Charges:
- Section 40(1) of the Crimes Act, sexual assault, touching the complainant on the bottom
- Section 40(1) of the Crimes Act, sexual assault, touching the complainant on the breasts
- Section 40(1) of the Crimes Act, sexual assault, kissing the complainant in circumstances where the accused knew or ought to have known that the complainant did not want the accused to kiss her.
- Section 23(1) unlawful assault (Alternative to charge 3)
Court Location: Frankston Magistrates Court
Facts:
- Our client was a doctor. He was the owner of his own practice. The complainant was a nurse that had worked at the practice. The nurse was claiming that the doctor over a period of 6 months had committed the following acts.
- On one occasion had grabbed the complainant’s bottom indecently sexually assaulting the complainant.
- On another occasion kissed the complainant on the lips against her wishes and hugged her pushing her breasts against his body sexually assaulting the complainant.
- On another occasion had kissed the complainant and also grabbed the complainants breasts, indecently assaulting the complainant.
The complainant made a statement to police and to support her case provided police with a photo of a bruise on the left side of her breast that the complainant said was caused by the client. The complainant had also complained to her husband about the unwanted advances by the client and subsequently police relied upon the husband’s evidence as recent complaint or representation evidence to bolster the credibility of the complainant.
The client denied the allegations except for the kiss. The client said that the kiss was accepted and invited by the complainant at the time. His instructions were that they had been out on a couple of dates and that there seemed to be some potential for intimacy although there hadn’t been any level of intimacy beyond a kiss.
There were also many anomalies in relation to the complainant’s evidence. We subpoenaed the phone records of the complainant that revealed a number of late night communications between the client and the complainant. The communications were numerous and outside of work hours, this evidence seemed to lend some credibility to the client’s instructions that there relationship was becoming more than professional. This was important evidence.
The clincher in relation to the case was the bruise that the complainant claimed was caused by the client when she says he grabbed her breasts. The problem with this evidence was that there was only one bruise. This was more consistent with a pinch or a bite from a baby that was teething. The complainant was the mother of a young child and subsequently following a pathologists report into the nature of the bruise it became clear that the complainant was potentially lying about the bruise. This coupled with the late night communications and the denial of the same meant there was certainly material to work with in relation to fighting the case.
Result:
The matter proceeded through a number of preliminary hearings, from case conference, to contest mention to contested hearing. On the final hearing and on the morning of Court just prior to the case running the prosecution approached and offered a diversion notice on the basis of an sexual assault where the accused has grabbed the breasts of the complainant and kissed her. This was rejected because a diversion would never have been granted on that basis. The prosecution then revisited their offer and offered the diversion on the basis that the accused had kissed the complainant knowing that probably shouldn’t have.
This was more likely to receive a diversion and subsequently after considering the various risk management variables the client decided to accept the diversion and keep his record clean. The prosecution would never have offered a diversion on a such a serious charge, subsequently by taking the matter all the way and given their reluctance to run the case, a diversion notice was forth coming.
The value of the diversion was that it meant that although the doctor was accepting some responsibility it was only on the basis of a kiss, further the matter would be diverted away from the criminal justice system and then struck out once the client had complied with the diversion program. Considering the reduced factual basis and that the client would keep his record clean the client opted to take the diversion.
It was an amazing outcome, the stakes for the doctor were very high, if convicted he surely would have been precluded from practising as a doctor and further from continuing to run his own practice. The result was born of extensive preparation and tenacity, a theme that flows through all good Court outcomes.
If you have been detained by police and are facing sexual assault charges it is urgent you speak with one of our Sex Offence Lawyers Melbourne.
