Blanket "One Punch" Laws Are An Assault On Liberty

There is an enormous difference between the misadventure of someone dying as a result of a punch in a fair fight, or a punch thrown during a heated argument between two men of comparable fighting ability and death resulting from the cowardly thuggery of a king hit.

These should be treated completely differently under the law, however it appears that Western Australia does not intend to draw such a distinction in practice. Other states may follow suit.

In 2008, Western Australia introduced s281 of its Criminal Code: Unlawful Assault Occasioning Death. It says:

(1)   If a person unlawfully assaults another who dies as a direct or indirect result of the assault, the person is guilty of a crime and is liable to imprisonment for 10 years.

(2)   A person is criminally responsible under subsection (1) even if the person does not intend or foresee the death of the other person and even if the death was not reasonably foreseeable.

It was brought in as a response to acquittals in manslaughter trials where the defendant had punched someone who died as a result.

The problem with this law is the vagueness of the definition of “unlawfully assaults”, which allows it to be used in a blanket manner. There is no description of what constitutes, or even what is intended to constitute self defence. There is no discussion of mitigating factors in such an assault, for example, provocation.

Police are likely to apply such a law to lay charges in any matter where someone has died following a physical altercation, with the philosophy of letting the court sort it out. This will encompass a range of circumstances, from legitimate self defence, which should result in no charge, to outright thuggery, which should result in a more serious manslaughter charge. I reason that police will probably use a s281 style charge in preference to manslaughter in the latter cases due to the relative ease of securing a conviction.

Application of a s281 charge at either end of the spectrum will likely result in an injustice, either to the defendant or the victim.

Such a law can be useful and justly applied, but only in concert with clear guidance on self defence and mitigating factors such as provocation, with additional guidelines as to when it should be upgraded to manslaughter.

Previously, in all Australian jurisdictions, the only charges available in such cases were murder and manslaughter, the latter being defined as any punishable homicide which is not deemed to be murder, apart from some specific offences such as culpable driving. The exact wording of the allowable defence of accidentality varies, however it is generally along the lines of s18 of the NSW Crimes Act, in which killing by misfortune is not an offence at all.

Thus, when police wanted to press charges, they needed to argue that there was a material degree of recklessness as to the possibility of the assault causing death and hence lay a manslaughter charge (recklessness being usually treated as comparable to intent, rather than negligence); essentially that a normal person could have reasonably been expected to foresee death as a materially possible consequence of their actions.

In cases where a person has died as a result of a punch during a fight, as in the case of Mark Fitzgerald, juries have often been disagreeing with the prosecution, finding that the death was due to misadventure because the defendant could not reasonably have been expected to foresee a punch causing the death of another man of comparable age and build.

In this particular case, it was a travesty that Mark Fitzgerald was even charged, much like the case of Tobias Simmons in Sydney earlier this year. Both were brawls in which there was clearly a strong element of self defence.

Mark Fitzgerald’s comments during the police interview show the importance of exercising your right to silence. He should have stopped at:

“I got rushed, a dude just ran at me, I was just trying to defend myself.”

If some arsehole who is attacking you dies because you punch them in self defence, fuck them. They made their own bad luck. Why should you suffer as a result? It must have cost Mark Fitzgerald a small fortune to defend this unfair manslaughter charge, not to mention the unreasonable stress he has been put through. He should be awarded costs.

In Western Australia, Mark Fitzgerald would almost certainly have been charged under s281. He’d probably have been found guilty too, because of subsection (2), which is the real problem.

Suppose the police charged everyone involved in the brawl with affray, then argued they all committed unlawful assaults as a result, so that subsections (1) and (2) both apply. If a jury agreed, he’d be in jail now … for defending himself.

That’s the problem with this law. Its premises are false and thus its application will often be unjust. There is no clarity as to what constitutes self defence, including the right to stand your ground and no clarity around provocation. For example, when and how would a reasonable person react physically to a continued stream of threats and insults?

To construct a good law, many different cases need to be analysed. What does the community believe were reasonable reactions? What is a just outcome in each? Does the proposed law achieve this?

A law is not just if police are likely to use it in a blanket manner and “let the courts sort it out”. State police are on the whole as lazy and bureaucratic as any other public service department. It is highly likely that given s281 or similar, any matter where a punch is thrown and someone dies will lead to a s281 charge, regardless of any circumstances such as self defence. The police won’t care: they will just lay the charge and leave it up to the court. The DPP will almost certainly pursue it because they are only interested in convictions, not justice.

Even king hit cases may end up with s281 charges, rather than manslaughter, since these will be much easier to prove. So, we’ll end up with injustice at both ends of the spectrum of circumstances.

A law is also unjust if the police and / or the DPP can finesse its application to achieve an outcome which a majority or even a large proportion of the community sees as unjust.

That is the case with the current version of s281. It is not justice that someone caught up in a brawl is jailed because they punch an attacker who subsequently dies.

Let’s look at some other cases.

Derek Loo was recently sentenced to 2½ years jail under WA’s s281 for the one punch death of his sister’s boyfriend during a drunken altercation. The article doesn’t say if there was pushing and shoving beforehand. Essentially, they were all drunk after attending a funeral. He had an argument with his sister. Her boyfriend stepped in, began arguing with Derek Loo, who punched him once, resulting in his death.

Now, this is worse than Mark Fitzgerald’s self defence punch, but there are clearly mitigating circumstances. I suspect Derek Loo is guilty of not being able to afford a good lawyer as much as anything else.

Look at his picture. He’s not a hulking brute. Two men of essentially the same age were having a heated argument. There may have been some pushing and shoving; there was certainly aggressive behaviour on both sides. Would Derek Loo have thought it possible Mark Fryer would hit him? Maybe. That should have been his defence. Additionally, there was clearly at least some element of provocation.

My point is that it’s not abnormal for men in a heated argument, in which provocative things are said, to throw a few punches. To have a law which automatically treats any punch thrown as an unlawful assault and thus automatically invokes s281 if someone accidentally dies will lead to unjust outcomes. Derek Loo should not spend 2½ years in jail for this.

Here is another case from Queensland, which does not have something like s281, so Daniel Dean was charged with manslaughter after a fight. He and the deceased, Mark Urich, appear equally responsible for the argument escalating into a fist fight: they both went outside to the carpark.

So two blokes agreed to step outside to “settle” an argument. Other than public nuisance, what’s wrong with this? There was no affray, since no bystanders could reasonably have feared for their safety. Some people may not agree with it, but why should they be able to impose their namby-pamby views on others? The worst that should happen to two people who by mutual agreement, get into a fair fist fight in a public place is a public nuisance or similar charge.

The problem for Daniel Dean was that when he punched Mark Urich, the latter fell over, hit his head and died. But that’s as much Mark Urich’s fault as Daniel Dean’s. I can’t see how this death should be treated as anything but misfortune.

However, with typical bastardry, the shifty police decided to incorporate the One Punch Can Kill campaign into their questioning of Daniel Dean. They secured an admission from Dean that he was aware of the campaign and its meaning, yet despite this knowledge, still engaged in a fist fight. The admission resulted in a manslaughter conviction and 7 year sentence, which was overturned on appeal.

The lesson from this case is to state clearly that the deceased was the aggressor, that you were defending yourself, then exercise your right to silence.

Actually, by pursuing this line of questioning, the police have unwittingly provided a defence. “Yes, I am aware of the campaign. He was aggressive and shaped up to me. As a result, I quite reasonably thought he was going to punch me. Since I knew a single punch could kill me, I was in fear not just for my safety, but my life. So I punched him in self defence before he had the chance to punch and possibly kill me. I shouldn’t have had to walk away. That would have been dangerous. I thought that if I walked away, he’d have pursued and struck me anyway, so I thought it better to face up to him and sort it out then and there.”

People should have the legal right to stand their ground in the face of aggression. They should not have to first retreat in order to establish self defence. In fact, an initial retreat often renders a situation more dangerous. If you are in a heated argument and form the belief that there is a material possibility the other person is about to punch you, it is safest for you to hit them first. Additionally, attacking the head of your opponent is most likely to provoke a stronger defensive reaction, thus ending the conflict as quickly as possible, which should be your goal. If you’re in a fight, the longer it goes on, the more chance your opponent will get in a punch which could seriously injure, or even kill you.

Thus, if two men of comparable age and size are aggressively arguing and one squares up, the other attacking their head is the best self defence option.

I don’t agree that a punch in this situation leads to death, even if it is a knockout punch and the person falls over and hits their head. That conclusion is just legal and political sophistry. The deceased has significantly contributed to and in my view, ultimately caused their own death by being aggressive and shaping up, thus giving the other person reason to believe they were going to be attacked. The punch didn’t kill them: falling over and hitting their head did. That happened because they didn’t defend themselves properly, despite behaving aggressively and provoking the other person to fear attack.

If you’re aggressive and shape up to someone, you’re risking death, so if that concerns you, either make sure you can fight or else back down and slink off like the pussy you are.

The Skye Barkwith case is a grey area. Jake Becker (21) was acquitted of manslaughter after punching the 17 year old Barkwith during an argument over a girl outside a pub. As so often happens in theses cases, Barkwith fell and hit his head on the pavement after being punched in the face by Becker.

It turned out that Becker has a history of drunken brawls, with two previous assault convictions, which of course cannot be brought up during the trial. In this matter, he was also convicted of attempting to pervert the course of justice, suggesting he believed a self defence argument may struggle.

This is a good case study because it informs debate over firstly what constitutes reasonable force and secondly, the equation of culpability with the degree to which each protagonist was the aggressor.

It’s not possible to fully judge each case without access to the court transcripts, which is precisely why judges and juries should have wide discretion in such matters, not be constrained by blanket laws.

I drew the inference that Becker may have been significantly more the aggressor, perhaps pursuing the girl and Barkwith stood up to him. If that’s true, Becker is older, probably stronger and almost certainly a more experienced fighter. A court may have formed the view that although Barkwith was being aggressive to some degree, Becker wasn’t in such immediate danger that he needed to throw a punch to the face. He could have punched Barkwith in the stomach or ribs and that may have been sufficient to prevail. Consequently, a s281 one punch death charge may have been appropriate here, due to the apparent recklessness of Becker’s punch. His prior assault convictions could then be taken into account during sentencing, offset by the extra cost of his defence due to the stupid bloody editor of The West Australian newspaper causing the first trial to be aborted.

It’s all very well for the parents to cry “Injustice!” in this case, however, what was your 17 year old son doing drunkenly squaring off against an older man, outside a pub in a mining town after midnight? He should probably just have been punched in the stomach and ribs, but let’s not pretend he shouldn’t have gotten out of there as fast as possible.

“Grieving mothers” should not be allowed to influence rules governing interactions between grown men. If Skye Barkwith wanted to drink underage in a pub in a mining town, he should have done what we did when we went to pubs underage: kept our fucking heads down.

These examples are completely different circumstances from king hits, where someone is punched without warning and doesn’t see it coming, or continuing to punch someone after they are rendered defenceless. These are low, cowardly acts. “Cunt acts”, as we used to say.

A recent example was the death of 18 year old Thomas Kelly, killed by a blindside king hit in Kings Cross. The assailant, Kieran Loveridge, is an absolute scumbag: no fixed address, estranged from his parents, 18 years old and already covered in tattoos. Just a turd with a massive chip on his shoulder who had come into the Cross from Blacktown / Mt Druitt for a “night out” ie. to cause trouble. He had previously hit three other random strangers.

There already exist adequate laws to deal with such acts: murder and manslaughter. In the Brett Meredith, Jesse French and Thomas Kelly examples above, there is clear recklessness as to the possibility of causing at least grievous bodily harm, if not worse. That is covered by manslaughter. There is no need for a s281 style law to deal with these cases, since they deserve the more serious manslaughter charge.

I have to admit to a chuckle of schadenfreude when one of Kieran Loveridge’s mates punched out the Channel 9 cameraman outside Burwood Court, however.

The Real Heroes Walk Away campaign is nanny stater ideology. Real heroes do not walk away: they don’t pick fights, but they do defend themselves and others.

I don’t mean that a person should be able to punch another over a single insult or brief argument. If so, this would lead to people getting punched for nothing, then the attacker fabricating some insult as a defence.

However, why should a person not have the right to stand their ground and deal effectively with persistent insults or harassment to themselves or others? Sometimes the most effective way to deal with such a problem is some level of violence. If that were not the case, police and other security staff would not be allowed to use physical force against troublemakers.

The real question is: In what circumstances and to what degree is violence justified?

Why should a person not be allowed to react to a continued stream of taunts and insults with a punch?

If “they’re only words”, we can drop this bullying campaign.

“Oh, no, but words can hurt.”

Yes, you’re right, they can. Which is why persistent taunts and insults can provoke a person to violence in order to stop them. A person should be able to stand their ground and defend themself against not just violence, but hurtful insults.

If someone if persistently insulting me, should I not be able to punch them? What if I punch them in the stomach or the ribs instead of the head? What if I tell them to fuck off or they’ll get smacked and they keep on with it? I shouldn’t have to walk away and have my planned activities curtailed due to the behaviour of a complete turkey.

Now suppose the person is roughly my age and size (or younger and bigger) and squares up to me when I tell them to fuck off. It would be dangerous and possibly life threatening to assume they don’t intend to hit me. Thus, I should assume they are likely to throw a punch and get in first. That’s the best defence. If they die as a result, they have brought it on themselves.

People shouldn’t be allowed to punch others who are physically significantly inferior, for example children, women or the elderly. A professional boxer should not be allowed to punch some twat in the face for mouthing off. All of these situations can be dealt with using far less physical force than a punch, which would be genuinely dangerous.

An open handed slap to silence a mouthy twat is far more effective because it is humiliating: it says that they are not even enough of a man to be worth fighting.

Suppose a fifty or sixty year old man starts arguing aggressively with a significantly stronger man half their age, then refuses to back down when told to. They are milking the power difference: you can’t hit me because I’m an old man and I’ll call the police, so I’ll stand here and keep mouthing off as long as I like. It would be wrong for the younger man to punch them hard, because hitting an old man is genuinely dangerous. However, it should be perfectly legal to use just enough physical force to get the old fool to fuck off. A firm flick on the nose with a finger, or spin him around and give him a kick in the arse should be legal force in my opinion.

Here’s a case where an absolute idiot punched a 66 year old man after an argument over the old man watering his garden during water restrictions. Despite it being none of his business, Todd Munter, 36, decided to have words with Ken Proctor, 66, after he saw him watering his front lawn as he walked past. During the argument, Proctor sprayed Munter with the hose, prompting Munter to begin punching and kicking him. Ken Proctor died of a heart attack and Munter was charged with murder.

The murder charge is ridiculous, since it is not reasonable to foresee a heart attack. Thus, I’m not even sure manslaughter is appropriate here. However, it’s completely inappropriate for a 36 year old to be fighting an old man. He could have just grabbed the hose and sprayed Ken Proctor back, then come back and egged his house if he was still riled up.

Todd Munter is obviously a complete idiot who needs to be removed from the community. A s281 type charge might be just what was needed here, since any competent prosecutor should be able to secure a conviction.

So, several real cases, all deaths ensuing from a fight. They span the spectrum from genuine misadventure during self defence to indefensible thuggery.

In summary, a s281 style law can work by securing convictions for deaths arising from domestic violence or other thuggery, where a manslaughter charge may fail. However, without clear prescriptions on provocation and the right to self defence, it has the potential for blanket use by police. That is then detrimental to what should be a fundamental liberty of citizens in a free society: the right to stand your ground and defend yourself against violence, harassment, insults and dickheads in general.