The Court: Dandenong Magistrates Court
The Lawyer: Samantha Barwick
The Charges:
The Allegations:
Our client worked as a supervisor in a warehouse. The complainant was a temporary contract worker who worked there intermittently. It was alleged that one day at work, whilst the complainant was on a ladder, the client came behind and groped and squeezed the complainant’s buttocks.
The matter was reported to the company’s HR division first, and no action was taken. The matter was then referred to the police, who charged our client with sexual assault.
Upon receipt of the brief, there were multiple statements. Although no one had directly witnessed the incident, people nearby heard what followed. What was most notable was that the witnesses stated that the complainant said directly after “Who pinched my arse?”. There was no mention of it being a grope or squeeze. Furthermore, the complaint made to HR was inconsistent with the complaint made to the police.
Lastly, our client gave a recorded interview in which he admitted to pinching the upper leg, but not the buttocks of the complainant. The reason for the pinch was that the complainant had just played a prank on another worker, and so the pinch was intended as a light-hearted response.
At Court:
Whilst the allegations were not of the highest level of severity, the fact that they were sexual in nature meant there were extremely serious consequences.
The first point was to address the factual discrepancies in the case. This was important because a grope and squeeze is much more sexual in nature than a pinch. Therefore, careful negotiations were needed with the prosecution regarding the factual basis of the charges.
What was most convincing was what the witnesses heard the complainant state immediately after the incident. It was highly unlikely that a grope would occur and that the complainant would shout out about only a pinch. Thus, the prosecution conceded that they could only proceed based on a pinch, not a grope and squeeze.
Further arguments were then had about whether that was sufficiently sexual in nature to establish the charge of sexual assault. Whilst the part of the body touched can contribute to whether or not the touch is sexual, the overall circumstances must be looked at. After much discussion, the prosecution again conceded that they could not establish that it was sexual touching beyond a reasonable doubt and agreed to proceed only with a common assault charge based on a pinch to the buttocks.
Lastly, there was an issue about our client potentially receiving a criminal record. He was the sole income earner for his family, which included three children with disabilities. Any criminal record could jeopardise his employment and render him unable to support his family.
Therefore, we needed to pursue Diversion in this matter as a means of acknowledging responsibility for the incident but avoiding a criminal record. It was not easy to get a Diversion recommendation as this was still an unwanted pinch of someone’s buttocks in the workplace. But eventually, the prosecution agreed and filed a Diversion Notice.
The Outcome:
The matter then proceeded as a Diversion hearing, which eventually led to the Magistrate agreeing to grant our client the one opportunity to avoid any record on this occasion. The client was placed on a diversion plan that required him to donate a monetary sum to a charity and write a letter of apology to the victim within 12 months.
It was an excellent result to get the matter down from a sexual assault in the workplace, which could have led to potential loss of employment, down to a Diversion on a common assault without any record. It was a result that came down to close attention to detail of the evidence and careful handling of the negotiations with the prosecution.
