We have plenty of experience representing clients facing criminal charges before the Local Courts.
We explain the charge to our clients in simple language (we also speak Hindi), after examining the Statement of Facts which accompany the charge as well as the transcript of the police interview, and after listening to the client’s side of the story. There are almost always two sides to a story.
We discuss with clients the merits of pleading guilty on the first court occasion and to deal with the charge on the basis of a mitigation hearing at the first court date, where possible.
The seriousness of the offence as well as the individual’s personal circumstances are taken into account by the court to hand down the appropriate penalty, which can, depending on the nature of the offence, include a good behaviour bond and fines for lesser crimes, and, community service orders, suspended jail sentences or fulltime imprisonment for more serious crimes.
In the Local Courts, non-custodial sentences are given preference, where possible.
For defended hearings the simple rule is that it is for the prosecution to prove all elements of the offence beyond reasonable doubt. The defence of self- defence may also be available to the accused.
It is appropriate that, before entering a plea, to make written representations to the police to “plea bargain” the charge/s .
As an example, at a recent case at the Downing Centre Local Court, we successfully negotiated with the police to downgrade the charge of “Assault Police” to “Resist Police” to which our client entered a guilty plea.
Similarly, in a recent domestic violence related case at the Liverpool local Court, we managed to negotiate the charges with the police whereby a charge of common assault domestic related concurrent with an application for an apprehended domestic violence order was downgraded to an apprehended domestic violence order, which our elderly client accepted.
The important thing in plea bargaining is that the representation has merit on available evidence and that the police has been provided reasonable time to examine the representation.
Two common misconceptions that we often notice in dealing with some clients is that for charges of “Common Assault” someone must physically hit another person to be charged with common assault. To make out common assault it is enough if the court finds, on the evidence, that the conduct of the accused caused an apprehension of fear to the victim. Such conduct may include, for example, a physical threat which caused the victim to fear for his/her safety and security.
The second misconception that we often come across (this is prevalent in domestic violence related cases) is the accused saying to us,” my wife does not want to proceed with the case against me and we have reconciled.”
Once a charge has been laid by police, that victim no longer has control over her the matter, it becomes what is sometimes referred to as a “police case”. It will be very unusual for the police not to proceed with the charge in the court.
A more serious type of assault than “common assault” is “Assault Occasioning Actual Bodily Harm”.
Actual bodily harm is any harm more than transient and trifling, but need not be permanent, for example, bruises and cuts caused by assault.
The prosecution must prove that the assault caused the particular bodily harm.