Our client had been charged with numerous offences including affray alleged to have occurred during a ‘knife fight’ with another person. The defence case would have been one of self-defence. However, the prosecution were unable to obtain a statement from the alleged victim. They had obtained a record of interview in the course of investigating the alleged victim for his involvement in the offence, and the prosecution sought to rely on this statement from the accused, and to by-pass their requirement to serve all statements from witnesses whom they intended to call for the prosecution pursuant to the Criminal Procedure Act 1986 (NSW). Recognising that fault with the case and with instructions that the client was acting in self-defence in any event, the matter was set down for hearing.
The defence objected to the admissibility of this evidence, and contended that the prosecution had not complied with their obligation to serve a brief of evidence on the defence at least 14 days before the hearing. The prosecution argued that the record of interview was sufficient. After hearing legal argument on this point, the Magistrate ruled that the prosecution could not rely on an interview taken from a suspect as a substitute to a statement. The Magistrate made comments which were scathing against the prosecution as to their inability to prosecute the matter.
By having a thorough working knowledge of the Criminal Procedure Act, we were able to avoid the need for a defended hearing and the charges were all dismissed.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.