Sexual Assault Charges Geelong – Section 40 Crimes Act – Case Study:
Sexual Assault Charges Geelong -Section 40 Crimes Act The Charges:
The client was charged with section 47(1) Indecent Act and section 39(1) Indecent Assault of the Crimes Act 1958. Both these sections were repealed following the July 2017 Amendments to the Crimes Act. They have been replaced with section 40(1) Sexual Assault.
Sexual Assault Charges Geelong – Section 40 Crimes Act The Facts:
The client was charged under the older sections because the offending occurred in 2011. It was alleged that whilst playing pool at a family barbecue, the accused had inappropriately touched his niece. It was further alleged that later that day he took her to an upstairs bedroom, tried to forcibly kiss her on the lips and groped her on the bed. The allegations were not the most serious example of this type of offending but had very serious ramifications, such as being registered as a sex offender, having a criminal record for sex offending against a child and potentially receiving a custodial sentence.
Sexual Assault Charges Geelong – Section 40 Crimes Act Results:
As is always the case with these types of allegations, the devil is in the detail. In the accused’s favour were the following factors:
- His record of interview was excellent. At first, he genuinely presented as being confused by the allegations. Further, he made the appropriate concessions, in that he agreed that he had been showing his niece how to play pool (because she asked) and accepted in those circumstances there may have been touching. He stated however that it was not sexual and occurred in innocent circumstances. When asked about the second incident he made it plain that it never happened and was fairly animated in his denials. The advantage of a good record of interview in regard to dated sex offending cannot be overstated. This record of interview was sufficient to ensure that the client would not have to be called to give evidence.
- The recent complaint evidence was deficient. Recent complainant is where the complainant tells someone else about what happened and then that witness is entitled to give what would usually be considered hearsay evidence under the hearsay exception rules. That evidence can sometimes be used to tarnish the credit of the complainant as was the situation in this case. There were two recent complaint witnesses, it was accepted by both witnesses that disclosures had been made, but only in relation to the playing pool incident. No complaint had been made to these witnesses in relation to the more serious allegations, which hurt the credibility of the complainant.
- Following receipt of the pre-trial materials (i.e. the internal investigative narrative prepared by police), it was revealed that the mother of the complainant was claiming that the accused had committed sexual offences against others. The police narrative revealed that this was untrue, and in fact some of the people that it was claimed the accused had sexually assaulted spoke highly of the accused’s character. This made the complainant’s mother appear biased in terms of her complaint evidence.
- The surrounding circumstances of the allegations made them unlikely to be true, occurring at a crowded family barbecue.
- Following extensive cross-examination of the informant (the charging police officer) it was revealed that the police investigation of the matter was flawed. Many witnesses were not interviewed, and it appeared that police had taken a very ‘tunnel visioned’ approach to both the investigation and the prosecution.
- Our client had no prior history and was able to rely upon his own character and other character witnesses.
Following the conclusion of the trial, the Magistrate quickly found the client not guilty and ordered costs against police. Unfortunately, like most sex offence cases, it was a long, drawn-out process. There were case conferences, contest mentions, special mentions and then a two-day contested hearing.
Dribbin & Brown Sexual Assault Lawyers Geelong conduct a large number of contested hearings in the Magistrates’ Court and sex trials in the County Court. Experience in this area is critical to ensure that all pre-trial materials are obtained and only the best barristers are involved. The stakes are too high to engage inexperienced lawyers. If you have been charged with sex offences you should engage specialised sex offence lawyers with experience.
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