The police court attendance notice set out the allegation that our client assaulted his partner between 6-30am and 11pm in late 2012 in a suburb of Wollongong and occasioned actual bodily harm. It was claimed that the accused assaulted the complainant during a heated argument as they walked back home from a local Club in Berkley. The assault was a single punch with a closed fist which hit the complainant on his right cheek bone and eye area. The complainant also fell and cut/grazed his right foot from the gutter. The complainant walked home.
Our client instructed us that his never happened. He said that there was an argument on the walk back home but that our client walked away from the argument and bought cigarettes from a supermarket. During that time, the complainant walked home. When our client arrived home, there was another argument. Our clients’ belongings and car were vandalised, and he was kicked out of the house. Our client called the police. Police arrive but the complainant did not open the door for the police. Police then left without taking any action. The following day, the complainant went to Wollongong Police Station and made the allegation of assault. Notwithstanding that the alleged victim had failed to respond when police attended the night before, they took action against our client.
Our client was arrested and charged with Assault Occasioning Actual Bodily Harm pursuant to section 59 Crimes Act 1900. It is a Table 2 offence under the Criminal Procedure Act, which means that unless the prosecution elect for it to be dealt with on indictment in the District Court, the matter would proceed summarily in the Local Court. The maximum penalty if dealt with this way is 2 years imprisonment or a fine of 50 penalty units or both. Actual bodily harm simply means any hurt or injury calculated to interfere with the health or comfort of the victim – it need not be permanent but must be something more than transient or trifling. It can include a cut or a bruise, marks or welts etc. A back-up charge of Common Assault was also laid pursuant to section 61 Crimes Act.
Upon a plea of not guilty being entered, the court ordered the service of the brief of evidence. The brief contains the statements of potential witnesses, including the investigating police officers, the complainant, any medical expert reports, photographs and the like. After examining the brief, a notice of listing was completed in accordance with the Local Court Practice direction indicating which witnesses were required for cross examination, and the matter set down for hearing.
At the hearing the complainant gave evidence and was cross-examined. Our client did not give evidence because he had participated in an interview with police upon his arrest. After carefully crafted cross-examination of the complainant, a number of factors became evident, including that our client was the person who called the police and not the alleged victim. It was revealed that the complainant was wearing shoes at the relevant time and it was therefore impossible for him to have grazed or cut his foot, as alleged. The complainant told the court that he did not answer the door because he had taken the dog for a walk – somewhat hard to believe when he claimed to have injured his foot and been punched in the face. It readily became apparent that the alleged victim was not a very credible witness.
Another very important feature in this matter was the ‘investigation’ by the police. Under cross examination, the officer confirmed that there was the complainant did not answer the door when police attended; the person who called the police was our client; police observed damage to our client’s car, consistent with his claim; our client voluntarily took part in a recorded interview (ERISP) and denied any wrongdoing as well as giving a credible version as to what he says happened.
For the accused to be convicted, the prosecution would have to prove their case beyond reasonable doubt, which would include an acceptance of the evidence of the complainant or alleged victim. It should have been obvious to police that the complainant lacked credibility – police should have investigated the matter in a more thorough fashion – they do not have to charge a person simply because another person makes an allegation.
The local court magistrate paid careful attention to the answers given in cross examination and readily formed the view that the complainant’s evidence lacked credibility. The alleged offence could not be proved beyond reasonable doubt and the case was dismissed.
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