Author: Dennis Miralis
Case Facts: Our client was living in a Housing Commission unit – the block consisted of 2 units, one above the other, the client’s unit being on the top floor with side access stairs. There had been an ongoing dispute between the parties largely brought about by the chronic alcoholism of the person living in the flat below. On the day of the stabbing, the neighbour had been drinking with friends to the point of intoxication. During the early afternoon, the neighbour and a friend approached our client. The neighbour assaulted our client being an assault occasioning actual bodily harm. Police were called. They found that the neighbour and her friend were quite intoxicated, kept talking over the top of each other, and were not being truthful with police. This was noted by police in their statements. No police charges were laid at that time.
A while after police left, the neighbour and friend walked up the side stairs to our client’s unit and confronted our client, threatening her. A male walking nearby came to our client’s assistance and told the quarrelsome duo to leave.
Late that evening, our client wanted to walk her dog. When she got to the bottom of the stairs, she was verbally abused by the neighbour’s intoxicated friend, who according to our client, climbed the balcony railing and threatened to ‘beat up’ our client as there were “no police or men there to protect her now”. Our client had already been assaulted that day and later threatened. Fearing an attack for the third time, she put a kitchen knife in her bag when she went to walk her dog. When the neighbour approached her, she held the knife out. Her actions were in self defence. She did not maliciously inflict grievous bodily harm or maliciously wound the woman. The precise mechanics of the next few seconds are unknown – though the neighbour received a puncture wound to the abdomen. She ran back inside the unit and told the neighbour. The neighbour came outside, intoxicated, armed with a piece of wood, and struck our client several times about the head causing a number of injuries that required hospitalization. Our client was charged with Malicious Wounding pursuant to Section 33 Crimes Act 1900 – which carries a maximum penalty of 25 years imprisonment. She was bail refused.
The client had been in custody for approximately three months when a criminal defence solicitor and accredited criminal law specialist from Nyman Gibson Miralis was contacted and asked to act for her. A bail application was immediately arranged, and bail was granted the day after meeting the client. A plea of not guilty was entered and application was made pursuant so sections 91 and 93 Criminal Procedure Act 1986 to hold a committal hearing. The basis of the request to cross examine the neighbour and alleged victim was obvious – they had been untruthful with police that afternoon; were intoxicated; had both exhibited violence towards our client; and claimed that our client had leant over the balcony to stab the alleged victim.
Mental Health Issues:
The client had a traumatic upbringing and had been repeatedly assaulted over many years in a dysfunctional marriage. She lived in a communist country for some time but was not a citizen. She complained that her husband only had to ask authorities to lock her up and she would be confined to a mental institution. There was sexual, physical and verbal abuse from which our client developed a psychiatric disorder.
Prior Criminal Record:
Following the break down of her marriage, the client entered a relationship with another violent male. During an attack upon her, she stabbed her boyfriend. She ended up in hospital with fractured facial bones. He was apparently sentenced to a period of imprisonment. She was charged with stabbing him and may not have been represented when she pleaded guilty. A conviction was recorded.
At the committal hearing, the solicitor from the Director of Public Prosecutions considered the appropriateness of a guilty plea to Recklessly Cause Grievous Bodily Harm pursuant to section 35 Crimes Act NSW 1900, which could be dealt with in the Local Court instead of by trial by jury. The actions of our client were reckless – there was no intention to cause the injury. There were potential self defence issues as well as a defence that her actions were not malicious. The prosecutor accepted that there was an element of self defence, though the actions which resulted in stabbing the woman amounted to excessive self defence (see R v Lean and Aland (1993) 66 A Crim R 296). It was accepted that there was a substantial degree of provocation from the victim, and that the prior actions of the victim and neighbour during the day justified our client being in fear and taking action which was potentially reasonable, in accordance with the test more fully outlined in R v Katarzynski  NSWSC 613.
The victim had told police that our client leant over the balcony to stab her. Our client consented to a DNA test which established that the victim’s blood spatter was found beyond the railing of the unit – consistent with our client’s instructions and at odds with the victim’s version – a version given whilst intoxicated that would no doubt have formed the basis of unreliable evidence.
A plea of guilty was entered to the Reckless Cause GBH matter and the more serious charge withdrawn. The prior stabbing conviction did not assist our client’s efforts to stay out of gaol on sentence, however her psychiatric illness, elements of self defence, provocation, good Pre-Sentence Report and the fact that she had spent time in prison on remand led the court to the conclusion that a suspended sentence was appropriate in the circumstances.
WHY YOU NEED EXPERT ADVICE: There is no explanation as to why a bail application was not made previously for this client when represented by another lawyer. Issues of mental illness, prior psychiatric reports, claims of self defence and provocation raised in a record of interview were all on hand. Instead, she was rotting in prison in an increasingly depressed state for 3 months. Serious police charges required the expertise of an accredited specialist in criminal law, or at least someone competent and skilled in criminal defence work.