Domestic Violence Common Assault Charge Dismissed After Contested Hearing

In July 2026, Principal Solicitor Joshua Jung represented a client in a contested domestic violence hearing at Parramatta Local Court.

The client was charged with common assault in a domestic violence context. The prosecution alleged that the client had deliberately punched the complainant.

An important feature of the prosecution case concerned the development of the injury evidence over time. At the time of the alleged incident, there were no visible injuries identified.

Approximately a week later, the complainant produced medical material and evidence of injury. The history provided to the medical practitioner included the complainant's account that he had been assaulted and punched by the client.

The defence challenged the extent to which the subsequent photographs and medical material could establish that the client had caused the injury alleged.

Evidence showing that an injury existed

is distinct from evidence proving who caused the injury, when it was caused and how it was caused.

The complainant was cross-examined in detail concerning the physical mechanics of the alleged punch. As the incident was broken down into its component parts, difficulties emerged between the complainant's account at the hearing and the manner in which the alleged assault had originally been described.

The defence relied upon the criminal burden and standard of proof and invited the Court to apply the principles associated with Liberato and Murray when assessing the prosecution case.

Following the contested hearing, the client was found not guilty and acquitted.

The prosecution alleged that the client assaulted the complainant by punching him. The allegation was denied and the matter proceeded to a defended hearing at Parramatta Local Court.

The prosecution case depended substantially upon the complainant's account of what had allegedly occurred. Later injury evidence was also relied upon in support of that account.

The defence did not simply assert that the complainant was dishonest. Instead, the alleged incident was broken down and tested through questions including:

• What exactly was the physical act alleged?
• Where were the parties positioned?
• How did the alleged punch occur?
• What was each person doing immediately before the alleged contact?
• What occurred immediately afterwards?
• Was there contemporaneous evidence of injury?
• When did the later injury become apparent?
• What did the photographs actually prove?
• What did the medical material independently establish?
• Which parts of the medical history came from the complainant?
• Could the later evidence establish who caused the injury?
• Was the complainant's hearing evidence consistent with the original account?

There were no visible injuries identified at the time of the alleged incident. Approximately a week later, subsequent injury and medical evidence was produced.

The defence submitted that the timing required careful consideration. The later existence of an injury did not, without more, determine:

• when the injury occurred;
• how it occurred;
• who caused it;
• whether it resulted from the alleged punch.

The defence therefore focused on the evidentiary gap between the alleged punch and the later evidence of injury.

The defence was not required to establish an alternative cause of the injury. The burden remained upon the prosecution to prove that the client committed the alleged assault beyond reasonable doubt.

The prosecution relied upon later photographs depicting injury. The defence did not contend that the photographs were meaningless. Rather, the defence focused upon what they could and could not establish.

The photographs could potentially show that a mark existed, bruising was visible and an injury appeared a particular way when the images were taken.

Standing alone, they did not establish:

• who caused the injury;
• when it was caused;
• how it was caused;
• whether it resulted from a punch;
• whether the client was responsible.

Evidence of injury is not necessarily evidence of causation.

The prosecution still had to prove beyond reasonable doubt that the injury relied upon resulted from the particular assault alleged against the client.

The complainant subsequently attended for medical assessment and provided a history that he had been assaulted and punched by the client.

The defence distinguished between:

1. clinical observations independently made by a medical practitioner; and
2. the historical account supplied to the practitioner by the complainant.

A medical practitioner may independently observe and document an injury. However, where the practitioner did not witness the incident, the proposition that a particular accused person caused the injury may derive from the history supplied by the patient.

The identification of the client as the alleged assailant was therefore based upon the complainant's account. The medical material did not become an independent eyewitness account of the assault merely because the complainant's allegation was recorded in a medical setting.

The defence sought to limit the use that could properly be made of the subsequent evidence under s 136 of the Evidence Act 1995 (NSW), while separately submitting that the material had limited probative significance on the critical questions of identity and causation.

The defence position was that the later photographs and medical history should not be treated as proving more than they actually established.

Those propositions still required proof from the prosecution evidence as a whole.

The complainant's subsequent repetition of the allegation to a medical practitioner did not necessarily provide independent corroboration of the identity of the assailant.

The defence distinguished between independent clinical findings and the complainant's repetition of his own allegation.

A medical record containing a patient-reported history does not automatically transform that history into independent proof that the accused caused the injury.

Cross-examination was central to the defence case. The complainant was questioned in detail about precisely how the alleged punch occurred.

• where the client was positioned;
• where the complainant was positioned;
• the distance between them;
• how the parties came into physical proximity;
• which hand was allegedly used;
• how the client's arm and hand allegedly moved;
• the direction of the alleged punch;
• the alleged point of impact;
• what the complainant was doing immediately beforehand;
• what the complainant was doing when the alleged punch occurred;
• what occurred immediately afterwards;
• how that account compared with the original description of the incident.

As the mechanics were examined in greater detail, difficulties emerged in the complainant's account. The complainant had difficulty providing a clear account of aspects of the physical mechanics when compared with the original story provided.

This approach allowed the defence to test the internal coherence and reliability of the prosecution allegation against the physical mechanics of the incident.

A witness does not necessarily have to be deliberately dishonest before a court can have a reasonable doubt about the reliability or accuracy of that witness's evidence.

A witness may be honest but mistaken, inaccurate or unable to reliably reconstruct aspects of a fast-moving event.

The defence case therefore did not depend upon establishing that the complainant deliberately fabricated the allegation. The relevant question remained whether the prosecution evidence was sufficiently reliable to prove the client's guilt beyond reasonable doubt.

The defence invited the Court to apply the principles associated with Liberato when considering the competing accounts.

The criminal trial is not simply a choice between two versions. The accused does not have to prove that the defence version is more likely than the prosecution version. A conviction cannot follow merely because the prosecution account is preferred.

The ultimate question remains whether the prosecution has established guilt beyond reasonable doubt. The defence was not required to prove an alternative version of events.

The defence invited the Court to consider the principles associated with Murray when assessing the evidence of the complainant as the essential witness to the alleged assault.

Although photographs and medical material existed, those materials did not themselves identify the client as the person who committed the alleged punch.

The complainant therefore remained an essential witness concerning the occurrence and mechanics of the alleged assault. The defence submitted that the complainant's evidence required careful scrutiny when determining whether the prosecution had proved the charge beyond reasonable doubt.

Each step required evidentiary support. The existence of injury evidence could not substitute for proof of the alleged assault itself.

The client was not required to prove:

• who caused the later injury;
• when the injury occurred;
• another possible cause of the injury;
• that the complainant deliberately lied;
• an alternative version of events on the balance of probabilities.

The prosecution brought the charge and therefore carried the burden of establishing the client's guilt beyond reasonable doubt. The defence case was directed to whether the prosecution evidence actually discharged that burden.

Domestic violence prosecutions may involve later evidence that appears supportive of an allegation but still requires careful evidentiary analysis.

Core Defence Lawyers has a particular focus on domestic violence defence and ADVO proceedings, including defended hearings in the NSW Local Court.

Principal Solicitor Joshua Jung acts directly for clients and approaches contested domestic violence matters through detailed analysis of the evidence relied upon by the prosecution.

• identifying the precise allegation;
• analysing the elements of the offence;
• breaking the alleged incident into its physical components;
• preparing detailed cross-examination;
• comparing earlier accounts with evidence given at hearing;
• distinguishing credibility from reliability;
• testing the physical mechanics of an alleged assault;
• examining contemporaneous evidence;
• analysing photographic evidence;
• distinguishing evidence of injury from proof of causation;
• analysing medical records and the source of histories contained within them;
• identifying where an allegation has been repeated rather than independently corroborated;
• considering the proper evidentiary use of particular material;
• applying relevant Evidence Act provisions;
• identifying weaknesses and gaps in the prosecution case;
• applying the criminal burden and standard of proof.

The objective is not merely to say that an allegation is false. The objective is to identify precisely what the prosecution must prove and whether the evidence relied upon actually proves it beyond reasonable doubt.