Case Facts:

You get a bit sceptical about the impartiality of an investigation when the alleged victim in a police facts sheet is described as ‘a former detective sergeant of police who was medically discharged after two decades in the NSW Police’, and the accused is described as “also a former member of the NSW Police who served for (say) 10 years.”

What? No rank? How was he discharged? Honourably perhaps? The alleged victim served much of his time as a police officer within the local area command where this incident was reported.

At a Melbourne Cup function within the local area command where the alleged victim had served much of his time as a police officer, an altercation occurred and punches were exchanged. The alleged victim reported the matter to police. Read the case study and figure out for yourself whether you believe the accused received a “fair go”. He was charged with Assault Occasioning Actual Bodily Harm. It was set down for a defended hearing. He successfully defended the matter and had his legal costs paid by the police service.

 

The Police Investigation and Brief of Evidence

Those who were friends of the former detective sergeant gave a version of events which clearly had the accused as the aggressor. One witness stated that the victim was punched with both hands. “The other guy was the aggressor. I hadn’t had anything to drink because I had been working. I was about three or four metres away from where the incident happened.” This statement alone captures a potential bias either of the witness, or the investigator, or both.

The accused is identified as the aggressor by a person who within the same paragraph justifies their ability to see things clearly because they had not been drinking and were only a short distance from the action – they even justify the reason that they had not been drinking. Hmmm. How did they miss the all-important start of the fight? Surely the start of the fight would give a better indication of who was the aggressor and whether one of the parties was acting in self-defence.

Another witness claimed to have seen the accused running through the doors of the function room and push the victim in the chest and punch him on the left side of the face around the eye and nose area three times before the victim lost his balance and fell to the floor. As he fell to the floor, the witness was knocked from her chair – but she still managed to see “the assailant” on top of the victim striking him. The victim was flat on his back. The same witness claims to have followed the assailant to a car and took a photo of the car. It was unlikely that the witness would have focussed on what was happening to the victim having been knocked off her chair – but the lack of reliability of the evidence came from the fact that the car photographed had no association at all with the accused.

The victim’s statement, given his working background, was interesting. Over a 4 ½ to 5 hour period, he only drank 2 ½ glasses of beer and a glass of champagne. He described those sitting at his table as being former police, solicitors and others. Presumably they would tell the truth by their current or former occupation.

Another witness was described as a lending manager for a banking institution – why the detail? Was it to boost their credibility, or perhaps his? He described the accused punching him in the chest.

I pushed his face away using my left hand as I had taken offence to him punching me.”

Pushing a person away having taken offence might not amount to self-defence. He claims that after some punches, he ended up on his stomach. Didn’t the other prosecution witness say he was flat on his back? He was honest enough to indicate that a woman approached him and said, “You fucken (sic) threw the first punch. You fucken started it.” Another male apparently said the same thing to him. Another witness said to the alleged victim, “You’re a legend mate, wait until I report it to the police.”

If indeed the witnesses who claimed that the victim started the fight reported the matter to the police, it may seem to the first officer taking the report that the former detective sergeant had assaulted the accused. The alleged victim, despite the list of injuries claimed in his statement, including blurred vision and dizziness, went to the police station. On one view, he “got in first”. The officer taking the report might have taken the view, you would think, that the person reporting the incident was the victim as he “got in first”.

Despite the alleged victim providing a statement to police, he somehow managed to complete another statement on the same day – a very detailed statement, which was set out remarkably similar to another witness statement – the only two statements in the brief set out that way. That other witness was a serving police officer. The victim stated that he was completely sober. Was that a fact or to go to his credibility?

In the second statement, the lending manager was standing on his right – she had been on the left in the previous statement. He added in this statement details about being eye-gouged. No such details appeared in the first statement. His right knee gave way – again not mentioned in the first statement. “I would estimate that I was punched at least a dozen times to the head region.” In the first statement, he noted “he must have given me half a dozen punches using closed fists.”  Was this exaggeration by an experienced former detective sergeant? He complained of blurred vision – but it was not mentioned in the expert witness statement of his doctor. A series of photographs were taken of the victim’s face. One showed a bloodied left eye, like a burst blood vessel, but others did not. How was that possible? How did this significant eye injury escape the attention of his treating doctor who made no mention of it in his report?

The alleged victim had the presence of mind, despite his dizziness and desire to vomit, to contact a serving detective sergeant, a friend of his whom he had known for more than 20 years. This serving police officer went straight to the police station and spoke with him, even though the alleged victim had not completed his statement. The officer read the statement back to the victim “as he felt dizzy and unable to read it.”

Common sense would say that if you had been struck in the head at least a dozen times, and were beyond retirement age, and suffered all of the injuries set out in your witness statement, and were feeling like vomiting, dizzy and unable to read, that you would have gone straight to the hospital or called the ambulance instead of going directly to the police station. You might think that after leaving the police station he went to the hospital or to a medical centre – but no, he went with the serving officer to another witness’ place. That witness was also a serving police officer – a person whom after dropping the victim off at the police station went and spoke with some of the prosecution witnesses – prior to them giving a statement. Both serving police officers had involved themselves in an investigation for which they had no professional connection. The second officer later gave a statement that the victim “had very bad concussion from the assault.” The doctor who provided an expert report did not mention anything about concussion.

Yet another prosecution witness gave yet another version. This time, instead of the accused running through doors to the victim (as claimed by another witness), he approached the victim, up close and personal in a boxing type gesture (nobody else described this) and punched the victim who appeared to lose his balance and fall to the floor. She then described the victim as having been knocked to the ground. This account was hardly credible given such internal inconsistency in a statement. A further witness claimed to have had a clear view of the alleged victim’s face when he was on the ground – but she did not say anything about eye-gouging, as claimed by the victim in his second statement, but not in his first. You might think that if the only person who claimed eye-gouging was the victim, and it was not seen by any other witness or commented upon by the doctor, that the victim was grossly exaggerating what had occurred.

The alleged victim, instead of leaving the investigation to the officer in charge of the matter, obtained a statement from his friend, one of the serving police officers. You only have to take one look at the statement to see that it bore a striking resemblance to the way in which the victim’s second statement was set out. Whether there was some complicity in the preparation of the statements or not, it looked suspicious.

To the credit of the investigating officer, he took statements from witnesses who clearly supported the accused and indicated that the accused acted in self-defence, having been first slapped hard by the alleged victim. A consistent theme throughout the majority of statements was that the accused said to the victim as he left, “watch the video”. CCTV cameras were set up in the premises. Mysteriously perhaps, they failed to capture the incident. The accused was obviously confident that the footage would back up what he claimed had occurred.

 

Defended Hearing and Costs Application

It would be fair to say that none of the witnesses affiliated with the victim fared well in cross examination. Some did not fare well in giving their evidence in chief. The accused gave evidence about being assaulted by the victim and punching him in self-defence. He raised this with the investigating police when they first spoke with him. Once self-defence is raised (section 418 Crimes Act), the onus is on the prosecution to establish that the accused did not believe on reasonable grounds that it was necessary to do what he did, or that his actions were not reasonable in the circumstances perceived by the accused.

The magistrate dismissed the charge. A costs application was successfully made, and the NSW Police Service were ordered to pay for the legal costs of the accused.

 

Why Nyman Gibson Miralis?

The benefit of having an experienced accredited criminal law specialist acting for you in criminal charges or police matters cannot be underestimated. A substantial amount of preparation was needed to ready the case for hearing. It included issuing subpoenas, interviewing potential witnesses and keeping the client informed at all times about the state of the case, with an optimistic view of defending the matter. In fact, we were that optimistic that we turned up to the hearing with our costs application submissions already completed based on the weaknesses in the police brief of evidence (BOE), needing only to add submissions about the poor state of the evidence.

The client not only won his case, he avoided any possibility of a civil claim or victims compensation claim being made by the alleged victim. He also had his legal costs repaid by those that laid the charges in the first place.