The Court: Moorabbin Magistrates Court
The Lawyer: Tom Woodward
The Charges:
The Allegations:
Our client was a University student. On the night in question, the client was at a friend’s house where a group of his fellow students had gathered for some drinks.
The group continued to drink, and slowly, the guests made their way to various rooms to retire for the night. Our client has gone to one of the bedrooms and positioned himself in bed with two other friends.
At some point during the night, the client was positioned so that he had his right arm over the complainant’s right side. He has then placed his hand down her underwear. The complainant woke up and yelled for the client to get out of the bed. He did so and went to sleep in the lounge room. The next day, the complainant confided in her friends about what had happened the night before.
When confronted by his friends, the client was unable to recall the events of the previous night. He remembered going to sleep next to the complainant and then being woken up by the complainant yelling, but that was the extent of his memory. He did, however, believe what the complainant had said and was appalled and deeply ashamed of his actions.
When interviewed by the police, he reiterated his shame and told them that he could not specifically remember the allegations.
At Court:
Our solicitor obtained the police brief, and the various witness statements were carefully analysed.
The difficulty for the prosecution in this case was that the offence occurred while everyone was asleep, so there were no witnesses to the alleged offence. The complainant had made a statement, and her friends had also made a statement in relation to what the complainant told them about the incident.
After reviewing the brief and engaging in lengthy discussions with the client and his parents, a tactical decision was made to pursue the Diversion Program.
The Diversion Program is a Program introduced by Victoria Police and the courts, whereby first-time offenders are given the opportunity to avoid a criminal record.
To be eligible for the Diversion Program, a person must complete three stages. These stages are;
- A recommendation must be made by the police in the form of a Diversion Notice that is filed with the Court.
- The Accused (with their legal representative) has a meeting with the Diversion Coordinator on the day of court.
- The Diversion Coordinator presents the file to the Magistrate, who makes a final determination.
The complainant is notified and invited to share their views on the case. It is essential to note that just because the complainant
is not in favour of diversion, it does not automatically mean diversion is refused. It is just one factor that the Magistrate takes into account.
In this case, because of the client’s presentation at the interview and because of his age and lack of prior offending, the police were willing to make a recommendation for diversion. The complainant was then notified. Fortunately for our client, the complainant understood that the client was genuinely remorseful and that the offending occurred in the context of the client being under the influence of alcohol.
A psychological report was also obtained, addressing and exploring the underlying issues surrounding the offending. The psychologist also conducted a risk assessment to evaluate the client’s risk of reoffending.
A further conference was then held with the client and his parents to discuss the diversion process again and to prepare for the meeting with the Diversion Coordinator.
At court, the supporting materials were presented to the Diversion Coordinator, and our solicitor presented a strong case for diversion.
The Outcome:
The police brief, along with the supporting materials and the notes from the Diversion Coordinator, were then presented to the Magistrate. In this case, notwithstanding the serious nature of the allegations, the Magistrate granted diversion. The charges were then adjourned for the client to complete a Diversion Plan. Once these conditions were met, the charge against our client was struck out. This is a non-disclosable court outcome, which means it does not appear on a police record check.
This was an excellent result as the client avoided a criminal record. A finding of guilt for a sex offence would have had huge ramifications for our client, particularly as he was very young and in the early stages of his University degree.
