MR was charged with assaulting her partner, Ms M, and occasioning to her actual bodily harm. A day after the alleged incident, Ms M was injured in a serious car accident and suffered head trauma which affected her memory. At the hearing of the matter the defence suggested Ms M’s memory had been reconstructed by recovered memory techniques such as hypnotherapy and that her evidence should be excluded as unreliable.
In cross-examination, it was put to Ms M that she had no independent memory of the incident her evidence was what she had been told by her counsellor and friends and family. After this suggestion of re-constructed memory, the prosecution re-examined Ms M under s 108(3) of the Evidence Act 2011 to re-establish her credibility by virtue of a prior consistent statement of complaint. Ms M’s written statement to police, made within hours of the incident (and before her accident) and containing her complaint of the assaults, was tendered by the prosecution under this provision. The prosecution also called Ms M’s counsellor to give evidence that no recovered memory techniques had been employed in his treatment of Ms M and that he had no knowledge of the events regarding the assaults. The magistrate ruled Ms M’s evidence was admissible and that she was a credible witness whose memory had recovered naturally. MR, who had no criminal record, was found guilty of one count of assault and given a non-conviction order.
POLICE V AM
In August 2011, AM was charged with assaulting his son by striking him with a wooden spoon to his hand and leg.
When the matter came on for hearing in February 2012, the essential facts were not in dispute. The defence argued that, even though AM’s actions had caused bruising to his son, AM should not be found guilty of assault because he had merely applied lawful chastisement to the child after the child had sworn at his mother.
The Prosecution argued that whilst AM striking his son may have been in response to what the child had said to his mother, AM’s behaviour went beyond lawful chastisement because his actions caused bruises to the child.
The Court found that AM’s actions could not be held to be lawful chastisement, particularly in light of the fact that his actions had resulted in an injury that was not transient or fleeting. AM was found guilty of assault, but because of his good background, his personal circumstances and the circumstances of the offence, received a non-conviction order.
POLICE V RB
RB was charged with leaving his two small children (aged 3 years and 9 months respectively), unattended for such a period of time and in such circumstances that they could suffer injury, sickness or be in danger.
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ANNUAL REPORT 2011-12 DIRECTOR OF PUBLIC PROSECUTIONS 22
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