At EAS Legal, we recently represented a client before the Newcastle Local Court at a final defended hearing involving a charge of Malicious Damage, carrying a maximum penalty of 5 years’ imprisonment, together with an Apprehended Domestic Violence Order (ADVO).
Our client maintained a defended position throughout the proceedings.
In preparing the matter for hearing, our team identified significant issues with the evidence the prosecution intended to rely upon. In particular, there was no formal complaint statement, with the prosecution instead seeking to rely upon material including a 000 call and police body-worn video footage.
Rather than waiting until the hearing to address these issues, our office raised formal evidentiary objections with the prosecution well in advance.
Our Approach
Our defence strategy focused not simply on what the prosecution evidence alleged, but on a more fundamental question:
Was that evidence legally admissible in the first place?
Prior to the hearing, our office had placed the prosecution on notice of concerns regarding its proposed evidence and the relevant notice requirements under the Evidence Act 1995 (NSW).
Despite further discussions on the morning of the hearing and attempts by our office to have the proceedings withdrawn, the prosecution elected to proceed.
When the complainant did not attend Court, the prosecution sought to rely upon the 000 call and body-worn video in their absence.
We opposed that application.
A voir dire was conducted to determine whether the disputed evidence could properly be admitted. The investigating police officer was called to give evidence and was cross-examined regarding the steps taken to secure the complainant’s attendance.
Our team then advanced detailed legal submissions concerning the prosecution’s failure to comply with the relevant notice requirements and the resulting prejudice to our client.
Central to our argument was the fundamental principle of procedural fairness: an accused person is entitled to proper notice of the case they are required to meet.
We argued that the prosecution should not be permitted to overcome its failure to comply with those requirements at the final hearing where the defence had identified the issue, provided advance notice of its objection and prepared its case accordingly.
The Outcome
The Court accepted the substance of our defence submissions and declined to allow the prosecution to dispense with the relevant notice requirements.
The consequence was significant: the 000 call and body-worn video evidence were ruled inadmissible.
Without that evidence, the prosecution was unable to establish a prima facie case.
As a result:
Following the dismissal, our office also pursued an application for professional legal costs on behalf of our client. A formal costs hearing was conducted; however, the Court ultimately determined that the high statutory threshold for an award of costs had not been established.
Why This Result Matters
Criminal defence is about far more than simply reading a police brief and arguing about whose version of events should be believed.
Sometimes the most important question is:
Can the prosecution legally use the evidence it relies upon to prove its case?
In this matter, the defence was successful because of early preparation, technical knowledge of the rules of evidence and a willingness to pursue a complex evidentiary argument through a contested voir dire.
Had the evidentiary issues not been identified and raised in advance, the course of the hearing may have been very different.
Instead, the prosecution’s key evidence was excluded, the criminal charge and ADVO were withdrawn and dismissed, and our client walked away without ever being required to enter the witness box.
At EAS Legal, we prepare defended matters meticulously. We don’t simply ask whether the prosecution has evidence—we examine how that evidence was obtained, whether it is admissible and whether it can actually prove the case beyond reasonable doubt.
That attention to detail can make all the difference.
Facing Criminal Charges or an ADVO?
If you have been charged with Malicious Damage or another criminal offence, or are defending an Apprehended Domestic Violence Order, experienced representation at an early stage can fundamentally affect the way your case is prepared and defended.
EAS Legal represents clients in complex criminal and ADVO proceedings throughout New South Wales, combining meticulous preparation, technical legal knowledge and strong courtroom advocacy.
1800 117 533
www.easlegal.com.au
EAS Legal – Strategic Criminal Defence. Proven Results.
