Assault Occasioning Actual Bodily Harm Withdrawn: Costs Threat and Strategic Defence by National Criminal Lawyers®

When a person is charged with assault occasioning actual bodily harm in New South Wales, the stakes are significantly higher than a standard assault charge. The offence carries serious consequences, including the potential for imprisonment, and is often accompanied by an Apprehended Domestic Violence Order (AVO).

However, as this case involving Mr. H demonstrates, not every charge laid by police is capable of being proven.

At National Criminal Lawyers®, under the leadership of Principal Lawyer Michael Moussa, a carefully structured defence combined with a strategic threat of costs proceedings resulted in the complete withdrawal of the charge.

The Charge: Assault Occasioning Actual Bodily Harm

Mr. H was charged with assault occasioning actual bodily harm pursuant to section 59 of the Crimes Act 1900 (NSW). The offence requires the prosecution to prove beyond reasonable doubt that an assault occurred, that the assault caused harm, and that the harm was more than transient or trifling.

According to the brief of evidence served on our office, the allegation arose from a domestic context where it was claimed the alleged complainant suffered a black eye and minor injury. However, the case was far from straightforward. The issue with this case was the alleged complainant provided multiple inconsistent explanations which gave rise to the assault.

This raises an immediate and fundamental legal question: how can the prosecution prove an intentional or reckless assault when the alleged victim repeatedly could not get her story straight?

The Prosecution Case: Built on Inference, Not Evidence

One of the most striking features of this case was the complete absence of direct evidence. There was no eyewitness evidence, and no medical or expert evidence establishing how the injury was caused. As outlined in our formal representations to police, the prosecution case relied almost entirely on an “inference drawn from inconsistent accounts”.

We argued that suspicion alone is not evidence. Yet in this case, police proceeded despite the complainant consistently denying any wrongdoing by Mr. H.

This is a situation that raises broader concerns about the threshold applied when initiating criminal proceedings. Should a person be charged with a serious offence where the alleged victim does not support the allegation?

Critical Legal Deficiencies Identified by National Criminal Lawyers®

Upon being retained, National Criminal Lawyers® undertook a detailed forensic analysis of the brief. Principal Lawyer Michael Moussa identified multiple fundamental defects in the prosecution case. These included the failure to serve a compliant statement from the complainant as required under the Criminal Procedure Act 1986 (NSW), meaning the prosecution would likely be precluded from calling their central witness.

Further, the defence highlighted that even if the injury was accepted, the prosecution could not establish causation. The law requires proof that the accused’s actions caused the injury, not merely that an injury exists

Another critical issue was the reliance on inadmissible police opinion evidence.

Police suggested the injuries were consistent with being struck, but as confirmed in superior Court decisions, such opinions are inadmissible unless based on specialised expertise. This further weakened the prosecution’s position.

The Strategic Use of Costs: A Turning Point

A defining feature of this case was the strategic use of a costs threat. In formal representations titled “Without Prejudice save as to Costs,” National Criminal Lawyers® made it clear that if the prosecution refused to withdraw the charge, an application for costs would be pursued.

This was not an empty threat.

The legal basis for seeking costs was strong. Under sections 213–214 of the Criminal Procedure Act 1986 (NSW), a court may award costs where proceedings are initiated without reasonable cause or where there has been an unreasonable investigation. In this case, the complainant had consistently denied any assault, no admissible evidence supported the charge, and police failed to properly investigate alternative explanations.

The defence position was that the proceedings were commenced without reasonable cause and in circumstances where there was no reasonable prospect of conviction. The failure to obtain a statement from the complainant, the absence of medical or expert evidence, and the reliance on inadmissible material all pointed to a prosecution that should never have been initiated.

This raises an important question for the justice system: should police and prosecuting authorities face financial consequences where charges are pursued despite clear evidentiary deficiencies?

Representations and Negotiation Strategy

National Criminal Lawyers® did not simply criticise the prosecution case; it proposed a practical resolution. The defence offered that the charge be withdrawn in exchange for Mr. H consenting to a final AVO for a limited period on a without admissions basis. This approach balanced the interests of all parties while avoiding the need for a contested hearing.

Importantly, the proposal included that Mr. H would not pursue costs if the matter was resolved early. This created a clear incentive for police to withdraw the charge. However, the alternative was equally clear: if the matter proceeded, a costs application would follow.

This type of strategic negotiation demonstrates how outcomes in criminal law are often determined well before a hearing takes place.

The Outcome: Charge Withdrawn

Following negotiations, the prosecution withdrew the charge of assault occasioning actual bodily harm. The matter was formally dismissed by the court and the hearing date was vacated. Mr. H therefore avoided a criminal conviction.

A final Apprehended Domestic Violence Order was made for a limited duration without admissions, reflecting a pragmatic resolution rather than a finding of guilt. This outcome highlights the effectiveness of the defence strategy and the importance of addressing both legal and practical considerations.

Why This Case Is Significant

This case highlights a critical issue within the criminal justice system: not all charges are supported by sufficient evidence. Yet many individuals proceed through the system without properly challenging the allegations against them.

It also demonstrates the importance of costs as a safeguard. The ability to seek costs ensures that prosecuting authorities are held accountable where proceedings are initiated improperly. Without this mechanism, there would be little consequence for pursuing weak or unsustainable cases.

For members of the public, this raises an important question: how many people accept criminal charges without understanding that the case against them may be fundamentally flawed?

The Importance of Experienced Criminal Defence Lawyers

The successful outcome in this matter was the result of a deliberate and strategic approach by National Criminal Lawyers® and Principal Lawyer Michael Moussa. By identifying the legal deficiencies, applying relevant case law, and leveraging the threat of costs, the defence was able to achieve a result without the need for a contested hearing.

For anyone facing serious charges such as assault occasioning actual bodily harm, obtaining early advice from an experienced criminal defence lawyer is essential. Understanding the law, the evidence, and the available strategies can make a decisive difference to the outcome.

Final Thoughts

This case ultimately raises broader questions about fairness and accountability within the criminal justice system. Should a prosecution proceed where the alleged victim denies any wrongdoing? Should police be required to meet a higher evidentiary threshold before laying serious charges? And should costs be more readily awarded where cases lack merit?

At National Criminal Lawyers®, we are committed to ensuring that every case is rigorously tested. As this matter demonstrates, the correct legal strategy, combined with a willingness to challenge the prosecution, can lead to the complete withdrawal of even the most serious charges.