Successful Defence of Indecent Assault Charge
A 25 year old woman caught a train to work as she had done so for the last four years. She fell asleep on the train and says she awoke with the hand of the defendant high up on inner right thigh and in between her legs.
She alleged the defendant kept his hand there for 5 or 10 minutes whilst she sat there with her eyes closed trying to decide what to do. Eventually, she says she pushed the defendant out of his seat and waited for the train to arrive at the next stop. The woman disembarked (although it was not her regular destination) and alerted railway security. Police attended a short time later and took statements from the alleged victim and a witness who was on the train. The Defendant was located, arrested and charged. The matter came before the Court at the Downing Centre.
Jill McIntosh was briefed to appear as Barrister for the Defendant.
Section 61L of the Crimes Act 1900 (NSW) - Indecent Assault - 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.
The police served an Indicatable Brief of Evidence. The matter was heard in the Local Court by a Magistrate.
The case was robustly prosecuted and vigorously defended.
The stakes for the Defendant were high. A conviction for such an offence was likely to have devastating consequences for the Defendant and his family. The possibility of imprisonment, a criminal record, the ongoing requirement for disclosure of such an offence in general life and a place on the sex offenders register. The Defendant was, however, a fairly ordinary soul with a non-descript life. A hardworking Figian/Indian immigrant of Muslim faith and a long married family man, with three school aged children. He was a \'clean-skin\' with no record. Not even a driving offence.
The Prosecution case included seven (7) witnesses, one of whom was on the train at the time of the alleged incident.
The Defence case had only one witness. The Defendant.
The court was \'in camera\' (in private) under s291 Criminal Procedure Act 1986 (NSW) when the alleged victim gave her evidence. Section 291 (1) states Any part of any proceedings in respect of a prescribed sexual offence in which evidence is given by a complainant is to be held in camera, unless the court otherwise directs.
Ms McIntosh cross-examined several of the police witnesses. The witness on the train was questioned extensively. Most importantly, though, the alleged victim was cross-examined exhaustively for several hours.
The Defendant gave evidence and was led by Ms McIntosh slowly and deliberately through his version of events. He did not deny that he was seated next to the woman and that he was the man who was pushed by her. Ms McIntosh set up a \'train seat\' with two chairs in the courtroom so Her Honour could see and the Defendant was asked to sit on the seat and arrange his briefcase and paper as he had done that day.
The Defendant claimed he did not really notice the woman until she turned slightly sideways, looked at him as though something was wrong with her and pushed him twice out of his seat. On being pushed, he quickly left his seat and moved towards the exit. The Defendant strenuously denied he put his hand anywhere on her particularly not her leg or thigh. He conceded he may have touched her accidentally whilst reading his paper but wasn\'t sure.
The Prosecutor cross-examined the Defendant on whether he said \'I\'m sorry ma\'am\' after being pushed from the seat. The Defendant claimed he said \'sorr-eee\', meaning \'I\'m sorry I ever sat there\'.
Denying a charge in itself does not persuade a court or give rise to reasonable doubt. The plea of not guilty communicates the Defendant\'s denial. The Defence case was that the alleged victim\'s version of events at the penultimate moment did not occur. A challenge to the minute details of the alleged victim\'s version was required.
At the conclusion, Her Honour carefully weighed up the evidence. After some very tense moments, Her Honour decided she was not persuaded at the requisite level (beyond reasonable doubt) the event had occured as described by the complainant. This, Her Honour said, was due to the slight shift in the complainants evidence whilst under cross-examination. Vigorous and unrelenting cross-examination by Ms McIntosh highlighted inconsistencies in versions given to police and that which was told to the court. Ms McIntosh extracted an admission from the complainant she may not have actually seen the hand on her leg after all!