The Irish tourist who was put into a coma for a week after his brother knocked him out with a one-punch assault in Kings Cross has come out requesting that criminal charges against his brother be dropped.

Patrick Lyttle attended the Downing Centre Local Court today to support his brother Barry, who was appearing in court to face charges.

Patrick Lyttle said: “We’re just hoping that in a couple of weeks’ time this can all get a whole lot better and we can all go home as a family.”

There is no indication from media reports as to the precise charge Lyttle is facing. Given that the defence has indicated that they will produce a neurological report to the effect that Patrick Lyttle will not suffer permanent brain damage, it is possible that Barry Lyttle will be liable for assault occasioning actual bodily harm at worst, which carries a maximum penalty of five years’ jail if dealt with in the District Court, and two years’ jail if dealt with in the Local Court. Most of these types of crime are dealt with in the Local Court.

Police have a discretion whether or not to continue with charges against an individual, as do the DPP. Even though this case is probably being dealt with in the Local Court, and therefore is being handled by NSW Police prosecutors, the DPP guidelines still shed light on the kind of decision the police will have to make.

Guideline 4 NSW DPP Prosecution Guidelines, entitled “The Decision to Prosecute” lists as its paramount criterion the general public interest in a prosecution. There are three considerations:

(1)       whether or not the admissible evidence  available is capable of establishing each element of the offence;

(2)       whether or not it can be said that there is no reasonable prospect of conviction by a reasonable jury (or other tribunal of fact) properly instructed as to the law; and if not

(3)       whether or not discretionary factors nevertheless dictate that the matter           should not proceed in the public interest.

One of the discretionary factors under point 3 is: “3.20     the attitude of a victim or in some cases a material witness to a prosecution”. Thus, where, as in this case, the victim declares that they do not want the prosecution to proceed, this is a relevant discretionary factor informing the decision of the DPP to not prosecute. It is anticipated that NSW police guidelines would accommodate a similar discretionary factor.

While the weight which would be attached to Patrick Lyttle’s request would and should be significant, given the relationship between victim and offender, it is unlikely that it will be so significant that the prosecution will not proceed. This is because it the offence is a fairly serious assault: the victim was rendered unconscious for a week, with the prospect of permanent brain damage or death a substantial possibility.

What will happen?

The police will probably proceed with the prosecution, and perhaps not vigorously pursue a significant penalty against the offender. While this case is newsworthy due its nature of being a drunken one-punch assault in Kings Cross, the offender is probably in a good position to receive a lenient sentence, possibly even a section 10 good behaviour bond, which carries no conviction. It is expected that the extra-curial punishment suffered by Barry Lyttle, that is, the suffering which the offender has already gone through before even facing court, will be a significant factor relied on by his defence counsel in mitigation of his plea. The shame and torment which Barry Lyttle has gone through is evident.

The matter continues.

Read more: http://www.smh.com.au/nsw/single-punch-in-kings-cross-irish-tourist-patrick-lyttle-calls-for-prosecution-of-his-brother-barry-to-be-dropped-20150305-13vpb2.html

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Image credit: Sydney Morning Herald

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