Kaileb Merton ('Mr Merton') is 19. He has been charged with one count of assault occasioning bodily harm ('AOBH') under s339 of the Criminal Code 1899 (Qld) ('the Code'). The case against Mr Merton is that he assaulted 30 year old, Colin Freil ('Mr Freil') and did him bodily harm by punching Mr Freil in the face. After this punch Mr Friel reacted and a fight broke out. Mr Merton was punched in the nose and his nose was bleed profusely. When the police arrived, the fight had just finished.

Mr Merton was also charged with one counts of Serious Assault under s340(1)(b)(a)(i) of the QLD CRIMINAL Code. This assault occurred when Sergeant Bretton went to Mr Merton to see if he was alright and Mr Merton said "I don't give a fuck". This caused the blood running from his nose to land on Sergeant Bretton's face.

The Prosecution case is that this was 'spitting' and it made up the assault element of s340(1)(b).

Mr Merton has decided to plead guilty to the AOBH charge (so you don't need to consider that) but says he did not intentionally spit at the police officer, blood that was dribbling from his mouth was projected onto Sergeant Bretton when Mr Merton was yelling.

You are asked to advise Mr Merton as to whether he should plead guilty to the Serious Assault. Therefore, it is necessary to consider the definition of spitting.

Hint:Criminal Law Amendment Bill 2012

Hint 2: The case ofR v Reubens [2001] QCA 322 might be of interest and an example