Domestic Assault – Unreliable Evidence – Case Dismissed

disingenous

Yesterday, I completed a Local Court hearing for a Sydney man charged with an assault occasioning actual bodily harm against his former spouse. The allegation was extremely serious having regard to the Police Facts, and the Police had also sought an Apprehended Domestic Violence Order (ADVO), as is to be expected when such an allegation is made.

The case was heard over three days, with the client maintaining his innocence and plea of not guilty.

On the third day, following a careful and considered two day cross-examination of the complainant, the Local Court Magistrate dismissed the charge and chose not to make an Apprehended Domestic Violence Order, stating that the evidence of the complainant was unreliable in many regards.

For young practitioners and for people facing similar allegations, these matters are often very difficult to contest because there are no independent witnesses, it is simply the evidence of the complainant and the evidence of the accused. That’s a tough spot for the client and a tough spot for his lawyers.

However, it is 2014 and we all live in an age of ‘electronics’ and ‘meta data’ and often without even knowing, we leave behind us evidence of where we have been, what time we were there, and who else we were with!

In preparing the above case, the Solicitor and I considered the forensic data that attaches itself to photographs, and we considered smartphone data that attaches itself to text messages and emails and facebook messages. Even the telephone billing records were used to reveal the location of phones by reference to the nearest signal tower and who was called and when and what was said. Importantly, it was this forensic approach that began to unravel and expose inconsistencies in the complainants version of events which ultimately led to the dismissal of the case.

Please don’t misconstrue the message in this post, because ‘genuine’ cases of domestic violence are abhorrent and we as a community, police and lawyers too, should work together to stamp it out.

That said, there have been and there will be ‘disingenuous’ claims of domestic violence. So, if you have a client facing a similar allegation remember we live in the age of ‘big brother’ and the data may be your only witness. Please feel welcome to give me a call and introduce yourself, I’m always happy to have a chat and assist you if I can with some forensic advice (02) 83791230

 

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