DOMESTIC VIOLENCE RELATED – CHARGE WITHDRAWN
Today we had a client who was charged with common assault, domestic violence related. His matter was listed for Hearing in the Local Court before a Magistrate. Instead of going to Hearing, the police withdrew the charge and agreed to an interim Apprehended Domestic Violence Order (ADVO) for a period of three months instead of a final ADVO. This great result was achieved by steps we took on our client’s behalf, leading up to the Hearing.
THE CASE
Our client was living with his ex-wife due to their having a child together. He remarried another woman who resides overseas. Late one night, our client returned home from a 12-hour shift to his ex-wife who was angry about this new wife of his. She had been harassing him all day with text messages and told him to leave their property once he came home. Tired and just wanting to go to sleep, our client argued with his ex-wife about this. The ex-wife had a stick and was attacking our client with it. He took the stick off her just for her to immediately grab another one. She lunged forward but tripped over and injured herself. Our client then left the premises. Included in the police brief were a number of photographs indicating significant injury to the alleged complainant’s bottom lip and her neck.
The complainant alleged that she took the stick only after she was attacked by our client.
Our client gave an interview to police whereby he showed the police a number of text messages immediately before and after the allegation. Police were not interested in reviewing the text messages and charged our client.
THE PROCESS
Our client did the right thing and chose the best in Sydney to represent him, National Criminal Lawyers®. Based on instructions we received from our client, we drafted a letter of representations to police some weeks before the Hearing. A letter of representations outlines for police the issues in the case, the relevant laws and principles which must be followed, and how these should be followed when applying these to the present case. Our goal with this letter was to show police how their case has not been run properly or why it should not be run at all. More importantly, it was prudent on our office to put the prosecution on notice in respect of costs pursuant to sections 213 and 214 of the Criminal Procedure Act 1986 (NSW) whereby the investigation into the case was considered unreasonable. Using the applicable laws and precedents set in cases, we show how our client’s case will not be made out.
LETTER OF REPRESENTATIONS
The letter of representations elaborates on legal concepts such as what constitutes an assault and what possible defences that may be available. On our instructions, our client vehemently denied even assaulting the alleged complainant in the first place. This was corroborated by text messages received immediately after the allegation which proffered a resistance on the alleged complainant’s fear. We submitted to the police that the incident between our client and his ex-wife was not even an assault as the ex-wife held no fear for her safety or apprehension of violence. The following is an extract from our letter:
“As outlined in the Criminal Trial Court’s Bench Book, an assault is any act – and not a mere omission to act – by which a person intentionally – or recklessly – causes another to apprehend immediate and unlawful violence: R v Burstow; R v Ireland [1998] 1 AC 147. The fear, therefore, is the gist of assault.
Barwick CJ in The Queen v Phillips (1971) 45 ALJR 467 at [472] described an assault in the common law sense of the word as follows:
“Such an assault necessarily involves the apprehension of injury or the instillation of fear or fright. It does not necessarily involve physical contact with the person assaulted: nor is such physical contact, if it occurs, an element of the assault.”
In Barton v Armstrong (1969) 2 NSWR 451 at [455] it was held that if the threat produces an immediate fear or apprehension of physical violence there may be an assault.”
We then took examples from the evidence provided by the ex-wife during her interview with police, to show why she could not possibly have held any fear at the time of the argument. She repeatedly states she used a stick to attack our client. The Court can infer from this that she held anger more than anything else.
Self-Defence
We also raised an alternative argument that even if the Court was satisfied that an assault had taken place, the Court needed to be satisfied beyond reasonable doubt that the prosecution could not prove that our client was not acting in self-defence. We provided the following authorities to show how self-defence could not be disproved:
“The questions to be asked by the jury (or a finder of fact) under section 418(2) are:
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- Firstly, does the Defendant believe it was necessary to act for one of the defensive purposes?
- Secondly, did the Defendant believe that his response was necessary given the perceived threat; and
- Thirdly, was the Defendant’s response, objectively speaking, proportionate to the situation that he subjectively believed to exist.
These steps are succinctly set out in R v Katarzynki [2002] NSWSC 613 at [20]-[23] which was approved in Abdallah v R [2016] NSWCCA 34 at [61]. Section 419 provides that the Prosecution has the onus of proving, beyond reasonable doubt that the person did not carry out the conduct in self-defence.
It is socially acceptable to defend oneself against an unjustified attack. Indeed, it is almost a public duty. The use of proportionate force in self-defence is a basic norm of the criminal law. It was noted in King v R (1996) A Crim R 150 that it is both “good law and good sense” that a man who is attacked may defend himself.
It is lawful to use force against another if the defender believes, on reasonable grounds, that it is necessary in self-defence to do what is done: Zecevic v DPP (Vic) (1987).”We particularised specific points of our case to show how the above should be applied.”
DISCUSSIONS
More convincing than the letter of representations, are our team of lawyers when talking to the prosecution. Our advocates and the senior sergeant at the Local Court today had discussions on the day of the Court Hearing. They decided in that moment to withdraw the charge as they realised, they could not prove beyond a reasonable doubt the elements of common assault and could not disprove beyond a reasonable doubt that our client potentially acted in self-defence. More so, they did not wish to deal with any application for costs we would make on our client’s behalf.
ADVO – WHAT HAPPENS NOW?
The ADVO is not a criminal offence. It is a standard form of conditions, namely, that he must not assault or harass his ex-wife. Our client can still see and speak to ex-wife, which means he is not prevented from seeing his child. These conditions must not be breached. Our client must behave himself for three months as if any condition is breached, it becomes a criminal offence and he is to be brought before the Court again to deal with those charges.
Our client was extremely happy with the result. For the best legal representation for your criminal or traffic matters, call us on 02 9893 1889 or contact us using this link.