Court case comment needs balance

Thursday January 10, 2019 Published in Letters to the Editor

Dear Editor,

I am responding to recent articles and letters to the editor of CINews that have referred to my client who was recently discharged without conviction for assaulting his partner.


I wish to note the following to provide balance to comments that were obviously made by people without the knowledge of the facts in this particular case.

My client was assaulted first by his partner and his attempt to grab her was to stop her from continuing with the assault. There was a mild push and arguing from both sides. However, this quickly ended and no serious injuries were sustained. Because of the anger and frustration at the time, the female partner made a complaint that resulted in my client been charged by the police.

My client’s partner who made the complaint subsequently wrote a letter to the court asking for the charges to be withdrawn on the basis that they had reconciled and that she was leaving the Cook Islands to accompany him to Australia. She had previously served in the Cook Islands Police force and resigned to follow her partner to Australia. It is my understanding that they both flew out two days ago.

For background information, my client served in the Australian Army for 17 years and completed tours of Iraq and Afghanistan as well as serving in the Solomons and on other deployments. It was clear that a conviction could see him losing his job. In my assessment as defence counsel, a conviction would have been out of proportion when assessed against the backdrop of the facts in this case.

Based on cases that had been awarded a discharge, my client’s case had similar prerequisite circumstances:

1. This was my client’s first appearance in court

2. No serious injuries were sustained by either party in the conflict

3. My client’s partner who complained to the police subsequently wrote a letter to the court and the police asking that the charges be withdrawn

4. My client also apologised and wrote a letter to the court confirming this apology

5. The couple were still in a solid relationship and continued with their plans to go to Australia

It is important for the public to understand that applications for discharges without conviction are not easily granted by the court.

The Justice of the Peace who presided over this case noted that he would not be granting a discharge and the case was stood down until my client’s partner appeared in court to confirm her wish for a withdrawal and her support for a discharge against her partner.

It is also unfair to say that there needs to be a tough stance on violence when the court has been convicting the majority of defendants and severely punishing them for domestic violence, often with terms of imprisonment. The ironic fact of this case is that the partner who complained actually initiated the assault, but wasn’t charged.

I am confident in the judicial system and the Justices of the Peace who are members of our society and often show and reflect their humanity in the decisions that they make. In my opinion, more resources need to be channelled towards rehabilitation of offenders, which is sadly lacking in our society. Stories such as the one that appeared about this case, and the subsequent letters to the editor may influence our Justices of the Peace to make decisions irrespective of the evidence for fear of condemnation. That’s especially when articles are written without knowing all the facts of the case or having access to the evidence in these matters.

For those who are quick to condemn, my suggestion would be that they undertake their research to ensure that they can back comments made with sufficient evidence to support their claims. Otherwise, good people who simply make an error of judgement that could warrant consideration for a second chance such as the diversion programme or a discharge could be persecuted unnecessarily.

Each case that appears in court must be decided on its merits and consideration given to the evidence presented by both the prosecution and defence counsel.

I hope this clarifies what appears to be a storm in a teacup.

            Mark Short

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