Knife Charge Dismissed Under Section 14

Knife Drawn in a Workplace Argument: Armed with Intent Charge Downgraded, Then Dismissed Without a Conviction

A workplace argument got out of hand and ended with a kitchen knife being picked up. Our client was charged with being armed with intent to commit an indictable offence, which carries a maximum penalty of 7 years' imprisonment.

Our client is an older man. He had struggled with language barriers and with settling into life in Australia, so the charge put more than his record at risk. His job gave him purpose and independence, and it helped his family look after his grandchildren.

In the end the charge was dismissed under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), and he left court without a criminal conviction. That gave him the chance to move forward, look after his wellbeing and keep supporting his family.

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The Original Charge

Our client was first charged under:

• Section 114(1)(a) of the Crimes Act 1900 (NSW): being armed with intent to commit an indictable offence.

The police facts described a serious incident. They alleged our client stepped towards his colleague, pointed the knife at his stomach and lunged two or three times from about half a metre away. They also alleged more physical contact, involving chopsticks, after he put the knife down.

Another eyewitness, however, did not back up several key parts of that account. Those differences became the centre of our representations to police.

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Testing the Evidence and Negotiating aDifferent Charge

Associate Cherry Au-Yeung compared the complainant's account with the statement of a colleague who saw the incident. The eyewitness did not describe:

• the knife being pointed at the complainant's stomach;
• the two men standing only halfa metre apart;
• our client moving towards the complainant; or
• our client lunging at him twoor three times and forcing him backwards.

The language barrier also mattered. The evidence showed that both men were shouting in languages the other could not understand, and that our client felt intimidated by his younger, physically larger colleague. On that basis, we argued the prosecution could not prove the more serious version of events.

Partner Ernest Chan put these points into written representations. He asked police to withdraw the armed with intent charge and replace it with intimidation, and offered a guilty plea on amended facts. Police accepted, and the charge was replaced with:

• ‍Section 13(1) of the Crimes(Domestic and Personal Violence) Act 2007 (NSW): intimidating another person with the intention of causing them to fear physical mental harm.

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Building the Section 14 Application

With the new charge and amended facts agreed, Cherry applied for the matter to be dealt with under section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Under this provision the court can dismiss a charge and discharge the defendant, with or without conditions requiring mental health assessment, treatment or support.

The prosecution opposed the application. For it to succeed, the court had to be satisfied of two things:

1. that our client had a qualifying impairment, either now or at the time of the alleged offence; and
2. that diversion was more appropriate than dealing with him through the ordinary criminal process.

Cherry obtained psychological and psychiatric reports. These found that our client had Major Depressive Disorder and Post-Traumatic Stress Disorder, which affected his judgement, thinking and emotional and behavioural control at the time of the incident. The reports also set out a practical treatment plan, including psychological therapy, psychiatric input and regular medical reviews.

A diagnosis alone is not enough, though. The application also addressed our client's lack of criminal history, his assessed risk, his family support and his prospects of rehabilitation through treatment.

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The Outcome: Charge Dismissed, No Conviction

Despite the prosecution's opposition, His Honour was satisfied that both requirements were met. The intimidation charge was dismissed under section 14, and our client left court without a criminal conviction.

In summary:

• The armed with intent charge was replaced with intimidation.
• The matter proceeded on substantially amended facts.
• The section 14 application succeeded over prosecution opposition, and the charge was dismissed with no conviction.

The outcome does not make picking up a knife during an argument any less serious. It does let our client focus on his mental health and move on without the weight of a conviction.

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Key Takeaways

The police version is not always the full picture. Comparing the complainant's account with an independent eyewitness exposed real differences about how far apart the men were and what was done with the knife. Those differences opened the door to a different resolution.

A mental health application needs more than a diagnosis. The court must decide whether diversion is more appropriate than the ordinary criminal process. It weighs factors such as how serious the incident was, what treatment is in place and any safety risks.

Careful evidence review and a well-supported application were both essential to this result.