The team at National Criminal Lawyers® have once again run another successful defended hearing, where we were able to achieve a Not Guilty verdict for Robbery while intentionally inflicting actual bodily harm and assault occasioning actual bodily harm in company.
Our client Jane was charged with one count of robbery and at the time of the robbery intentionally inflicted actual bodily harm as well as a further count of assault occasioning actual bodily harm in company. The allegation was that Jane and her roommate Rochester, and her friend Charlotte attacked the complainant Emily (referred to as the complainant because she is the one making a complaint) and stole a credit card from her. The co-accused Rochester was seen entering a nearby hotel where he had used the credit card to withdraw money from an ATM. Rochester was charged with an additional offence of dishonestly obtaining financial advantage by deception. The deception in this case was that Rochester deceived the ATM into thinking he was Emily by using her credit card to withdraw money and not his own.
The allegations were that Emily had moved into an apartment with Jane and Rochester where each of them occupied a separate room. Charlotte was not living with them, but she was known to all of them. Three days after moving into the apartment, Emily alleged that Jane, Rochester, and Charlotte kicked her bedroom door down and attacked her by throwing multiple punches to her head and body until she began to bleed. The three then allegedly demanded that she hand over her credit card and her PIN, which Rochester later used to withdraw money from the hotel ATM nearby. Jane, Rochester, and Charlotte each denied the allegations made by Emily and so the matter was to set down for trial.
THE LAW
The offence of Robbery while intentionally inflicting actual bodily harm is found under Section 95 of the Crimes Act 1900. It is stipulated under such provision that
“Whosoever robs, or assaults with intent to rob, any person, or steals any chattel, money, or valuable security, from the person of another, in circumstances of aggravation, shall be liable to imprisonment for twenty years.”
“Circumstances of aggravation” refers to circumstances that (immediately before, or at the time of, or immediately after the robbery, assault, or larceny) involve any one or more of the following–
(a) the alleged offender uses corporal violence on any person,
(b) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,
(c) the alleged offender deprives any person of his or her liberty.
in order to establish the offence of Robbery while intentionally inflicting Actual Bodily Harm, the prosecution must establish the abovementioned elements beyond a reasonable doubt.
PROSECUTIONS CASE
The Prosecution case relied on a body-worn video (BWV) recorded by an investigating officer of Emily giving evidence as well as a statement she provided to the Police shortly after. There was also evidence of damage to Emily’s bedroom door as well as multiple injuries to her face and body. The crime scene photos included images of the wall in Emily’s room covered in what the Police described as blood. CCTV footage taken from a petrol station across the road from the apartment showed the movements of the three co-accused and proved that they were at the apartment at the time of the alleged assault. The CCTV at the hotel showed Rochester withdrawing money from an ATM and bank records showed that money was withdrawn from Emily’s bank account at the exact time that Rochester was at the ATM.
OUR DEFENCE CASE
Well, the key issue for the jury to consider was the reliability and credibility of the complainant Emily. If the jury had doubts about the evidence given by Emily and found it to be inaccurate, unreliable, and inconsistent, then they could not find the three co-accused guilty beyond a reasonable doubt and would need to return a verdict of not guilty.
So, we began by looking into Emily’s past and gathering more information on that. A subpoena was issued to the NSW Police Force to produce a copy of Emily’s criminal record. Her criminal record revealed that Emily had previously been charged with fraud, having goods in her custody that were suspected of being stolen, and larceny (which is a fancy way of saying theft) – all of which are offences that went to her character. But perhaps the most important entry on her criminal record was a charge of providing a false or misleading statement, which proved that Emily was someone who had previously lied to the authorities and was capable of doing so again.
Emily’s record was also fraught with possession of prohibited drug charges, with her drug of choice being GBL and occasionally methylamphetamine. The intensity and consistency of her drug abuse and the effects it had on her memory and her recollection of events accurately and truthfully was the most important part of the Defence strategy to win Jane’s trial. A further subpoena was issued to produce Emily’s ambulance records. The material produced indicated that Emily had had multiple overdoses in the weeks following the alleged incident and was described as ‘bouncing off the walls’ while under the influence of drugs. Emily’s drug abuse was established during cross-examination, and she provided evidence that she had been using GBL and mixing it with Seroquel every day for almost three years. She also gave evidence that when she was under the influence of drugs, she would often overdose and lose time and forgot where she was and wake up somewhere and not know how she got there. She accepted that her drug use affected her mobility and her coordination and often led to her losing her balance, tripping, falling over and knocking into items. This was critical evidence as it provided the jury with a reasonable alternative hypothesis on how Emily could’ve sustained her injuries other than through the alleged assault.
A further subpoena to the NSW Police Force produced COPS events entries (entries on the Police computer system) that revealed that a few weeks before the alleged incident, Emily had attended the house of a woman and had broken items at the house and made threats to kill the woman in front of her child. Emily was under the influence of GBL at the time. This was another critical piece of the puzzle because it put evidence before the jury that Emily was capable of violence and property damage when was under the influence of GBL which meant she herself could’ve been responsible for causing the damage to her own bedroom door.
An expert witness – a pharmacologist – was called and he gave evidence on the long-term and short-term effects of GBL use on memory, hallucinations, and accurate recollection of events. The expert confirmed that GBL use – especially in the high and frequent doses used by the complainant Emily – could lead to the perception of events that weren’t actually happening, distorted memory recollection and recalling false memories that never actually happened in real life. The expert confirmed that these effects were heightened when the GBL use was mixed with other drugs or prescription medication (which was the case with Emily who mixed GBL with methylamphetamine and Seroquel). This was crucial as it cast further doubt in the jury’s mind as to whether the assault Emily described actually occurred or if it was a fantasy that was the product of her frequent and persistent abuse of GBL.
In cross-examination, further evidence was also called from Emily, and she disclosed that she had suffered from and been diagnosed with PTSD and other mental health issues in the past.
So now the Defence established that the complainant had a history of past mental health issues, a drug abuse problem that led to fantasies, false memories and loss of coordination, a propensity to lie, steal and commit offences of dishonesty, and a propensity to be violent and destructive when under the influence of GBL. All these elements combined cast a strong doubt in the mind of the jury about the accuracy and reliability of Emily as a witness and the jury could not accept her evidence of the robbery and assault beyond a reasonable doubt. So, the jury returned a verdict of not guilty after one day of deliberating without Jane, Rochester or Charlotte needing to give evidence thanks to the Defence strategy used by the Specialised Criminal Lawyers at NCL.
WHAT SHOULD YOU DO IF CHARGED WITH THIS OFFENCE?
It is important to seek legal advice if charged with this offence to see if the allegation can be successfully defended. The evidence pertaining to a charge of this nature needs to be carefully reviewed by a criminal defence lawyer to see whether the injuries amount to grievous bodily harm under the law and, if so, whether they were caused by the driver’s negligence. Based on the subjective circumstances of the case, a specialist criminal lawyer with extensive experience in the field will be able to advise you regarding the possibility of any defence that can be available to you or if there is any room for negotiations with NSW Police relating to the gravity of the offence. You can contact our office on 1800 CRIM LAW or visit https://www.nationalcriminallawyers.com.au for more information about your options.
If you or a loved one have been charged with the named offence, get in touch with one of our criminal defence lawyers in order to ensure your case is heard according to the law.
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