Assault Occasioning Actual Bodily Harm
Published 24 Oct 2011
Case Study – Criminal Lawyers Sydney and Parramatta Offices - Criminal Offence – Criminal Matter – Assault Occasioning Actual Bodily Harm – Superman punches man in self defence - Tumbarumba Local Court – not guilty – case dismissed – costs awarded against police – proceedings initiated without reasonable cause
Nyman Gibson Stewart
Criminal Lawyers
Tumbarumba Local Court
Represented by Solicitor: Philip Stewart, Accredited Specialist Criminal Law
Facts: Our client was at a fancy dress function at a local club, dressed as Superman, when a fight broke out. He went with others to stop the fight, and in the process was seen by numerous prosecution witnesses to have been punched in the head, forcing him up against a window, when he was punched again. He punched his attacker once.
You would think with those facts that the attacker would be prosecuted for assault. Instead, the attacker complained to police who took a statement. Friends of the attacker gave statements, and a couple of them claimed that our client punched their friend without provocation. The client took part in a record of interview explaining what occurred claiming that he acted in self defence. Police took plenty of statements that supported this position. The client was charged with assault occasioning actual bodily harm. Police referred to the attacker as ”the victim”.
When self-defence is raised, the onus is on the prosecution to prove that the accused did not genuinely believe that it was necessary to act in his own defence, and that what the accused did was not a reasonable response to the danger as he perceived it to be. If they cannot prove both, they cannot win.
This case was always doomed to fail.
Result: The case was set for a 2 day hearing and Philip Stewart flew from Sydney the day before to interview witnesses. One of the prosecution witnesses gave a statement indicating that the “victim” was involved in another fight immediately after the incident involving Superman. How could the prosecution ever exclude the possibility that the injury to the ‘victim’ occurred in that latter fight? The ‘victim’ told police that the man who punched him was wearing a red and white top. He did not say, “Superman punched me”. How could you get it so wrong? The prosecution realized that it could never prove its case and the Magistrate dismissed the charge.
A costs application was made. Our solicitor was that confident of winning the matter that he prepared 16 pages of submissions on costs prior to travelling to Tumbarumba. The Magistrate awarded full costs including all preparation, air fares and time for attendance at court. After all, Superman was only doing the right thing!
Philip Stewart is an accredited criminal law specialist and regularly travels to courts all over NSW to fight against injustice.