‘One Punch Laws’ – The Offence of Assault Causing Death in NSW

In December 2017, 22-year old Jack Hanley died from injuries resulting from being struck in the head by then 20-year old Reece Watherston, during a drunken brawl on the corner of Hindley and Morphett streets in Adelaide’s nightclub precinct.

Mr Hanley was later charged with manslaughter and the case proceeded to a judge-alone trial in the Supreme Court of South Australia.

During the trial, the prosecution adduced evidence that the deceased was backing away when punched by the defendant, and was struck with such force that he was likely unconscious before hitting the ground.

Mr Watherston’s criminal defence lawyers raised evidence that their client struck out due to being fearful for his safety, and was therefore acting in self-defence.

This meant the onus was placed on the prosecution to disprove the possibility of self-defence beyond reasonable doubt.

In her judgement, Justice Anne Bampton accepted that Mr Watherston caused the death of Mr Hanley.

However, she found he was not guilty of the offence because the prosecution failed to exclude the possibility that Watherston acted in self-defence.

“The prosecution has not excluded as a reasonable possibility that Mr Watherston, when confronted by Mr Hanley at approximately 5:20 am on 10 December 2017, fought back because he believed he had to, and that that belief was reasonable and genuine, and that his conduct was proportional to the threat he perceived,” her Honour found.

Mr Hanley’s family members were left devastated by the decision, hurling abuse at Watherston outside the courtroom and calling him a “murderer”.

‘One-punch’ laws in New South Wales

Our state’s ‘one-punch’ laws are embodied in sections 25A and 25B of the Crimes Act 1900 (NSW).

They were passed in 2014 in response to a number of highly-publicised alcohol fuelled assaults which caused the deaths on young men in the Sydney CBD and nearby entertainment precincts.

Assault causing death

Section 25A(1) of the Crimes Act prescribes a maximum penalty of 20 years in prison for the offence of assault causing death.

To establish the crime, the prosecution must prove beyond reasonable doubt that a person:

1. Assaulted another by intentionally hitting them with any part of the body or any object,
2. The assault caused the death of the other person, and
3. The assault was not authorised or excused by law.

Section 25A(2) sets down an increased maximum penalty to 25 years imprisonment where the person was over the age of 18 and intoxicated at the time.

An assault is considered to have caused death if the death was the result of injuries received directly from the strike, or from hitting the ground or an object.

The prosecution is not required to prove the death was reasonably foreseeable.

A defence to section 25A(2) is that:

1. the defendant’s intoxication was not self-induced, or
2. the defendant had a significant cognitive impairment which was not self-induced.

A person is deemed to have been intoxicated if their breath or blood analysis revealed a concentration of 0.15 or more. However, evidence can be adduced to the effect that he or she was intoxicated despite a lower reading being returned, or no analysis occurring at all.

The offence of assault causing death – whether or not while intoxicated – is an alternative to murder or manslaughter, which means a jury can return a verdict of guilty to the offence despite finding the defendant not guilty of murder or manslaughter.

Similarly, assault causing death is an alternative to assault causing death whilst intoxicated.

Mandatory minimum sentence

Section 25B of the Crimes Act prescribes a mandatory minimum sentence of 8 years in prison for assault causing death whilst intoxicated, which means the minimum non-parole period – in other words, the time a person must be spent in prison before being eligible to apply for release – is 8 years.

Self-defence in New South Wales

The law of self-defence in our state is contained in section 418 of the Crimes Act 1900 (NSW).

The section provides that a person is not criminally responsible if he or she believes their actions were carried out in self-defence, and the conduct is a reasonable response in the circumstances as he or she perceives them.

Self-defence is a complete defence, which means the person is entitled to be found not guilty for their actions.

The defence is available where the conduct is necessary to:

(a) defend himself or herself or another person, or

(b) prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) protect property from unlawful taking, destruction, damage or interference, or

(d) prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass.

Section 419 stipulates that if evidence of self-defence is raised, the prosecution must then prove beyond a reasonable doubt that the actions did not amount to self-defence.

If the prosecution is unable to do this, the defendant must be acquitted.

This is very similar to the law in Victoria, where the incident occurred.

In that regard, section 322 of the Crimes Act 1958 (Vic) provides that:

(1) A person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

(2) A person carries out conduct in self-defence if—

(a) the person believes that the conduct is necessary in self-defence; and

(b) the conduct is a reasonable response in the circumstances as the person perceives them.

Charged with assault?

If you have been charged with an assault offence, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced assault defence lawyer.