The offence of assault causing death whilst intoxicated, in NSW – Crime

A New South Wales man has been charged with assault causing
death over the death of a security guard outside Royal Hotel at
Sutherland in Sydney’s south.

The 30-year old security guard, who had moved from Saudi Arabia
to Australia to work and study, is alleged to have been attacked at
around 2am on Sunday morning by Peakhurst man, Brian Edmund Brown,
who the guard had asked to leave due to his level of
intoxication.

Police officers were told the security guard was punched in the head and
rendered unconscious.

Police and paramedics attended the scene but attempts to
resuscitate the guard were unsuccessful, and he died at the
scene.

Police have since charged a man with assault causing death
whilst intoxicated.

He has been remanded in custody to face Sutherland Local Court.

“One-punch” laws

The offences of assault causing death and assault causing death
whilst intoxicated are colloquially known as “one-punch”
laws.

The New South Wales Parliament passed these laws in 2014, in
response to a number of alcohol-fuelled assaults resulting in death
in and around the Sydney CBD.

These offences were accompanied by lockout zones in and near the Sydney CBD as
well as a freeze on new liquor licences, and the statewide closure
of bottle shops at 10:00pm.

The offence of assault causing death whilst intoxicated in
NSW

Assault whilst intoxicated causing death is an
offence under section 25A(2) of the Crimes Act 1900 (NSW) which
carries a maximum penalty of 25 years in prison.

It also carries a mandatory minimum prison term of 8 years.

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

1. You were at least 18 years of age,




2. You assaulted another person,




3. You did so by intentionally,




4. You did so by hitting the other person with any part of your
   body or with an object held by you,




5. The assault was not authorised or excused by law,




6. The assault caused the death of the other person, and




7. You were intoxicated by alcohol, or another drug or substance,
   at the time of your conduct.

The assault caused the other person’s death regardless of
whether the other person was killed due to injuries received
directly or indirectly from the assault or from hitting the ground
or an object as a consequence of the assault.

The prosecution is does not have to prove that death was a
reasonably foreseeable consequence of your actions.

Evidence regarding the presence and concentration of any
alcohol, drug or other substance may be given by way of a
certificate of analysis of breath, blood or urine testing.

You are presumed to be intoxicated if your blood alcohol
concentration was at least 0.150.

Legal defences

The legislation makes clear a person is not guilty of the
offence if:

• Your intoxication was not self-induced, or




• You had a significant cognitive impairment which was not
  self-induced.

A ‘cognitive impairment’ includes:

1. An intellectual disability,




2. A developmental disorder, including autism spectrum
   disorder,




3. A neurological disorder,




4. Dementia,




5. A mental illness, or




6. A brain injury.

General legal defences also apply to the charge, including
self-defence and duress.

Self defence is main general legal defence used against a charge
of assault causing death.

In that regard, section 418 of the Crimes Act 1900 (NSW)
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.

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.

In the event evidence is raised of self-defence, the onus then
shifts to the prosecution to prove beyond reasonable doubt that the
defence does not apply.

The defendant is entitled to an acquittal if the prosecution is
unable to do this.

Going to court?

If you are going to court over an assault allegation, call
Sydney Criminal Lawyers on (02) 9261 8881 to arrange a free first
conference with an experienced defence lawyer who will assess your
situation, advise you of your options and the best way forward, and
fight for the optimal outcome.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.