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Our client is a 45-year old commercial real estate agent from southwestern Sydney.
He was arrested and charged in mid 2017 with 26 sexual offences which were alleged to have been committed against his then 15-year-old niece during a month she had stayed over at his residence.
The charges included:
Our client was happily married with two children of their own. However, he never got along with his in-laws, including the mother and aunt of his niece (the complainant).
He had been with his previous legal team for almost two years until he approached us with about one month prior to his trial, after having lost confident about his then legal team due to their lack of thorough preparation and expertise in criminal trials as well as the unrealistic legal fees they charged him.
We immediately began preparing his trial by obtaining the entirety of his file from his previous legal team and ensuring a barrister is briefed with the right skillset highly relevant and applicable to the subject matter of the trial. Due regard was held to what was at stake if our client was to be found guilty on even one count of 26 after trial – a lengthy gaol sentence in the order of not weeks or months, but years.
Further complicating the trial was the prosecution’s reliance on “tendency” reasoning – that is, they argued if our client engaged in one or more of those sexual conduct alleged, the jury could find that he has a tendency to have a sexual interest in the complainant and can use that tendency for proof of the remainder of the charges.
The main challenge the defence team faced in this trial is what the most ordinary jurors would think – why would a niece make up lies about 26 incidents of sexual abuse against her own uncle; she must be telling the truth.
The prosecution had conducted a complete download of the complainant’s mobile phone but made a forensic decision not to utilise much of the relevant evidence in it – including exculpatory evidence. The download materials contained thousands of messages and photographs and videos that were sent and received by the complainant’s mobile phone.
The new legal team spent countless sleepless nights to thoroughly and meticulously analyse these materials, as well as the statements of the witnesses who the complainant spoke with shortly following her month-long stay at our client’s residence. We prepared a bundle of messages the complainant herself sent or received on different topics and incidents, which were in stark contrast with the evidence given by the complainant during trial.
There were however medical evidence proving the complainant had injuries consistent with recent sexual intercourse.
We aimed to raise doubt by proposing an alternative theory. The complainant had many nights out during the month she stayed at our client’s residence and during one of those occasions, she was raped by the brother of her best friend but she did not want to disclose this incident to anyone because she wanted to maintain her friendship with that friend. She was however concerned about falling pregnant and wanted a morning-after pill, so she blamed her uncle, our client, for the sexual intercourse. Initially, she was blackmailing our client to take her to obtain the pill; our client persistently declined her demand and she told her closest adult friend – her aunt, who had a long history of holding a personal vendetta against our client – who then forcibly took the complainant to the police station to report the accusation against our client.
This case theory was entirely possible, if not supported, by the prosecution’s own evidence. The complainant had mentioned another male (her friend’s brother) in her earliest complaint but this had entirely been ignored by the aunt and even the police and the prosecutors.
We sought to cross-examine the complainant on her sexual activities with her friend’s brother. Generally it is not permissible to cross-examine a witness about sexual activities other than to which the charges relate. We however argued the extreme unfairness that will result if we were to be prevented from cross-examining the complainant about the identity of the true rapist. The judge allowed our application entirely over the prosecution’s objection.
The trial judge also allowed the defence team to cross-examine the complainant about her lies generally (i.e. about her character), although not directly relevant to the incidents in question.
This trial was initially given an estimated duration of 5-7 days as per the opinion of the prosecutor and our client’s previous legal team, but it ended up taking close to four weeks. The complainant’s cross-examination alone lasted five days.
During the extensive cross-examination, based on the materials downloaded from her mobile phone, what she had told other witnesses and also her Facebook messages (hundreds thereof) with our client’s wife, we proved her lies on at least 30 different topics and incidents. By the end of her evidence, it was beyond doubt she was not an impressive witness, often resorting to answers to the effect of “Actually, I don’t remember” when faced with an independent piece of evidence contradicting her earlier evidence on oath.
Further, during the course of the trial, we revealed that the police did not conduct a thorough investigation that they could have – namely, they failed to obtain and execute a search warrant on our client’s residence and forensically examine the main lounge in the living room where all of the alleged sexual activities took place. The police were also aware of the other potential suspect – the brother of the complainant’s best friend – but had failed to investigate that person. There was no DNA analysis conducted on the complainant’s genitals to ascertain who the perpetrator was.
The police did conduct a DNA analysis on a clothing item the complainant alleged she wore during an incident and alleged our client ejaculated onto. The forensic analysis returned a negative result as to any semen or our client’s DNA being detected.
It was clear that the detective in charge had presumed our client’s guilt. During our client’s evidence, the same detective was caught by the judge making facial expressions and gestures which were also seen by some of the jurors. The trial judge, extremely dissatisfied, intervened and prohibited the detective from entering her courtroom for the remainder of the trial.
Once the jury had heard almost four weeks’ evidence, powerful submissions were made by the defence barrister urging the jury to apply common sense and to acknowledge the looming doubt that our client is guilty of any of the alleged offences, that the other male was probably the true perpetrator and our client should not suffer as a result of the failure by the police to properly investigate or by the complainant or her family to tell the truth because they wanted to protect their friendship or wanted our client to suffer in the context of the family feud.
After a little less than one day of deliberating, the jury returned the verdicts of not guilt to every single one of the 26 counts on the indictment.
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