Neil Sands
Prominent defence advocate Marie Dyhrberg KC says a proposal to create specific offences for “coward’s punch” attacks is unworkable, while evidence from Australia suggests tough legislation alone is not enough to prevent such assaults.
Announcing the new offence amid a suite of law-and-order changes late last month, Justice Minister Paul Goldsmith told reporters he was sending a message to the courts and the public about coward attacks, which he said often occurred when the victim was distracted.
Marie Dyhrberg KC
“We know how dangerous they are. People can be killed or suffer lifelong brain injuries, yet perpetrators often receive lenient and insufficient sentences,” Goldsmith said.
While Goldsmith’s reference to coward punches grabbed headlines, the new offences he said the government was introducing refers specifically to one-punch attacks, which Dyhrberg said was too narrow a legal definition to include in legislation.
“The legislation tries to identify a specific type of criminal act and is incredibly restrictive in that the criminal act is applicable only to an act of one punch,” she told LawNews. “This is unworkable… It will not capture someone who engages in a cowardly attack. The nature of a crime should allow flexibility for the myriad factual circumstances that go to the intent and to the act.”
Unfairness fears
Dyhrberg, a former President of The Law Association, said the proposed offences excluded attacks which could involve multiple punches, or kicks to the head while the victim was prone on the ground.
“Courts are being asked to reconcile an attack that is more culpable if you throw one punch, rather than an attack that is two or three cowardly punches. There will be unfairness to victims,” she said.
The new offences outlined by Goldsmith are:
- An assault offence for one-punch attacks which cause grievous bodily harm with maximum penalties of eight years’ imprisonment if the offender intended to cause injury or acted with reckless disregard for safety, or 15 years’ imprisonment when the offender intended to cause grievous bodily harm; and
- A culpable homicide offence for a one-punch attack which results in death with a maximum penalty of life imprisonment.
Dyhrberg said existing offences such as grievous bodily harm, reckless wounding and manslaughter already covered such attacks, including severe penalties, and allowed the judiciary to consider aggravating circumstances.
She predicted the law, if passed, would add to the court backlog as offenders appealed, challenging a finding that the one-punch offence applied to them.
“This legislation will involve the courts, the prosecution and defence counsel, adding to the backlog that is already causing unacceptable delays in the hearing of cases,” she said.
“You will need further hearings to determine the facts based on legislation that is confined to one-punch attacks.”
Australia: from king-hit to coward punch
In Australia, several state governments introduced one-punch laws more than a decade ago, usually in response to a fatal attack which had generates high community interest.
A study released this year by Melbourne’s Monash University and the Victorian Institute of Forensic Medicine examined the characteristics of cases involving 288 offenders in Australia where people were convicted of fatal coward-punch assaults between 1999 and 2020.
It found most cases involved a single perpetrator and a single victim. Perpetrators were male in 99% of cases with an average age of 26, while the average victim was aged 41 and male.
More than half the perpetrators had been drinking alcohol, 65% of attacks took place in a public area and three-quarters of the attacks were at night.
In two-thirds of the fatalities, victims died from a secondary impact to the head when they hit a hard surface after being struck.
A 2022 study by Charles Sturt University’s Centre for Law and Justice noted that when New South Wales introduced one-punch legislation in 2014, it was accompanied by strict “lockout” regulations restricting the hours of licensed premises in Sydney’s entertainment precinct.
In addition, there was a public campaign to popularise the term “coward punch” for such attacks, rather than the previously used term “king-hit”, which the study said “aligned them with cowardice, rather than dominance”.
“That combination – the changes in liquor laws, the one-punch legislation, the social changes, particularly the change in language from king-hit to coward punch – all converged to help result in a decrease in crime around that area,” the study’s co-author Lisa Coates told LawNews.
However, Coates’ study found that the one-punch laws themselves were not widely used in NSW for prosecutions.
“Notwithstanding the public outrage generated by the incidence of ‘one-punch’ attacks and the legislation created in response, it has been little utilised since being passed into law,” it said.
“One-punch attacks in NSW where the victim survives are usually dealt with under the law of grievous bodily harm or maybe dealt with under manslaughter or murder elements when the victim dies. The requirements of the law are so specific that the factual scenario must fit precisely to be confident a charge can be accurately prosecuted.”
Researcher Cath Ferguson conducted a study in 2015 that questioned whether Western Australia’s one-punch laws were effective.
While criminology is no longer her speciality, Ferguson said she had not changed her mind a decade on.
“Personally, I don’t believe that the legislation is making a difference,” she told LawNews.
“From what I can see, without formally researching, most of the offences that fall under this law are impulsive and, as such, I don’t think the law is a deterrent.”
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