A recent incident at a barbecue restaurant in which people were beaten has drawn strong public condemnation. The reality is that hitting or assaulting someone can happen anywhere. When living overseas, it is extremely important to know which assault-type behaviours can breach the local criminal law. You may even have been subjected to some form of assault yourself without realising that, in Australia, such conduct actually constitutes a crime. Today we will briefly look at some of the laws that may be relevant to the barbecue-shop case, and focus on what offences hitting or assaulting someone in Australia may give rise to, and what serious consequences may follow.
Chinese Law
Following the barbecue-shop incident, the main pieces of legislation most widely discussed by Chinese legal commentators in relation to the case are as follows:
1. The offence of picking quarrels and provoking trouble
Under Article 293 of the Criminal Law, a person who commits any act of picking quarrels and provoking trouble and thereby disrupts social order shall be sentenced to fixed-term imprisonment of not more than five years, criminal detention or surveillance.
2. The offence of intentional injury
Article 234 of the Criminal Law provides that:
A person who intentionally injures the body of another shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance.
Where the offence in the preceding paragraph causes serious injury, the offender shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years;
Where the offence causes death, or causes serious injury resulting in serious disability by particularly cruel means, the offender shall be sentenced to fixed-term imprisonment of not less than ten years, life imprisonment or the death penalty.
Of course, the case is still under investigation, and whether additional offences may be involved and how the charges are ultimately determined will depend on the court’s final judgment.
Australian Law
In Australia, hitting or assaulting someone can likewise give rise to a number of offences. Understanding the local criminal law is very important, because it tells us not only which conduct may breach the law, but also when we can rely on the law to protect our own rights.
Today we will focus mainly on the relevant criminal law provisions in New South Wales (NSW).
1. Common assault
Under section 61 of the Crimes Act 1900 (NSW), whoever assaults any person, although no actual bodily harm is caused, is liable to imprisonment for two years.
In other words, it is not necessary to prove injury to the victim’s body in order to establish common assault.
What kinds of conduct may amount to common assault?
1. Use of force. This includes hitting a person, poking someone with a stick and similar acts. Even spitting at a person so that the saliva touches their clothing or body may amount to common assault.
2. Threatening to use force. It is worth noting that common assault does not necessarily require actual physical contact; a threat to use force can also amount to common assault. For example, if A makes a gesture of being about to attack B so that B fears immediate danger, or if A threatens B over the phone by saying, “I’m right outside your house, just you wait, I’m coming to sort you out,” that may also be capable of amounting to common assault.
2. Assault occasioning actual bodily harm
Under section 59 of the Crimes Act 1900 (NSW):
(1) A person who assaults any person and thereby occasions actual bodily harm is liable to imprisonment for 5 years.
(2) If a person commits an offence under subsection (1) in the company of another person or persons, a person convicted of an offence under this subsection is liable to imprisonment for 7 years.
Examples of actual bodily harm include: bruises, scratches and broken bones.
3. Reckless grievous bodily harm
Under section 35 of the Crimes Act 1900 (NSW):
(2) A person recklessly causes grievous bodily harm where the person:
(a) causes grievous bodily harm to any person, and
(b) is reckless as to causing actual bodily harm to that or any other person.
Maximum penalty: 10 years’ imprisonment.
Here, “recklessly” means that where you foresee the possibility of causing grievous bodily harm but nevertheless continue with your conduct, that is “reckless”.
Grievous bodily harm can include certain serious or permanent injuries, such as paralysis, paraplegia, a vegetative state, permanent disfigurement, or the loss of a foetus carried by a pregnant woman, among others.
If committed in company, the maximum penalty is 14 years’ imprisonment.
4. Reckless wounding
Here, wounding refers to injuries that break or cut the interior layer of the skin (the dermis). Common examples of wounding are: deeper stab or cut wounds, or other conduct that results in rupture of the dermis.
Under section 35 of the Crimes Act 1900 (NSW):
(4) Reckless wounding means:
(a) wounding any person, and
(b) being reckless as to causing actual bodily harm to that or any other person.
Such conduct constitutes an offence.
Maximum penalty: 7 years’ imprisonment.
If committed in company, the maximum penalty is 10 years’ imprisonment.
5. Wounding or grievous bodily harm with intent
The emphasis here is on intent, rather than the “recklessness” of foreseeing that harm may be caused but continuing with the conduct anyway.
Under section 33 of the Crimes Act 1900 (NSW):
(1) A person who:
(a) wounds any person, or
(b) causes grievous bodily harm to any person,
with intent, commits an offence.
Maximum penalty: 25 years’ imprisonment.
(2) A person who, in the course of an intent to resist or prevent the lawful arrest or detention of himself or herself (or any other person):
(a) wounds any person, or
(b) causes grievous bodily harm to any person,
commits an offence.
Maximum penalty: 25 years’ imprisonment.
6. Assault causing death
Under section 25A of the Crimes Act 1900 (NSW):
A person who intentionally hits another person and thereby causes their death is liable to:
Maximum penalty: 20 years’ imprisonment.
For the offence to be made out, it must be proved that:
(a) the person intentionally hit another person with any part of the body or with an object held by the person;
(b) the hit was not authorised or excused by law; and
(c) the hit caused the death of the other person.
7. Assault causing death while intoxicated (“One Punch”)
Can acting impulsively or out of line because of alcohol or intoxication serve as an excuse? In Australia (NSW), you need to be particularly aware that hitting someone while intoxicated may in fact attract even harsher penalties.
The criminal law provides that a person aged 18 or over who hits another person while intoxicated and causes their death may face a maximum penalty of 25 years’ imprisonment, together with an 8-year non-parole period.
This law was originally introduced to crack down on alcohol-fuelled violence. In 2012, 18-year-old Thomas and his girlfriend were walking along the street. As they passed Victoria Street near Kings Cross, they were approached by a man described by witnesses as appearing intoxicated, Kieran Loveridge, who punched Thomas once in the face. Thomas fell to the ground and struck his head on the pavement. Sadly, a few days later, Thomas died from his severe head injuries. He was only 18 years old.
Of course, this law, commonly known as the “one-punch law”, has certain thresholds, including provisions concerning the blood alcohol concentration at the time of the assault, the manner of the strike, and so on.
Defences
In Australia, if you have committed an offence such as assault or wounding, is there any room to manoeuvre? The answer is yes.
Commonly relied-upon defences include, for example:
1. Self-defence
2. Duress
3. Automatism
4. Mental illness, and others.
However, whether a defence is available in any particular case, and whether it constitutes a complete defence or only a partial defence, will depend on the type of defence and the specific circumstances of the case. We recommend seeking advice from a specialist lawyer.
Conclusion
Assault and hitting others attract legal penalties wherever they occur, and Australia is no exception. In certain situations, however, statutory defences such as self-defence may also apply. If you would like to understand more about criminal law, we recommend consulting one of our specialist lawyers.
