Adjourned Undertaking Without Conviction for Criminal Damage and Unlawful Assault

This is a case study on an adjourned undertaking without conviction for Criminal Damage and Unlawful Assault.

Our client was on his way to work for an afternoon shift, with his partner travelling with him, when he was cut off by another road user. Incidents often happen on the road. It is how they are dealt with that is important. On this occasion, mutual hand gestures followed and both parties then pulled to the side of the road.

What is alleged to have occured?

The client left his car to remonstrate with the other driver. Following a verbal exchange, he returned to his car intending to leave. A loud bang was then heard and felt by our client and his partner. The other driver had retrieved a pole from his car and smashed our client’s back light with it. Angry and feeling protective of his partner, our client again left his car to confront the other driver. The other driver took a swing at him with the pole. Our client punched him twice in the mouth and smashed his passenger mirror, before returning to his car.

Our client and his partner were both shaken by the incident and neither attended work that day. They called 000 and then travelled to the nearest police station to report the incident to the police. He was later arrested and interviewed. He answered all questions put to him by the police including his own actions. Ultimately he was charged with Unlawful Assault and Criminal Damage. The police summary however made no reference to the other driver’s participation in the altercation and no mention at all of the pole.

What happened at court?

Kate Da Costa represented the client at the Werribee Magistrates’ Court on charges of Criminal Damage and Unlawful Assault.

In discussion with the prosecution, we were able to point out that our client had immediately reported the incident to the police. We emphasised that he had fully co-operated with the police and admitted his part in the altercation, he had evidence of damage to his vehicle by the other driver, and that his partner had been present and witnessed the other driver with the pole.

It was a good outcome because the police ultimately agreed that road rage incidents often do involve participation by both parties and the summary was amended to reflect our client’s instructions. Our client accepted his own part in the incident and that he had had multiple opportunities to walk away.

The client provided excellent character references and letters of support that clearly indicated his behaviour during the incident to be out of character.

What was the result?

Having heard the amended police summary, the client was sentenced to an adjourned undertaking without conviction for Criminal Damage and Unlawful Assault. The undertaking was for a period of four months and he was also asked to contribute to the court fund.

Elements of Unlawful Assault:

• The accused applied force to the complainant’s body
• The application of force was intentional or reckless
• The application of force was without lawful justification or excuse

Related case studies

• Criminal Damage and Wilful Damage – Diversion