The Offence of Assault Causing Death in NSW: Section 25A Crimes Act 1900

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Newcastle NSW night

The local community is mourning the death of Aussie surfing champion Chris Davidson following an alleged “one-punch” attack outside a pub in the Mid-North Coast over the weekend. 

45-year old Chris Davidson, known locally as ‘Davo’, grew up on Sydney’s Northern Beaches and competed on the world surfing tour in 2010 and 2011. 

At the age of just 19, Davo rose to fame in 1996 after being granted a wild card entry to the Rip Curl Pro at Bells Beach, where he stunned the surfing community by beating eleven-time world champion Kelly Slater.

At the time, Slater called him one of the most naturally talented surfers he ever knew.

But his career was plagued by injury, leading to his ultimate retirement.

Surfing Australia mourned Davo’s loss on its Facebook page, writing:

“Davo was an incredibly talented surfer and a true individual in our sport and community”.

“Our thoughts go out to his two children, friends and family at this time”.

The incident

It is alleged that a 42-year old man punched Mr Davidson in the face outside a Newcastle hotel on Saturday, 25 September 2022, causing him to fall and hit his head on the pavement. 

He was treated by paramedics at the scene but later died in Kempsey hospital. 

Police arrested the suspect at his home in South West Rocks on the Mid-North Coast the next day, before charging him with one count of assault causing death.

He was refused bail and has been remanded in custody.

Police are continuing their investigations into what exactly occurred.

‘One-punch’ laws

The offence of ‘assault causing death’ is also known as the ‘one-punch’ law, which was introduced in 2014 after a series of highly publicised and alcohol-fuelled assaults in the Sydney CBD, which were killing and or seriously injuring young people – predominantly young men.  

One-punch attacks are described as assaults where a person strikes another in the head or neck area and knocks them unconscious, leaving the victim at risk of further head injury when they fall to the ground. They often result in death and or very serious injury. 

Around the same time as the ‘one-punch’ law was introduced, the New South Wales Government also implemented controversial ‘lockout laws’ across various entertainment precincts of Sydney in a bid to reduce alcohol-fuelled violence. 

Alcohol-fuelled violence 

Lockout laws were enforced from February 2014 to January 2020. While numerous studies were undertaken over this period, and did indeed show that the laws helped to reduce alcohol-related violence —BOCSAR data published in 2019 showed that over the five years following the Lockout reforms we find non-domestic assaults decreased 53% in the Kings Cross precinct and decreased 4% in the CBD Entertainment precinct – there were also serious concerns about the impact of lockout laws on Sydney’s nightlife economy. 

In September 2019 a New South Wales Parliamentary committee recommended the lockout laws be removed in all areas with the exception of Kings Cross. In early 2021, they finally ended completely.  

Prior to the charge of ‘assault causing death’ the other charges available to police were murder or manslaughter – these were deemed not suitable – and law reform produced the new offence. The first man to be convicted under the new laws in NSW was Hugh Garth who was found guilty of fatally punching Raynor Maland. 

He was sentenced in 2017 to more than 10 years behind bars. 

The offence of assault causing death in New South Wales

Assault causing death is an offence under section 25A of the Crimes Act 1900 which carries a maximum penalty of 25 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. You assaulted another person by intentionally hitting them with any part of your body or with an object held by you,
  2. The assault was not authorised or excused by the law, and
  3. The assault caused the other person’s death.

‘Causing death’ includes the death occurring as a result of hitting the ground or another object.

The prosecution does not need to prove the death was reasonably foreseeable and, unlike a murder charge, it does not have to establish that you intended to kill or cause grievous bodily harm to the deceased, or otherwise acted with reckless indifference to human life.

The maximum penalty increases to 25 years where you were an adult and intoxicated at the time.

In that event, a mandatory minimum full-term sentence of 8 years applies as well as a mandatory minimum ‘non parole period’ of 4 years.

The ‘non parole period’ is the time you must spend in prison before being eligible to apply for release on parole.

You are presumed to be ‘intoxicated’ if your breath or blood alcohol concentration was 0.15 or more.

A defence to the intoxication element is where the intoxication was not self-induced, or where you had a significant cognitive impairment which was not self-induced.

Defences to the charge

Self defence is the main legal defence to the charge of assault causing death.

The defence is contained in section 418 of the Crimes Act 1900 which provides that you are not criminally responsible for an offence if:

  1. You believed your conduct was necessary:
  • To defend yourself or another person, or
  • To prevent the unlawful deprivation of your liberty or another person’s, or
  • To protect your property from being taken, destroyed, damaged or interfered with, or to prevent criminal trespass to your land, or remove a person criminally trespassing, and
  1. Your conduct was a reasonable response in the circumstances as you perceived them.

To rely on self-defence, there must be evidence capable of supporting a reasonable inference that you acted in accordance with the section.

Once self-defence is raised, the prosecution must disprove beyond a reasonable doubt that the defence applies in the circumstances. 

If it is unable to do so, you are entitled to an acquittal.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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