While it may not seem like it, spitting on someone can be a crime. 

Under the Crimes Act 1900, spitting on someone is considered an assault if it is committed with intent or recklessness. 

Spitting is Regarded as a Common Assault

Spitting is legally classified as a common assault. Section 61 of the Crimes Act 1900 states:

Whosoever assaults any person, although not occasioning bodily harm, shall be liable to imprisonment for two years.

Spitting, whilst not considered as a serious act of violence against another person, is still considered as an assault against that person. 

What is Common Assault?

In New South Wales, assaults are divided by two classifications: Common assault and aggravated assault. 

Common Assault was defined in the case of R v Burstow; R v Ireland [1998] to mean:

‘Any act – and not a mere omission to act – by which a person intentionally – or recklessly – causes another to apprehend immediate and unlawful violence.’ 

The main difference between a common assault and aggravated assault are the impacts, as common assaults result in little to no injuries to the person. 

Conversely, aggravated assaults are serious in nature and often require medical treatments, as well as harsher punishments for these crimes. 

For assault to be established, it is important to note that 

The elements of an offence of assault include:

1. The accused acting intentionally or recklessly to cause the complainant to apprehend immediate and unlawful violence
2. The accused acting without the consent of the complainant
3. The accused realising the complainant’s possible fear of being subjected to immediate and unlawful violence, and acting regardless
4. The conduct had no lawful excuse

During trial, the prosecution will need to establish all of these elements existed, and the defence will need to disprove the elements and establish one of the defences.

To understand more, you can read our common assault case studies where we have represented clients in the past. 

What is Battery?

The Criminal Trial Courts Bench Book advises that battery is ‘The actual infliction of unlawful force on another’. 

Battery falls under common assault, as common assault does not always include an action of force or physical conduct – whereas battery does. 

Examples of battery can include pushing or shoving someone, or even patting them on the arm in a forceful manner. 

Existing Laws on Spitting and Coughing

There were laws in force regarding sitting and coughing, as a result of the COVID-19 pandemic. They have since been repealed, however due to the changing nature of both the pandemic and the law’s response to the pandemic, they could potentially be back in force in the future. 

If someone intentionally spat or coughed on another person, namely a public official or worker while at the worker’s place of employment, or travelling to or from the place of employment. 

The act of spitting or coughing must be ‘reasonably likely to cause fear about the spread of COVID-19’. 

This can include workers such as those in retail, public transport and ride-sharing drivers, hospitality workers, food delivery drivers, and postal staff. 

Public official workers include those in the emergency services, healthcare workers, immigration and border protection staff, and public servants. 

It is important to be aware of these old laws, not only to remember to be a courteous citizen, but also in case they were to come back into effect. 

When spitting or coughing is done unintentionally in a domestic setting, such as ‘spraying’ not ‘saying’, this does not constitute a common assault. Where there is lack of evidence for intent or recklessness, you may be found not guilty of the offence.

Under Civil Law, spitting and coughing on someone could be a tort. A tort is a civil wrong committed by a person against another person, generally punishable by damages awarded to the plaintiff. 

How do I defend a spitting offence?

There are four main defences to common assault:

• Self Defence
• Necessity
• Duress
• Consent

Either one of these defences must be established in their entirety against the burden of proof, beyond reasonable doubt. 

Self Defence

Self defence, under Section 418 of the Crimes Act 1900 states:

‘A person carries out conduct in self-defence if and only if the person believes the conduct is necessary: 

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or

(c) to protect property from unlawful taking, destruction, damage or interference, or

(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.’

The conduct amounting to self defence must be reasonable in relation to the threat or perceived threat.

Necessity

Necessity is used as a defence where it must be necessary for the defendant to have acted in such a way (i.e. committed the assault) to defend themselves, another person, or property, in a reasonable manner. 

The defence of necessity can be used when the following three elements are present in the case: 

1. The assault was necessary, or reasonably believed necessary, to avoid or prevent death or serious injury.
2. Avoidance or prevention of death or serious injury was the reason for committing the assault.
3. The assault, viewed objectively, was reasonable and proportionate, having regard to the avoidance or prevention of danger or death.

Examples of necessity include pushing people out of the way during an escape situation.

Duress

A defendant can be under duress when their actions were taken in response to an implied or expressed threat of death or serious injury to themselves, or another person.

The defence of duress has some overlap with the defence of necessity.

Duress can be established through the following elements: 

1. Threats the defendant genuinely believed they would be killed or seriously harmed if the assault was not committed;
2. Would the threats have made a reasonable person act in this way?
3. Could the defendant avoided committing the assault through escaping the threats without damage to themselves?

Consent

If the defendant can prove the complainant consented to the act in question, then the charges will cease. This is generally the most difficult defence to prove, as the complainant is not likely to admit to consenting to the act they are arguing against. 

Sufficient evidence would be required to establish this as a defence beyond reasonable doubt. 

What penalty would you expect from a spitting offence?

If the offence is your first criminal offence of any nature, the court will likely consider an application for the charge to be dealt with by way of a Section 10, without recording a conviction. Many factors will be taken into account when considering whether the magistrate will deal with your charge without recording a conviction.

Criminal Conviction

Statistics say that 57% of first offenders who plead guilty to common assault are dealt with by way of not imposing a criminal conviction, pursuant to Section 10 of the Crimes (Sentencing and Procedure) Act 1999.

What is a Section 10?

Under the Crimes (Sentencing Procedure) Act 1999 (NSW), Section 10 refers to a criminal penalty being imposed by a magistrate or judge during the sentencing process, with the absence of a recorded criminal conviction. 

In general, a Section 10 is known as a ‘dismissal’, because of the lack of a criminal record. 

A Section 10 is beneficial because the defendant does not have the legal obligation to disclose their offence, for example, when applying for new jobs or obtaining a visa for overseas travel. 

To be granted a Section 10, the magistrate or judge will take into account the following factors: 

• The character, age, and mental condition of the defendant, including any other criminal history
• The seriousness of the offence
• Extenuating circumstances
• Other matters the court considers relevant

If the offence is an indictable offence, a Section 10 will not be appropriate. However, for a common assault charge for spitting on someone, the court could deem it an appropriate cause of action. 

If you have already obtained a Section 10 in the past, this may be considered under your character factors. It is not impossible to obtain one twice, however less likely if this is a recurring offence. 

Learn more about Section 10 here. 

What to Do When Charged With a Spitting or Coughing Offence

As always, it is very important that you seek legal advice when you find yourself charged with any assault offence.

It is best to be legally represented by professionals who are trained to help in circumstances that have legal implications. 

Call our specialist Criminal Lawyers at LY Lawyers on 1300 595 299 for more information, or to arrange a free consultation.