Intimidation Charge Withdrawn at Picton Local Court

The matter arose from a dispute between the client and the complainant, who had been in a domestic relationship. The dispute included derogatory and unpleasant communications through social media.

The complainant also alleged that the client subsequently telephoned and threatened to assault her. That alleged telephone threat was distinct from the written messages. The defence needed to consider what the messages themselves established and how the separate allegation would be proved.

When Joshua Jung attended Picton Local Court, the complainant was not available for cross-examination. Two other witnesses said to have heard the alleged threat over the telephone had not been subpoenaed.

Joshua raised these matters with the prosecutor before the hearing proceeded. His position was that the available evidence established unpleasant communications but did not adequately establish the alleged intimidation. He identified the difficulty of testing the complainant's account and the significance of the two witnesses whose attendance had not been secured by subpoena.

These were defence arguments about the prosecution case as it stood that day. They were not findings by the magistrate that the telephone allegation was false or that the messages were incapable of constituting intimidation.

Joshua also indicated that, if the relevant witnesses were not called, he would seek application of the principles discussed in Mahmood v Western Australia [2008] HCA 1.

Those principles concern whether the absence of evidence from a witness whom the prosecution might reasonably have been expected to call contributes to reasonable doubt. They do not authorise speculation about what the witness would have said. Their application depends on the circumstances, including the witness's materiality.

In a Local Court hearing, the proposed argument would be addressed to the magistrate. This matter resolved through discussions with the prosecutor, so the court did not determine that argument.

Joshua proposed that the client consent to a 12-month ADVO without admissions on the basis that the prosecution withdraw the intimidation charge.

The prosecution agreed to that resolution. The single intimidation charge was withdrawn, and the ADVO was made for 12 months by consent without admissions.

The resolution dealt separately with the criminal allegation and the protective-order proceedings. It concluded the criminal prosecution without a contested determination of the allegation while providing for an enforceable ADVO.

The client was not convicted of the withdrawn charge. The outcome was a negotiated withdrawal, rather than a not-guilty verdict following a completed hearing.

Consent without admissions means that the client agreed to the making of the ADVO without admitting the allegations. The order nonetheless imposed enforceable obligations. Its particular conditions are not reproduced in this summary.

This matter illustrates the importance of examining how an allegation will be proved at a hearing. Written messages, an alleged telephone conversation and accounts from other witnesses may raise different evidentiary questions.

The absence of a complainant or the failure to subpoena a witness does not automatically require a charge to be withdrawn. The available evidence, applicable procedures and legal arguments must be assessed in the particular case.

Here, Joshua Jung raised the identified evidentiary issues with the prosecutor and proposed a resolution addressing both the criminal charge and the ADVO proceedings. The prosecution agreed. That outcome depended on this matter's circumstances and does not predict the outcome of another case.

Joshua Jung is the Founder and Principal Lawyer of Core Defence Lawyers. He represented the client in this matter. His practice focuses on criminal law, including domestic violence charges, defended hearings and ADVO proceedings.

Read Joshua Jung's professional profile.