Is it an Assault to Spit at Someone in NSW?

Spitting at someone doesn’t necessarily constitute a criminal offence of “assault”. If the police charge you with “assault”, and the Court interprets “assault” in it’s narrow meaning of the word, then spitting does not necessarily constitute an offence of “assault”- if the victim wasn’t aware he or she was spat at. If the Court interprets “assault” in it’s wider meaning, then spitting will constitute an offence of “assault”, even if the victim wasn’t aware you did it.

Offences of “assault” and “battery”, are separate terms used, although the wider meaning of “assault” can include a “battery”. The narrow meaning of “assault” doesn’t include a battery.

In a nutshell, to be guilty of a criminal offence of “assault”, for the conduct of spitting at someone, it will depend on whether the term is used in its narrow or wider meaning.

For common defences to a charge of assault, see not guilty to common assault.

What is an “assault”?

An assault is where you intentionally or recklessly cause someone to “apprehend immediate and unlawful violence”. You can’t be guilty of assault unless the victim was aware of your actions. “recklessly” means where you foresaw the possibility the other person would “apprehend immediate and unlawful violence”.

What is a “Battery”?

An offence of “battery” is where you inflict unlawful force on another. Even if the force is very slight. You cannot be guilty of a battery if it falls in the category of an incident of ordinary social intercourse. This includes patting someone on the arm, or pushing people to move towards the exit of a crowded area.

To be guilty of “battery” there does not need to be a hostile intention or hostility when doing this. Unlike the strict narrow definition of “assault”, you can still be guilty of a battery, where the victim wasn’t aware of your application of unlawful force.

You can’t be guilty of a “battery” unless the police prove you either intentionally or recklessly applied an unlawful force on the person.

Unless the court accepts that the charge of “assault” was used in it’s narrow meaning, these days, the term usually includes both “assault” and “battery”.

Why is it Important to Understand the Difference Between “Assault” and “Battery”?

If “assault” is looked at in it’s narrow meaning, spitting on a person is considered a “battery”, however, it does not necessarily constitute an “assault”. Why? Because firstly, the offence of “assault” (in it’s narrow meaning) doesn’t necessarily require there to be an application of force. Secondly, if the victim didn’t know you spat at him/her, it can’t be an “assault”.

This means, that if the prosecution rely on “assault” in its narrow meaning, you cannot be guilty of a charge of “assault” for spitting at someone- if the victim didn’t know that you had spat at him/her.

“Assault”, can encompass a “battery”, and it usually is used in that wider sense of the term. For this reason, it’s important to make sure the prosecution clarify whether they rely on it in it’s narrow or wider form. If not sure, it’s a good idea to get the prosecution to clarify this from the beginning. Chances are that some prosecutors in court may not even know the difference.

Case of DPP v JWH (NSWSC)

The case of DPP v JWH is an excellent example of the significance of knowing the difference between the term “assault” and “battery” for the conduct of spitting on a person.

The case of DPP v JWH involved the offender being arrested and placed in the charging dock of the Mt Druitt police station. As Constable Harris closed the door cell, the offender spat at him, landing on the face of Constable Harris. Incidentally, some of the spittle also landed on the other police officer constable Grainger.

The Local Court Magistrate dismissed both charges of assaulting police (he was found not guilty). The Magistrate dismissed the charges on the basis that the act of spitting didn’t constitute “an application of force”, and was therefore not a “battery”(in relation to the charge relating to Constable Harris), and because Constable Grainger didn’t know that some of the spittle landed on his back shirt, it can’t constitute an “assault” (in relation to the charge relating to Constable Grainger). The case was appealed.

The Supreme Court in this case, on the appeal, clarified that:

  • In relation to the “assault” charge regarding Constable Harris (spitting on his face), the offender’s conduct of spitting at him constituted a “battery”, which also encompasses the term “assault” (in it’s wider meaning). This is because the prosecution were not called on by the defence to confirm whether they rely on “assault” in its narrow or wider meaning. In that situation, the wider meaning is the most usual these days, and there was nothing to suggest the charge was not formulated in that way.
  • In relation to the “assault” charge regarding Constable Grainger- The offender’s conduct in spitting at Constable Harris, incidentally also landing on the back clothing of Constable Grainger, constituted a “battery”, even though the prosecution charged him with “assault”.

For the same reasons expressed above, the term “assault” was considered to be used in it’s wider meaning, and therefore included “battery”. This meant that the offender was still guilty of “assault” to the victim even where the victim didn’t know about the spit landing on his back. This outcome perhaps would have been different had the prosecution ran it’s case on the basis of “assault” in its narrow meaning, not wider. This could have been simply clarified by the defence lawyer asking the police to clarify.

Is Touching Your Clothes an Assault?

Touching the clothes of what someone is wearing includes the meaning of “touching the person”, and can be classified as inflicting unlawful force constituting a “battery” or “assault”. But if the prosecution rely on “assault” in its narrow meaning under the common law, then it doesn’t necessarily constitute an offence of “assault”.

Off course, a defence to a charge of “battery” is where you touch the person’s clothing as an incident of ordinary social intercourse.

About Jimmy Singh

Mr. Jimmy Singh is the Principal Lawyer at Criminal Defence Lawyers Australia - Leading Criminal Lawyers in Sydney, Delivering Exceptional Results in all Australian Criminal Courts.


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