Unlawful Assault Charges – Family Violence – Not Guilty – Frankston Magistrates’ Court
Unlawful Assault Charges:
- Section 23 Summary Offences Act 1966 (Vic) – Unlawful Assault Charges
- Section 123(2) Family Violence Protection Act 2008 (Vic) – Contravene Family Violence Final Intervention Order
Unlawful Assault Penalties:
- The maximum penalty for unlawful assault is a fine of 15 penalty units (approximately $2,400) or imprisonment of three (3) months.
- The maximum penalty for a singular breach of an intervention order is a fine of 240 penalty units (approximately $38,000) or imprisonment of two (2) years or both.
Unlawful Assault Facts:
Our client had been in a relationship with the complainant for a number of years. There had been numerous family violence incidents in the past which resulted in police applying for a Family Violence Intervention Order in favour of the complainant and the children of the relationship. It should be noted that the complainant was not supportive of the intervention order, and DHHS (who had been involved with the family) did not share the concerns of police. The conditions of the intervention order were that our client must not commit family violence, intentionally damage the complainant’s property or threaten to do so and he could not have someone commit prohibited behaviour on his behalf.
The complainant had reported to police that our client had hit her and spat at her following an argument. Police attended and served our client with a varied intervention order, which excluded him from the property and prohibited any contact between the parties. Our client stated that there had been an argument and that he went to the bedroom to remove himself from the situation and to prevent the argument from escalating. He further stated that police arrived when he was sitting on the bed. He denied physically assaulting the complainant in any way.
Our client was rendered homeless as a result of the alleged incident. When the matter returned to court, the complainant advised police that she did not wish to proceed with the charges. Her doctor had provided her with a letter advising that she was not taking her medication at the time of the incident and that she had a propensity to lie when she was not taking her medication properly. This letter was also disclosed to our client. The complainant was not supportive of any variation to the intervention order and wanted our client to be able to return home.
Our office summary case conferenced the matter and argued that the complainant’s credibility was questionable given the diagnoses from her doctor. Furthermore, there was no corroborating evidence of the alleged incident, as it had occurred within the home of the parties and no one else was present. The Prosecution declined our request that they withdraw the charges and wanted the matter to be adjourned to a contest mention instead.
The matter was called in court where the magistrate heard that the police would be withdrawing their application to vary the intervention order but wished to proceed with the charges. Both our client and the complainant were present in court during this discussion with the magistrate. The complainant spoke from the body of the court and advised the magistrate that she did not wish to proceed with the charges and advised him of the contents of the letter from the doctor. Taking this into account, His Honour determined that the matter should proceed directly to contest rather than a contest mention, as no further information would be rendered to the court and therefore a contest mention would simply be delaying the proceedings.
Our office continued to discuss the matter with Prosecution prior to the contest date. Ultimately, the Prosecution chose to withdraw the charges against our client after considering the evidence available to the court.
Our client and the complainant were grateful that the matter resolved as they were able to move forward with their lives together, without the burden of having to participate in a contested hearing.
