Common Assault Charge Withdrawn: Domestic Violence Case Resolves Without Final ADVO

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Case Background

Our client was charged with one count of common assault in a domestic violence context. On the surface, this appeared to be a strong prosecution case: the complainant provided a contemporaneous statement to police at the scene recorded on body-worn video, followed by a Domestic Violence Evidence in Chief (DVEC) recording submitted shortly after.

As part of victim protection, police also applied for an Apprehended Domestic Violence Order (ADVO). Given the strength of the evidence, the charge carried serious implications for our client’s freedom, reputation, and future prospects.

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Relevant Laws

Domestic violence is viewed extremely seriously by both Parliament and the courts. Common Assault is a serious offence carrying a maximum penalty of 2 years imprisonment.

Under section 4A of the Crimes (Sentencing Procedure) Act 1999, a court must ordinarily impose a sentence of full-time detention or a supervised order for domestic violence offences, unless a different sentencing option is clearly more appropriate.

Section 39 of the Crimes (Domestic and Personal Violence) Act 2007 provides that a court must make a Final ADVO if a person pleads guilty to, or is found guilty of, a serious offence. The default period for a Final ADVO is 2 years, with exceptions only if the court is satisfied that a final order is not required.

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Our Strategy

From the outset, our approach focused on thoroughly reviewing the prosecution evidence to identify inconsistencies and procedural issues. Special Counsel Ernest Chan examined the police statements, body-worn video, DVEC recording, 000 call, and subsequent statements, noting that while the prosecution case appeared strong, there were critical weaknesses that could be leveraged.

Drawing on his experience as a former police prosecutor with over 10 years’ experience reviewing briefs of evidence, advising police, and responding to defence representations, Ernest prepared detailed written representations to police addressing both evidentiary and procedural deficiencies in the case.

Key elements of our strategy included:

• Highlighting procedural and admissibility issues, including that our client, from a non-English speaking background, was not provided with an interpreter at the time of making statements.
• Identifying inconsistencies in the complainant’s evidence and the lower-end objective seriousness of the alleged conduct.
• Demonstrating the absence of ongoing fear, which weakened the case for a Final ADVO.
• Presenting a practical resolution to police: withdrawal of the criminal charge in exchange for a short-term lapsing ADVO, avoiding a lengthy defended hearing and reducing potential long-term consequences.

This strategic, evidence-driven approach was central to achieving the best possible outcome for our client.

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Case Outcome

Following our representations, police accepted the defence proposal, resulting in an exceptional outcome:

• The criminal charge was withdrawn, avoiding a criminal conviction.
• A three-month lapsing ADVO was agreed upon, in place of a two-year Final ADVO.

The prosecution brief had included body-worn video (23 minutes), DVEC recording (17 minutes), a 000 call recording (10 minutes), and multiple statements. On first review, the case appeared strong due to contemporaneous admissions by the client and corroborating evidence. However, careful analysis revealed inconsistencies, procedural gaps, and mitigating circumstances, which allowed the defence to achieve this favourable result.

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Why This Case Matters

This case demonstrates the critical importance of early and strategic legal advice in domestic violence matters. Even when a case appears strong, careful review of evidence, procedural rights, and practical resolution can produce highly favourable outcomes.

Key lessons include:

• Thorough evidence analysis to identify weaknesses in the prosecution case
• Raising procedural and admissibility issues effectively
• Demonstrating low risk of future harm and practical solutions
• Negotiating resolutions that protect the client’s freedom and legal record

This case highlights that early, expert representation can make a decisive difference, preventing unnecessary criminal convictions and avoiding long-term restrictions such as a Final ADVO.

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Facing Domestic Violence Charges?

If you are facing a domestic violence charge, including common assault, early legal advice is crucial.

Brightstone Defence provides strategic, expert criminal defence, ensuring your rights, freedom, and future prospects are protected at every stage of the process.

Contact our experienced criminal lawyers today for a free, confidential consultation.

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