Assault occasioning actual bodily harm conviction appeal
Case facts
The client originated from Egypt. He was a professional back in his country but had difficulties having his qualifications recognized in Australia and wanted to fly home to see his sick mother. He went to a well known travel agency who promised that if you found a flight for a cheaper price, they would beat it by a percentage of the price. When he pointed this out to the manager, he was told to get out of the store. He said he would wait for police.
What happened next was extraordinary. Six security guards set upon him, placing him in a headlock, stomping him, punching and striking him. Outnumbered, he bit 3 hands or arms of his attackers.
Surprisingly he was convicted in the Local Court, CCTV footage clearly showed that the security guards were the aggressors and at the very least the appellant was acting in self defence. Despite being captured by CCTV, client was convicted and given suspended prison sentences pursuant to Section 12 Crimes (Sentencing Procedure) Act.
The conviction appeal
The District Court Judge in the Sydney District Court took one look at the CCTV footage and upheld the appeal.
Conviction overturned. Civil proceedings commenced against the aggressors. The client then went on to sue the security guards and obtained a fantastic outcome.
Assault/intimidate police conviction appeal
Case facts
The client was driving a beaten up older model car. He was a young ethnic male with a low IQ – an easy target for police.
They pulled him over and found a reason to issue him with a traffic infringement notice. He was annoyed and felt that they were picking on him so he told the officers that he would see them in court. The time was around 4pm on a weekday afternoon. Police then followed him to General Holmes Drive near the Sydney Airport tunnel, and along the tunnel to the King Georges Road Beverley Hills turn off. It was peak hour. Anyone who knows that road will tell you that it is like a slow moving car park.
Police called for back-up and said that the driver might become violent. Other police cars started rushing to intercept the car. The car was eventually stopped on Broadarrow road, Narwee. The car was searched, the driver harassed and he let fly with a barrage of foul language. He was arrested for going through a red light and offensive language as well as driving in a manner dangerous. On the way to the police station, in handcuffs, in the rear of a caged police vehicle, he allegedly ripped the canvas covering. In the cells at the police station, he was alleged to have intimidated police officers and assaulted a police officer when they entered the cells. He was also charged with assault police, resist police, intimidate police, and malicious damage.
Local court defended hearing
there is no doubt that the police officers who originally gave him a traffic infringement notice were baiting the driver. In peak hour in the airport tunnel, he could not have achieved the speeds that the police claimed he reached. Had he been driving in a manner dangerous, they could have pulled him over at any time.
Police gave evidence that there is no place to pull him over in the tunnel or before the turn off from the M5 freeway. In preparation for the hearing, we arranged for the client to take a video of the trip through the tunnel. It revealed numerous break down lanes, as well as a road shoulder extending a couple of kilometres towards the turn off. Police were not telling the truth. In relation to allegedly going through a red light, one of the police vehicles following the lead police car contained an officer who gave evidence that the accused went through the green light and the police went through the red light. That charge was obviously as set up as well.
We issued a subpoena for the CCTV footage from the police cells at the local police station. It captured the incident inside the cell and showed one of officers ramming the accused up against a wall. An experienced police officer gave evidence that he thought the accused was going to break out of the cell. It should be noted that these cells are encased concrete with steel bars – more contrived nonsense from the police.
The accused was not a bright man. A psychological report tendered in evidence established that he had below average intelligence. Although not his fault, he was not only an easy target for police when they hassled him leading up to his arrest, but also in the witness box when he was cross examined. The client was convicted on some of the charges, and an all grounds appeal or conviction appeal was lodged.
The conviction appeal
The learned Judge in the Sydney District court held that the language used by the accused was offensive, given that the words were screamed out by the client outside a shop and residence.
In mitigation, it was accepted that he was extremely frustrated at the police harassment and given his intellectual difficulties did not deal with it in a more dignified matter. The conviction was overturned and dealt with by way of section 10 Crimes (Sentencing Procedure) Act with no conviction recorded. In relation to all other counts, the Judge overturned all convictions and commented that having viewed the CCTV footage, the only person that was assaulted was the client.. Civil proceedings were then commenced against NSW Police.
Fraud conviction appeal
Case facts
The client was originally represented by another criminal defence law firm. He was unhappy with their efforts and was facing sentence in the Local court after a hearing that lasted over several days. At the sentencing proceedings, he was convicted and sentenced to imprisonment by way of a section 12 suspended prison sentence for 18 months and ordered to pay compensation of $66,000
The conviction appeal
The conviction appeal took place in the Sydney District Court. We were able to demonstrate that the poor business systems in place meant that other persons besides the accused could have been in a position to commit the fraud. The client maintained his innocence and was vindicated. We were also able to demonstrate that it was impossible for the client to have committed the offence as he was overseas on one of the dates when money went missing. Opportunity existed for other workers to commit the offence however there was a failure to investigate the possibility of other persons being responsible for the offence. Conviction overturned; prosecution ordered to pay client’s legal costs under the Costs In Criminal Cases Act including the costs of the Local Court hearing. The Orders of the Local Court were quashed.
Nyman Gibson Miralis provides expert advice and representation in conviction appeals.
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