The Court: Dandenong Magistrates Court
The Lawyer: Samantha Barwick
The Charges:
The Allegations:
Our client worked in the medical field. The allegations arose from a complaint from a patient who stated that our client had inappropriately touched her genitals when there was no need. The complaint was initially addressed internally and was deemed unsubstantiated. However, the patient then made a complaint to the police about our client.
Our client came to us before he was to be interviewed by the police regarding the matter. Our solicitor held a lengthy discussion with him and provided advice on how to approach the interview effectively. Whilst he was under no obligation to answer any questions, given that the matter would ultimately go to a contested hearing, there was no doubt that a good record of interview at the initial stage could go a long way in assisting the client’s case.
The client provided their version of events in the initial interview, as advised, which was that they did not remember the particular patient; however, what was alleged was part of their regular practice and procedure, and was required by their employer to be done.
It was not until six months later that our client was charged, and he returned to us to deal with the proceedings.
At Court:
The police had obtained an expert statement from a medical professional in a similar, but not identical, role to our client. The expert opined that what our client had done was improper and not a standard procedure. This was the foundation of the prosecution’s case.
At the case conference stage, material regarding the initial complaint to the organisation and the internal investigation was sought. It would be crucial to determine whether the complaints made to the organisation initially and subsequently to the police were consistent. Furthermore, it would also be critical to know why the complaint was deemed unsubstantiated at the internal investigation stage.
Despite some delay in obtaining this material, it ultimately arrived and confirmed what our client had been saying all along regarding the requirement to perform this procedure and that it was his standard practice.
Police still wanted to proceed with the matter despite this new information, and the matter was adjourned for a contested hearing. In the interim period, our solicitor requested that this new information be provided to the police’s expert, so that they could consider it and determine if it altered their opinion.
Unfortunately, police did not provide this information to the expert before the hearing. Instead, they obtained a new expert, who held the same role as our client, but again provided them with only the bare minimum in material from which to form an opinion.
Thus, on the day of the contest, an application was made to allow the experts to sit in court and hear the evidence of the preceding witness, so that they could consider all the new information. Police opposed this course of action, but ultimately the Magistrate agreed it was most appropriate in the circumstances.
The matter then proceeded as a hearing, and witnesses were called to give evidence. One expert did alter their opinion upon hearing the new information, though the other did not.
This was not a case about whether or not the proper procedures were followed. This was a case of whether or not our client intended to assault the patient sexually and whether they honestly believed that they needed to undertake this procedure as part of their duties. The prosecution failed to address this point and continued to focus on the fact that it was not proper procedure and far from best practice.
The Outcome:
Ultimately, the Magistrate agreed with our solicitor’s argument regarding our client’s honest belief and subsequently returned a verdict of not guilty. Costs were ordered in favour of the client.
This was a hugely important case for our client, as his entire livelihood rested on the outcome. It was a great result borne from extensive hard work from start to finish, and it highlights the importance of obtaining specialised legal advice from the outset.
