The client was an ex-army marine. In 2012, he attended the Mardi Gras parade in Sydney with his friend (the co-accused).
Whilst walking down Elizabeth Street, the accused was crossing the road at the intersection of Goulburn Street when a car bumped into him. An argument ensued between the driver and our client for a short time before our client walked away. The driver wanted to continue the argument and got out of his car and started verbally abusing our client – this continued for a while before our client walked away.
The driver still wanted to argue, and followed our client and his friend into a dead-end road. Our client and his friend were scared at this time and hid behind a wall. The driver slowly drove past where the two men were hiding. They each picked up empty beer bottles and threw the bottles at the rear car window, running off after it was smashed by the bottles. The driver called the police.
Police charges and arrest
Police arrived quickly to the scene and arrested our client and his friend. Both persons were cautioned that they did not have to say anything, as anything they did say could be used in evidence.
Notwithstanding the caution, they told police what had occurred, complaining that they were increasingly scared by the actions of the driver due to his escalating verbal abuse and the fact that he had followed them into the darkened dead-end street. They raised self defence with the officers, indicating that they believed it was necessary to do what they did to defend themselves.
Charges were laid of Intentionally Damaging Property In Company pursuant to section 195(1A) of the Crimes Act. The potential penalties if dealt with on indictment include imprisonment of up to six years. However, if the value of the property is more than $5,000 but is dealt with as a table 1 offence under the Criminal Procedure Act, the maximum period of imprisonment is up to 2 years. Where the property value is less than $5,000 the matter is a Table 2 matter under the Criminal Procedure Act and carries a maximum jail penalty of up to 12 months and a fine of up to $5,500. The matter could be dealt with summarily in the Local Court. Where the property is valued under $2,000 as was the case here, the maximum fine is $2,200.
Self-defence is a statutory defence under section 418 of the Crimes Act. Once raised, the onus of proof falls upon the prosecution by virtue of section 419 of the Act. The prosecution must negate self-defence by proving beyond reasonable doubt that the accused did not believe on reasonable grounds that it was necessary to carry out the act in self-defence. It must be proven that the actions were not reasonable in the circumstances as perceived by the accused.
The accused pleaded not guilty to the police charges. The case went to defended hearing at the Downing Centre Local Court on the grounds of self-defence. Police served the brief of evidence and a notice of listing was completed, served and filed. The client admitted smashing the rear windscreen of the car. The alleged victim gave evidence which left a lot to be desired – obviously an aggressive person who was spoiling for a fight and not put off by the fact that he would have been outnumbered by our client and his friend. Ultimately, the Magistrate could not be satisfied beyond reasonable doubt and the charge was dismissed.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.