Conduct Endanger Life – Withdrawn

Case Study: Conduct Endangering Life Charge

 The Charges: The client was charged with:

  • Section 22 of the Crimes Act 1958 Vic – Conduct Endangering Life; (also known as Recklessly engage in conduct endangering life) and
  • Section 23 of the Summary Offences Act 1966 Vic – Common Assault.

The Facts: The client was involved in a fight with his girlfriend (complainant) about the complainant driving the client to a work meeting for his new job. There were issues in relation to the complainant being late to a prior engagement. In the midst of this the client threw her handbag up onto the balcony of their property and took her phone away to stop her from leaving. This escalated the fight, and the complainant approached the client’s computer and attempted to dislodge the graphics card. The client took action by pulling the complainant away from the computer by her arm, and towards the bed. The client then pinned her down on the bed and repeatedly told her to ‘calm down’. Subsequently the complainant attempted to strike the client with her car keys and connected on multiple occasions. The client continued to pin her down by what he instructs was an action of pushing her shoulder blades to the bed, in order to protect himself.

The complainant alleged to police that at this time he placed his hands around her neck and applied pressure until she was unable to breathe. She further stated that she could not breathe for 20 seconds. By accident, Triple Zero was called on the complainant’s phone throughout this scuffle. She sounded very distressed on the phone call, which was later provided to us by police before the Contest Mention.

The complainant then left the property and police called her back in relation to the Triple Zero call. She attended a nearby police station and made a statement. In the record of interview (ROI) the accused corroborated the statement of the complainant, however he denied that any strangulation ever took place.

The Result: This was entirely a factual dispute over whether the strangulation ever occurred, and whether the client’s conduct was reasonable in self-defence. The client provided a truthful ROI and the evidence of the complainant’s claims were deficient. The clients version was consistent to some extent and therefore had some credibility.

The test for self-defence is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he [or she] did (Zecevic v Director of Public Prosecutions (1987) 162 CLR 645 at 661 per Wilson, Dawson and Toohey JJ).

There are two elements to this test:

  1. The accused must have believed at the time that s/he committed the relevant act that what s/he was doing was necessary (known as the “subjective element”); and
  2. That belief must have been based on reasonable grounds (known as the “objective element”).

After receiving the brief of evidence on the morning of the first mention, we had a look through these materials and could see no tangible evidence of any marks on the complainant’s neck in the images provided. We requested the Triple Zero Call, any outstanding medical materials, a statement from the informant, police notes, interpose entries and the criminal priors of the complainant.

Our angle was that the strangulation never occurred, and that the first charge should be dropped. In relation to the second charge, we believed that the client acted reasonably in defending himself from being swiped by the complainant’s car keys by pinning her down on the bed, making out a defence to the charge of assault.

At the Contest Mention stage of the matter, the charges were withdrawn as the prosecution were by then convinced that they did not have a case they could proceed with and prove at a Contested Hearing. This was a great result for the client, who was facing some very serious charges, with relevant prior history.