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Case study: Family Violence Assaults - Offences Withdrawn

Updated: Feb 21


Date and location of Offence(s)

June 2020, South West Melbourne


Court venue

Melbourne Magistrates’ Court



Facts

Our client was charged with several family violence related assaults on his wife (the complainant). The alleged facts were that following a disagreement at their home. The prosecution did not allege that an injury was caused because of the assault, although the complainant took photographs and provided these to the police.

When interviewed our client strongly denied the allegations.

The complainant provided police with a written statement of events, 2 days after the relevant incident. And 3 weeks later provided a statement of no complaint.

As a result of the incident, the police applied for a Family Violence Intervention Order, this was subsequently resolved based on our client consenting without admission to a 12-month Final Family Violence Intervention Order.


Charges

Our client received a Charge & Summons to attend the Melbourne Magistrates’ Court to answer the following charges:

Unlawful assault x 2

The police alleged two separate assaults had occurred on the one day.


Factors relevant to client

Our client was aged 59 at the time of the offences and had no prior criminal history. He had retired but was involved heavily in unpaid community work with a registered charity.


Outcome

Although the police had some evidence, by way of photos that provided some support to the prosecution case, our strongly always had strongly disputed the allegations. There were no other witnesses to the alleged incident. There were no contemporaneous medical records. Consequently, during case conference negotiations with the prosecution, it was highlighted that at any future contested hearing, a Magistrate would need to be convicted beyond reasonable doubt of the accuracy and truthfulness of the complainant’s statement, given they were so strongly denied by our client. Moreover, the complainant had provided a statement of no complaint, and could ultimately decline to give evidence at any subsection hearing relying upon the non-compellability provisions that apply to spouses in criminal hearings (section 18 of the Evidence Act 1958 (Vic).

The matter proceeded from a case conference to a contest mention, and ultimately resulted in all charges against our client being withdrawn.


Written by Shaun Pascoe, Director, Pascoe Criminal Law.

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Level 8
488 Bourke Street
Melbourne, Vic 3000

Ph: (03) 9668 7600