One Punch Law (Tas)

Recently, there has been a sharp increase in public attention to deaths resulting from a single punch. The number of so-called “king hit” (or “coward’s punch”) attacks has created public pressure on legislators to take action. Tasmania recently introduced a new provision in the Criminal Code Act 1924 to address one punch attacks that cause death. The reform closes a loophole that previously allowed a person to avoid conviction for manslaughter by arguing that the death was an accident. This article explains the implications of the new one punch law in Tasmania.

Previously, it was difficult to prosecute an offender for causing death through a single punch. Section 157 of the Criminal Code mandates that an offender must have the intent to kill to be charged with murder. It is difficult to prove beyond reasonable doubt that someone who delivered one punch had the requisite intent to kill.

In some cases, courts have found that a one punch assault leading to death is not even manslaughter, as they cannot establish that the accused (or an ordinary person) could reasonably foresee the death as a possible consequence of their action. The offender was usually charged with a lesser crime such as common assault. While the maximum penalty for common assault is 21 years in prison, the Supreme Court tends to sentence well short of the maximum for common assault.

In 2019, the Tasmanian Parliament introduced the Justice Legislation Amendments (Criminal Responsibility) Act to address the issue of one punch assaults. This amendment to the Criminal Code makes it harder for an accused to escape a conviction of manslaughter for a one punch attack that results in death. A charge of manslaughter carries a maximum penalty of 25 years in prison.

Intoxication

This new provision also specifies changes to the Sentencing Act 1997. The courts, when determining an appropriate sentence for a one punch assault, cannot view self-induced intoxication (from alcohol, drugs or another substance) as a mitigating factor. This is a significant factor because most one punch attacks are the result of high levels of intoxication and conflicts arising outside pubs and clubs. An exception exists for an involuntary intoxication that results from fraud, sudden extreme emergency, reasonable mistake, accident, duress or force.

Pre-Existing Weakness

There is a well-established legal principle that someone is only responsible for the foreseeable consequences of their actions. However, under common law, it was not possible for someone to escape criminal responsibility because their victim had a pre-existing weakness, defect or abnormality. Even if a victim had an “eggshell skull”, an offender who punched them would be responsible for the full consequences of their actions. The amendments to the Code codified the eggshell-skull principle. This means that the unexpected frailty of the victim is not a valid defence for the seriousness of the injury. For instance, if someone has a pre-existing skull injury that means they are more likely to die from one punch to the head, this is not a mitigating factor in the perpetrator’s guilt.

Case Study

In March 2019, Beau Wayne Kelly made an unprovoked attack on a stranger, Stewart Williams, outside a Hobart nightclub. Mr Williams, a 54-year-old University of Tasmania academic, suffered significant injuries after one punch to the face and died days later. While Mr Kelly was initially charged with assault, his charge was later upgraded to manslaughter. In the case of State of Tasmania v Beau Wayne Kelly (2020), Mr Kelly pled guilty to one count of manslaughter. In his summary, Justice Brett determined that the accused had no justification for his actions, as they were merely the result of drunken bravado.

The court accepted that Mr Kelly had no intention to kill Mr Williams and did not know how badly he was injured following the altercation. The court determined that the accused was heavily intoxicated but found that this did not mitigate his moral culpability for the crime. Punching someone in the head, especially when the perpetrator is too intoxicated to moderate their use of force, is an inherently dangerous act. Justice Brett found that although Mr Kelly did not know that his act would likely cause death (which would amount to murder), his Honour believed he bore a high level of moral culpability for his conduct and the consequences. The court passed a sentence to reinforce the sanctity of life and provide general deterrence. However, it moderated the sentence to take into account the mitigating factors, including the accused’s guilty plea. Mr Kelly was sentenced to a term of five years imprisonment with eligibility for parole after 2.5 years.

The criminal law team at Go To Court can answer any additional questions you have about the amendments to one punch laws in Tasmania. Please call 1300 636 846 or contact our offices for any legal advice or assistance.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
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