Author: Nyman Gibson Miralis

Represented by Nyman Gibson Miralis

Factual scenario:

The accused was in a long term relationship with the complainant and they had lived together for over a year.  She arrived home one afternoon in a self-confessed bad mood and ignored her partner’s questions.  She later told police that he was being “really nice” and “asking me questions about my day”.

Frustrated after many unanswered questions, the client called his partner a “bitch”.  On the version given to police in conversation prior to the making of a statement, she said that he had thrown chairs and then had approached her.  She pushed him to get him away from her face.

In her statement, she did not mention that she was in a bad mood or her partner had been really nice. She stated that the accused had become verbally aggressive, threw a chair and swore at her.  He threw her bag on the floor.  She then approached him and got within 5cm of his face before pushing him in the chest.  The accused is alleged to have punched her three times to the right arm.  She grabbed her bag which was now on the table after she collected the contents and put them back in the bag, tried to grab her phone after she said she would go to the police, followed her to the lift and only desisted when the lift opened and she told a man inside to ‘help’. He then sent a text saying “don’t tell lies – tell them that you hit me first”.

Police investigation:

Police attended.  They failed to notice the significant inconsistencies between what they were told prior to the taking of the statement and during the making of the statement.

  • Was it one chair or more that was allegedly thrown?
  • Who approached who?
  • If the woman approached the accused and pushed him, was any reaction in self defence?

Both police officers recorded in their notebooks that there were no noticeable injuries on the woman – ie. no bruising or redness where she claimed she was punched.  Police failed to take note of the text message and made no inquiries about the male from the lift.  They found the unit to be neat and tidy.

The accused was at home when they arrived. He was immediately arrested and correctly cautioned that he did not have to say anything if he did not wish to do so as anything he said could be used in evidence.   He politely declined to answer questions, however said, “off the record, she hit me first, I hit her on the shoulder in a reflex action” and demonstrated an open left hand horizontal slapping movement. Police regarded this as an admission of guilt.  Assuming the punches did not occur, we saw this ‘admission’ as a clear indication of self-defence.

Arrest:

Our client was charged with common assault pursuant to section 61 Crimes Act. Police made application for an ex-parte provisional order or apprehended domestic violence order under the Crimes (Domestic and Personal Violence) Act 2007.  The potential penalties for the assault matter included imprisonment of up to 12 months and fine of up to $2,200, as well as every penalty in between, such as good behaviour bonds, community service order, intensive corrections order and suspended prison sentence. The penalty for breaching a provisional AVO include, in addition to be arrested and charged), a fine of up to $5,500 and up to 2 years gaol.

Preparation for Defended Hearing:

We obtained a proof of evidence from our client.  He had heart surgery only a few months prior to this incident.  When his girlfriend pushed him, he felt immediate concern for his health and safety.  On her admissions, she approached him and stood ‘in his face’ only 5 centimetres from him.  She slapped our client on the arms prior to pushing him – though this did not hurt or cause concern. He denied throwing a chair or chairs, denied throwing her handbag, admitted slapping her arm upon being pushed off balance, denied following her to the lift, denied trying to take her phone and denied punching her.  We visited the unit to disprove the suggestion by a police officer that he observed a red mark on her arm from a distance of 7 metres.  The unit is not big enough for the officer to be 7 metres away from the complainant.

One of the police officers wrote in her police statement that she saw the red marks despite the fact that she made notes in her notebook that there were no injuries.  As red marks could constitute actual bodily harm, and subject our client to potential prosecution for a more serious offence, we objected to that evidence being led in court as it contravened the principles in The Queen v De Simoni (1981) 147 CLR 383.

It should be noted that the complainant did not make any comment about red marks to the police verbally or in her statement.

The Defended Hearing:

Only one of the two officers turned up for court.  The ‘admission’ that police relied upon was only heard by the officer who failed to come to court.  As we relied upon that so-called admission, we allowed the statement to be tendered.

The complainant was delicately cross-examined – both our client and the complainant are still in a relationship and we did not want to damage that by the way in which questions were asked.  She admitted hitting our client 3 times – something she had omitted to tell police.  She said that her handbag had been zipped up – and was tripped up on the notebook entry she had signed saying that she had collected and replaced the contents of her handbag.  She tried to explain the difference to the Magistrate – but it was rather unconvincing.  She admitted knowing that her boyfriend had heart surgery and agreed that she had pushed him in the chest.

The magistrate was left with two competing versions.  The offence could only be made out if the magistrate accepted the evidence of the complainant beyond reasonable doubt in relation to the punches.  This could simply not occur to the significant deficiencies in her evidence.  The charge was dismissed.

Self defence was made out on the slap to the arm as it occurred in circumstances where the client was pushed off balance and reacted instinctively to defend himself upon being pushed in the chest.  Once self defence is raised, the onus reverts back upon the prosecution to prove beyond reasonable doubt that the accused was not acting in self defence (sections 418 and 419 Crimes Act 1900)

The client agreed to enter into an AVO in the mandatory terms for a period of 12 months, without admission.  The test for a Magistrate to make such an order only requires a finding on the balance of probabilities that the complainant fears the accused, rather than the criminal standard of proof beyond reasonable doubt. Notwithstanding that the complainant approached our client and admitted that she had ‘lost control’ at that time, our client consented to the making of the order.

Do you need help?

AVO and related assault charges are matters that our criminal lawyers are frequently called upon to defend. Whilst some AVO applications are genuine, many are not. If you believe that the complainant has obtained an interim AVO by being untruthful, you must weigh up the risk that the person could allege a breach of the AVO by way of further false complaint which could result in criminal charges and exposure to potentially significant penalties.