Case Study: Common Assault (Domestic Violence) Charge Withdrawn – Navigating Complex Family Dynamics and the Reliability of Evidence
Domestic violence is a deeply sensitive and complex area of the law, particularly when it involves allegations between an elderly parent and their adult child. These cases often carry immense emotional weight, and the legal consequences for a defendant can be life-altering. At National Criminal Lawyers®, we recently represented a client in a matter that highlights the critical importance of a meticulous defence and the power of legal representations in achieving a just outcome without the need for a distressing court hearing.
In this case study, we explore the challenges of defending a Common Assault (Domestic Violence) charge where the evidence was inconsistent, the witnesses were vulnerable, and the truth was buried beneath layers of family conflict.
Our client was charged with one count of Common Assault (Domestic Violence related) under section 61 of the Crimes Act 1900 (NSW). In New South Wales, a common assault occurs when a person intentionally or recklessly strikes, touches, or moves another person without their consent, or even when they create an apprehension of immediate and unlawful violence.
Because the alleged victim was our client’s 85-year-old mother, the matter was classified as “Domestic Violence related”. This classification brings additional scrutiny and often leads to the police applying for an Apprehended Domestic Violence Order (ADVO).
Under section 17 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)the court’s primary duty is to ensure the safety and protection of the complainant. However, this must be distinguished from the onus placed on the prosecution in finding a person has committed a criminal offence, which is the fundamental legal principle that a person is innocent until proven guilty beyond reasonable doubt.
The Case Facts: A Dispute Over a Soap Bottle
The incident in question occurred early in the morning at the family home. The prosecution alleged that an argument broke out between our client and her mother, regarding a missing bottle of hand soap.
According to the initial police facts, the argument escalated, and it was alleged that our client swore at her mother, threatened to send her to a nursing home, and eventually used both hands to forcibly push her. This allegedly caused the 85-year-old woman to fall onto the bathroom tiles, resulting in lacerations to her left forearm and right hand.
Police and paramedics attended the scene shortly after. The mother was conveyed to Sutherland Hospital, where she made further disclosures to social workers and medical staff. These disclosures formed the basis of a long-running investigation into allegations of “elder abuse” and “coercive control“.
The Defence Strategy: Identifying Fundamental Flaws
When National Criminal Lawyers® took on the Accused’s defence, we conducted a “deep dive” into the Brief of Evidence. Our Principal Lawyer, Michael Moussa, identified several fundamental deficiencies in the prosecution’s case that ultimately led to the charges being dropped.
1. The “Evolving” Narrative
One of the most significant issues in this case was the lack of a stable version of events. When police first attended the home, the complainant did not provide a clear allegation of deliberate violence. Instead, her account focused on an argument and the fact that she had fallen.
However, as time passed and she spoke to more people—including social workers and other family members her story began to “escalate“. In a formal statement made over a week later, she claimed she was “forcibly pushed“. By the time she spoke to a hospital social worker, the allegation had shifted again to being “punched, grabbed, and pushed“.
In criminal law, the reliability of a witness is paramount. When an account shifts and becomes more serious over time, it raises serious questions about whether the memory is being “reconstructed” rather than recalled.
2. Medical Evidence and Accidental Causation
The prosecution relied on the fact that the Complaint had sustained injuries. However, the medical records from Sutherland Hospital were equivocal. While they documented lacerations, there was no medical opinion suggesting these injuries were caused by an intentional assault.
Our defence team argued that the injuries were entirely consistent with an accidental fall in a confined space—a common occurrence for an 85-year-old person during a heated, emotional exchange. The prosecution had no expert evidence to exclude this “accidental” hypothesis.
3. The “Alzheimer’s” Misconception
A recurring theme in the police statements was the claim that our client had been “gaslighting” her mother by telling her she had Alzheimer’s or dementia. Interestingly, many of the witnesses seemed to believe this was a form of psychological abuse.
However, we obtained an expert report from a geriatrician, who had assessed the Complainant. The expert report confirmed that there was no clinical evidence of Alzheimer’s disease. This was a double-edged sword for the prosecution: if the mother didn’t have Alzheimer’s, why was she so confused and inconsistent in her various statements to the police? The oscillating claims about her cognitive state only served to further undermine her reliability as a witness.
The Legal Submissions: Why a Trial Was Not in the Interest of Justice
Armed with these inconsistencies, Michael Moussa sent a comprehensive set of Legal Representations to the NSW Police Prosecutions.
We placed the prosecution on clear notice: if they proceeded to a defended hearing, we would be required to rigorously cross-examine an 85-year-old woman on her memory, her inconsistencies, and her medical history. We argued that:
- The prosecution could not prove the case beyond a reasonable doubt given the unstable evidence.
- It was not in the “interest of justice” to compel a vulnerable, elderly complainant to undergo the distress of a trial when the evidentiary weaknesses were so apparent.
- The investigation had failed to explore alternative hypotheses (such as an accidental fall).
We cited the well-established principle in JD v Director of Public Prosecutions (NSW) [2000] NSWSC 1092, which emphasises that the prosecution must act reasonably in maintaining a case, taking into account not just what was investigated, but what should have been investigated.
The Result: A Pragmatic Solution
In light of our strong representations, the prosecution agreed to a pragmatic resolution. On the day the matter was listed for a hearing at Sutherland Local Court:
1. The criminal charge of Common Assault was withdrawn and dismissed. This meant our client maintained her clean criminal record.
2. In return, our client consented to a Final ADVO for a period of six months, without making any admissions of guilt.
This was a significant victory. It avoided the risk of a criminal conviction, saved the family from a traumatic trial, and ensured a “cooling off” period via the ADVO to prevent further conflict.
Final Thoughts and Discussion
The above matter serves as a reminder that the law is not always black and white. Family disputes often involve “he said, she said” scenarios where the line between a tragic accident and a criminal act is blurred.
Domestic violence remains one of the most frequently prosecuted offences in NSW. But as this case shows, “prosecuted” does not always mean “proven“.
What do you think?
Should the police be more cautious when charging individuals based on the word of a single witness, especially when medical evidence is missing?
Do you believe “consent ADVOs without admissions” are a fair way to resolve family disputes without burdening the criminal justice system?
How should the law balance the protection of the elderly with the rights of the accused when family members live together?
We invite your feedback and discussion in the comments below. If you or someone you know is facing a Domestic Violence charge, it is vital to seek expert legal advice immediately.
At National Criminal Lawyers®, we are dedicated to ensuring that your side of the story is heard and that justice is served. Contact us today for a free consultation.
