NSW Criminal Law - Police Charged Me with Assault on False Grounds

[Daniel McIntyre]

Hi.

I have a really serious problem. Last year, my girlfriend's little sister, who is 15, broke up with her boyfriend after he sexually and physically assaulted her. He began a campaign of harassment by phone ringing and texting her on a private number. When she told my girlfriend she was thinking of killing herself, my girlfriend and her brother took her to the police in St Mary's.

The police didn't want to know about it and told the 15-year-old "we'll arrest him but if you've ever hit him, we're going to arrest you, too". She got scared and left since all he had to say was she had hit him to get her arrested and he probably would have.

Two days later, my girlfriend and I took her sister to Parramatta to see friends. Her ex-boyfriend was with them and my girlfriend spoke to him about what he was doing and told him to stay away from her sister. The guy laughed and smirked about the allegations and called my girlfriend a slut.

I stood between them and told him to leave but he just laughed. I walked forward with my hand extended but not touching him and he walked backwards laughing and smiling saying, "you can't touch me. I'm just a kid." He then turned around and went to his friends. I followed behind to make sure he didn't return.

His friends then came over. One produced a knife and held it toward me yelling, "I'll kill you." I put my hand above my head and indicated towards the armed person and yelled "Knife, knife, knife."

Security turned up and I told them what happened. They wanted us all to leave but I told security they should call police because of the knife.

The police arrived and I told them what had happened and they told me they wouldn't arrest me but then this one policewoman turned up. She didn't ask any questions about the incident, went and checked CCTV then came back and arrested me.

I was taken to Parramatta police station at 6:45pm and kept there till 1:30am. I was denied phone calls, refused access to a lawyer though I asked so many times for both the sergent had another prisoner threaten to stab me. I refused to give a statement without a lawyer.

My girlfriend called sometime during the night and the arresting officer gave her a fake message from me saying "I'm fine, I'll call you when I get out". I was charged with common assault.

I didn't realise at the time but the same officer banned my girlfriend and her sister from the whole of Parramatta for 24 hours and did not take a statement from either.

I complained to police and then the ombudsman because the police refused to investigate. The ombudsman ordered the police to investigate, but they have refused.

I have been going to court for 7 months now and the whole time the police have maintained they have CCTV and on the last mention opposed my application to vary bail telling the magistrate "We have CCTV footage showing the assault, your honour" but when they finally gave me the brief, it states the CCTV footage was destroyed last November.

The police officer who arrested me has created a statement completely different to the police facts and put in there a fake confession as well as changing the original "placed his hand on the victim" to "struck the victim", etc.

After the incident my girlfriend's little sister met up with one of her ex-boyfriend's friends who she also was friends with. They met in a park and the friend pushed her onto the ground and raped her.

I'm pretty screwed.

Any help with Criminal Law would be good.

 

[AllForHer]

Get yourself a criminal defence lawyer and pronto. Don't muck around with strangers on the Internet, you're in a very serious situation and you need to get professional legal advice as soon as possible.

 

[Anubis]

Hi.

I have a really serious problem. Last year, my girlfriend's little sister, who is 15, broke up with her boyfriend after he sexually and physically assaulted her. He began a campaign of harassment by phone ringing and texting her on a private number. When she told my girlfriend she was thinking of killing herself, my girlfriend and her brother took her to the police in St Mary's.

The police didn't want to know about it and told the 15-year-old "we'll arrest him but if you've ever hit him, we're going to arrest you, too". She got scared and left since all he had to say was she had hit him to get her arrested and he probably would have.

Two days later, my girlfriend and I took her sister to Parramatta to see friends. Her ex-boyfriend was with them and my girlfriend spoke to him about what he was doing and told him to stay away from her sister. The guy laughed and smirked about the allegations and called my girlfriend a slut.

I stood between them and told him to leave but he just laughed. I walked forward with my hand extended but not touching him and he walked backwards laughing and smiling saying, "you can't touch me. I'm just a kid." He then turned around and went to his friends. I followed behind to make sure he didn't return.

His friends then came over. One produced a knife and held it toward me yelling, "I'll kill you." I put my hand above my head and indicated towards the armed person and yelled "Knife, knife, knife."

Security turned up and I told them what happened. They wanted us all to leave but I told security they should call police because of the knife.

The police arrived and I told them what had happened and they told me they wouldn't arrest me but then this one policewoman turned up. She didn't ask any questions about the incident, went and checked CCTV then came back and arrested me.

I was taken to Parramatta police station at 6:45pm and kept there till 1:30am. I was denied phone calls, refused access to a lawyer though I asked so many times for both the sergent had another prisoner threaten to stab me. I refused to give a statement without a lawyer.

My girlfriend called sometime during the night and the arresting officer gave her a fake message from me saying "I'm fine, I'll call you when I get out". I was charged with common assault.

I didn't realise at the time but the same officer banned my girlfriend and her sister from the whole of Parramatta for 24 hours and did not take a statement from either.

I complained to police and then the ombudsman because the police refused to investigate. The ombudsman ordered the police to investigate, but they have refused.

I have been going to court for 7 months now and the whole time the police have maintained they have CCTV and on the last mention opposed my application to vary bail telling the magistrate "We have CCTV footage showing the assault, your honour" but when they finally gave me the brief, it states the CCTV footage was destroyed last November.

The police officer who arrested me has created a statement completely different to the police facts and put in there a fake confession as well as changing the original "placed his hand on the victim" to "struck the victim", etc.

After the incident my girlfriend's little sister met up with one of her ex-boyfriend's friends who she also was friends with. They met in a park and the friend pushed her onto the ground and raped her.

I'm pretty screwed.

Any help with Criminal Law would be good.

Don't say anything more.
I would potentially delete this post.
Get a lawyer.
This carries a potential Gaol term.

Take your CAN (court attendance notice) to your lawyer. Go through it thoroughly

There might be room for reps to police.
If they charge you they usually think you are good for it.

Only way to really deal with it is to see the brief and test the evidence. What constitutes assault can be subtle.

Get a lawyer or legal aid or a lawyer who will apply for legal aid for you

Avoid going it alone
Avoid trying to explain yourself to anyone other than your lawyer.

You cannot make this go away by yourself. You need help

Good luck

 

[Daniel McIntyre]

Get yourself a criminal defence lawyer and pronto. Don't muck around with strangers on the Internet, you're in a very serious situation and you need to get professional legal advice as soon as possible.

Thanks much. Unfortunately, while I work I don't earn enough to afford a lawyer, but I earn 200 dollars too much to qualify for legal aid. It's been refused, so I have been representing myself and will need to at the hearing next week.

I'm planning on applying for the matter to be dismissed as the officer who arrested me did not ask me any questions and did not have any information to justify an arrest rather than a fan. She arrested me under Lepras (3) to prevent the continuation or another offence - however, I had a car there, the alleged victim was taken to police station to give a statement and I had supplied licence and particulars. She didn't interview witnesses. In Hage-Ali, that lack of personal knowledge was grounds for the arrest to be unlawful.

If not successful, I intend to apply to have the CCTV evidence excluded on the grounds that the officers statement conflicts strongly with the police facts and that the CCTV footage does not exist so there is no way to verify the quality, angles, obstructions and technical issues it may have contained. Since the statement was created 3 months after the incident I will challenge the quality of her memory as well.

No idea how to do those things, though? At the hearing, before the hearing?

 

[Anubis]

Thanks much. Unfortunately, while I work I don't earn enough to afford a lawyer, but I earn 200 dollars too much to qualify for legal aid. It's been refused, so I have been representing myself and will need to at the hearing next week.

I'm planning on applying for the matter to be dismissed as the officer who arrested me did not ask me any questions and did not have any information to justify an arrest rather than a fan. She arrested me under Lepras (3) to prevent the continuation or another offence - however, I had a car there, the alleged victim was taken to police station to give a statement and I had supplied licence and particulars. She didn't interview witnesses. In Hage-Ali, that lack of personal knowledge was grounds for the arrest to be unlawful.

If not successful, I intend to apply to have the CCTV evidence excluded on the grounds that the officers statement conflicts strongly with the police facts and that the CCTV footage does not exist so there is no way to verify the quality, angles, obstructions and technical issues it may have contained. Since the statement was created 3 months after the incident I will challenge the quality of her memory as well.

No idea how to do those things, though? At the hearing, before the hearing?

Daniel. Is it first in or set down for hearing?
Has the brief been served in full?

 

[Daniel McIntyre]

Thanks much. Unfortunately, while I work I don't earn enough to afford a lawyer, but I earn 200 dollars too much to qualify for legal aid. It's been refused, so I have been representing myself and will need to at the hearing next week.

I'm planning on applying for the matter to be dismissed as the officer who arrested me did not ask me any questions and did not have any information to justify an arrest rather than a fan. She arrested me under Lepras (3) to prevent the continuation or another offence - however, I had a car there, the alleged victim was taken to police station to give a statement and I had supplied licence and particulars. She didn't interview witnesses. In Hage-Ali, that lack of personal knowledge was grounds for the arrest to be unlawful.

If not successful, I intend to apply to have the CCTV evidence excluded on the grounds that the officers statement conflicts strongly with the police facts and that the CCTV footage does not exist so there is no way to verify the quality, angles, obstructions and technical issues it may have contained. Since the statement was created 3 months after the incident I will challenge the quality of her memory as well.

No idea how to do those things, though? At the hearing, before the hearing?

I can't afford a lawyer. I have been quoted between $4500 and $6000. I don't have that.

I have no criminal record, no serious traffic offences maybe 3 in 15 years of driving exceed speed under 10. I worked previously as a TAFE teacher at TAFE and correctional centres then worked as a dog handler.

While I understand the police may often be sure a person committed an offence before charging I suspect the majority of police investigate.

Consider that the alleged victim had no marks or injuries.

Consider that the witnesses referred to in the statement (My girlfriend, my girlfriend's sister, the 6 friends with the alleged victim) were never asked for statements and none has been called as witnesses. The only statements come from one police officer out of the 8 there and the alleged victim.

Consider that one of the alleged victims friends produced a knife which was later seized by police and screamed out in a public shopping centre "I will kill you" 3 times. He received a caution as he was a juvenile. I was not interviewed. My girlfriend was not interviewed and her sister was not interviewed in relation to that.

Consider that the reason for arresting me was "to prevent the offence continuing or another offence from occurring" when I was the person who insisted that the police were called. I called out for help. I was completely calm and controlled at all times. I assisted police and security as best I could. I had a vehicle in the centre.

The alleged victim accompanied police to the police station so were not available for me to continue any offence against. I provided my driver's licence and my identity had been established. I have no criminal record or convictions. I'm a former TAFE teacher, taught in correctional centres and was until recently a security dog handler (7 years).

Consider that the record of custody states I left the shopping Parramatta Westfields at 7:30pm, arrived at Parramatta's police station at 8:10pm (2 blocks, 40 minutes on a Sunday night), wasn't taken into custody until 8:50pm, refused to give statement, charge process for a common assault started 9:51 (1 hour 41 minutes later) and was completed at 11:51 (2 hours later) and then my release was at 1:30am (1 hour 40 minutes later).
The record of custody states calm in the dock, calm in the dock, calm in dock yet I was so noisy demanding to be allowed to call a lawyer and my girlfriend one of the other prisoners threatened to stab me if I didn't shut up.

Consider that my girlfriend told me that she called me at the police station and has a record of that call on her mobile yet no call is listed. I was never told and my girlfriend alleges that she spoke to the arresting officer, who put her on hold for 10 minutes and then told her I said: "I'm fine I'll call you when I get out". Yet I never received any information and I never gave her any message.

Consider that I sent a complaint to the police regarding the breaches of my rights in custody and the police "declined to make a finding". I then complained to the NSW ombudsman and they ordered the police to re-investigate 4 months ago and the police have not done so.

Consider that the police "lost" the CCTV footage in November but at the last mention, the prosecutor opposed my bail application telling the magistrate they have the footage. He deliberately mislead the court and was very insistent attempting to negotiate with me for a guilty plea on the basis "we have the CCTV footage".

Consider they were ordered to provide the brief on the 23 of January, failed to do so, ordered again on the 21st of February to provide it within 7 days, failed to do so and only provided it on the 14th of March finally admitting they have no CCTV and haven't since November 10th.

I believe that the officer believed me to be a stupid guy who would plead guilty and they treated me that way believing I would not make a fuss. I have certificates in IT with distinctions in almost every subject. I have a legal services diploma. I can recite section 100 of LEPR because when I worked in security I memorised it from my notebook just in case I ever needed it. When I did they felt getting a conviction would prevent me from suing for unlawful arrest, unlawful imprisonment and malicious prosecution. I believe very strongly in the rule of law and I have a very strong sense of justice both for myself and for others.

Reading that and suspending your disbelief as to the validity of what I claim do you really think they have acted in a way where they really believed they had the evidence to convict me? Why did they go to so much trouble if that was the case?

Daniel. Is it first in or set down for hearing?
Has the brief been served in full?

The brief was served on the 14th of March. I'm not sure what "is it first in or set down for the hearing" means but it's set for the hearing with witnesses subpoenaed on the 30th of March.

 

[Daniel McIntyre]

I have a few questions regarding my matter if anyone could help me:

1. The police not disclosing the destruction of the CCTV footage which occurred in November 2015 and prosecutors raising the possession of that footage during mentions misleading the court? Is there any way the court will consider a dismissal or adjournment since throughout the mentions the court and myself have been lead by the prosecution to believe that footage existed and decisions have been made based on that mistaken belief.

1. If I want to have the matter dismissed on the basis of an unlawful arrest how do I go about it. Prior to the hearing or at the hearing? My basis is that the police officer did not need to arrest me and did not inquire in any way as to the circumstances of the alleged assault, of the witnesses and as to my personal details.

Attorney Generals Reading in relation to power of police to arrest LEPRA amendments:
""I turn now to powers relating to arrest. Part 8 of the bill substantially re-enacts arrest provisions of the Crimes Act 1900 and codifies the common law. The provisions of part 8 reflect that arrest is a measure that is to be exercised only when necessary. An arrest should only be used as a last resort as it is the strongest measure that may be taken to secure an accused person's attendance at court. Clause 99, for example, clarifies that a police officer should not make an arrest unless it achieves the specified purposes, such as preventing the continuance of the offence. Failure to comply with this clause would not, of itself, invalidate the charge. Clauses 107 and 108 make it clear that nothing in the part affects the power of a police officer to exercise the discretion to commence proceedings for an offence other than by arresting the person, for example, by way of caution or summons or another alternative to arrest. Arrest is a measure of last resort. The part clarifies that police have the power to discontinue arrest at any time."

"

Code of Practice for Crime
"Alternatives to arrest

Be mindful of competing requirements between the rights of individuals to be free and the need to use the extreme action of arrest so you can commence proceedings against people who break the law. You must not arrest unless it is necessary to achieve one or more of the purposes set out in section 99(3) of LEPRA (see Exercising the power to arrest). The alternatives to arrest include the following:-

Caution

Warning

Infringement notice

Penalty notice

Court attendance notice (eg ‘field’ or 'future’ CAN)

Youth justice conference."

 

[Serge Gorval]

How did you go ?

 

[Daniel McIntyre]

It's tomorrow. I don't hold out much hope. Me and my social anxiety disorder vs corrupt police officer and the wealth and experience of the state.

Talked to 3 lawyers yesterday for two hours went, over all the documents they agree something very unusual went on but they think the police will be able to win anyway because the police will be able to claim honest mistake and the police have crafted statements to be consistent with victim's.

 

[Serge Gorval]

Which court are you in tomorrow? Are you representing yourself ?