Fraser Anning – Two Slaps, One Egg – What Happens Next?

The Law on self-defence

Fraser Anning – Two Slaps, One Egg – What Happens Next?

FRASER ANNING, A KID WITH AN EGG, AND TWO SLAPS – ONE OR TWO ASSAULTS?

Just as humanity was tested yet again by an extremist attack of hatred, this time at two Mosques in Christchurch, New Zealand on 15 March 2019, Queensland Senator Fraser Anning tested us further by publishing a controversial statement, blaming the victims of the shootings and the Islamic faith at large for such horrific attacks. If you would like to read more about the Christchurch attacks check out our blog post here .

THE BOY WHO EGGED A SENATOR

Well, naturally, some shocked reactions were stirred amongst the public as the Senator stated that New Zealand’s immigration policy itself was to blame, for letting in Muslim migrants. A 17-year-old boy thought he would take justice into his own hands and egg the Senator whilst he was being interviewed in Melbourne. There is viral video footage of this, and it shows the Senator turning around in shock after having an egg squished on the back of his head by this teenager. Anning then pauses for a second, looks like he is contemplating what action to take, and then strikes the boy with his hand. He then goes for a second hit! In that instant the boy tries to defend himself but is then brought down by four men who are Anning supporters.

COMMON ASSAULT?

At law, there is surprisingly no offence specifically for assaulting a person in public office. This is good news for the boy. However, he is still at risk of being charged with Assault under section 61 of the NSW Crimes Act 1900, though it looks unlikely at this stage. Common assault as per the NSW Crimes Act is considered here 

SELF-DEFENCE?

The more pressing question is – will Anning be charged with assault? It could be claimed that he acted in self-defence – although it seems to be implausible.
Most would argue upon seeing the footage that Anning did not have to proceed to hit the boy even once. There is a long pause after Anning turns around to see a mere boy who cracked an egg on his head. In the circumstances, Anning is surrounded by supporters who then tackle the boy. Surely, he did not need to induce a physical altercation, he could have left the boy alone, knowing that he had others around him, and that he is a significantly older and larger male.

Section 418(1)  of the Crimes Act 1900 (NSW)(the Act)  provides that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

Section 418(2) of the Act sets out the circumstances where self-defence is available.

The questions to be asked by the jury under s 418(2) of the Act are succinctly set out in R v Katarzynski [2002] NSWSC 613 at [22]–[23] which was approved in Abdallah v R [2016] NSWCCA 34 at [61].

Section 419 of the Act provides that the prosecution has the onus of proving, beyond reasonable doubt that the person did not carry out the conduct in self-defence.

In this case the right for self-defence right arises where two circumstances exist. The first is that the accused believed that his action of stabbing was necessary in order to defend himself. The second is that what the accused did was a reasonable response in the circumstances as he perceived them.

This is where people may have different views as to what is moral. Is morality always in line with the law, and vice versa? People may be divided on this issue; if someone makes a gesture towards you that is funny to some, but nasty in your view, is it then okay to essentially attack the assailant? A rational or reasonable adult may think that the original assailant should get into trouble, and that you should simply walk away and not respond. Others, in the moment, may succumb to the desire of revenge and believe ‘an eye for an eye’ is the correct response. Is it reasonable to hold everyone to a high moral standard? I think it is, at least in this situation, reasonable to hold a Senator to a high standard, and believe that they should not find it necessary to retaliate and assault a child who committed a childish act. The law should be in line with this view.

IS THE SECOND HIT A SEPARATE ASSAULT?

Now let’s look at the second punch. This should not come within the definition of self-defence. It is excessive and not reasonable in the circumstances. This should be considered by the law as a fresh count of assault. Clearly, the use of a second punch goes further than necessary in order to be self-defence. The continuation of physical touching in the situation goes beyond protecting himself. Anning is by that stage, simply  assaulting the boy.

Self-defence is discussed here 

ARE ANNING’S REMARKS ABOUT ISLAM FREE SPEECH OR PREJUDICIAL HATE SPEECH?

Does this hate speech amount to a criminal offence, or is it merely offensive?

Unlike the Constitution of the United States, the Australian Constitution does not expressly provide us with freedom of speech. We derive our freedoms of opinion and expression from the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. This does not mean that our freedom of speech or expression is hindered. What we do have in Australia, however, are a set of anti-discrimination Acts. We have legislation ranging from the Racial Discrimination Act 1975 (Cth), to the Anti-Discrimination Act 1977 (NSW) and Racial and Religious Tolerance Act 2001 (Vic) which give certain protections to people against discrimination whether it be racial, or ethnic, or from any basis of religion, gender etc. Even our Criminal acts provide for penalties against inciting violence against a specific group of people. Due to this, we must strike a balance between protecting people from discrimination, without overriding people’s political freedom to express their opinions. It must be acknowledged, however, that there is a line that can be crossed, where hate speech may incite violence and poor treatment of minorities or vulnerable people. We must also think to ourselves, do we really need people to express such a hateful opinion? Particularly when they are in the public eye and able to influence younger generations.

 

Book your first free appointment with National Criminal lawyers now.
CONTACT US! 02 9893 1889

Book Appointment

  • :