Author: Phillip Gibson
Parramatta District Court and Campbelltown District Court
Acknowledgment: Whilst it is acknowledged that sexual assaults are committed, there are many examples of contrived and malicious complaints. This case is such an example.
Facts: The client married a woman who already had a young daughter from a previous relationship. He and his wife went on to have other children. The daughter had behavioural problems at school and regularly moved schools. She befriended a girl in high school who had apparently been sexually abused. This led to her ‘complaining’ that she had also been sexually abused. Notwithstanding the complaint, nothing was done about it for several years. Years later, the daughter heard a rumour that her step-father had touched someone inappropriately. She then ‘disclosed’ to her mother that she had been touched inappropriately too, though she had never been forced to touch her step-father. The mother complained to police and there was no turning back for the complainant.
She told police that he had touched her and another girl who was staying over at the time. She named another girl whom she had allegedly told. Her girlfriend from school backed her up.
Police charges: The step-father was charged with 2 counts of Aggravated Sexual Assault pursuant to section 61J(1) Crimes Act, an offence of Aggravated Indecent Assault pursuant to Section 61M() Crimes Act, and 2 counts of Aggravated Sexual Intercourse of a Child aged between 14 and 16 years pursuant to section 66C(4) Crimes Act. The potential penalties for the first two offences include 20 years imprisonment for each matter. The aggravated indecent assault carries 7 years imprisonment, and the remaining charges carry penalties of 12 years imprisonment each. Under the Crimes (Sentencing Procedure) Act 1999, there are standard non-parole periods of 10 years for the first lot of police matters and 8 years for the indecent assault matter.
The accused sought the advice of the author – a criminal defence lawyer and accredited specialist in criminal law.
Devil is in the detail: The girl who was supposed to have been sexually assaulted when staying over some 9 or 10 years earlier flatly denied that anything improper had occurred. She provided police with a statement. The girl who was allegedly told of the sexual assaults by the complainant denied ever being told to police. Police failed to take a formal statement from her. The complaint evidence from the school friend was suspicious from the start. Firstly, it was significantly different to the account given by the complainant on some material aspects. Secondly, it was revealed that although the friend and complainant had a falling out and had not spoken for a couple of years, the complainant managed to track her down and they spent time together for at least a day prior to the friend going to the police station to give her statement. The complainant had left Sydney to live in another State for some time. She despised her mother (at least at that time) and told police that she did not like to communicate with her step-father. She returned to live in Sydney and stayed with her step-father – the very person that she had accused of sexually assaulting her! Unbelievable you might think. Police set up a couple of phone calls, known as pre-text phone calls between the complainant and her step-father. These calls are recorded and permitted by Telephone Intercept warrant and Listening Device warrant. It seems that the complainants are typically given a format to follow, accusing the person on the other end of the phone of doing something abominable, provoking a response which may be used against them in evidence. They are often used in weak evidentiary cases.
The Committal Hearing: Application was made pursuant to sections 91 and 93 Criminal Procedure Act 1986 to cross examine the complainant and a number of other witnesses at a committal hearing.
The value of a properly prepared committal hearing cannot be underestimated. Although it is rare indeed to be able to cross examine complainants in sexual assault matters in the Local Court prior to trial, there were special reasons in the interests of justice in this case which resulted in a Magistrate granting us that opportunity. The high likelihood that the complainant and her friend ‘got their heads together’ before the friend gave a statement to police was exposed. The differences in their ‘stories’ were bizarre.
The mother produced an email from the daughter to her in which she praised her step-father and harshly criticized her mother. Importantly, she spoke well of her step-father, blaming her mother for her unhappiness at school, not mentioning sexual assault or anything remotely like it, and defiantly telling her mother that he is not a bad person. This email was disclosed by the DPP solicitor who also disclosed that she was told that the email was written under duress, with the step-father standing behind her at the time of writing it, telling her what to say. Incredibly, it turned out in evidence that the complainant was in fact living interstate at the time and her stepfather was in Sydney. Notwithstanding this evidence, the accused was committed to stand trial
No Bill Application: Due to the unreliability of the evidence, an application was made to the Director of Public Prosecutions to discontinue the prosecution. This was rejected – and became an important factor in the subsequent costs application.
Trial by Jury: Prior to empaneling a jury, a voir dire was conducted as to the admissibility of pre-text phone recordings. Although the client had been advised to have no communication with the complainant, and to expect the possibility of phone calls from her specifically to attempt to incriminate him, he still decided to take the calls to see if he could work out what she was complaining about. Interestingly, in the first phone call which went for nearly half an hour, the complainant made no complainant or allegation against him. The trial judge rejected the admissibility of the phone calls – they contained no admissions and as indicated, the first call contained no complaint – just chatting.
Upon the phone calls being ruled inadmissible, the DPP no billed the case.
Costs Application: We immediately made application for costs pursuant to Sections 2 and 3 Costs in Criminal Cases Act 1967. The test in such applications is whether a hypothetical prosecutor been in possession of all of the relevant facts would have found it reasonable to commence proceedings. The learned judge granted a Costs Certificate. His Honour indicated that the evidence from the childhood friend flatly denying anything wrong took place was devastating for the prosecution case. The complainant’s evidence concerning the email was another factor to be considered in whether or not to proceed with the prosecution against the accused. The Judge analyzed the committal hearing evidence of the complainant, the lack of complaint in the first phone call, the nonsense about the email and found that these matters “should have alerted the prosecution to the problems with this case.”
The Costs Certificate was subsequently sent to the Attorney General for the client’s costs to be repaid.
Why Use an Accredited Specialist in Criminal Law?: It is just too easy for someone to make a complaint long after it is alleged to have occurred. The accused person is at a distinct disadvantage – DNA and other scientific evidence is rarely available; alibi evidence may have existed if the complaint occurred closer in time to the alleged incident; witnesses may have been available to defeat the claim of the confident complainant. It is essential to use an experienced criminal defence solicitor to methodically deconstruct the case, interview potential witnesses, forensically analyze all of the evidence, and assist the accused through difficult times.