THE assault case against suspended Ballarat police officer Byron Exner has been dropped following a key witness saying she intended to claim for professional privilege.
Mr Exner, 47, was accused of assaulting his former partner Derryl Perks, however both charges against him were withdrawn late yesterday afternoon in Ballarat Magistrates Court.
The contested hearing, originally scheduled to last three days, was first delayed on Tuesday when Mr Exner’s defence asked Ms Perks questions about information she had given to another Ballarat law firm regarding a separate matter.
When magistrate Michelle Hodgson then asked Ms Perks whether she had signed a waiver or given permission for that information to be released when subpoenaed, Ms Perks said “no”.
Upon receiving legal advice from an independent barrister yesterday afternoon, Ms Perks told the court she wished to exercise her rights for professional privilege.
Legal professional privilege protects all communications between clients and their professional legal advisers from being disclosed without the permission of the client. The privilege is the clients, not the lawyers.
Less than 30 minutes after Ms Perks revealed her intentions, Crown Prosecutor Nick Goodenough withdrew both charges against Mr Exner.
Mr Exner’s lawyers then made an application for costs.
“I haven’t had this situation before and I don’t know what to do ... but my instinct is not to plough through,” Ms Hodgson said when the issue first arose on Tuesday.
“I think it’s an ethical issue for the solicitor who’s released those documents.”
Defence lawyer Carolene Gwynn said: “I think we’ve gotten ourselves into an extraordinary situation”.
Mr Exner was defending charges of recklessly causing injury and assault.
It had been alleged that during an argument with Ms Perks on April 4, 2010, he pushed her in the chest and kicked her between the legs.
In February this year, Mr Exner was determined to have no case to answer, relating to allegations he illegally accessed information via the LEAP database.