We will examine a case successfully handled by National Criminal Lawyers®, with good results for all parties involved.

National Criminal Lawyers® (NCL) recently had a client charged with common assault and assault occasioning actual bodily harm, domestic violence related. On his behalf, the team at NCL negotiated with police, resulting in a drop in the common assault charge in exchange for a plea of guilty to the second offence, being the assault occasioning actual bodily harm. Ultimately, the client was diverted from a criminal charge and dealt with under the Mental Health Act instead. This resulted in no conviction, an order that the client adhere to his Treatment Plan, and his final Apprehended Domestic Violence Order to be in effect for two years. This excellent result and the process involved will be elaborated on below.

THE CASE

NCL’s client had been married to the victim for 8 years, with no children from the marriage. Both the wife and husband are doctors. The couple had been going through some difficulties for the last few years of the marriage, namely due to an affair the man, the client in this case, had. They decided to work on the marriage, but the wife could simply not move past the affair, continuing to exhibit trust issues and question the husband about it. In this context, one day the wife was questioning the husband about the affair, and this was a typical recurrence at the time. As the discussion went on, it turned into an argument and this became heated. The husband told the wife he no longer wished to continue the discussion and the wife then went away to their spare room. Later that evening, the husband approached the wife asking for her forgiveness, which led to another argument breaking out. During this time, it was alleged that the husband grabbed the wife’s hair and upper left arm to which the wife did not retaliate. She then called her daughter (the wife had children from a previous marriage, who are now adults). The daughter then came over and waited with her mother down the street for the police to arrive.

Upon their arrival, police spoke with the wife and her daughter, resulting in the arrest of the husband. He candidly admitted to assaulting the wife by pulling her hair and grabbing her arm, and he stated he had 6-7 glasses of wine that evening. The husband’s interview was recorded by police using Body Worn Video.

The wife suffered a bruise on the left upper arm and a scratch on her left eyebrow. Photographs were taken of these injuries by police. As is standard police practice, they obtained a Domestic Violence Evidence in Chief (DVEC) video from the wife. She stated in this that she was fearful and frightened of the husband. This type of evidence is gathered so that the police can file an Apprehended Domestic Violence Order (ADVO). For more information on ADVOs, have a read of NCLs informative blog post.

THE PROCESS

Based on instructions that the client gave NCL, they chose to draft a letter of representations to police. A letter of representations outlines for police the issues in the case, the relevant laws and principles which must be followed, and how these should be followed when applying these to the present case. The goal in this scenario was to dispute the factual matrix of the offence, show the police why the ‘back-up’ offence of common assault should be dropped, and offer a plea of guilty to the second offence if the first is dropped.

Letter of Representations

A letter of representations elaborates on legal concepts such as what constitutes an assault and what possible defences may be available. NCL was instructed that a defence of self-defence may be applicable and so they made representations to police about this, reiterating the point that “the matter should not be looked at with the benefit of hindsight, but in the realisation that calm reflection cannot always be expected in a situation such as the accused found himself to be in.” NCL also put the police on notice that they would proceed to a ‘disputed facts’ hearing if the Prosecution were to proceed with the matter as it was. NCL also highlighted issues with the police’s reliance on a single witness, in line with the principles founded in case law. The point was emphasised that a great level of scrutiny needs to be placed on the evidence of a sole witness, following the Court’s ruling in Smale v R, to ensure that the trier of fact is satisfied the witness is reliable beyond reasonable doubt.

Affidavit of the Wife

NCL was contacted by the wife of the client, as she did not wish for her husband to be convicted of an offence. Unfortunately, when a victim of an assault changes their mind about a charge against their perpetrator, it is out of their control and the police will continue to pursue the matter. The wife came in to the NCL office by her own free will and drafted an affidavit in support of her husband. The affidavit outlined the marital issues they had been experiencing, and the amount of pressure she had been putting on her husband for several years leading up to the offence. She described how their relationship used to be great and that he was always so supportive of her children and acted like a father towards them. She also noted how he was so caring towards her elderly father. The wife also outlined how extremely stressed her husband had been at work, and how that, in combination with the pressure she had been putting on him, had led to him drinking in excess that evening and losing control at her.

Agreed Facts

The result of this letter of representations and the affidavit of the wife was that the police agreed to withdraw the charge of common assault in return of a guilty plea for the second offence.

Section 32 Application

NCL had received instructions that their client had been facing some real mental health issues over the last few years and that this had an impact on his behaviour. It was anticipated that this was a significant factor at the time of his offending. To gain more insight into this, NCL engaged a forensic psychologist to have a consultation and assess him, and then provide a Report to the Court. A Report such as this must always address whether the client is suitable for a section 32 application under the Mental Health (Forensic Provisions) Act 1990 (NSW). If a section 32 application is granted, this allows the Court to divert the offender away from the criminal justice system, resulting in their non-conviction, so long as they stick to their proscribed Treatment Plan.

To be eligible for a section 32 order, the offender was, at the time of the offence, developmentally disabled, suffering from a mental illness or from a mental condition for which treatment is available in a mental health facility. The Report must show how the mental illness contributed to the offending behaviour, and a Treatment Plan must be provided which forms the basis of the Court order.

OUTCOME

For this application, NCL put forward the psychologist Report, Treatment Plan, an assessment from the Medical Council of NSW outlining conditions on the client’s medical license, the wife’s supportive affidavit, several character references and a letter from the client’s employer. The Court granted the section 32 application, meaning the client was not convicted of any criminal offence.

This great outcome was the best possible for everyone involved. The client can focus on his rehabilitation and addressing mental health issues he has been facing, hopefully allowing for the couple to move forward with a new lease on the relationship. Now that the client’s issues are being properly addressed, both his family and his workplaces can offer him the support he needs.

For another successful National Criminal Lawyers® case study, have a read here.