The accused was arrested after a female made an allegation to police that she had attended a bar in Balmain, started feeling woozy despite limited consumption of alcohol, suffered an injury to her head, was in and out of consciousness and woke up in the morning in her bedroom and later reported to police that she was sexually assaulted (raped). The accused was facing charges that could potentially see him in Jail for a period in excess of 7 years.
A Plea of not guilty was entered.
The delay in the investigation made obtaining crucial evidence such as CCTV and other witness accounts unavailable or very difficult.
The accused was subsequently arrested and provided an ERISP prior to retaining Mr Dikha acknowledging sexual intercourse took place with the alleged victim. Intercourse was not in dispute.
The accused was nervous during the interview and did not express what he meant well. His arrest was questionable as it did not comply with S99 of LEPRA being the provision that governs police powers to arrest without warrant.
The arrest of the accused was challenged and ruled illegal and the ERISP became not admissible.
DNA evidence was obtained by police and a large search of the area was undertaken by detectives based on a version of events initially provided by the alleged victim to police.
The alleged victim saw her GP and engaged in certain therapy with him. She also underwent guided imagery therapy. She had also been previously diagnosed with PTSD.
The alleged victims memory loss could have occurred from the (spiking of her drink, self-induced intoxication, head injury, mental condition and/or a mixture of these possibilities).
EMDR (eye movement desensitization and reprocessing) and hypnosis was a factor in this case. The alleged victim engaged in memory recovery sessions with her GP where recollections changed resulting in evidence to be sued against the accused.
The case proceeded to committal where the prosecution case was tested on issues regarding hypnosis utilised by the alleged victims GP during therapy and the forensic disadvantages the accused faces. The ODPP utilised the evidence obtain from the alleged victim from hypnosis
The matter proceeded to trial.
The case involved argument surrounding protected confidences and waiver of privilege to enable us to get around the provisions contained in sections 297 & 298 Criminal Procedure Act in relation to a specific report written by a treating counselor.
The DPP Guidelines regarding hypnosis and other memory retrieving techniques were also a live issue up to the point of committal.
The alleged victim could only recall patches of events such as walking, spiky hair, hearing voices, being hit in the head, entering a taxi and finding herself in her room the next day. Most of her recollection came back after engaging in certain therapy techniques with her GP.
The alleged victim gave inconsistent versions of what had happened to police prior to seeing her GP and was cross-examined for some time in Court.
During Trial, it became evident through cross-examination that the alleged victim was not forthcoming about the true nature of her relationship with her husband which contradicted some of the material we managed to obtain through subpoena.
The alleged victims GP was cross-examined significantly.
Expert evidence was called on the issue of cognitive memory and the ability to recall memories before and after alcohol consumption to assist the defence case and explain to the jury how memory actually functions.
The difficult questions put to an expert by Mr Dikha in preparation for Trial were aimed at trying to obtain guidance regarding the influence of alcohol on memory and cognitive functioning, whether her head injury was severe enough to cause retrograde amnesia (prior) and anterograde amnesia (after) and issues regarding confabulation (creation of false memories, perceptions and beliefs).
CCTV footage at the alleged victims unit showed the accused walking into the unit complex with the alleged victim and leaving in the morning.
It was argued sexual intercourse was consensual and that the alleged victim was not intoxicated to the point where she couldn’t remember.
After 8 days of trial, the Jury deliberated for 2 hours returning a verdict of not guilty acquitting the accused.