A great deal of the workload performed by McMillan Criminal Law relates to sexual offending. In every case which runs to trial we expect an acquittal because we know that can be achieved.
Unlike many other offences, sex offences carry with them a stigma which regularly taints a jury and causes them to abrogate their obligation to be impartial, in favour of allowing their prejudices to guide their decision. The result of that to an accused can be catastrophic. Accordingly, these matters must be approached with great caution.
At McMillan Criminal Law our careful approach is seen in things examining whether there is value in testing the evidence of the “preliminary complaint” witnesses at committal. These are witnesses that the alleged victim has complained to after the incident. The law has acknowledged that most sexual offending is alleged to have occurred without being directly witnessed. Accordingly, “preliminary complaint” witnesses are heavily relied on by prosecutors to fortify the evidence of the alleged victim. A lot of lawyers, though, fail to take advantage of exploring the evidence of these witnesses at committal, and so lose an important forensic advantage at trial. Versions obtained from these witnesses through careful cross examination at committal can raise valuable questions about the truthfulness of an alleged victim’s recollection at trial.
We are also always conscious of exploiting alternative searches to damage the credibility of the alleged victim. One such method is acquiring the records of other government departments that relate to an alleged victim, (for example the Department of Child Safety, Youth and Women), to determine if their records disclose inconsistencies in the complaints they have received from and on behalf of the alleged victim. Such successful searches can have a devastating effect on a prosecutor’s case.
These are just a few relevant examples of how we at McMillan Criminal Law go further than other firms to explore a potentially exculpatory path for our clients charged with sexual offending.
Statistically, those convicted of sexual offending do end up serving a period of actual imprisonment. But it is not inevitable. At McMillan Criminal Law our approach to sentencing for sex offending recognises the subtlety of the sentencing. We will, for example, find and disclose a demonstration of our client’s remorse, while many of our colleagues will simply assert that from the bar table at court or hand up an apology written by the accused. Unlike those, our method ensures the court can proceed to sentence on the basis that the client is actually remorseful and his or her sentence will be adjusted favourably – see discussion in Alvares v R; Farache v R  NSWCCA 33 at .
Similarly, while our competitors often habitually and blindly have their clients psychologically assessed prior to sentence, we ensure that any assessment performed not only examines the mental composition of our client, but provides a basis for the sentencing court to make favourable findings about its mandatory considerations like the need to protect the community and the prospects of rehabilitation.
This is one of the reasons why a great many of our clients avoid a period of actual imprisonment when sentenced for sexual offending.
Here are just two quick examples of sentences imposed for sexual offending which didn’t include a period of actual imprisonment:
Will A Conviction Be Recorded?
More than most types of offences, disclosing that you are a sex offender to anyone will have devastating consequences. And regrettably many Criminal Law firms seem resigned to that outcome if their client is likely to be convicted of any type of sex offending. But, it is certainly not inevitable that a conviction must be recorded against you for that. The following case of Mitchell v Commissioner of Police  QDC 63 is an example of a case of sex offending where despite the Crown’s efforts at convincing the court that not only should the client be imprisoned, but that obviously a conviction should be recorded against her name as well.
In the end, our firm prevailed and persuaded the court that she should not be imprisoned and, given the features of the case we were able to identify and highlight, a conviction should not be recorded against her either.
How Can I Deal with Multiple Complainants Alleging Multiple Charges?
A sure-fire way for the Crown to dramatically increase the prospect of a jury finding you guilty is to put a lot of individual charges with different complainants on the one indictment. That way, they hope the jury will hear that you are alleged to have committed more than one sexual offence on more than one alleged victim. The theory behind that is that if more than one complainant says you’ve committed sexual misconduct against them such an allegation is more likely to be true.
To counteract this, our firm closely examines this scenario to see if it is possible to dice up such an indictment in a way that prevents a jury from hearing multiple alleged victims claim to have been sexually mistreated by the one client. If we are successful in separating out these claims, we dramatically improve our client’s chances of an acquittal. Severing charges on indictment is a complex area of law and for obvious reasons, the Crown always fights hard to keep them together. Unfortunately, a lot of law firms do not understand the complexity involved in severing an indictment and leave this problem until the first day of jury trial to consider it (or don’t consider it at all), and by then its too late.
Just one recent example of our success in this endeavour is R v DJM  QDCPR 19. The outcome here means that, although there will be two trials rather than one, a jury will only ever hear one complaint make allegations about our client. And that also makes it more likely our attack on that single complainant will establish a reasonable doubt about those allegations.
Contact us today if you have been charged with a sex offence.