Australian Tennis player Nick Kyrgios has been accused of domestic violence by his former girlfriend.
Mr Kyrgios is due to appear in court in the ACT Magistrates’ Court next month, facing charges of assault that relate to an alleged incident in December 2021.
Mr Kyrgios is not making any statements about the case, and the specific allegations against him are not entirely clear, but his criminal defence lawyer has told media he is taking the charges very seriously.
Mr Kyrgios is currently playing at Wimbledon, and since the allegations of domestic violence have surfaced, a DV related charity has called for him to be banned from the tournament.
Innocent until proven guilty
However, as Mr Kyrgios’ lawyers have pointed out – he, along with everyone else charged with a criminal offence in Australia – is entitled to the presumption that they are innocent until and unless proven guilty in a court of law.
Media have also been chastised for their style of questioning Mr Kyrgios’ former girlfriend Ajla Tomljanović, after her crushing loss in the quarter finals.
The questioning all-but ignored her devastating loss, focusing on her two-year relationship with Mr Kyrgios which ended in 2017.
Experts and commentators have pointed out that not only did the questioning undermine Ms Tomljanović achievements in the face of her personal problems, but that the matter is currently in the courts and should be assessed by a tribunal of law rather than reporters keen to achieve ratings – whether their reports are factual or not.
The dangers of ‘trial by media’
In high profile cases, it is very difficult for those involved not to be subjected to a ‘trial by media’. Journalists need to take more seriously their role and its potential to affect general public opinion, in respect of the judicial process.
This was recently made very obvious when TV personality Lisa Wilkinson came under fire for making comments which have resulted in the court deciding to delay the Brittany Higgins vs Bruce Lehrmann sexual assault trial.
Domestic violence charges in New South Wales
In New South Wales, there is no specific offence called ‘domestic violence’; rather, domestic or family violence is a term which can be applied to a range of conduct from coercive control to common assault and stalking or intimidation, to even more serious offences such as detain for advantage (also known as kidnapping) and assaults occasioning actual bodily harm or grievous bodily harm.
Such conduct can also result in the issuance of a domestic personal violence order, or ADVO.
The offence of common assault in New South Wales
To establish the offence, police must prove each of the following elements:
- That you caused another person to fear immediate and unlawful violence, or that you made physical contact with another person,
- That the other person did not consent, and
- That your actions were intentional or reckless.
The offence does not require actual physical contact – putting another person in fear for their immediate physical safety is enough. However, unauthorised touching can also amount to an assault known as a ‘battery’.
In the event of physical touching, a common assault is one whereby the injuries inflicted are no more than ‘transient or trifling’; anything more than this will amount to an assault occasioning actual bodily harm.
The offence of stalking or intimidation in New South Wales.
Stalking or intimidating another person is an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 which carries a maximum penalty of 5 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that you:
- You stalked or intimidated another person, and
- You intended to cause the other person to fear physical or mental harm.
- Following the other person about
- Watching or frequenting the person’s residence, work, business, or any place the other person frequents for social or leisure activities, and
- Contacting the other person through the internet or other technological means.
- Conduct amounting to harassment or molestation,
- Approaching the other person by any means including phone, SMS and email in order to make them fear for their safety,
- Conduct causing the other person to apprehend violence or damage to themselves or their property, and
- Conduct causing a person with whom you have a domestic relationship to apprehend being injured.
The prosecution does not need to prove the other person actually fear being harmed.
An intention to cause fear of harm means you knew your conduct was likely to cause harm.
An attempt to engage in the conduct is sufficient to establish the offence.
Where you raise evidence of a legal defence to a domestic violence-related charge, the prosecution must then disprove that defence beyond a reasonable doubt.
If it is unable to do so, you are entitled to an acquittal.
The most common defence to assault charges is self-defence. Other defences include duress, necessity and lawful correction of a minor.