australia assault punishment
Foul-Mouthed Australian Teen Gets Dose Of His Own Medicine After Threatening An Elderly Man
<p>This is a story of an Australian teen (<a href="https://hellocare.com.au/foul-mouthed-australian-teen-gets-dose-medicine-threatening-elderly-man/" rel="nofollow noreferrer">https://hellocare.com.au/foul-mouthed-australian-teen-gets-dose-medicine-threatening-elderly-man/</a>)  who yelled at and threatened an elderly man and was grabbed by the throat and pushed into a seat by another man after he had had enough of the disrespect. The highly opinionated article treats the physical violence as being acceptable and says the teen got a dose of his own medicine. Does the law agree with the article?</p>
<p>Could  the adult face legal consequences for the assault? Is it likely that the adult will in fact face such consequences?</p>

<p>Whether or not one holds the opinion that the adult morally <em>should</em> be prosecuted, there are only two legal questions – <em>can</em> the adult be prosecuted, and <em>must</em> the adult be prosecuted? The easiest question to answer is the &quot;must&quot; one – prosecution by the government is always discretionary. It is settled law that the government can decline to prosecute a crime. The decision to prosecute is entirely political. It seems likely that the government <em>can</em> prosecute, if they conclude that the action was not legally justified under <a href="http://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s418.html" rel="nofollow noreferrer">§418 of the Crimes Act 1900</a>, as defense of another against a criminal assault. The government <em>won't</em> prosecute if they conclude that such a defense is likely to succeed.</p>

<h2>It's unlikely a prosecution of the adult would be successful</h2>
<p>I will note that the article states that the matter has been referred to both NSW Police, who may lay criminal charges, and CityRail, who may take administrative action.</p>
<p><a href="https://ngm.com.au/assault-and-related-offences/#:%7E:text=Common%20assault%20is%20a%20crime,person%20(use%20of%20force)." rel="nofollow noreferrer">Common assault</a></p>
<blockquote>
<p>Common assault is a crime under section 61 of the Crimes Act 1900 (NSW), however it is defined under the common law. It includes both:</p>
<ul>
<li>Any act which causes another person to fear immediate personal violence (threat of force), and</li>
<li>A striking, touching or application of force against another person (use of force).</li>
</ul>
<p>In both cases the prosecution must also show that:</p>
<ul>
<li>The accused acted intentionally or recklessly,</li>
<li>The victim did not consent to the conduct, and</li>
<li>The conduct was without lawful excuse.</li>
</ul>
</blockquote>
<p>On the face of the matter, both the youth's and the adult's actions (as you describe them, noting that the youth may or may not be an adult as well) meet the requirements of an assault: the youth threatened violence and the adult applied force. Whether they have committed the <em>crime</em> depends on if there was intent (there was in both cases), whether the victim consented (no in both cases) and if there was a lawful excuse (no for the youth, maybe for the adult).</p>
<p>The adult would almost certainly raise self-defence (which includes the defence of others) as a lawful excuse. They would need to show that they believed their conduct was necessary to defend the elderly person (probably a given) and that it was a reasonable response - here they would rely on the fact that no physical harm was caused to the youth and their intervention ended the youth's criminal activity.</p>
<h2>Will charges be brought?</h2>
<p>See <a href="https://law.stackexchange.com/questions/78914/pressing-charges-is-it-needed-to-bring-a-charge/78928#78928">&quot;Pressing charges&quot; - is it needed to bring a charge?</a></p>
<p>In summary, charges are only brought when:</p>
<ol>
<li>there is a reasonable prospect of conviction on the admissible evidence</li>
<li>the prosecution in the public interest</li>
</ol>
<p>For the youth, there would appear to be a reasonable prospect of success. However, the police may choose to issue a warning considering that the public humiliation suffered by the youth means that it is not in the public interest to pursue him further.</p>
<p>For the adult, since assault is a summary offence, it is heard by a magistrate without a jury. Prospects of success are murky because of the arguable defence and the disposition of the particular magistrate that hears it - some will see the response as reasonable, others won't. Because the appointment of a magistrate to a particular case is essentially random, the prosecution may choose not to roll the dice. Similarly, the police may also feel that it is not in the public interest to prosecute someone who intervened in the defence of another and ended the confrontation without significant harm.</p>
