Diversion For Unlawful Assault – Unlawful Assault Charges Diversion Granted Heidelberg Magistrates’ Court
Diversion For Unlawful Assault Charge
This is a case study. Our client was involved in a road rage incident and was charged with Unlawful Assault (Common Assault) under Section 23 Summary Offences Act 1966 (Vic) – and Failing to Give Way.
Diversion For Unlawful Assault Facts
It was alleged that our client had pulled out of a car park onto the main road without checking for oncoming traffic, forcing another motorist to take last-minute evasive action in order to avoid a collision. Our client then got out of his car and approached the other motorist, and after a heated exchange, our client allegedly punched the other person in the face. This alleged assault was witnessed by another person who subsequently provided a statement to police.
Our client conceded that he was at fault on the fail to give way, and accepted that there was a brief argument, but denied punching the other person in the face. Our client instructed that the other person had in fact been the aggressor and that had prompted our client to call 000.
There were difficulties with our client’s instructions, given that he had chosen to get out of his car when he could have simply driven away. Our client called 000 but left the scene before police arrived, whereas the victim stayed at the scene and waited for police. Also, the alleged assault was witnessed by another person, who made a statement largely corroborating the victim’s account. Regardless, the client wanted to run a contest.
Upon close reading of the witness statements, it appeared that the victim and the witness might have known each other before the incident, could have been friends, or at the very least had become acquainted with each other afterwards, and may well have colluded before giving their statements to police. Even so, the victim’s account of how he was hit differed slightly from the eyewitness account. We pointed this out to the prosecution during case conference and they duly conceded this weakness in their case. Furthermore, we stated that the fact it was our client calling 000 seemed consistent with the victim being the aggressor at some stage.
Notwithstanding these perceived weaknesses, the Prosecution was never going to withdraw the assault charge given that they had two witness statements, and it could have gone either way at a hearing, depending on whose evidence was preferred.
In the circumstances, we explored the option of Diversion. Our client did have one traffic related prior offence, but it was for use of a mobile phone whilst driving, and therefore had very little bearing on this. We explained to our client what Diversion was about and subsequently instructed the Prosecution that if it could resolve by way of Diversion he would be prepared to take responsibility for the offence. By relying on the consistencies in the witness statements, we were then able to successfully amend the factual basis 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.
Diversion For Unlawful Assault The Result
Our client was very pleased with this outcome because it meant that he did not have to risk a hearing, and incur the associated costs, in circumstances where it could really have gone either way for him. It also meant that this matter would no longer be hanging over him and dragging on. Lastly, by resolving it to a Diversion, the client enjoyed the enormous benefit of not having a criminal record against his name for violence. This was of particularly high value to the client, who had two very young children and who was his family’s sole breadwinner, 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.
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