The Penalties for Common Assault in NSW

Poppy Morandin.

 

A 39-year-old woman has been charged after allegedly coughing directly in the face of a female Senior Constable, in New South Wales’s Murray River region.

At around 10:30pm at night on Tuesday 24 August 2021, officers attended a home in Deniliquin to conduct a welfare check.

Upon arrival at the residence, it is reported that the female became aggressive and begun verbally abusing the officers.

She was issued with a warning regarding using offensive language but is alleged to have failed to comply and was subsequently issued an infringement notice.

Following this, she is alleged to have told police officers that she currently had COVID-19, before coughing at a female officer.

The woman was then issued with a Future Court Attendance Notice and charged with not comply with noticed direction – spitting/coughing, give false information to convey fear of danger, and use offensive language in/near public place.

She is due to appear before Deniliquin Local Court on Tuesday 5 November 2021.

It is an offence to intentionally spit at or cough on a public official in a way that would reasonably be likely to cause fear about the spread of COVID-19.

The offence is enforceable pursuant to the Public Health (COVID-19 Spitting and Coughing) Order 2021, under section 7 of the Public Health Act 2010 (NSW).

Public officials are defined as:

  • Health workers,
  • Police officers,
  • Other persons exercising public functions under the law of New South Wales,
  • Immigration and Border Protection workers, and
  • Persons employed or otherwise engaged by the Commonwealth Department of Health.

Health workers include persons employed by NSW Health Service, Health Administration Corporation, persons engaged by a public health organisation, staff of a licensed private health facility, ambulance workers and staff at pharmacies.

The offence was originally created at the beginning of the COVID-19 pandemic, following a string of publicised incidents in which members of the public allegedly spat and coughed at health workers and police officers.

An on the spot fine of $5,000 is applicable, as stated under Schedule 4 of the Public Health Regulation 2012.

Paying the fine will not result in a criminal conviction being recorded against an offender.

Whilst the penalty notice can be challenged in court, if found guilty, you may be convicted and face a maximum penalty of up to 6 months in prison and/or an $11,000 fine for failing to comply with a public health order pursuant to section 10 of the Public Health Act 2010 (NSW).

The Penalties for Common Assault in NSW

Furthermore, it is worth noting that spitting or coughing on someone may be considered a ‘common assault’, under section 61 of the Crimes Act 1900 (NSW).

In order to establish the offence of common assault, where no physical contact is made, the prosecution must prove the following elements beyond reasonable doubt:

  • That you caused another person to fear immediate and unlawful harm,
  • That your actions were intentional or reckless to such consequence, and
  • That the other person did not consent.

Therefore, if the coughing or spitting intentionally or recklessly causes another person to apprehend immediate and unlawful harm, it could be considered common assault.

Furthermore, it is a ‘common assault’ you do something without consent, which causes the other person to either fear immediate and unlawful violence if no physical force is applied, or cause unlawful physical force if physical force is applied. This can be either intentionally or recklessly.

As held in Director of Public Prosecutions v JWH, spitting on another person, even if it only touches their clothes, is considered to be the application of ‘force’.

The maximum penalty for common assault is 2 years imprisonment and/or a fine of $5,500.

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