Case facts
The client had an AVO taken against him by his neighbours that lived in the unit downstairs. He consented to the making of the Apprehended Violence Order without admission believing that by doing so, the neighbour would settle down and leave him alone. An apprehended Violence Order is not a charge or a conviction and does not amount to having a criminal record – however an allegation of a breach of an Order can have dire consequences and involve criminal sanction including fines, gaol, criminal conviction, criminal record and movement and behaviour restrictions. One of the conditions of the AVO was that he was not to approach or contact the protected persons by any means what so ever. The alleged breaches were said to have occurred on two separate days. The first allegation was that the client was alleged to have come up to the back door of the protected person’s home where she was standing and threatened and swore at her. The second allegation was that the client was said to have been looking out of his second story window and yelling abuse at the protected person as well as filming her.
Police charges and Local Court penalties
The client was charged with 2 counts of Contravene AVO pursuant to section 14(1) Crimes (Domestic and Personal Violence) Act 2007. The potential penalty for each offence was imprisonment for 2 years and a fine of up to $5,500, or both.
Defended hearing
The matter was defended by way of a hearing at Goulburn Local Court after a plea of not guilty was entered. Police were cross examined. It was shown that they failed to investigate the matter properly – omitting to interview various witnesses and gather information that could have shed some exculpatory light on the matter. The complainant and her boyfriend were caught out lying and exaggerating their evidence. They did not corroborate each other and their stories were inconsistent. The prosecution must prove their case beyond reasonable doubt.
Case result
At the close of the prosecution case, and without the need for the client to give evidence, an application was made to the Magistrate to give herself a Prasad Direction [R v Prasad (1979) 23 SASR 161]. The application was made on the basis that no matter what further evidence the Magistrate heard, the court could never be satisfied beyond reasonable doubt that the accused committed the offences as alleged. The lies, exaggerations and inconsistencies within the prosecution case caused a real concern as to the reliability of the evidence against our client. The Magistrate agreed with our solicitor, gave a Prasad direction and promptly dismissed both charges – not guilty.
AVO legislation abuse
The legislation for AVOs is directed at the protection of persons at risk of fear or harm by others. It is recognised and acknowledged as a useful tool in preventing domestic and personal violence – however there are non-genuine cases where people use the legislation as a weapon without any legitimate basis, to gain some advantage over another person. The risk, as in this case, is that by not taking up the fight in the local court to prevent the original order being made when our client considered it to be unnecessary and fabricated, he left himself open to criminal prosecution when further lies were told by the complainant.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.
