Self-Defense and Lack of Evidence: A Melbourne Criminal Law Case Study

In a gross example of racial vilification in Melbourne, members of the Seymour community were alleged to have surveilled a local religious institution using a drone. They approached the alleged complainants and asked them to stop their activities, which aggravated them. The complainants then made racial insults, and a verbal argument ensued, which ultimately led to a physical scuffle. The police were called, and our clients, whose names have been anonymised, were charged with multiple offences including Affray, Recklessly cause injury, Unlawful assault by kicking and Unlawful assault a hammer. The following case study outlines how the charges were withdrawn on the basis of self-defence and lack of evidentiary basis.

Charges and Our Request to Withdraw

When our clients called the police for intervention, our clients were surprised that instead of assisting them, the police had charged them with multiple offences. We requested the prosecutor to withdraw all charges on the following basis:

Mr A – Self-Defence

It was clear from the brief of evidence that Mr A was acting in self-defence. After engaging in a verbal argument with Mr A, during which the first complainant racially insulted our client and threatened to punch him, he tackled our client to the ground and started punching him while he was on top of our client. This incident occurred after our client had informed the first complainant of his intention to call the police. Under section 322K of Crimes Act 1958, a person is not guilty of an offence if the person carries out the conduct constituting the offence in self-defence.

We argued that the prosecution will be required to prove beyond reasonable doubt that our client did not act in self-defence. In these circumstances, the prosecution will not be able to demonstrate that our client did not believe that the conduct was necessary in self-defence, or that the conduct was not a reasonable response in the circumstances as our client perceived them. It is also notable that self-defence is a complete defence to the charge of affray.

Lack of Evidentiary Basis

The charges are fatally flawed as they do not relate back to specific incidents at all. If this matter proceeds any further, we will vehemently argue that there is no evidentiary basis for maintaining these charges. We understand that both The first complainant and the second complainant have been charged separately as well. Therefore, they will both be entitled to independent legal advice to raise an objection to give evidence under section 128 of Evidence Act 2008. In these circumstances, we submit that the prosecution will not be able to substantiate the charges on the present evidence. In relation to charge 3, there is no evidence in the brief that Mr A had kicked the first complainant.

Mr B: Self-Defence and the Defence of Others

Mr B saw the first complainant tackle Mr A to the ground. With Mr C’s held, he was able to pull The first complainant from Mr A. Consistent with his statement to the police, Mr B instructed us that he had overheard the first complainant say “Bring the weapon” when he was on call with the second complainant. He also contended that he observed the first complainant to be in a drunk state and was fearful that the first complainant might drive his car over them. Meanwhile, Mr. C helped Mr. B and removed the hammer from the second complainant. We argued that our clients never attacked anyone with the hammer and were only trying to protect themselves and Mr. A.

Lack of Evidentiary Basis

We argued that the charges were not particularized sufficiently, and the prosecution would not be able to substantiate the charges. Charge 2 did not even specify against whom the assault was performed.

Mr C: No serious injury caused

In relation to charge of serious injury, we pointed to the prosecution that there as no evidence of the second complainant sustained any injury, let alone a serious injury. The summary in the brief only states that the first complainant sustained an unknown injury. We submitted that this assertion was embarrassing at law.

Other Matters

We further emphasized that it was our clients who called the police for assistance and that the alleged incident was born out of an act of racial vilification against the Indian community that forms a significant proportion of the Australian population. Moreover, all our clients had a good character with no or minor prior record with the police.

Withdrawal of Charges

Given the lack of evidentiary basis and the importance of self-defense and defense of others, we urged the prosecutor to withdraw the charges against our clients. We further argued that it would not be in the public interest to proceed with this matter as the police had arbitrarily charged them.

Conclusion

All the charges against our clients were withdrawn, and they were able to return to their lives without any criminal convictions or record. We are proud to have defended them and ensured that justice prevailed in this matter. If you or anyone you know is facing criminal charges, please do not hesitate to contact us. Our team of experienced criminal lawyers is here to help you.