Case

Which case won?

casea
The case for the prosecution
  • The defendant did not act in self defence. He didn’t have a genuine belief that he needed to defend himself and Ms H and his response was not reasonable in the circumstances.
  • The defendant and Ms H had been in a relationship until they split up in early 2019.
  • Then, in the months leading up to the party, Ms H started dating Mr W, who posted salacious images of them online. This made the defendant jealous, and when he encountered Mr W in the lounge room at the party, he started a fight by kicking Mr W.
  • Believing that Mr W was in immediate danger of a further attack by the defendant, Mr A and Mr J came to Mr W’s defence. The defendant then assaulted Mr A and Mr J by punching and kicking them, not just by swinging his arms around in windmill fashion as he claims. Mr A suffered a broken nose and other facial injuries and Mr J suffered severe bruising to his face, ribs, and chest.
  • Given that the defendant was not acting in self defence, the court must find him guilty of all charges.
caseb
The case for the defendant
  • I genuinely believed that I needed to defend myself and Ms H against the attack by Mr A and Mr J and my response was reasonable in the circumstances. I acted in self defence.
  • Ms H and I had previously split on amicable terms. At the party we were sitting quietly in the lounge room having a friendly conversation, when suddenly at least three young men rushed into the room and confronted us.
  • I have no issue with Mr W and I did not start a fight with him. As some witnesses have made clear, there was no physical interaction between me and Mr W.
  • Rather, I had concerns for Ms H, as I believed that I was going to be attacked by Mr A and Mr J, which is in fact what happened. As Ms H has testified, Mr W came into the room flanked by Mr A and Mr J, and I stood up because they were standing in front of us in a threatening manner.
  • It all happened very quickly. To defend myself I swung my arms in a windmill fashion, with my head down.
  • In the attack, I suffered extensive bruising to my body and face and I lost an important keepsake gold chain that had belonged to my now deceased father. As my mother has testified, my clothing was torn and bloodstained when she found it in the washing basket the day after the party.
  • Ms H has also testified that Mr W later said to her words to the effect that the fight “would not have happened if A and J had not rushed in.”
  • Given that I was acting in self defence, the court must find me not guilty of all charges.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a31%
case b69%

Expert commentary on the court's decision

Nick Burton
Nick BurtonLawyer
“What is surprising is how often people who consult defence lawyers, only do so after they have had an interview with police. In this case, we were delighted at our client’s action in seeking advice from Legal Aid when the police first approached him, and that he followed the advice not to give an interview.”
Court rules in favour of defendant

In this unreported case in Sydney in 2021, the magistrate ruled in favour of our client, the defendant. 

The magistrate concluded that the prosecution had failed to meet its burden of proof by proving that the defendant had not acted in self defence.

Onus of proof on prosecutor to negate self defence

The law recognises a person’s right to defend themselves and others from an attack or threatened attack.

Once a defendant claims self defence, like our client did, the onus of proof is reversed.

This means that the prosecution must disprove the claim of self defence, by proving beyond reasonable doubt that the accused’s act was not done in self-defence.

To do this, the prosecutor must satisfy the jury beyond a reasonable doubt that the accused did not personally believe at the time of the act that it was necessary to do what they did to in order to defend themselves. This is a subjective test, meaning one must put oneself in the mind of the accused as they observed things in the actual situation. It is not a “reasonable person” test.

If the prosecutor fails to do this, then they must satisfy the jury beyond a reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as perceived by him or her.

If the prosecutor cannot do these two things, then they will have failed to negate the accused’s claim of self defence.

Prosecutor fails to negate defendant’s claim of self defence

The magistrate found that the prosecution had failed to meet its burden of proof and so could not eliminate self defence. 

First, the prosecution failed to show that our client was not genuinely of the belief that he needed to defend himself and Ms H.  

Secondly, the prosecution failed to show that our client’s response to the situation was not measured and reasonable.  

Prosecution witnesses give widely differing estimates of length of altercation

The whole altercation between our client, and Mr A and Mr J took just 45-90 seconds.  

The “usual” duration of such things is grossly overestimated by witnesses when in court, and we raised the widely varied timings given in the evidence by various prosecution witnesses.  

This is an important point, as it provides context for how our client observed things in the actual situation, which was quick and chaotic.  

Cross examination shows up weaknesses in prosecution’s case

We were also able to demonstrate the weaknesses in the prosecution’s case through cross examination of prosecution witnesses.  

For example, Mr A had eventually made three statements, but was not a “good” witness for the prosecution.  

After his evidence in chief was given, we conducted cross examination, which was followed by a short re-examination.  

At the end of his evidence Mr A had opened up the possibility that he and Mr J and possibly another male had gone into the lounge room looking for a fight.  

He also indicated he and Mr J saw themselves as “defenders” of Mr W, and he confirmed that there was no social interaction between our client and Mr W on that night. 

Evidence of Ms H benefits defendant

Ms H’s evidence was also helpful for our case.  

The police did not speak with her until March/April 2020, when she told them that she would be a witness for the defence.  

The prosecutor eventually subpoenaed her and treated her as a “hostile witness”.  

Her evidence confirmed that Mr W had come into the room flanked by Mr A and Mr J, and stood in front of her and our client in a threatening manner.  

She also confirmed that our client had not fought with Mr W. 

Importance of declining Electronic Record of Interview with Suspected Person (ERISP)

When police investigate whether someone has committed a crime, they may invite that person to participate in a police interview. 

This interview is called an Electronic Record of Interview with Suspected Person (“ERISP”).  

It’s the “S” in ERISP that is indicative, because police don’t typically offer electronically recorded interviews to anyone except a suspect.  

There are no statistics on how many persons are charged / not charged after giving an ERISP, but in our experience very, very few are not charged. 

The risk of giving an ERISP is not only that of potentially being charged with a crime, but also that anything adverse said, such as an admission, may be used against you in court.  

Unfortunately, it is no longer surprising how many people, when approached about an incident involving themselves, volunteer for an ERISP.  

What is surprising is how often people who consult defence lawyers only do so after they have had an interview with police.  

In this case, we were delighted at our client’s action in seeking advice from Legal Aid when the police first approached him, and that he followed the advice not to give an interview.  

He was therefore not in a position where being questioned by experienced police officers in a police station could cause him to say things harmful to his defence. 

Availability of witnesses can be challenging for defence cases

Apart from the initial police delay, Covid caused further delays, meaning that this matter was not finalised until December 2021, a full two years after the event.  

The court had listed the matter as a “special fixture” over two days.  

The case was adjourned at end of day 2 to a third day in December 2021.  

Interestingly, in addition the Ms H’s evidence, we had two other witnesses willing to give evidence of what they witnessed, which was favourable to our client.  

However, this evidence was never utilised, although it was considered vital. This is because they attended days 1 and 2 of the hearing, but had to wait for the police case to finish, which was not until 4.00pm on Day 2.  

Day 3 was held months later due to a Covid delay, but by then these witnesses had obtained casual employment.  

Both were denied leave by their employers to attend, even on subpoena. Their employers told them that if they took time off, they would be terminated.  

This is a difficulty for defence cases generally.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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