The Court: Heidelberg Magistrates Court
The Lawyer: Ashleigh Wallace
The Charges:
- Common Assault
- Fail to Give Way at Give Way Sign
The Allegations:
It was alleged that the client had turned at an intersection with a give-way sign onto the main road without checking for oncoming traffic, forcing another motorist to take last-minute evasive action to avoid a collision. The client then got out of his car and approached the other motorist, and after a heated exchange, the client allegedly punched the other person in the face. This alleged assault was witnessed by another person who subsequently provided a statement to police.
The client conceded that he was at fault for not giving way at the give-way sign and accepted that there was a brief argument, but denied punching the complainant in the face. The client instructed that the other person had been the aggressor, which prompted the client to call 000.
The client’s instructions were challenging, given that he had chosen to exit his car when he could have driven away. The client called 000 but left the scene before the police arrived, whereas the complainant remained and waited for the police to arrive.
Furthermore, the alleged assault was witnessed by another person, who made a statement mainly corroborating the complainant’s account. Notwithstanding this, the client wanted to contest the matter.
Upon close examination of the witness statements, it became apparent that the complainant and the witness may have been acquainted before the incident. They could have been friends or, at the very least, had become acquainted with each other afterwards and may have colluded before giving their statements to the police. Even so, the complainant’s account of how he was hit differed slightly from the eyewitness account.
At Court:
This difference in accounts was highlighted to the prosecution during case conferencing. The prosecution duly conceded this weakness in their case. Furthermore, our solicitor indicated that our client calling 000 seemed consistent with the complainant being the aggressor at some stage.
Notwithstanding these perceived weaknesses, the prosecution was unlikely to withdraw the assault charge, given that they had two witness statements.
In the circumstances, we explored the option of Diversion. The client had one prior traffic-related offence, but it was for using a mobile phone while driving, and therefore had minimal bearing on this case.
Our solicitor explained to the client what a diversion was and advised the prosecution that if they were prepared to recommend a diversion, the client would accept responsibility for the offence for the purpose of a diversion, and the matter would potentially resolve.
By relying on the inconsistencies in the witness statements, our solicitor was then able to successfully amend the summary from ‘punching the victim in the head with a clenched fist‘ to simply ‘having struck the victim‘. This was instrumental in enabling us to request diversion, as the violence involved could now reasonably be said to be at the very low end of the spectrum.
The Outcome:
The matter went before the Magistrate, who ultimately granted the diversion. The conditions of the plan included that the client be of good behaviour for 12 months and write a letter of gratitude to the informant.
Our client was delighted with this outcome because it meant he did not have to risk a hearing and incur the associated costs.
Finally, by resolving the matter by way of a diversion, the client enjoyed the enormous benefit of not having a criminal record against his name for violence. This was particularly valuable to the client, who had two very young children and was the sole breadwinner for his family, working part-time as a security guard to supplement his income. A criminal record for this offence could have interfered with his ability to continue holding the requisite industry licence.
