Not Every KO Is A King Hit

There seems to have been a recent spate of serious injuries and even deaths ensuing from street violence. In politicians’ indecent haste to pander to the bleating classes, each incident is portrayed in black and white. The injured party is an innocent victim of a “king hit”, while the other party is a thug who should be presumed guilty and denied bail. The media’s tendency to oversimplify and sensationalise renders it complicit in reinforcing the hysteria, as opposed to devising a well thought out policy response.

People have died after being punched in a range of circumstances, from vicious, unprovoked assaults to punches thrown in self defence. Every case is different and must be examined on its own merits. We need to make a clear distinction between outright thuggery and a fair fight. We need to be far clearer about what constitutes self defence and not cast the first stone when someone makes a physical response to provocation.

Firstly, not every punch which knocks a person out is a king hit. A king hit is when someone is punched or hit with an object without any warning, often while they are not looking and usually in the head. It is an extremely low act and generally contains strong elements of intent to cause serious injury and recklessness as to the possibility of killing the victim.

We’ve seen genuine king hits of late, for example the killing of Thomas Kelly by Kieran Loveridge.

Now look at the definition of murder and manslaughter in S18(1) of the NSW Crimes Act.

Depending on the relative size and strength of the punched and puncher, prosecution for murder may be appropriate and may succeed, for example if a fit, strong, young man king hit a 70 year old. Even if the prosecution didn’t feel they could convince a judge or jury beyond reasonable doubt that the circumstances of the single punch contained the elements required for murder, a manslaughter conviction allows for up to 25 years’ jail.

The fact that most king hits don’t result in death is not per se a defence to murder. That’s why the element of recklessness is in the definition: it is not necessary to intend to kill the victim; rather that a reasonable person would or should understand a material probability of death as a result. However, juries are often swayed by the absence of direct intent. Allowing police the scope to add circumstances of aggravation to a manslaughter charge in such instances would place the offence at the upper end of the scale, with a sentence approximately equivalent to what would have been handed down for murder in such circumstances. This would probably have been the correct outcome in the Kieran Loveridge matter.

In the same category as a king hit is stomping on a defenceless person, such as recently happened to Michael McEwen at Bondi Beach after a night out. Often in such cases, the victim has been picked on and assaulted, often in company. Had Michael McEwen died, the offence should have been treated at least as seriously as Kieran Loveridge’s. Stomping on his head may well have been sufficiently reckless to support a murder charge.

Since, thankfully, Michael McEwen didn’t die, how seriously does the current law allow punishment?

Seriously enough. Grievous bodily harm with intent carries up to 25 years, the same as manslaughter. Even if the intent could not be proven, the assault was in company and the jury (or judge) has the option to find the accused guilty of recklessly causing grievous bodily harm. That carries up to 14 years.

So, except for allowing the addition of circumstances of aggravation, the laws already exist to deal with morons bashing and possibly killing people over trivial arguments, or even at random. They just need to be properly prosecuted and enforced by judges.

Jamie Ennis has been arrested in relation to the matter and denied bail. On its own, his lawyer’s argument appears to raise some disturbing issues. Ennis claims he didn’t throw the punch which knocked Michael McEwen down and didn’t stomp on his head. He was arrested on the basis of a fingerprint found on the bus shelter near to where the attack occurred. The prosecution is arguing protection of the community and the judge is making comments about “community concerns regarding alcohol fuelled violence”.

Of itself, the denial of bail on such apparently flimsy evidence would be a travesty. “Community concerns” do not override lack of evidence. However, this is precisely why each case has to be examined carefully and distinctly.

Jamie Ennis was charged with affray, so the police clearly believe they can show he was part of the group which attacked Michael McEwen. Without witnesses, that shouldn’t be sufficient to deny bail. But that’s not why Ennis was denied bail in this matter: he’s already on bail. For what? Assault occasioning actual bodily harm. He’s being denied bail due to breach of his existing bail conditions. Fair enough.

No-one else from Ennis’ group has been arrested, including the alleged puncher and stomper. It’s a reasonable guess that Ennis knows who they are. So, one might infer that his denial of bail is also a de facto punishment (perhaps unintended) for hindering the police investigation. Some readers would probably think that well deserved and I do too, however we need to take great care as a society not to finesse the legal machinery to punish people for acts for which they have not been found guilty (or not even charged). If Ennis is hindering the investigation and the police feel confident they will be able to prove this, they should formally charge him and it should be debated in court as an extra element in favour of denial of bail.

Moronic cunts like Ennis and his mates (I understand he’s a coconut as well), getting pissed up and going around taking out their massive chips on the shoulder on innocent people are exactly who the community is talking about when we say: “We’ve had enough of this shit. Increase the penalties.”

We should also increase penalties for lower level, unprovoked assaults, where people are attacked just walking down the street. Update: Here's another one from this New Year's Eve, where a moronic arsehole attacked four smaller strangers for no other reason than he just wanted to punch people. He didn't even have the courage to risk fighting someone who might have been able to fight back. Shaun McNeil is now in a cage, where he belongs.

Conversely, this one is not a king hit. It's young blokes fighting. There was no need for events to escalate that far and without alcohol, they probably wouldn't have. But let's be careful not to add this event into the media's catalogue of unprovoked assaults (compiled as a public service, of course) and let's not automatically assume the person who hit their head is the victim and the other is a moronic thug.

There is no contradiction with Liberalism in advocating severe penalties for the entire spectrum of mindless thuggery.

These people don’t deserve the benefits of a free and open society, since they obviously resent people who are successful within it. People should be able to enjoy themselves without fear of unprovoked attack. People should be able to engage in a minor argument without fear of serious assault. We need meaningful prison reform, but that doesn’t mean moronic thugs shouldn’t be sent there.

However, we need to take great care to examine each violent incident on its own evidence. The media cannot be lazy and simplistic in its reporting, reflexively trotting out catchphrases like “king hit” and “one punch kill” and choosing a victim and thug. Some cases are clear cut, but many are not. If justice is to be done, the police, politicians and judiciary need to distinguish one class of circumstances from the other.

What if the young guy (Ben) in the linked article above had punched his attacker, who had fallen, hit his head and died? What if that was the only punch the police saw? How would the media have reported it then? “King hit death in another night of violence on our streets”? What if we had a blanket “assault occasioning death” law, as in WA?

The media has even globalised skewed, sensationalist reporting. News.com.au has a “One punch kill” headline from Russia, complete with “incredibly shocking footage”. Watch the video. The “victim” is arguing with and shoves a man who appears to be approximately the same age and slightly smaller, who retaliates with a single punch to the head. He was picking a fight and got punched out. He even got back up and tried to carry it on, dying two days later. How is he “the victim”? The other bloke didn’t do anything wrong: he should be entitled to defend himself.

“One punch can kill! One punch can kill!” bleat the ovine every time someone gets hurt in a fight. If a strong man punches a pensioner in the head, then yes. But people get punched all the time. Very few die. When they do, it’s misadventure which is the cause of death, not the punch.

Jason Toby’s partner has certainly been indoctrinated. Look at the currently known facts of that matter. Jason Toby and his partner Britt Potter were arguing on a public street in Brisbane’s CBD at 4am. Almost certainly, alcohol was involved at that time of the night and their argument was sufficiently robust for a passer by to stop and intervene. Jason Toby decided to fight him and lost. He subsequently died in hospital.

But Britt Potter is sobbing out the nanny state line of “One punch can kill”. The other bloke probably intervened out of concern for you, love. Now, depending on the police and DPP, he might have to defend himself against serious criminal charges. Someone has been interviewed by police and released without charge 15 hours later. But we don’t even know if that’s the person who was fighting Jason Toby.

The ABC's reporting of the incident is ridiculously incompetent. It is exactly the sort of biased description which must be avoided. Firstly, Jason Toby is described as the victim of "a violent assault". How do we know this? He may have been the aggressor.

The report then states that "a man had been arguing with a woman". Yes, it's been established that was Jason Toby and his partner, Britt Potter. Unbelievably shoddy journalism.

Haven’t we just had a campaign against violence toward women? Now a woman who probably supports its aims seems shocked that defence requires force. If she couldn’t stop her “partner” fighting a bloke who had intervened out of concern, what does that imply about Jason Toby’s volatility and his complicity in his injuries?

Maybe if someone had been around to intervene in Maitland a couple of weeks ago, a woman wouldn’t be dead and a bloke wouldn’t be up on a murder charge. But what if someone had stepped in to defend the woman, then had to defend himself and the aggressor died as a result? Would the third person have been charged? Quite possibly … and if they were, the quality of the lawyer they could afford would be a significant factor in the eventual outcome.

What lies are politicians and the media going to trot out next? Resurrect the dishonest “Real heroes walk away” campaign? Heroes don’t walk away: they defend themselves and others.

But people will think twice about defending others if they believe they can’t trust the state not to prosecute them.

In which society are citizens in more danger: a civil society where citizens are prepared to come to others’ aid, safe in the knowledge they are protected by logical self defence laws, or a nanny state in which citizens abrogate responsibility to “the appropriate authorities” out of fear they may end up facing charges themselves?