When it comes to serious criminal behaviour, spitting probably seems like it should be a long way down the list of punishable crimes in NSW.
Many local councils have implemented fines for spitting in certain public locations, including train stations, parks and on public transport, but the question of whether or not spitting is a crime in NSW depends on the specific nature of the incident.
When is spitting classed as common assault?
Spitting as a crime in NSW falls under the category of common assault. If a person is convicted of common assault, they face a number of possible penalties, including fines, community service and up to two years imprisonment.
There are a number of factors that must be present in order for someone to be convicted of common assault, and these include:
- The person committing the offence must do it with the intention of putting another person in fear for their safety, or with no regard for the fact that someone else may feel in danger as a result of their actions.
- The person committing the act does not have consent from the other person.
- The offence generally needs to be committed in anger, and with the intention of causing harm or injury to the other person.
Although spitting at someone is not likely to cause them physical harm, it is considered to be sufficient application of force to constitute an act of common assault.
Common assault does not require the victim to have been physically harmed, unlike the more serious charges of assault causing actual bodily harm or grievous bodily harm.
What if there was no contact?
Spitting can still be considered assault if there was no contact.
As long as the victim had reason to fear for their safety and the act was done with the intention of intimidating them, or with recklessness to the fact that they would be likely to feel afraid, it can still be counted as common assault.
Can spitting fall under the category of any other crimes?
In some cases, spitting can be considered a public order offence, particularly if it takes place near a school or other specified location.
For spitting to be considered a crime, it generally has to be done in an aggressive manner and be directed at a person or property.
Spitting on the side of a street is not likely to be considered a criminal act.
Are there any defences to spitting as a crime?
Like any common assault charge, there are certain defences that may apply.
The main defences to assault charges include necessity, self-defence and duress. If the spitting was not done with the intention of causing fear or in anger (if a person was clearing their throat for example) then they may be able to successfully defend themselves against a common assault charge.
Although it is relatively uncommon for people to be convicted of assault after spitting at someone, it is best to seek professional legal advice from a good criminal lawyer as soon as possible.
Spitting as a crime in NSW may seem like a trivial matter, but the penalties for someone found guilty of common assault can include a lifelong criminal conviction.