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QLD Assault Charge - Justification Legal?

Discussion in 'Criminal Law Forum' started by bubbles999, 22 May 2015.

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  1. bubbles999

    bubbles999 Member

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    Hello there. I had an incident which occurred recently where my ex (well we only just started dating again) assaulted my friend at my house. I had invited him over to catch up, he had saw I had friend over but didn't know who it was. As my friend was leaving, he came through the gate at him with fits clenched and started to punch him. My friend defended himself and told him to leave . My ex was verbally assaulting me and my friend and I was trying to difuse the situation. The police came and he got charged with assault. Now he is justifying the reason attacking my friend because he says he had raped me, and was very enraged when he saw it was him with me. Though this is not correct, as he was angry at me before he knew my friend was over at my house.

    When my ex I were getting back together I told him I had been intimate with my friend after a big night out. It was a very very drunken night and I don't remember much due to being very wasted. My guy friend wasn't as intoxicated as me. I remember having sex with him, threw flashes but not the whole event. I felt in the morning regret about my actions as I know I wouldn't of had sex with him if I was in a sober state, and it was my responsibly being so wasted in the first place. Cause he is a friend I've known for a very long time I didn't see it as rape?. Though when I told my ex, he saw it as rape..
    He is going to say to the court that is why he openly attacked my guy friend. My ex has a current dvo against him and in the past has had another dvo and been charged with assault of police officer and found guilty, though only had to pay a fine not a jail sentence.

    I'm wondering how this charge now will effect him? And what I should do if he brings up that I was raped? Will I need to make a statement? Does what he is saying have any justification against his actions? And how the court will see that, if I have to explain what happened that night with my friend?

    I feel very much under pressure, for I feel if it does seem like rape my friend will get charged? And if not my ex might be sent to jail for his violent actions.

    Thanks for your advice.
     
  2. Sophea

    Sophea Well-Known Member

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    Hi bubbles999,

    With regard to the allegations of rape, as justification for your ex's actions, if this is raised then the police have an obligation to investigate it. Therefore it is likely that you will have to give a statement.

    For a person to be charged with rape under the Qld criminal code, it must be established that they have had intercourse with you without your consent. There is obviously no question regarding intercourse here, so it will come down to whether or not you consented to it. Therefore it will likely turn on your statement - how you say the event unfolded. Obviously if the police find there was no consent then charges of rape may be made against your friend.

    However, even if your friend is charged with rape, this may not necessarily be used as justification for your ex's assault on him. The only defence he may be able to rely on is that of provocation which provides a complete defence to a charge of assault. Provocation is defined as ‘any wrongful act or insult of such a nature as to be likely, when done to an ordinary person’ or to people in a special relationship to the person, to deprive the person of the power of self-control, and to induce the person to assault the person by whom the act or insult is done or offered

    s269 of the Criminal Code provides that, ‘[a] person is not criminally responsible for an assault committed’ in response to such provocation if:
    • the person is deprived of self-control
    • ‘the force used is not disproportionate to the provocation and is not intended, and is not such as is likely, to cause death or grievous bodily harm’
    • the person acts upon the provocation ‘on the sudden and before there is time for the person’s passion to cool'.

    It is for the court to decide whether a particular act or insult is likely to deprive an ordinary person of the power of self-control or whether any force used is or is not disproportionate to the provocation etc.

    Its possible that too much time may have transpired between the provocation (him finding out about the alleged rape) and the assault in order for him to invoke this defence. This will be for court to decide also.
     
  3. bubbles999

    bubbles999 Member

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    Thank you for the advice Sophea,
    The outcome of the case was in my opinion unjust:

    My ex partner got charged with assault and pleaded guilty in court the other day,
    He told lies in his statement, and mine was not read out (I was witness in the matter, as my friend was the victim of the assault) which proved in my statement, that his statement was not true.

    Because of this, I believe he got less of charge as all the information he provided was false. And his previous convictions were not read out which were serious.
    Though he did plead guilty to the assault, the reasons why were inaccurate.
    Is this perjury? and if so can I charge with this? or can i appeal the case?

    Also, at the time of the arrest, the police were meant to ask if I would like to file for breach of DVO,
    As my partner at the time said, when they charged him they were also going to charge for a breach, though he talked his way out of it and said that he was defending me and lied .
    I was never asked and I would of because he had verbally abused me that night, and I had witnesses from neighbors who saw and heard it.

    The police who made the arrest too never asked for my statement, which he told my friend and family members that he was going to do.
    So I had to write my own and go into the police station with it, though because it wasn't official it was not valid. Had to come in a second time to write it properly with the police.

    Now that the case was over, I spoke to the police prosecutor afterwards bout how I was unhappy that my ex partner lied and my statement was not heard in court, as well as his previous convictions.
    He brushed me off and said that if i wanted to take it further I needed to contact the police that made the arrest that night, that being the police officer who has been ignoring me and not taking action. What should I do about this?

    Would really appreciate advise, comments and suggestions!
     

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