Whether an injury is involved or not, even a first-time offender in Queensland can, if convicted, be sentenced to a period of imprisonment for the offence of assault.
A successful prosecution of the charge can also pave the way for a personal injury claim by the victim seeking large sums of money in compensation.
So, it’s very important to treat these charges with care.
Clearly, even if it appears as though an assault has been committed, there are still ways of defending such a charge.
If you’ve been charged, contact Michael McMillan today on (07) 5619 6860 or 0409 273 430 for legal advice and representation.
Exclusion of Evidence
In Queensland the strength of footage allegedly depicting the commission of crime was clearly expressed in the case of The Queen v David Archie Smallwood (1997) QCA 91 where MacKenzie said:
“Where an accused person’s actions are captured on tape there is no reason why what is clearly shown on the tape should not be given full effect.”
So, if what is viewed cannot be innocently explained by a defendant, real thought needs to be given to trying to exclude that evidence – particularly if the prosecution case is heavily reliant on it.
An example of where I successfully took this approach in the case of Case of Leggit.
In that case, my client was alleged to have assaulted the complainant whilst in a pub right underneath a closed-circuit television camera which recorded the interaction.
Given that the complainant couldn’t really shed much light on the incident because his recollection was very hazy, this footage was crucial to the prosecution case. The footage had been seized by the investigating police officer and he wanted to simply put it before the court when he testified in the witness box.
I objected on the basis that he was not able to verify the authenticity of the footage.
In Queensland, such footage can be placed before the court in an authenticated way if the person in charge of operating or controlling the camera swears in a special certificate that on the date of the incident the camera was in proper working order.
In this case, no such certificate was provided in the police brief of evidence. And as can be seen from the transcript, after some argument, the prosecutor recognised the exclusion of that evidence was fatal to his case, and withdrew the charge against my client.
Regardless of whether my client assaulted the alleged victim or not, the prosecution could not prove that with admissible evidence.
This is just an interesting example of how an assault charge can be defeated if the admissibility of the evidence is carefully considered. Of course, I am happy to assist with these matters in any way if I can.
Contact Michael for Legal Advice
If you’ve found yourself facing an alleged assault charge, contact Michael McMillan today on (07) 5619 6860 or 0409 273 430 for legal advice and representation.
Further reading