Clarity Law

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Displaying items by tag: Assault occasioning bodily harm

Wednesday, 17 February 2021 15:19

Case Conferencing Assault Charges in Queensland

 

In Queensland, if you are charged with an assault charge, it is quite common for your lawyer to try and negotiate that charge with the Police Prosecution Unit or the Department of Public Prosecutions (“DPP”) to try and get a better outcome for you. This process is known as case conferencing. The case conferencing process is designed to try and streamline the facts the Court will get, or in some cases for the Prosecutor to decide whether or not the charge should proceed at all or at least in its current form. Because we have carried out so many assault charges, we are often asked what type of case conferencing can occur and this article is designed to try and summarize some of the case conferencing successes that we have had with assault charges.

 

Example 1 – AOBH Charge reduced to common assault

We recently acted for someone who had been charged with assault occasioning bodily harm. What had occurred is our client was extremely intoxicated and after exiting a nightclub was playing around and acting essentially in a foolish but not aggressive way. He has then collided with someone who had fallen down and badly injured themselves. The Police decided that our client should be charged with assault occasioning bodily harm. However, after case conferencing and after presenting to the Prosecutor statements from some of the witnesses, and pointing out some of the holes in the statements the Police obtained, we were able to have our client's charges dropped to common assault, which he pled guilty to. We were then able to get him simply a fine, a small amount of compensation to the victim and no conviction was recorded.

 

Example 2 – AOBH charge withdrawn

Another example of case conferencing on an assault charge is where our client was at a party. A particular person had been saying racial things to him during the night. All the people present were drunk and at some point our client has punched the victim who has lost most of his teeth. In that case, we were able to convince the Prosecutor that if they took the matter to Court they would lose as we had the defense of provocation. We were able to have them completely withdraw the charge and the client did not have to face a trial and no penalty was imposed.

 

Example 3 – Client found not guilty

In this example our client was charged as being a co-accused to an assault. He had filmed the assault taking place but he himself did not assault the victim. His friend who had assaulted the victim was sentenced to a term of imprisonment and that was what they sought for our client. We case conferenced the matter, however, no resolution could be found. It then went to trial, and we successfully argued that our client could not be a co-accused as he provided no encouragement to his friend to assault the victim, he merely filmed it. In that case after the trial ended and our client was found not guilty, the case conferencing we had with the Police Prosecutor was given to the Court and our client was awarded his legal costs to be paid by the Prosecutor.

 

Example 4 – Assault charge withdrawn

A further example is our client and his partner were at a party. Our client had gone to the toilet and during that time his partner had been confronted by another patron. Our client believed he acted in self-defense in hitting this other patron. He was charged with assault occasioning bodily harm but after case conferencing we were able to get the Police to completely drop the charges and our client faced no penalty.

 

Example 5 – Assault charge downgraded

Our client was charged with a sexual assault where he was accused of grabbing a person in an inappropriate way. Case conferencing occurred, but did not result in the matter being changed and the matter went to a trial. Because sexual assault is a serious charge the matter went to the District Court before a jury. The jury was sworn in but before the trial started properly, we were able to case conference with the Prosecutor who then reduced the charge down to common assault.   Our client received only a good behavior bond, and no conviction was recorded. It was disappointing that the Prosecutor did not drop the charge earlier. However, the client was very happy that he did not have to face a jury trial in regards to a sexual assault charge.

 

Example 6 – Grievous Bodily Harm Assault charge withdrawn

The client was charged with assault occasioning grievous bodily harm. This is a very serious charge and almost always results in a term of imprisonment that a person is required to serve in prison. However after reading the statements of the victim and of the different people who were there, we were able to point out serious inconsistencies in those statements and point out to the Prosecutor that if the matter goes to trial then it is likely those inconsistencies would result in our client being found not guilty as he could not be found to be guilty beyond a reasonable doubt. In that case, the charges were completely withdrawn by the Prosecutors, and our client did not have to spend any time in prison.

 

Example 7 - Grievous Bodily Harm Assault charge withdrawn

It is often common for CCTV footage to be available, especially if the alleged assault occurs in a night spot or a popular tourist center. In one particular case, we had a person charged with assault occasioning grievous bodily harm for allegedly breaking a glass in a person's face. Everybody there at the night spot was very intoxicated and no reliable statements could be obtained. There was however CCTV footage. However, that footage was so bad that we were able to point out to the Prosecutor that no jury would be able to be convinced that it was our client shown to be on the CCTV footage, actually committing the offence. They agreed, and the charge was withdrawn.

 

Example 8 – Facts of a AOBH charge changed

Another example of CCTV footage was in some ways the complete opposite of the last example, in that the CCTV footage was in ultra HD and had sound. In this example, our client did hit somebody and while he was on the ground, our client had attempted to kick the person. However, we said that he missed the person's head and that he should only be sentenced on the basis that he punched this particular person, and not that he kicked them while they were on the ground. If the facts were presented to the Court that he had kicked someone on the ground, our client would have faced an actual prison sentence. However, by analyzing the footage and going split second to split second, we were able to point out to the Prosecutor that the noises that could be heard, that they say was our clients foot hitting the victim's face, was in fact, our client's boot on the other foot scraping the ground. There was clearly a split second between the noise and our client allegedly kicking the other person in the face, along with the fact that the other person suffered no injuries to their face consistent with kicking. The facts were amended, our client faced the charge only on the basis that he had punched someone and he was not required to spend any time in prison.

 

Example 9 – AOBH Charge reduced to common assault

The last example was where the medical evidence did not meet the definition of assault occasioning bodily harm. In that case our client was charged with assault occasioning bodily harm however, the medical evidence was unreliable. The Doctor who first saw the victim at the hospital did not note any serious injuries. It was only later that medical evidence seemed to indicate there was more serious injuries. Because we were able to show this inconsistency, the charge was reduced to common assault, which our client pled guilty to and he received a fine, but no conviction was recorded.

 

Summary

As you can see, these are just some examples of case conferencing that we have been successful with and there are many more examples of what we have been able to achieve. It is critical if you are charged with an assault charge that you seek out an experienced Criminal Lawyer who can properly case conference with a Prosecutor. Someone who has many decades of experience and has a good reputation with both the Courts and the Prosecutors. It is completely useless, if your Criminal Lawyer has a bad reputation, as no case conferencing will ever be successful. If you are charged with any assault charge, you should get immediate legal advice.

 

Other articles that may be of interest

 

How do I get more information or engage you to act for me?

If you want to engage us or just need further information or advice then you can either;

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Published in Legal Blog
Wednesday, 06 November 2019 17:09

Quick Guide to Assault Occasioning Bodily Harm

As part of our ongoing quick guide series we are looking at various criminal charges in Queensland in more detail. Today we are looking at assault occasioning bodily harm mostly abbreviated to AOBH.

 

What is Assault Occasioning Bodily Harm?

The criminal code section 339 lists the offence as

Any person who unlawfully assaults another and thereby does the other person bodily harm is guilty of a crime

The definition of an assault is where a person strikes, touches, moves, or otherwise applies force of any kind to another person, directly or indirectly, without the other person’s consent or threatens to apply force of any kind to another provided that the person making the attempt or threat has the ability to carry it out.

Bodily harm means any injury that interferes with the complainant’s health or comfort.

 

How do Queensland police usually investigate this charge?

The police are usually called to investigate after receiving a complaint from the victim or witness. Generally the police will take a statement of the victim and any other person that witnessed the assault. They will then seek out any CCTV or other footage. Finally they will seek out the alleged defendant and see if they will make a statement (if you are asked to give a statement always seek legal advice before agreeing).

 

What do the police or DPP need to prove?

To successfully prosecute the charge of assault occasioning bodily harm the police or DPP must prove beyond a reasonable doubt that;

  • The assault took place;
  • The assault was unlawful; and
  • That the injury amounted to bodily harm.

 

What court hears the charge of assault occasioning bodily harm?

The charge of assault occasioning bodily harm can be heard in the Magistrates court only if the defendant agrees, if they do not agree the charge must be heard in the District Court.

 

What defences to assault occasioning bodily harm exist?

A number of defences may be available to an assault charge these include;

  • provocation
  • self defence
  • accident
  • duress
  • necessity

The defences most often raised for an assault occasioning bodily harm charge is self defence, self defence of another or provocation.

 

Charge this charge be withdrawn or reduced?

It is possible to negotiate with the prosecutor over the charges. This is known as case conferencing Case and usually occurs once the police prosecutors brief (known as the QP9) is provided to the defendant or their lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened. This includes the details of the alleged assault, what injury the victim has suffered and any reason why the assault may have occurred.

Some examples of successful case conferencing we have achieved are;

  • An AOBH charge was withdrawn as our client was acting in their own self-defence after being confronted and threatened by the complainant in a pub.
  • Had the AOBH charge withdrawn as our client was protecting his partner after she was attacked by the complainant.
  • Convinced the prosecutor to reduce the charge to common assault as we were able to show the injuries did not fit the definition of AOBH. Reducing the charge to common assault meant the client was punished with a fine only and no conviction was recorded.
  • Having the prosecutor withdraw the charge after we were able to show our client was provoked by a number of racial remarks were yelled at him over an extended period.
  • Being able to convince the prosecutor to withdraw the charge after convincing them that the complainant’s statement was unreliable and he was grossly intoxicated at the time of the offence.
  • Having the AOBH charge withdrawn by the prosecutor after we showed that the CCTV footage was unclear and that they could not be satisfied that it was our client that assaulted the complainant and that other person’s present could have inflicted the injury.

 

What are the potential penalties if pleading guilty or being found guilty?

The charge carries a maximum penalty of 7 years imprisonment or 10 years if the assault took place in company with another person or if the defendant was armed or pretended to be armed with a weapon.

The court has a wide variety of penalties it can impose for a person pleading guilty to or found guilty of an assault charge, the type of penalty the court might impose depends on the charge, the circumstance of the offending, the person’s previous criminal history and the injuries suffered by the victim.  The types of penalties the court could impose includes;

  • Good behaviour bond
  • Fine
  • Community service
  • Parole
  • Jail sentence with immediate parole
  • Jail sentence wholly suspended
  • Intensive corrections order (ICO)
  • term of actual imprisonment

In practise the court would rarely impose a penalty less than a fine. In most cases the penalties range from a fine to actual imprisonment. Of the 4,638 assault occasioning bodily harm charges heard in Queensland Magistrates court since October 2014 the results expressed as a percentage were;

 Good behaviour bond      3.6%
 Fine 26.3%
 Probation 19.1%
 Community Service   6.3%
 ICO   1.0%
 Prison (suspended)   13.8%
 Prison (actual) 29.7%

 

As the statistics show in almost one third of cases a person is sentenced to a term of actual imprisonment.

 

Can Clarity Law help me?

Engaging Clarity Law gives you the best chance at obtaining avoiding a jail sentence or not having a conviction recorded. We appear every week in the courts with people charged with assault, it is this experience that allows us to get the best result for clients.  Other law firms simply don’t have the experience that we do.

  1. we know the judges and what they want to hear to give you the best outcome
  2. we have good relationships with the police prosecutors meaning we can often have them not seek a jail sentence
  3. we are there to help you through the process and make everything as stress free as possible, in most cases you will not have to say anything in court
  4. engaging us shows the court you are taking your charges seriously
  5. your matter will be heard early, often first, you do not have to wait for 20-30 other matters to be heard before you
  6. you will be fully informed of what is to happen in court and what this means for you after court
  7. unlike the police or the Judge, we are there to look after you, your privacy and your interests

 

Do you have an office near me?

We appear in every court in south East Queensland between The Gold Coast and Bundaberg and out to Toowoomba and beyond. We also have a 5 star rating on Google and Facebook. We have offices at:

Sunshine Coast

Level 3, 14-18 Duporth Avenue

Maroochydore 4558

 

Brisbane

Level 1, 16 McDougall Street

Milton

Phone: 0730677017 

 

Southport

Level 15, 2 Corporate Court

Bundall

Phone: 0756132683 

 

Loganholme

Level 2, 3972 Pacific Highway

Loganholme

Phone: 0736680683 

 

Ipswich

16 East Street

Ipswich

Phone: 0734850147 

 

Brendale

3/22-24 Strathwyn Street

Brendale

Phone: 0734850184 

 

Need more Information or legal help?

CALL:                     You can call us on 1300 952 255 - seven days a week

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WEBSITE:            Visit our website at www.claritylaw.com.au

                                    Visiting our assault page at www.claritylaw.com.au/services/assault.html

Published in Legal Blog
Wednesday, 06 November 2019 09:58

Negotiating with a Prosecutor in Queensland

Whenever you are charged with a criminal offence there is usually the scope to try and negotiate those charges with the police prosecutor or the Office of the Department of Public Prosecutions (“DPP”). This is known as case conferencing in Queensland.

For the purpose of this article, we will use two examples. One is an assault occasioning bodily harm charge, the other is a trafficking in drugs charge.

Negotiations with the police prosecution unit or DPP are almost exclusively done by lawyers. You can of course self-represent yourself and negotiate with the prosecutor and prosecutors are always willing to listen to unrepresented people, however, most people simply don't have the skills to properly negotiate with the prosecutor as it is simply not skill that they have learnt or indeed would want or need to learn.

So let's first take the first example of assault occasioning bodily harm charge (“AOBH”). AOBH is a charge that can often lead to a prison sentence. The prosecutor must prove that;

  • The assault took place;
  • The assault was unlawful; and
  • That the injury amounted to bodily harm.

Bodily harm means any injury that interferes with the complainant’s health or comfort.

Case conferencing often occurs once the police prosecutors brief (or most commonly known as the QP9) is provided to you or your lawyer. The QP9 will set out what the police prosecutor intends to tell the court happened. This includes the details of the alleged assault, what background or build up to the alleged assault occurred and the alleged injury to the complainant.

The charge of AOBH can be heard in the Magistrates court only if the defendant agrees, if they do not agree the charge must be heard in the District Court. The charge carries a maximum penalty of 7 years imprisonment or 10 years if the assault took place in company with another person or if the defendant was armed or pretended to be armed with a weapon.

When looking at negotiating with the prosecutor we would in most cases take a detailed statement from the client, see if any CCTV exists, check social media to see if the complainant has posted anything about the alleged assault, check medical records of the complainant and take statements from any person who may have seen the alleged assault. We would then see what, if any, negotiations with the prosecutor could take place.

Some examples of successful case conferencing we have achieved are;

  • Had the AOBH charge withdrawn as our client was acting in their own self-defence after being confronted and threatened by the complainant in a pub.
  • Had the AOBH charge withdrawn as our client was protecting his partner after she was attacked by the complainant.
  • Convinced the prosecutor to reduce the charge to common assault as we were able to show the injuries did not fit the definition of AOBH. Reducing the charge to common assault meant the client was punished with a fine only and no conviction was recorded.
  • Having the prosecutor withdraw the charge after we were able to show our client was provoked by a number of racial remarks were yelled at him over an extended period.
  • Being able to convince the prosecutor to withdraw the charge after convincing them that the complainant’s statement was unreliable and he was grossly intoxicated at the time of the offence.
  • Having the AOBH charge withdrawn by the prosecutor after we showed that the CCTV footage was unclear and that they could not be satisfied that it was our client that assaulted the complainant and that other person’s present could have inflicted the injury.

Negotiations are an informal process referred to amongst lawyers and prosecutors as case conferencing. It is not specified how case conferencing or negotiations need to take place, however, typically it is either face to face, over the phone or where the lawyer sends written submissions to the prosecutor to consider.

What would typically happen is if the charge is reduced or withdrawn than on the next court date or on the first date if the first court mention date has not occurred yet the prosecutor would seek to amend the current charges to that reduced charge or if they are withdrawing the charge they will offer no evidence in regards to the charge and the court will dismiss the charge and the client is free to go without any punishment.

It's like take a look at another example, that is trafficking in drugs. This is a very serious charge and will almost certainly lead to a person serving time in prison if convicted. Trafficking is where a person carries on the business of selling or supplying drugs. The critical question is whether the defendant was in the business of trafficking drugs and this usually means a course of conduct engaged over a period of time for commercial reward. However even a single supply or sale could technically be charged as trafficking and the reward does not have to be money or might be for instance a payment of drugs for the defendant’s personal use. The prosecutor might build their case on informants, telephone intercepts, downloads of messages or surveillance of the defendant.

Negotiating this charge usually involves getting a full brief of evidence and going through that brief carefully to look to see if we can convince the prosecutor that;

  • It was not our client that was the one trafficking the drugs
  • That if our client sold drugs it was not trafficking and the charge should be reduced to supplying drugs
  • That the evidence is not sufficient to convince a jury our client is guilty and the charge should be discontinued.

Always ensure you engage experienced criminal lawyers if you are charged with a crime as we have found negotiating with the prosecutor after the client first tried by themselves and failed or less experienced lawyers were engaged and they had a failed negotiation can be difficult to correct.

If you need any advice on a criminal charge in Queensland and have a court appearance in any South East Queensland court we can help you. We can be contacted on 1300 952 255 seven days a week. Our website is at www.claritylaw.com.au

Published in Legal Blog
Thursday, 08 February 2018 15:44

Mandatory Community Service for Certain Offences

The law provides that for certain offences committed where a person is intoxicated, when setting a penalty the court must impose some period of community service as part of that order. The changes were made with the Safe Night Out Legislation Amendment Bill in 2014. It provides that where a person is charged with an offence such as obstructing or assaulting police, or common assault where a person is intoxicated and in a public place then the court must make an order for community service ordering the offender perform unpaid community service unless they're convinced the person suffers from physical, intellectual or psychiatric disability. The maximum amount of community service that can be imposed is 240 hours, while the minimum amount that must be imposed is 40 hours.

A community service order requires that the Department of Corrective Services arrange with a person to conduct the community service work within a set period, generally 12 months. This type of work is tailored as much as possible to the person doing the community service work, and the area in which they reside. The other requirements of the community service order include the person must not commit another offence during the period of the order, must generally report to an authorised Corrective Services officer within one to two business days of the order being made and must perform in a satisfactory way the community service order as directed by an authorised Corrective Services officer.

The other requirements are that the person must comply with every reasonable direction of an authorised Corrective Services officer, must not leave or stay out of the state without the permission of that Corrective Services officer, and they must notify of any change in their place of residence or employment within two business days.

Where a person is facing the possibility of a community service order and does suffer from any medical problem that might prevent them from doing that order, it's important that those medical documents are brought before the court before they sentence that person.

The types of offences that are now included within the mandatory community service order include;

·         affray

·         grievous bodily harm

·         wounding

·         common assault

·         assault occasioning bodily harm

·         serious assault

·         assault or obstruction of police.

 

As noted above the mandatory periods of community service only applies where the offence has taken place in a public place, and while the person as adversely affected by an intoxicating substance. That intoxicating substance could be alcohol or a drug.

If you need any additional information you can contact clarity law on 1300 952 255 or visit our website at www.claritylaw.com.au.  We appear in all South East Queensland courts assisting people charged with criminal offences, if you need a criminal lawyer please give us a call to discuss your charges.

 

This article provides general information and does not constitute legal advice.  The law may have changed since this article was written.  Always obtain legal advice when you are charged with a criminal offence.

Published in Legal Blog
Thursday, 27 April 2017 16:18

Degrees of Assault Charges

Assault is defined as forceful contact or threatening forceful contact with a person. Depending on the severity of circumstances and injuries will determine the degree of assault you are charged with.

The different types of assault charges in Queensland are as follows, in order of most minor to most severe:

 

Common Assault

A Common assault is the lowest of the possible assault charges and can come about from anything as minor as a bodily gesture, poking, nudging or touching someone, and even just threatening to do such acts.

 

Assault occasioning bodily harm

An assault occasioning bodily harm charge occurs when the victim suffers injuries interfering with their health or comfort. Penalties for this charge are increased if there is a statement that the Defendant had a weapon or is in the company of another person.

 

Assault causing Grievous Bodily Harm

An assault causing grievous bodily harm charge occurs when a person is left permanently injured, scarred or impaired as a result of the assault.

 

Serious assault (any charge of assaulting a Police officer will automatically come under this charge also)

Serious assault charges occur when the assault is on a person over the age of 60 or is handicapped or dependant on a remedial device. If an assault is on a Police officer is serious it will automatically be placed under this degree of assault. If biting, spitting or any bodily fluid is involved the penalty can be doubled, resulting in a possible maximum penalty of 14 years imprisonment.

 

Sexual assault

A Sexual assault charge is a result of any unwanted or forced sexual advancement or behaviour towards a person.  

 

When you are charged with any form of assault charge it is extremely important to seek legal representation immediately. Assault charges more than ever are treated very seriously by the courts and can easily result in jail time.

Here at Clarity Law we represent clients in all degrees of assault charges in Courts across South East Queensland every day, it is this experience, and our expertise that allows us to get the absolute best result for clients. We also offer the most competitive prices in Queensland that are all fixed fee so there are no nasty surprises when you receive your invoice.  If you want to engage us or just need further information or advice then you can either;

For more information visit our webpage or call 1300 952 255 7am – 7pm seven days a week

Disclaimer – this article contains general advice only and is not intended to be a substitute for legal advice.  Its represents information about the law in Queensland and since publishing the law or the interpretation of that law may have changed.

Published in Legal Blog