Case facts

The accused had a large number of criminal convictions and a lengthy criminal record. He suffered a chronic traumatic brain injury (TBI). In addition, he was suffering from a mental condition/illness, namely, chronic adjustment disorder with mixed anxiety and depressed mood, substance abuse (in partial remission). He had been charged with a serious drug supply matter and was on trial in the District Court. He sat in the dock while an undercover police officer was giving evidence against him.During the course of this witness giving evidence, the witness made allegations that our client used his right hand and made a cut-throat motion from the left side of his neck to the right side before nodding his head toward the witness gesturing that our client will kill him by slitting his throat.Police later charged our client with Threaten to Cause Injury to Public Justice Official, namely, an undercover police officer in breach of section 326(1)(c) of the Crimes Act 1900. Potential Penalties: If dealt with on indictment, the penalty is a maximum period of imprisonment of 10 years. If dealt with summarily, the maximum penalty is 2 years gaol.


Police investigation

Police obtained the CCTV footage of the incident from the jury trial. The alleged incident was only witnessed by the person making the accusation.


Section 32 application

There are provisions in the Mental Health (Forensic Provisions) Act which allow for people accused of an offence, who suffer a recognised mental illness or condition, to be dealt with other than in accordance with law. In other words, if the person’s mental health or mental condition satisfies the legislation provisions, a Magistrate has the discretion to deal with the matter in such a manner that the accused does not face a criminal penalty or conviction.

The competing issues with such matters are to ensure that the accused receives appropriate treatment for their condition, balanced against the need to protect the community. Some criminal conduct is considered too serious to be dealt with on what is known as a Section 32 Application. If there is a degree of planning to the offence, then it makes it more unlikely that the discretion would be exercised in favour of the accused person. In making an Order disposing of the matter pursuant to the section 32 application, ordinarily there would be conditions attached to the dismissal of the matter requiring the person to comply with any treatment plan set out in the supporting psychological report or psychiatric report provided to the court.These matters must be supported by independent evidence such as a medical report previously referred to. The provision of a Treatment Plan is essential.

In the present case, the accused met the ‘first leg’ criteria of suffering from a mental condition for which treatment could be provided in a mental health facility. However, he had previously been placed on a Treatment Plan for another criminal matter. The Magistrate had reservations about dealing with the matter in this way and ultimately exercised discretion against the Application.

A plea of not guilty was then entered, the brief of evidence served, a Notice of Listing completed and the matter set down for a defended hearing.


Defended hearing

Police officers were cross examined, including the undercover police officer who gave evidence that was inconsistent with that depicted on the CCTV footage. The officer’s evidence was exaggerated when compared to what was depicted on the footage. The footage was not of good quality and did not depict the actions clearly.

When the accused was first approached following the incident, his immediate response was that he was merely scratching his throat. He denied making a slitting action. The accused gave evidence to that effect. In preparation for the case, it was necessary to watch approximately 2 hours of footage. This was necessary to show that the accused was seen to be placing his hands around his neck and face area a few minutes prior and after the time of the alleged incident which was consistent with his version that he often scratches that area of his body due to an adverse reaction he had from being placed in stressful situations such as court proceedings in combination of the medications he was prescribed.The undercover officer was the only person who allegedly saw this incident. It must be borne in mind that an accused person in a trial normally sits in the ‘dock’, facing the jury, within their view at all times as well as the witness gallery, the Judge, the Judge’s associate, the sheriff, corrective services officers etc. The only person who saw this alleged incident was the witness.


Case result

The Magistrate could not be satisfied that the elements of the offence had been proved beyond reasonable doubt. The onus of proving the matter beyond reasonable doubt rests solely with the prosecution. It was curious that only the witness had noticed the alleged action despite at least 15 other people being in the court, 12 of them facing the accused. The accused’s evidence was consistent with the CCTV footage to the extent that he touched his neck a number of times. The charge was dismissed.


Why you need a specialised criminal defence lawyer

It is all too easy for actions to be misinterpreted leading to serious criminal charges. If the client’s mental condition meant that he could not explain his actions, then he may have faced a difficult time in defending the matter. The potential penalties are severe. Thorough preparation by our criminal defence lawyers was instrumental in defending the police charge. Our firm specialises in criminal law, and only handles these matters.



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