Police -v- E (2011)
In this case Andrew Dikha represented an accused who was arrested for an alleged aggravated sexual assault that occurred in a park in Doonside. This particular accused had a history of an underlying mental illness of schizophrenia, suffering from auditory hallucinations, delusions of reference and bizarre delusional beliefs.
The accused was released from a psychiatric Hospital for a trial period where he was admitted as an involuntary patient receiving treatment for an acute episode of mental illness. The incident took place 3 days after his release. He reported taking methylamphetamine, commonly known as the street drug ‘ice’ or “crystal meth’ and had not slept since his discharge exacerbating his underlying schizophrenic condition. He reported several psychotic episodes and symptoms and subpoenaed material in the case evidenced a history of mental illness.
A not guilty by way of mental illness plea was entered.
The matter proceeded to a Judge Alone Trial where two leading forensic psychiatrists disagreed as to the availability of a not guilty by way of mental illness defence. Dr Olav Nielssen for the accused formed the view that the defence was available to the accused.
The proximity of the offence to the recent severe episodes of mental illness and protracted admissions to hospital supported his account of having very disorganised and confused thinking, which in the doctors view prevented him from reasoning with sense and composure about the moral wrongfulness of his actions, or being able to control his behaviour.
Dr Stephen Allnutt for the Crown gave evidence that despite the accused’s mental illness, at the time of the offence, he was able to understand what he was doing was morally and legally wrong.
The Judge found the accused Not Guilty by way of Mental Illness.
Police -v- T (2010)
Andrew Dikha acted on behalf of a taxi driver who was arrested and bail refused in relation to an allegation of aggravated sexual assault, detaining a person for sexual advantage and indecent assault of a female passenger in a park in Marayong and was looking at a minimum of 10 years in prison.
The allegation against the accused was that the taxi driver picked up a fare, disregarding directions provided, turned into a secluded park for some time, covered the in car taxi security camera with a cloth and locked the female in the vehicle and then sexually assaulted her.
An application for bail was made at the Supreme Court of NSW with success.
The Crown relied on a new satellite tracking system that had only recently been introduced in the taxi industry to show the movements of the taxi and obtained inconclusive DNA evidence.
Andrew Dikha obtained crucial CCTV footage from a nearby location which was not obtained by police despite the detective in charge of the prosecution stating to the Court during cross-examination that a thorough investigation of the surrounding areas for CCTV was conducted.
The CCTV footage was played in Court to the Jury shortly after the accused finalised his evidence which evidenced that the alleged victim had lied about her route of escape from the accused’s vehicle.
The Jury acquitted the accused by handing a Jury note to the Judge before the defence case closed.
William Dawe QC appeared for the accused on trial.
William Dawe QC commented “In my 33 years at the bar, this was the first time I have experienced an acquittal by way of Jury note in a sexual assault trial and it was quite evident that the CCTV footage obtained by [Andrew Dikha] played a significant role amongst the Jury”.
Police -v- I (2010)
The accused was arrested after stabbing a victim in front of his wife with a large knife in a vehicle over nine times in the legs, arms , chest, abdomen and neck before walking away in front of many witnesses one morning. The alleged victim’s wife was previously in a relationship with the accused.
The accused was arrested and bail refused.
A plea of Not guilty by way of mental illness was entered.
Andrew Dikha was retained to act on behalf of the accused. The accused was conferenced and it became evident that a psychiatrist was needed in the case. Subpoenas were issued to obtain the accused’s medical history which was provided to a psychiatrist for the purposes of an assessment.
The accused was previously diagnosed with chronic paranoid schizophrenia many years prior to the incident.
The accused was treated for many years by a leading psychiatrist in his field and was assessed by an independent psychiatrist prior to a plea being entered who stated that there were symptoms of a chronic psychotic disorder and that the accused suffered from auditory hallucinations, persecutory delusions, erotomanic delusions where he incorporated the victims partner.
At the time of the offence he reported hearing voices of angels which told him to do things, he was receiving messages from the television and formed the belief that the victim was a harm to him and forced the wife to marry him.
He was diagnosed with chronic paranoid schizophrenia and cannabis abuse disorder.
The accused was described to have voluntarily attacked the victim driven by distorted beliefs about the victim driven by mental illness. He was able to form the intent to do what he did albeit that intent was driven by delusion.
The accused was stated to be fit to stand trial but caution was advised based on the fact that he still at the time of his assessment continued to manifest symptoms of mental illness but not of a nature or severity to render him not fit to stand trial.
At the time of the offence the accused would have been able to understand that a knife would harm the victim. However, his disease of the mind caused a defect of reason of a nature and severity that he was compromised in his capacity to know the wrongfulness of his actions.
Not Guilty by way of mental illness.
Police -v- B (2009)
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.
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 counsellor.
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.