The Court: Franktston Magistrates Court
The Lawyer: Rebecca Glew
The Charges:
The Allegations:
The client was a doctor. He owned his practice. The complainant was a nurse who had worked at the practice. The nurse alleged that the doctor had committed the following acts over six months:
- On one occasion, he had grabbed the complainant’s bottom indecently, sexually assaulting the complainant.
- On another occasion, he kissed the complainant on the lips against her wishes and hugged her, pushing her breasts against his body, sexually assaulting the complainant.
- On another occasion had kissed the complainant and also grabbed the complainant’s breasts, indecently assaulting the complainant.
The complainant made a statement to police and, to support her case, provided police with a photo of a bruise on the left side of her breast that the complainant said was caused by the client. The complainant had also complained to her husband about the client’s unwanted advances.
Subsequently, police relied upon the husband’s evidence as recent complaint or representation evidence to bolster the credibility of the complainant.
The client denied the allegations except for the kiss. The client said that the kiss was accepted and invited by the complainant at the time. His instructions were that they had been out on a couple of dates and that there seemed to be some potential for intimacy, although there hadn’t been any level of intimacy beyond a kiss.
There were also many anomalies with the complainant’s evidence. We subpoenaed the phone records of the complainant, which revealed numerous late-night communications between the client and the complainant. The communications were numerous and outside of work hours; this evidence seemed to lend some credibility to the client’s instructions that their relationship was becoming more than professional. This was substantial evidence.
The clincher to the case was the bruise that the complainant claimed was caused by the client when she said he grabbed her breasts. The problem with this evidence was that there was only one bruise. This was more consistent with a pinch or a bite from a baby who was teething. The complainant was the mother of a young child, and subsequently, following a pathologist’s report on the nature of the bruise, it became clear that the complainant may have been lying about the bruise. This, coupled with the late-night communications, meant there was certainly material to work with in fighting the case.
At Court:
The matter proceeded through several preliminary hearings, from case conference, contest mention to contested hearing.
On the morning of the final hearing, before appearing in court, the prosecution approached our solicitor and offered a diversion based on a sexual assault where the accused had grabbed the breasts of the complainant and kissed her. Our solicitor rejected this offer because a Magistrate would have never granted a diversion on that basis.
The prosecution then revisited their offer and offered the diversion on the basis that the client had kissed the complainant, knowing that he probably shouldn’t have.
This was more likely to receive a diversion, and after considering the various risk management variables, the client decided to accept the diversion and maintain a clean record.
The prosecution would never have offered a diversion on such a serious charge; by taking the matter all the way and given their reluctance to run the case, a diversion notice was forthcoming.
The Outcome:
The value of the diversion was that it meant the doctor was accepting some responsibility for the offence, albeit based solely on a kiss. Furthermore, the matter would be diverted away from the criminal justice system and then dismissed once the client had complied with the diversion program. Considering the reduced factual basis and the client’s desire to maintain a clean record, the client opted for diversion.
The Prosecution filed the diversion notice, and the matter was resolved on the day of the hearing. The Magistrate ultimately granted the client an opportunity to complete a diversion plan, subject to a set of conditions, within 12 months.
It was a fantastic outcome; the stakes for the doctor were very high. If convicted, he surely would have been precluded from practising as a doctor and, further, from continuing to run his practice.
