Case facts
Our client worked in a fruit shop in a shopping centre. A man approached him and demanded that he go outside to talk. Our client did not know the man. The man was aggressive verbally and physically – he grabbed the client on the arm and said that he was ‘a gangster’. The client retreated into the shop and called his uncle to come to the shop. As an elder man in the client’s ethnic community, it was thought that whatever problem existed could be resolved by the ‘Elder’.
The uncle arrived and asked the man what he wanted. The man insulted the uncle making personal insults against his wife, sister, family etc. He pushed the uncle to the chest and then grabbed the arm of the client again pulling him towards the front and telling him to come outside. The man was face to face with the client.
The client was in a difficult position. He had been grabbed, threatened, seen his uncle pushed and abused – this self styled ‘gangster’ was intimidating. The client head butted the man splitting open his bottom lip. The man put the client in a headlock and started punching him to the head. The uncle and another man intervened and eventually prised apart the two men. The client felt ill and wandered towards the rear store room. As he did so, the aggressive man hit the uncle on top of his head. The client turned around to see the uncle wincing in pain and cowering with both hands covering his scalp.
The client grabbed a large fruit knife and started walking towards the other man yelling at him to leave them alone, to get out, and to go away.
A security guard arrived moments before police. The aggressive man was swearing loudly. He pushed the guard in the chest and told him to ‘f$%* off’.
Arrest
“Gangster’ man showed police his split lip. Another shopper had only seen the end of the scenario – ie. the uncle and another man separating the man from our client, getting hit on the head, and our client brandishing a knife and advancing towards his attacker. On the strength of that complaint and what police were told at the scene, they arrested our client.
Charges and potential penalties
He was charged with Common Assault pursuant to section 61 of the Crimes Act 1900 (NSW), Assault Occasioning Actual Bodily Harm pursuant to section 59(1) of the Crimes Act and Armed with Intent to Commit an Indictable Offence pursuant to section 114(1)(a) of the Crimes Act. The potential local court penalties are up to 12 months imprisonment and a fine of up to $2,200; up to two years imprisonment and a fine of up to $5,500; and up to two years imprisonment (or up to five years if the matter proceeded on indictment to the District Court)
The police “investigation”
Police obviously thought they had the right man – they had a statement from the ‘victim’ and from an independent witness. The independent witness told police that he saw the whole fight – but this could not possibly have been right as he saw blood on one of the men at the beginning – obviously the fighting had already commenced. They took the uncle’s details but did not take a statement from him. The security guard took a copy of the CCTV footage from the shop and hand delivered it to the police station – this was written in the police statement of the security guard. Despite this, police inferred that the staff at the fruit shop interfered with the CCTV so that police could not access it. The DVD taken by the security guard to police was not played in court nor was it ever served on the criminal defence solicitor. Despite being given a complete account by the accused man, police never charged the alleged victim. There is no evidence they even put the allegations raised by our client to the ‘gangster’ prior to or after charging our client.
Self-defence
Section 418 of the Crimes Act sets out that a person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence. It goes on to outline that a person carries out conduct in self-defence if and only if the person believes the conduct is necessary to defend himself or another person, as well as other circumstances.
The client raised self-defence in his police interview. He did not seek the advice of a criminal defence lawyer prior to that interview. He told police that he was scared and intimidated by the ‘gangster’ and felt that he had ‘no other choice’ but to strike first. He admitted head-butting the man, being put in a headlock and punched, hearing his uncle being hit, and grabbing a large fruit knife and walking towards the ‘gangster’ telling him to leave them alone.
Once self-defence is raised in a case, the prosecution have the onus of negativing or disproving that there is any possibility that the accused was acting in self-defence. They must show that the accused did not believe upon reasonable grounds that it was necessary in self-defence to do what he did, or that what he did was not reasonable in the circumstances as he perceived them.
Unreliable evidence
The alleged victim – the star witness for the prosecution – told lies. He said in evidence that he did not swear from the time of speaking with our client up until the time that our client made a phone call. In his statement, he detailed conversation where he was swearing. He said that he was calm when security and the police arrived, but later said that he was swearing and angry. The guard said the man pushed him in the chest, was swearing loudly, and told him to ‘fuck off’. The alleged victim told the court the reason he went to speak to our client was because some relative had thrown shoes at him in a car park the previous day. He told the court that he informed police of this and wrote it in his statement – it was not in his statement at all. He forgot to tell the court about putting our client in a headlock, denied swearing at the uncle or pushing him in the chest or hitting him on the head.
It was obvious that he was still enraged about having shoes thrown at him by someone else the previous day, that it made it worth his while to confront our client. This could the first case of ‘shoe rage’.
Subpoena
Police refused to hand over by way of disclosure a copy of the criminal record of the alleged victim. We do not know why police wanted to hide this information – potentially because it weakened their case. Police are meant to be impartial. It is unusual that police would not provide this type of information upon request. However, we obtained the information by way of subpoena and it showed that the victim had been found guilty of assault and malicious damage. We raised the lack of good character in court, and at the same time raised our client’s good character. The Magistrate was able to take into account that our client had never been in trouble with the police before – it was therefore less likely that he would have committed the alleged offence.
The so-called independent witness was in his mid-70’s and had memory problems. He could not be certain that what he told police 5 days after the incident was accurate. He could not remember the incident when it came to hearing. The prosecution tried to revive his memory using section 32 Evidence Act – when that failed, they cross-examined their own witness on the basis that he was ‘not making a genuine attempt” to assist the prosecution case. Our solicitor felt sorry for the elderly witness who was obviously suffering health difficulties regarding memory.
Case preparation
To prepare properly for the hearing, we held lengthy conferences with our client so that we could fully understand every aspect of what occurred. We also visited the fruit shop, measured distances, took photos, noted the position of CCTV cameras and issued a subpoena. We interviewed witnesses and carefully scrutinised the brief of evidence, highlighting all of the discrepancies and contradictions. A case opening, case theory, areas of cross examination and closing submissions were prepared well in advance of attended the local court defended hearing.
Outcome
Both charges were dismissed after hearing. The Magistrate did not need to hear our submissions – we had prepared written submissions to dismiss the case prior to the hearing commencing. His Honour indicated that the prosecution had not negatived self defence. The prosecutor attempted unsuccessfully to argue that our client should have made his escape to seek help – an unconvincing argument that does not in any way overcome the essential elements of self defence.
Defending criminal charges requires careful preparation and attention to detail.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
Contact us if you require assistance.
