Common assault charges: Self-defence case
The accused was asked to leave a licensed premises and was leaving when security “gave him a hand” by taking hold of one of his arms and twisting it up behind his back. It was totally unnecessary and amounted to an assault by the security guard upon our client.
The client pushed the security guard causing him to fall. The security guard then detained the client, called the police, and the accused was arrested and subsequently charged with common assault.
Neither police nor security guards have the right to assault you unless the law allows them to do so. We took instructions from our client and appeared in the Local Court in relation to the police charges, entered a plea of not guilty and sought orders for the brief of evidence containing the police witness statements to be served. Upon receiving the brief of evidence, we completed and filed a notice of listing and set the case down for defended hearing.
At the hearing, the security guard was cross-examined about the assault upon our client and the fact that he had no right to take hold of the accused and twist his arm behind his back in circumstances where he was obviously complying with the request to leave the licensed premises. The guard was unable to articulate the powers that he had to take hold of someone and was an unconvincing witness.
Our client gave evidence that the actions of the security guard caused him intense pain and he reacted instinctively by pushing the guard in self-defence. Once self-defence is raised, it is up to the prosecution to establish that the accused did not believe it was necessary to do what he did in self defence, or that what he did was not reasonable in the circumstances as he perceived them. The magistrate found that our client acted in self-defence and the police charge of common assault was dismissed.
Security guard self-defence case
Our client was working as a security guard when a group of violent and quarrelsome patrons were told to leave the premises.
As the group was leaving, a series of scuffles broke out with security guards, started by members of that group. CCTV footage showed their actions. Our client was focused on the male in front of him when suddenly to his right another male was leering towards him, very close to the guard’s face and with his arms bent as though he may have going to throw a punch. The guard instinctively reacted by punching the male once before retreating.
Although it seems that licensing police were watching from nearby, they did not intervene until after the punch. The guard was charged. The client pleaded not guilty. The matter was listed for defended hearing. His security licence was revoked despite the apparent reasonableness of his actions – as recorded on the CCTV footage. The footage cast grave doubt as to the accuracy of the arresting officer’s observations of what occurred.
CCTV footage saved the day. It supported our client’s claim of self defence. Once self defence is raised, the prosecution have the onus of proving beyond reasonable doubt that the accused did not genuinely believe that it was necessary to act in that way to defend themselves, and that the accused’s actions were not a reasonable response to the danger, as perceived by the accused.
The charges were dismissed. The security guard has reapplied for his licence. Due to his licence being revoked, he lost income for approximately 8 months until the matter was finalised.
A challenge was made to the licence being revoked – and as part of that challenge, we served the CCTV footage upon the Security Industry Registry. Notwithstanding the footage, the licence remained revoked. There is a rule of law that a person is innocent until proven guilty. It appears that such a rule is interpreted differently in some instances.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
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