Case facts

Our client had a falling out with her niece. As a result, our client attended her niece’s house in order to collect some of her furniture which she had previously lent to her niece. She took a number of other family members to help her collect the items. Once there, her and her niece began arguing again and shouting profanities at each other. This was witnessed by other the family members at the house, who told our client to wait outside while they collected the rest of the items.

Once the group had left, the niece phoned police and claimed that her aunt had assaulted her. When police attended at her house she provided a notebook statement in which she alleged our client had approached her, taken hold of her hair and pulled her around before releasing her hold. It was alleged that as a result of our client’s actions, the niece lost her balance and fell to her left, only preventing herself from falling by placing her left arm out. The assault allegedly took place out of the view of the other family members who were in the house at the time. There were therefore no independent witnesses who could corroborate her allegations. Further, there were no visible injuries – ie. no evidence of actual bodily harm.


Arrest and court attendance notice with AVO

Police later attended our client’s house. Our client straight away told police that she had done nothing wrong. Police cautioned her and placed her under arrest before conveying her to Newtown police station. Whilst there, she exercised her right to silence, declining to participate in an interview. She was ultimately charged with Common Assault under section 61 Crimes Act. Police also applied for, and were granted, an Interim AVO under the Crimes (Domestic and Personal Violence) Act. This was subsequently made into a Provisional AVO after the first court date. The Provisional AVO was in the following terms:

Mandatory terms – preventing our client from assaulting, molesting, harassing, threatening or otherwise interfering with her niece or anyone else with whom her niece had a domestic relationship. The AVO also prevented our client intimidating and stalking the niece.

Additional terms – preventing our client from going within 20 metres of the niece’s house; from approaching the niece within 12 hours of consuming intoxicating liquor or illicit drugs; and from destroying or damaging any of the niece’s property.

Our client was worried about the effect a criminal conviction may have on her employment as a full-time carer. A plea of not guilty was entered and the matter set down for defended hearing.


Defended hearing

Not Guilty. At the hearing we cross-examined the niece at length in relation to her motive to fabricate the complaint. We suggested that she was angry with her aunt for taking back furniture and other items which had been lent to her, which was her motive for making a false allegation.

Although the niece maintained her story, there was no other evidence supporting her version of events. There were no visible injuries when she made the initial complaint to police, nor were there any witnesses. As well as calling our client to give evidence, we called two of the family members who had been present at the niece’s house. Both gave evidence that they had seen the two arguing, but had not witnessed an assault. It was noted that the complainant did not ring police until after the aunt had left, rather than making an immediate complaint.

After hearing all the evidence the magistrate was not satisfied beyond reasonable doubt that the prosecution had proved their case and our client was found not guilty of the offence.

After finding that our client was not guilty of the criminal offence, the court still had to deal with the AVO. Pursuant to section 15 Crimes (Domestic and Personal Violence) Act a court may make an apprehended domestic violence order if satisfied on the balance of probabilities that a person who has a domestic relationship with another person has reasonable grounds to fear, and in fact fears, that a personal violence offence will be committed and that the making of the feared conduct is, in the eyes of the court, sufficient to warrant the making of the order.

The magistrate noted that the Provisional AVO had been based solely on the allegation of assault that the court had dismissed. She also noted that, at the time of the hearing, the Provisional AVO had been in force for over 3 months with no difficulties. In all the circumstances the magistrate was not satisfied that the Provisional AVO should be made into a Final Order. Our client was incredibly relieved as she had been concerned that if a Final AVO were granted, the niece could easily make another false allegation which would lead to her potentially being charged with the offence of Contravene AVO – a serious criminal offence which carries a maximum penalty of 2 years imprisonment.

Our client was relieved she had avoided a criminal conviction. It is not uncommon for police to accept the word of the person making the first complaint – taking sides and commencing a prosecution. It is often difficult for police because the person accused of doing something wrong sensibly wishes to maintain their right to silence.



Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.