapons involved and the accused did not intend or foresee that the victim’s jaw would be broken. This scenario does not comfortably fit within the current regime of assault offences. This gap could be filled with an offence of: assault occasioning grievous bodily harm.

What next?