Brief explainer: Assault Causing Death

In New South Wales assault causing death is an offence under Section 25A of the Crimes Act 1900 (NSW). A person convicted of this offence is liable to imprisonment for 20 years.

What is this offence?

An assault that causes the death of a person whether the person dies because of the injuries received directly from the assault or from hitting the ground or an object because of the assault.

The media often refer to this offence as ‘the coward punch’, ‘king hit’, or ‘one-punch attack’ because the situation often involves an innocent victim suddenly, and without any apparent reason, getting a punch to the head. This causes the victim to strike the pavement resulting in fatal injuries. A notorious case was that of Thomas Kelly.

What must the prosecution prove?

It is not necessary for the prosecution to prove that the death was reasonably foreseeable. However, the prosecution must prove the below three elements of the offence:

  1. The person assaults another person by intentionally hitting the other person with any part of the person’s body or with an object held by the person, and
  2. The assault is not authorised or excused by law, and
  3. The assault causes the death of the other person.    

Circumstance of aggravation

A circumstance of aggravation is a feature of or surrounding the commission of a criminal offence which, if proved, makes the offence more serious. Thus, it increases the statutory maximum penalty available on conviction.[5] For a circumstance of aggravation to be relied upon at sentencing it must be pleaded and proved, either by trial or a plea of guilty.[6] A circumstance of aggravation differs from more general terms such as ‘aggravating circumstances’, ‘aggravating factors’ or ‘aggravating features’ of an offence. Those expressions refer to some aspect of the criminal conduct in a particular case which is regarded as exacerbating the offence and likely to increase the penalty which might be imposed, but which does not alter the maximum available penalty.

[5] Crimes Act 1900 (NSW) s.105A.

[6] R v De Simoni (1981) 147 CLR 383; 35 ALR 265; [1981] HCA 31.

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O’Brien Criminal & Civil Solicitors
e: 
p: 02 9261 4281
a: Level 4, 219-223 Castlereagh St,
Sydney NSW 2000

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