What are defences to my domestic assault charge?
Charges of domestic assault generally arise out of incidents that occur within a residence in which no other witnesses are present. As a result, most trials come down to “he said, she said” and issues of credibility. If the judge does not find the complainant to be credible, there is very little likelihood that the accused will be found guilty.
When a judge evaluates evidence in a domestic assault trial it will involve the assessment of the complainant’s credibility and reliability. These are distinct but related concepts referring to the complainant’s truthfulness and accuracy when testifying. There are a number of factors a judge will consider such as:
- Internal inconsistencies: where the complainant has given a previously inconsistent statement;
- External inconsistencies: the complainant’s evidence is contradicted by other evidence;
- Bias against the accused: the complainant’s motive to make false allegations;
- Demeanor: how did the complainant come across during the testimony in areas such as voice tone and body language;
- Manner of response: was the complainant argumentative and evasive or forthright;
It is important to hire an experienced criminal defence lawyer to cross-examine the complainant to exploit any inconsistencies and to show the judge that the allegations are not credible.
In addition to credibility, the defence of self-defence is often vital in a domestic assault trial. Far too often we see incidents in which the complainant attacks the accused and then calls the police when the accused acts in self-defense. Far too often, if it is the male who is acting in self-defense, the police simply arrest him without conducting a thorough investigation.
In order to rely on the self-defense provisions found in section 34 of the Criminal Code, an accused must satisfy the judge of the following criteria:
- They believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
- The act the constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that us or threat of force; and
- The act committed is reasonable in the circumstances.
In considering whether the act committed was reasonable, a judge will look at the non-exhaustive list of factors found in section 34(2) of the Criminal Code:
- The nature of the force or threat;
- Was the use of force imminent;
- The person’s role in the incident;
- Whether any party used or threatened to use a weapon;
- The size, age and gender of the parties involved;
- The nature, history and duration of the relationship;
- Proportionality of the force used; and
- Whether the act committed was in response the a use or threat of force that the person