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Biting and Spitting

Biting and/or spitting on someone constitutes a Common Assault in NSW. Depending on the injuries sustained by the victim, this may constitute a more serious charge of Assault Occasioning Actual, Grievous Bodily Harm or Reckless Wounding.

In NSW, Common Assault carries a maximum penalty of 2 years imprisonment. It is possible to be charged with assault, even where a person does not cause an injury amounting to Actual Bodily Harm, Grievous Bodily Harm or Wounding. Whilst even the slightest touch can be considered an assault, police would not usually lay a charge unless there is a significant degree of force applied or there is evidence that threats of violence have been made.

Biting and spitting are usually considered to be fairly serious forms of assault due to the increased risk of the transference of disease or infection, and how society views these actions as abhorrent behaviour. If the spit or the bite was to result in an injury, Wounding, Actual or Grievous Bodily Harm may be inflicted and much more significant penalties apply to the assault.

Wounding is defined in common law as to involve “breaking the skin.”

Actual Bodily Harm involves a visible injury, such as a bite mark that does not break the skin.

The Crimes Act 1900 (NSW) (the Act) defines “Grievous Bodily Harm” to include any permanent or serious disfiguring of the person… and any grievous bodily disease. “Grievous” simply means “really serious”: DPP v Smith [1961] AC 290 at [334]; Haoui v R (2008) 188 A Crim R 331 at [137], [160]; Swan v R [2016] NSWCCA 79 at [58] -[64].


Spitting on a police officer during the execution of their duties carries with it significant penalties. Section 60 of the Act states:

A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.


If you have been charged with an offence relating to spitting or biting someone, this is a very serious offence with imprisonment a very real possibility. It is very important that you receive timely and accurate advice to plan your legal defence, which could include:

  • Self-defence;
  • Self-defence of another;
  • Accident;
  • Duress; or
  • Necessity.

Please contact the Criminal Law Team at Armstrong Legal for an obligation free consultation with one of our lawyers on 1300 168 676 for assistance and advice.

Image Credit – Marina Rodyukova ©

Written by Tyson Brown on November 6, 2018

Tyson has a down to earth, straightforward approach to life and the law, one which is well received by all who meet him. Tyson has the ability to relate to all clients on a personal level, having spent many years prior to his legal career in customer service and hospitality. View Tyson's profile

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