Director of Public Prosecutions v Allan Ebsworth and 1 Or

The Director of Public Prosecutions appealed to the Court of Appeal of New South Wales against a decision of Barnett ADCJ of the Drug Court. The appeal concerned the eligibility of Mr Allan Ebsworth to participate in the Drug Court program, specifically whether the offence with which he was charged, under section 97(1) of the *Crimes Act 1900* (NSW), constituted an "offence involving violent conduct" for the purposes of section 5(2)(b) of the *Drug Court Act 1998* (NSW).

The central legal issue before the Court of Appeal was the interpretation of the phrase "offence involving violent conduct" as it applied to Mr Ebsworth's charge. The court was required to determine whether this assessment should be made by reference to the specific acts alleged to have been committed by the accused, or by reference to the elements of the offence as charged. Furthermore, the court had to consider whether a threat of violence, as potentially encompassed by the charge, could be considered "violent conduct" for the purposes of the *Drug Court Act*.

The Court of Appeal found that the Drug Court judge had erred in his determination. The Court held that the assessment of whether an offence involved violent conduct should be made by reference to the actual conduct of the accused, rather than solely the abstract elements of the offence charged. In this instance, the charge under section 97(1) of the *Crimes Act 1900* (NSW), which relates to assault occasioning actual bodily harm, could involve violent conduct, and a threat of violence could indeed constitute such conduct. Consequently, the court made a declaration that the Drug Court judge had erred in finding that the offence charged was not an offence involving violent conduct within the meaning of section 5(2)(b) of the *Drug Court Act 1998*.