Assault legislation is outlined by the Crimes Act 1900 in Section 61 as, “Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years”. The Judicial Commission of New South Wales (NSW) defined assault as, “any act - and not a mere or mission of act - by which a person intentionally - or recklessly - causes another to apprehend immediate and unlawful violence”. This definition stems from the case R v. Burstow. Therefore, assault may not necessarily result in physical harm but may result in fear of an impending act of violence while this is linked to the Crimes Act 1900 penalty outlined above, what about spitting? Is spitting a crime? Many local councils have set out fines for spitting in certain public places and locations like train stations, parks and on public transportation. However, is spitting an assault which an offender can be charged for in NSW? This article will discuss if spitting is a form of assault and if there are penalties associated with spitting. To provide comments and attorney and spokesperson from the law firm ETB Legal assisted.

The attorney stated that in NSW spitting falls into the category of common assault. She further stated that, “a person can be convicted for spitting and may face a number of possible penalties which include fines, community service and up to two years of imprisonment which is in line with the Crimes Act 1900 Section 61”. However, the attorney stated that there are a number of factors that must be present so as to be convicted of common assault relating to spitting. Such factors include:

- The person who committed the offence must have the intention of instilling fear into the other person and this fear is fear of their safety. Or the person committing the offence has no regard for the fact that his or her actions may result in the person feeling fearful or in danger.
- The person who spits at the other person does not have the other person’s consent to do so.
- The offence generally needs to be committed in anger and the underlying intention must be of causing harm or injury to the other person.

While spitting does not cause harm and is unlikely to cause it the act of spitting in considered to be sufficient application of force that rises to the level of an act of common assault. Further, spitting is still considered assault even if there was no contact, as long as the victim had reason to fear for his or her safety and the act was done with the express intention of instilling fear in the victim or knowing that the act would instil fear in the victim.

While it is uncommon for a person to be convicted for a spitting offence there are still assault charges in NSW associated with the action of spitting at another person. Are you a victim of a spitting incident which resulted in you fearing for your safety? Or are you being accused of spitting at someone and resulting in instilling fear in the person? Whichever the case may be seek out legal assistance from a law firm that specialises in criminal law including common assault charges in NSW.