Case facts

Our client had no criminal convictions, though she was falsely accused of a serious offence years ago. The strain of facing serious potential penalties caused her to develop depression. She was eventually found not guilty, but the experience took its toll. She was homeless for a while, but was allowed to stay in a 1 bedroom studio apartment with her aunt’s employer. His bedroom was screened off, and she slept on the couch.

The situation was not ideal – on occasions, the man would approach her when drunk and touch her inappropriately, making lewd suggestions. She did not want to return to living in hostels, but was street wise enough to deal with the harassment.

One evening, she returned from dinner to find her aunt, the man, and a neighbour sitting in the lounge room. They were intoxicated. The male walked over to her, within her personal space, making her feel uncomfortable. She told him to stay away. When the aunt ‘told her off’ for saying that to her boss, she replied that she had told him not to come near her when he was drunk and not to touch her and that she was sick and tired of being grabbed on the boobs and the bum. The man grabbed hold of our client. The aunt started abusing her and grabbed the client’s belongings and began throwing them out the front door.


Initial complaint

When our client refused to go, the aunt called the police. Police turned up around two hours later. In the meantime, the trio had gone downstairs to continue drinking. Our client was somewhat belligerent when spoken to by police. She declined to give her name – not that she was under any compulsion to do so. Police mistakenly thought that she must have been on drugs or alcohol – this was patently untrue, but still managed to get into a police officer’s statement. Even the aunt conceded that our client was not under the influence of any drug or alcohol. The aunt, her boss and the other man were so intoxicated that they were unable to tell police exactly what had happened. Police did not take any statements due to the high level of intoxication. Importantly, no injuries were sighted. The facts sheet did not reveal any complaint of assault. The aunt said she would give a statement the following day. Our client told police that she had recorded her and her aunt whilst waiting for the police. Police attempted to delete the recording, telling the client that it was illegal. Police were wrong.


Subsequent complaint

Our client was asked to attend the police station the following afternoon. Police had not taken a statement from the aunt by this time, yet they decided to charge her. The aunt turned up a short time later, sporting an obvious black eye, with her own photos on hand. She gave a statement complaining that our client had punched her once in the face – prior to the police arriving last night. She also told police that our client had attacked her boss, hitting him a number of times. She said that she moved some of our client’s property immediately prior to being punched. Her boss declined to give a statement. The other man gave a statement three weeks later. He claimed that our client punched the aunt repeatedly in the face. He did not refer to the aunt moving our client’s personal property.


Charge and AVO

Our client maintained her right to silence. Despite no complaint being made of assault on the night, the highly intoxicated trio unable to formulate words of a complaint, and police seeing no injuries and seeing property strewn outside the front door, they proceeded to charge our client with Common Assault and applied for a Provisional Apprehended Violence Order. If they believed our client had punched the aunt giving her a black eye, why didn’t they charge her with Assault Occasioning Actual Bodily Harm? The address put on the AVO was “whereabouts Unknown’ – despite the client being with the police at the time the order was being prepared.


Mental Health (Forensic Provision) Act

As a result of having to move out, our client’s depressive illness returned and she was scheduled as an involuntary patient. When the matter first came to court, it looked as though we would have to make an application under section 32 Mental Health (Forensic Provisions) Act. This would have been a shame, as our client had such a winnable case. Fortunately her health improved, and the matter was set down for hearing. The risk of such an application was that a Magistrate would make a final order.


Holes in the case

The prosecution have to prove the guilt of the accused beyond reasonable doubt. How could a court ever accept the evidence of witnesses who were so intoxicated that they could not tell police what had happened? The fact that experienced police officers did not see any injury on the aunt, yet she somehow got a black eye, left the strong inference that someone punched the aunt after police had attended. The boss declined to give a statement – perhaps his own behaviour might have been the subject of robust cross examination. The strewn property was consistent with the aunt saying that she ‘moved’ our client’s items, and with our client’s instructions as to what really occurred. The other male witness’ version was different on important aspects to that of the aunt. Our client’s lack of prior convictions allowed her to raise good character.


Surveillance Devices Act

Fortunately, our client recorded the aunt prior to police arriving. There was no complaint of being punched. The complaint was that our client would not leave the premises (with nowhere to go and around midnight). The aunt was repeatedly threatening to annihilate our client in court and to get her ‘fucking ass’ out of the place.

When police arrived, she told her she loved her niece. Our client was entitled to do what she did under section 7 of the Surveillance Devices Act 2004 (NSW). She was a principal party to the conversation and recorded events for the protection of her legal rights. At one stage, she even told the aunt that she was recording the conversation. The officer’s conduct in attempting to delete the material and telling the client she was not allowed to have recorded the conversation was at best wrong, and at worst, an attempt to destroy evidence – evidence that decimated the prosecution case.


Defended hearing

We were ready to pull the case apart. The prosecution failed its basic function of determining that it was appropriate to bring the matter to court. None of the civilian witnesses turned up and had told police they did not intend coming to court – despite being issued with a subpoena.

The prosecutor sought an adjournment. The Magistrate declined that application on the basis that there was no expectation that the witnesses would attend if an adjournment were given, and after hearing an outline of the significant weaknesses in the prosecution case. The charge and AVO were dismissed.


Why you need our expertise

This case is an example of how easy it is for false complaints to be made which can have serious consequences upon the accused. Common Assault, section 61 Crimes Act carries a penalty of imprisonment of up to 12 months and a fine of up to $2,200. If the Magistrate had made a final order, if the section 32 Mental Health (Forensic Provisions) Act application had proceeded, there was nothing to stop the aunt making a false complaint of the order being breached – why not, it is so simple to do! Then we would be defending charges under the Crimes (Domestic and Personal violence) Act.



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