Written by Josh Taaffe. Partner, in-house counsel & Accredited Specialist, Doogue O’Brien George Criminal Defence Lawyers
When it comes to defence law, there is no black and white. Shades of grey best represent the intricate and complex nature of each matter and the general unpredictability of human behaviour. All of these shades of grey are rarely presented to the general public and we are left with simplistic opinions expressed about the criminal justice system that lack all of the essential facts.
When it comes to sex offences, most people really just see red.
What happened to our client could happen to anyone. And the consequences are devastating.
Our client was convicted of committing an indecent act with a child under the age of 16. As a result of that, he was no longer able to see his two young daughters. His daughters, 8 and 6 years old, were with him when he allegedly committed the crime.
The Magistrate who had convicted him sentenced him to four months in prison followed by an 18 month Community Correction Order. At his hearing in the Magistrate’s Court, the lawyer representing him decided not to cross-examine the main witness, a 12 year old girl, and run their defence without questioning her. Whether there was any strategy behind this decision, just squeamishness or lack of preparation is hard to establish.
After his conviction, his ex-wife applied for intervention orders and refused to let him see his daughters. A further result of his conviction saw him placed on the sex offender’s register and required to report for a period of eight years. The time spent with his daughters was the most important thing in his life when contact with them was taken away from him. All that was left was his job as a tradesperson and playing sport with the local club.
Fortunately, he had a very strong support network of friends, his sister and parents. They all urged him to appeal his conviction and challenge the decision.
At this point, you may hear the charge and the sentence and determine, well, consequences seemingly appropriate for this type of offending. But what, in fact, was he convicted of?
The allegation was that whilst at a two dollar discount store with his two daughters, the client had turned away from the counter and deliberately touched the vagina of the twelve year old girl who was standing behind him. All of this happened in less than five seconds. The whole thing was depicted on CCTV footage. His defence was that any contact between him and the girl was accidental. When interviewed he had no memory of her at all. At his hearing he gave evidence in his defence. The Magistrate hearing the case convicted him.
The client heeded the advice of those close to him and came to Kristina Kothrakis of our firm to run his appeal. Kristina prepared the matter and arranged for me to represent him as his Counsel on the appeal. Our first step was to call for the complaining witness to be available at the appeal so that her evidence could be explored. Kristina arranged for irrelevant material to be removed from his interview.
On his appeal the CCTV footage was played for the Judge. It appeared to show the client brushing past the girl as he and his daughters left the store, he did not look at her at all, but it was quite possible that there was contact between the two.
I cross-examined the complainant to have her agree with the following propositions
- The contact with her private parts was very brief
- Brushing was the best word to describe it
- Everything happened very quickly
- She did not see what made contact
- She only felt the contact
- Could not say what it was that actually made contact i.e. his hand, his wrist, his fingers, the sleeve of his heavy jacket
- She thought the man had made contact with her on purpose because afterwards he made eye contact with her (the footage depicted that this eye contact did not in fact occur)
- Immediately afterwards she had told her mother that she did not know if the man had touched her on purpose
- Whilst she did not think it was an accident, it was possible that the contact was accidental
- She thought it happened on purpose but it might have been an accident
The complaining witnesses’ honesty was never challenged, she was really a very reasonable witness, but her evidence revealed that immediately after the event she was not sure the contact had been deliberate.
Other evidence was called in the proceeding. The girl had complained to her mother but immediately afterwards did not answer when asked if it had been an accident. It was the mother who had called her husband, a police officer and reported the incident.
I established through the police investigator that the client had no prior convictions, other than for being drunk in a public place more than ten years ago. The police officer also gave evidence that there were several other people around at the time of the incident including shop assistant looking right at the two – she had seen nothing.
At the conclusion of the prosecution case I made a submission that there was no case for the accused to answer. The submission was that even taking the prosecution case at its highest the prosecution could not rule out that any contact had been an accident or incidental to the movement through the store. The CCTV footage clearly just depicted AM brushing past the girl. Any contact would have been for less than a second.
After hearing submissions from both sides and watching the CCTV footage multiple times the Judge accepted the submission and ruled that there was no case to answer. He then dismissed the charges.
How anyone ever viewed this footage and decided to prosecute this man, when the girl herself was uncertain about the possibility of accident, is hard to imagine. How he was ever convicted by a Magistrate sitting in a Court of law is even harder to imagine. Prejudice and suspicion surround all allegations of sexual assault. This case was an example of those prejudices overcoming logic and the proper rational assessment of evidence.
Fortunately for our client, common sense and justice prevailed in the end. In a series of events, a simple trip to the shops spiralled his life into unimaginable turmoil. He can now start to rebuild his life.
It is essential to thoroughly prepare cases and pursue every available avenue of defence. Cross-examination is not always about confronting a witness and challenging their credibility. Cross-examination should also be used to build a positive defence through concessions that a witness will willingly make. In this case the girl’s statements that she was not sure this happened on purpose needed to be explored and emphasised. In this case, what occurred was that when you shine a light onto the facts, you may in fact, reveal in between the black and the white (never mind the red), so many shades of grey.