27 March 2024
Matter of [MH] 2022/00229517. I was instructed by Joanna Pasternak of Lamont Law to achieve this wonderful outcome for the client. Without the Joanna this outcome would not have been possible.
SHORT BACKGROUND
The [accused] and [complainant] were in a relationship and living together in Wyong on 25 October 2014. That evening, they went to a friend’s house where the [accused] took Xanax and became obnoxious. The [complainant] decided to leave and walk home. In an alleyway, the [accused] fell over and when the [complainant] went to help him, the [accused] punched her in the stomach.
The [complainant] ran home and locked the door, but the [accused] broke in. The [complainant] hid under the bed but the [accused] flipped the bed and dragged her out. The [complainant] tried to hide in the laundry but the [accused] followed her and repeatedly kicked her while verbally abusing her. The assault only stopped when their housemate [housemate] returned home.
The [complainant] used the [accused]’s phone to call an ambulance when he returned home around 3:30am. She was taken to hospital and required surgery for a large duodenal haematoma caused by the kicking. She told police and hospital staff she was assaulted by three girls. However, she told her sister [complainant’s sister] at the hospital that it was actually the [accused] who assaulted her.
The [complainant] reported the incident to police in April 2022. (8 years after the incident) The [accused] was charged with assault occasioning actual bodily harm, intimidation, and intentionally or recklessly destroying property. He was found guilty of all charges in September 2023 and sentenced to an aggregate term of 3.5 years imprisonment in November 2023. The [accused] has appealed his conviction. This Conviction was overturned in March 2024.
Part of my submissions included:
As a result of the combination of factors, the convictions cannot be sustained. The dismissal of Sequence 2 is a straightforward matter. It appears the Court below lost sight of the elements of the charges. I quote three paragraphs of the joint judgement of Pell v The Queen [2020] HCA 12 for my closing and final comment [39] , [45] , [127]
At 39:
‘The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence[18], in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.’
Given the inconsistences, discrepancies, inadequacy of the Police investigation, and all the other evidence – there is a doubt in this case. The falsified evidence of the sisters about the first compliant is probably the worst/ most fatal for the Prosecution case – but without limiting the others; which include
- Complainant initially told hospital staff, police, her father, and the accused’s mother that she was attacked by 3 girls, but later changed her story to implicate the accused.
- Complainant’s sister gave inconsistent evidence about the duration of the complainant’s stay at the Wyong unit after hospital discharge (1.5 weeks vs. 1 week).
- Conflicting evidence between the complainant (3 weeks) and the accused’s mother (8 months) regarding the complainant’s stay at the Wyong unit post-discharge.
- Inconsistencies in the complainant’s account of the alleged assault (e.g., 3 girls vs. 2 girls).
- Discrepancies in the complainant’s reported length of hospital stay (42 days claimed vs. 21 days per medical records).
- The police report stating that the complainant attended the hospital 24 hours after the alleged assault due to stomach cramps contradicts her testimony of immediate medical attention.
- The police report’s reference to “her house” contradicts the complainant’s assertion that the front door was damaged (the accused would just use his key as he lived there too).
At 45.
‘As their Honours observed, to say that a jury “must have had a doubt” is another way of saying that it was “not reasonably open” to the jury to be satisfied beyond reasonable doubt of the commission of the offence [23]. Libke did not depart from M.’
In this case, the lack of key evidence from a historical case – must have caused the Court to have a doubt.
at 127.
‘The unchallenged evidence of the applicant’s invariable practice of greeting congregants after Sunday solemn Mass, and the unchallenged evidence of the requirement under Catholic church practice that the applicant always be accompanied when in the Cathedral, were inconsistent with acceptance of A’s evidence of the second incident. It was evidence which ought to have caused the jury, acting rationally, to entertain a doubt as to the applicant’s guilt of the offence charged in the second incident. In relation to charge five, again making full allowance for the jury’s advantage, there is a significant possibility that an innocent person has been convicted.’
Just like the unchallenged evidence of [clients mother] in this case.
There must be a doubt in this case – the convictions cannot be sustained.