Assault Occasioning Death in New South Wales
A 31-year-old man, Brian Edmund Brown, has been charged after allegedly punching a security guard in the head, causing his death, at a pub in Sutherland.
The police allege that Brown punched security guard, 30-year-old Mousa Al-Zaher, in the head after Brown was asked to leave the Royal Hotel in Sutherland, following an altercation.
Emergency services were called to the licenced premises on East Parade at about 2am on Sunday, 25 February 2024.
Officers from the Sutherland Shire Police Area Command attended the scene and found Al-Zaher unconscious outside the hotel.
Police officers performed CPR on him, before he was treated by NSW Ambulance paramedics.
However, Al-Zaher died at the scene.
Following enquiries and a crime scene being established, Brown was arrested and taken to Sutherland Police Station.
He has been charged with assault occasioning death. He appeared before Sutherland Local Court on 26 February 2024, where he did not apply for bail.
The matter will return to Court in April.
Al-Zaher was from Saudi Arabia and had only recently commenced working at security firm 'Dalton Solutions' which was contracted to work the door at the Royal Hotel.
Brown has been charged under New South Wales' 'coward punch' laws (otherwise colloquially referred to as a sucker punch, king hit or cheap shot).
These acts generally involve an unexpected punch, usually to the head or neck of the victim.
They are considered incredibly dangerous as the blow, often delivered without warning, may knock the victim unconscious, which creates great risk of further head trauma if they fall and hit the ground.
Coward Punch Laws in New South Wales
Where a coward punch causes death, this act is criminalised under section 25A of the Crimes Act 1900 ( NSW). The prosecution is required to prove, beyond reasonable doubt, that:
- The accused assaulted another person with any part of their body or with an object held by them,
- The accused did so intentionally,
- The accused was not authorised to do this, and had no excuse by law, and
- The assault caused the death of the other person.
An assault will be deemed to cause the death of a person whether the person is killed as a result of the injuries received directly from the assault or from hitting the ground or an object, as a consequence of the assault.
It is not necessary for the prosecution to prove that the death was reasonably foreseeable. This means that they are not required to prove that the accused reasonably expected their conduct to cause death.
A maximum penalty of 20 years imprisonment is applicable.
However, the offence will be considered 'aggravated' where the accused is of or above the age of 18 years and commits the offence whilst intoxicated (i.e., by alcohol or illicit drugs).
A person will be presumed to be intoxicated by alcohol if the prosecution proves that there was 0.15 grams or more of alcohol present in the accused's breath or blood (210 litres of breath or 100 millilitres of blood).
Furthermore, evidence may be given of the presence and concentration of any alcohol, drug or other substance in the accused's breath, blood, or urine at the time of the alleged offence as determined by analysis lawfully carried out.
In this case, a maximum penalty of 25 years imprisonment is applicable.
It is a defence under the aggravated form of the offence if the intoxication of the accused was not self-induced (i.e., they were spiked), or the accused had a significant cognitive impairment at the time the offence was alleged to have been committed.
'Cognitive impairment' includes an intellectual disability, a developmental disorder (including an autistic spectrum disorder), a neurological disorder, dementia, a mental illness, or a brain injury.
If you are found guilty of assault causing death when intoxicated, the court is required to impose a sentence of imprisonment of not less than 8 years. Any non-parole period for the sentence is required to be at least 8 years.
This is referred to as a 'mandatory minimum sentence' which is prescribed under section 25B.
The Court is not authorised to impose a lesser sentence or non-parole period.
A non-parole period is the minimum period which an offender will be required to serve in gaol before being eligible to be released into the community on parole.
If you are charged with murder or manslaughter and the jury is not satisfied that the offence is proven, the Court can acquit you of murder or manslaughter yet find you guilty of an offence under section 25A, if the jury is satisfied that the evidence proves this.
