News

A Western Sydney family yesterday breathed a collective sigh of relief as AC Law Group had charges against a brother accused of stabbing his sibling withdrawn.

Mr Michael Moussa, partner at AC Law Group, appeared for the brother who was charged with reckless wounding. Reckless wounding carries a maximum penalty of 7 years imprisonment.

The facts presented by the police were as follows:

  1. On 29 May 2017, the victim and the accused were present in their residential home. The victim let the family cats into the house where they have entered the accused’s bedroom and urinated on his bed.
  2. The accused confronted the victim about the cats whilst the victim was in the kitchen washing dishes.
  3. The accused then took hold of a red coloured swiss army knife that was located on the shelf within the accused’s bedroom and in a downward swinging motion, has cut the victim causing a 10cm wound to the victims right forearm.

Mr Moussa conferenced the Accused and it became apparent that the police omitted a very important piece to the puzzle. Prior to the Accused pulling out a knife and striking the complainant, it was said that the complainant first came at the Accused with a sharpening Stone.

Further inquiries were made with the parents and siblings of the accused who advised Mr Moussa that the victim had a history of violence against family members. Further, they stated the accused was a gentle and well-nurtured fellow who had never been in trouble or a fight. He was also in his final year of a law degree which meant serious consequences to his career and his future. The family told Mr Moussa that they did not want either brother to get in trouble and they were certain the wounding occurred when the accused was in fear for his life.

Armed with this knowledge, Mr Moussa wrote to the police requesting a photo of the stone. It can be seen that the stone is described as a knife sharpening stone which is approximately 30cm in width and weighs approximately 10kg. It was a weapon that could inflict serious injury if used against the accused.

This piece of evidence, now available to the defence, combined with the information provided by family members meant  Mr Moussa could raise self-defence.

A person is not criminally responsible for their conduct if the  person carries out the conduct constituting the offence in self-defence.  A person will be held to have carried out the conduct in self-defence if the person believes the conduct is necessary to defend himself and the conduct is a reasonable response in the circumstances as he perceives them.
The test for self-defence poses a two-limb test. The first limb of the test is involves considering what the Accused person was  actually thinking. The second limb of the test is determined by whether the conduct of the Accused person is a reasonable response to the  circumstances as he perceived them. The second limb was the most difficult as it involved a stabbing. Most judicial officers would argue that this conduct may be an “unreasonable” response, or disproportionate. Mr Moussa thought it was necessary to subpoena further material about the complainant’s medical record which showed he was aggressive and at times unable to control his actions.

After months of fierce advocacy by Mr Moussa on behalf of the family, police agreed to withdraw the charges. The family rejoiced at the news and are looking forward to moving on with their lives after a very difficult year.

To read more about self defence, click here.

 

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