Factual scenario

Our client owned a lawn mowing business. He kept all the tools of trade in a large yellow trailer parked out the front of the house that he shared with his girlfriend.

One night, he and his girlfriend went out for dinner at Nelson Bay. Upon their return, they both noticed the white joggers of someone crouched on the kerb side of the trailer. Lighting was poor, other than the initial sighting, which was assisted by the car headlights.

The client hopped out and walked quickly towards the trailer but in a wide arc, cautiously, uncertain who was hiding in the dark. His girlfriend parked the car.

He saw a figure moving quickly to the rear of the trailer, then heard something bang on the trailer and a ‘thud’. When he got to the back of the trailer, he saw a man lying on his back, making snoring noises. He appeared to be unconscious. The man’s head was directly beneath the back left corner of the trailer and his feet were facing diagonally across the road. Blood was coming from a head wound where his head had hit the road.

The client’s partner went to her car and grabbed her phone to make a ‘000’ phone call to the ambulance service. Fortunately, such calls are recorded – and some significant aspects of the recorded call were used in our client’s defence.

The man eventually came to. He did not know where he was or who our client or his girlfriend were. His clarity of mind returned and he started abusing both persons for having a dog that barked – using colourful language.

The man wandered off home. He later called the police. Approximately 2 ½ hours later, the police arrived. They noted that the man was intoxicated. Assuming he had not been drinking since the incident, he would have been even more intoxicated at the time that he was injured.

The effort taken by police in the investigation was bordering on hopeless. They took a simple narrative from him and apparently failed to ask clarifying questions. He told police that our client had grabbed him by the shirt – the next thing that he remembered was that he had become unconscious and awoke with a gash to the head and other minor injuries. He also had a tear on his shirt, on the right hand side near the 2nd button from the top (evident from photos).

The man admitted that the purpose of him crouching by the trailer was to let down the tyres to express his displeasure at the dog barking.

Police continued with their ‘investigation’ by asking our client questions under caution. They recorded a narrative version and again failed to ask clarifying questions. The way in which this was recorded did not put the situation into context. For example, “I saw the man on the ground making snoring noises. He jumped up.”

The same flawed method of questioning was practised on the girlfriend, who was happy to speak with police

Under arrest

Despite police having the identity of our client and being in a position to issue a field court attendance notice without going to the extraordinary step of arrest – they took the latter option. Police really should know better – there are Commissioner’s Instructions and plenty of case law which experienced officers would have been aware of.

Police asked to inspect our client’s hands – but they failed to take any photos. They took photos of the injured man, his shirt, and the area at the back of the trailer.

The “000” call

This call put the situation into better context. The call progressed whilst the man was apparently unconscious. As he came to, you could hear his belligerence and abuse about the “fucking dog barking every night’. Our client’s girlfriend was telling to stay still as the ambulance was on the way – he didn’t stay.

In the background of the call could be heard the immediate denials from our client of touching the man – clearly the intoxicated man was trying to justify his position on the ground and blamed our client.

Of significance were the answers by our client’s girlfriend to the ambulance operator – “the man is talking nonsense, he doesn’t know where he is or who we are.”

The police failed to obtain the recording of the ‘000’ call.

The police “investigation”

Just imagine if the intoxicated man had hit his head on the ground, developed a slow bleed on the brain and died. It happens all too often. The failure to investigate the matter properly would have left the police red-faced due to the lack of forensic evidence.

Police should have taken a question and answer style interview – both of the alleged victim and our client. They should have taken photos of our client’s hands to see if there was any bruising or skin damage to his knuckles. They could have taken a DNA sample to see if our client’s DNA was on the man’s shirt.

Police should have taken a look at the photographs that they took. In particular, there was a photo of the rear of the trailer looking down on the pool of blood. Since the man was bleeding on the right side of the head, and the direction his body was facing, it was obvious that his head was directly underneath the rear left corner. Directly above that was a spring-loaded bolt that kept the trailer door closed. This bolt extended several centimetres from the rear trailer door.

Police have to prove their case beyond reasonable doubt. It was a reasonable hypothesis, consistent with our client’s version, that the man either tried to climb the trailer or in his haste slipped and hit the trailer – and as he fell his shirt caught upon the bolt and hit his head on the roadway – entirely responsible for his own injuries.

Unreliable evidence

There were several significant problems with the prosecution case. Apart from the abysmal investigation, the injured man was intoxicated – which often plays havoc on reliability and/or memory. It was dark at the time. He was quickly trying to hide to prevent being seen. He was in the process of committing a criminal act at the time he was first seen by our client. He failed to stay at the scene – why would he leave if what he was asserting was correct? There was a significant delay in police attending his house.

Nyman Gibson Miralis appeared at the local court hearing at Raymond Terrace Local Court. The injured man was cross examined extensively and shown a number of photos. He demonstrated where his shirt was allegedly grabbed – on the left side of his chest – despite the police photo showing a tear in this shirt on the right side. He varied his version, agreeing that our client may have been walking quickly instead of running. He said that his head was 1 metre from the kerb and his feet facing the kerb – which was impossible as it would have meant that his feet were raised on the grass strip. He said that there was no conversation upon him awakening, and he was not aware who called the ambulance – despite the content of the ‘000’ call.

This was the prosecution’s star witness. One of the police officers didn’t show up at court to give evidence. The one who did turn up had conversation incorrectly recorded in his statement – different from the signed version given by our client.

Case preparation

Both our client and his girlfriend were advised to write down everything that occurred whilst it was fresh in their memory – and importantly, not to discuss their evidence with each other. His girlfriend took photos of his hands and knuckles. We also asked that photos be taken of the street lighting, the trailer from several angles, the blood stains, and the all important overhead shot – which was consistent with the police officer’s photo of the protruding bolt – the significance of which was apparently lost on the police.

We issued a subpoena on the NSW Ambulance Service and NSW Police for a copy of the ‘000’ call and all records relating to the alleged victim.

Documents served by police indicated that our client was a man of good character and could rely upon his good character at the hearing to show that it was unlikely that he would have committed the offence, and that he should be believed on his evidence.


Both charges were dismissed after hearing. The Magistrate was critical of the police investigation and noted that there was barely a prima facie case.

Defending criminal charges requires careful preparation and attention to detail. The experience of the solicitor handling this case was a key element to the magistrate being unable to be satisfied of guilty beyond reasonable doubt and both charges being dismissed.



Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.