3 x Indecent Assaults – All Charges Dismissed
- June 7, 2017
- Posted by: acLaw
- Category: Uncategorised
Today our client who has battled for so long, defending three charges of “indecent Assault”, alleged, and complained to have occurred against his eldest daughter, has successfully had all charges against him dismissed by a Local Court Magistrate today after a full five day hearing conducted by our Senior Solicitor, Michael Moussa.
Our Client was alleged to have touched his daughter inappropriately on her vagina she was asleep. It was alleged that on three separate occasions, he would come back home from work late and would enter her room and would touch her inappropriately. She never complained of these allegations to anyone, including the complainants mother. As a result of these incidents it was also alleged that the complainant shouted out the words similar to “stop dad, get out of my room” and scratched him with her long nails, leaving marks around his body. Scratch marks were clearly visible and photographs were taken at the police station to which our client was arrested immediately after the most recent of complaints. As a result our client was charged with 3 counts of indecent assault.
Police made extensive inquiries and conducted their investigation very reasonably into the incident, whereby the complainant stated her father (defendant), “comes into my room at night and touches me on my vagina.” The complainant listed three dates she alleged these incidents to have occurred in a span of one year. After further inquires by police, the defendant was arrested and taken to Riverstone police station where he participated in an electronically recorded interview (ERISP) with police and ultimately denied the allegations.
Astonishingly, and without adequate explanation, the Complainant indicated her wishes to have the charges withdrawn within 24 hours of making the complaint and attempted to return back to the police station, however the police told her it is too late and the matter must proceed. Three days after the incident (19th September 2016), the Complainant gave an electronically recorded interview where she confirms the allegations.
Some of the family members were also asked to provide a statement which they agreed to do so meaning they would, most likely, have to give evidence in Court. None of the family members corroborated any information similar to those alleged by the Complainant in their statements. However the mother said that she “suspected” something but couldn’t be sure.
Indecent Assault – s61L Crimes Act 1900 NSW (“The Act”)
Indecent Assault is found at s61L of the Act and is considered a very serious prescribed sexual offence. The offence is best described, and referred to in the Act. The relevant section states that “any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person is liable to imprisonment for 5 years“.
Section 61L of the Act sets out the essential ingredients or facts that the prosecution has to prove are: (1) that the accused assaulted the complainant, (2) that the assault was indecent, (3) that immediately before or immediately after that assault the accused committed an act of indecency in the presence of/on the complainant and (4) that the assault was without the consent of the complainant, (5) that the accused knew that the complainant was not consenting or (6) recklessness as to consent.
Unless the prosecution proves every one of these essential ingredients the defendant must be acquitted and found not guilty on that relevant charge.
Mr Moussa vigorously cross-examined the complainant and the other prosecution witnesses who consisted of the complainants mother, sister and brother. When starting to cross examine the mother it was established that the younger sister suffers from a medical condition which causes her to have “night terrors“. This came to light when Mr Moussa asked her “Does your daughter have any medical conditions that you are aware of“? The Mother replied “yes regularly she wakes up in the middle of the night screaming and going through unexplained tantrums“. This alluded the defence to immediately request the Court to grant a short service subpoena of all her medical records where it was astonishingly revealed that she was diagnosed with a medical condition which causes her to have significant night terrors. This was further exasperated by the fact that the complainant was studying for her HSC.
It now was time to cross-examine the complainant. Mr Moussa, softly, but firmly asked questions about the time the allegation was said to have occurred, the location, the circumstances and other very important factors the Court would need to know. It came to light that in her evidence she said the defendant was “standing up” when it happened, whereas in her interview to police she said “he was sleeping beside me on the couch“. Another question that had the Court alarmed was when Mr Moussa asked “Have you had these night terrors after your father has left and felt someone touching you“, the complainant replied “Yes“.
The Complainants medical condition was further explored and in one of the medical record propensity to exaggerate things, making her feel a high level of anxiety and couldn’t explain to the practitioners what it was that was making her feel like that.
The Defence called in a specialist forensic psychologist who treated these types of behavior and he concluded, on oath, that “It is highly likely that individuals who suffer from night terrors, also known as intermittent delusions or psychosis, have their symptoms agitated by extenuating stress factors“. The stress referred to here was in reference to the complainant studying for her HSC exams.
The icing on the cake for the defence was, when cross-examining the complainant it was asked “When you wake up, do you feel your father touching you or is it only when you are asleep?“, The complainant replied “No I am always asleep“. There were further significant inconsistencies between the version the complainant gave to police and the version she gave in Court, while on oath.
Mr Moussa argued that the prosecution has not proven one of the elements of the charge. That is, there is an inherently significant doub to prove an assault took place given the significant inconsistencies. The prosecution argued that she was making it all up to support her father.
This was resolved in the cross-examination of the siblings who corroborated that an incident occurred several days prior to the Accused arrest which supported that the scratches were not related to the alleged sexual indecent assault.
The sticking point, however, for the defence were the scratches witnessed by the police because it corroborated that an event took place which may support the complainants version of evidence. It was recognised that the Complainant gives evidence to the effect that the scratches occurred on a Friday, but the incident occurred on a Saturday. The accused said the scratches he got from her was from a week prior because he told her to study for her HSC and she got mad. The prosecution could not prove with certainty as they did not call a specialist to assess the scratches at the time. Mr Moussa argued that in the absense of further evidence “The Court is left with a case of choosing who is telling the truth and who is not. The Court cannot convict the defendant on the charges before the Court as by doing so will lead this Court into error”.
The Court held that “Whilst the prosecution case is strong, the inconsistencies, mixed with the Court not confident in the complainants inability to specifically tell the court the time in which the allegations have said to occur, leads me to conclude that the prosecution has not proven its case beyond reasonable doubt”
Our client was extremely happy and said “now I can get on with my life and help my daughter“. He also, comically added “Thank you AC Law Group for not breaking my bank account”
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