Family Violence – Accused With Cognitive Disability

This is a case study on family violence involving an accused with cognitive disability.
Our client was charged with Breaching a Safe Contact Intervention Order, Assault, Possessing Cannabis, and Criminal Damage. The victim in this matter was the client’s mother. The allegations were that the client breached the order by verbally abusing his mother during an argument causing her emotional distress and by slapping her to the face.

When the Police were called to the house by the client’s mother, they witnessed the client break a window by punching it. The client was arrested and interviewed by the police. It was during this interview when the client admitted that he assaulted his mother during the verbal argument. One of our lawyers who eventually represented the client, listened to the record of interview. He noticed that the client told the police that he was taking medication because he has cognitive impairment issues. However the police continued to interview him which is when he admitted to assaulting his mother.

The matter was heard at the Broadmeadows Magistrates’ Court on charges of:

When the matter was listed for a mention hearing, we conducted a summary case conference with a police prosecutor. A summary case conference is where the prosecution and the defence lawyer discuss the issues in the matter. This process allows defence lawyers to ask the prosecution for further material which may not have been included in the preliminary brief such as CCTV footage or further witness statements. The summary case conference process can also be used to highlight the deficiencies in the case to urge the prosecution to withdraw some or all of the charges. This is a crucial process especially for a case of family violence involving an accused with cognitive disability.

During the summary case conference, we drew the prosecutor’s attention to the fact that the client was interviewed by the police without an independent third person being present, and that the admissions he made during his record of interview cannot be relied upon. The police must have called an independent third person to sit in on a record of interview if the person being interviewed is a child or has a cognitive impairment. The client was in the latter category.

Before the plea hearing, we gathered material confirming that the client has a cognitive disability, such as discharge summaries and letters from health care professionals. We also spoke with the client’s mother and asked her to write a character reference in support of the client.

During the plea hearing we made submissions to the sentencing magistrate about the rehabilitative steps the client has taken to address his mental health. We also made submissions that the client is not the proper vehicle for deterrence as it was a case of family violence involving an accused with cognitive disability. These plea submissions were accepted by the sentencing magistrate.

We were able to persuade the prosecution to withdraw the assault charge, even though the client made admissions and agreed to plead guilty to Breaching a Safe Contact IVO and Criminal Damage. Both of these offences carry a gaol sentence.

The magistrate ultimately accepted and placed the client on a good behaviour bond.

In light of the fact that the starting point for the court in a family violence-related matter is a prison sentence, this was a great result. It allowed the client to continue to receive treatment in the community.

Elements of Contravene Family Violence Intervention Order:

  • A family violence intervention order has been made.
  • The family violence intervention order has been served on the accused, or the accused has had an explanation of the order given to them by a person in accordance with sections 57 or 96 of the Family Violence Protection Act 2008.
  • The accused contravened the order.
  • The accused intentionally or recklessly committed the act that contravened the order.

DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 03/04/2019