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QLD Criminal Law - Mate Charged with Assaulting Plainclothes Police?

Discussion in 'Criminal Law Forum' started by Kip Purdy, 7 February 2016.

  1. Kip Purdy

    Kip Purdy Active Member

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    My friend walked out the pub to find a group of nine beating on his mate. He tried to intervene, peacefully (especially given the size of the group). The group choked him, cuffed him, beat him, pepper sprayed him. and...arrested him. Though he didn't know it and they had nothing identifying themselves as such, nor had they said anything.

    The group beating his mate were plainclothes police. They charged him with assaulting the police, and said the he choked and beat them. (All nine of them?)

    Does he have any chance at all under Criminal Law?
     
  2. Tim W

    Tim W Lawyer

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    Not without a lawyer
     
    Rod likes this.
  3. Rod

    Rod Well-Known Member

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    Agree. He is facing some serious charges. And in Queensland. Not looking good for your friend.
     
  4. Kip Purdy

    Kip Purdy Active Member

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    OK, that's... very helpful.

    He does have a lawyer. I'm casting for more information and possibilities... which would be why I'm posting here.

    Not all lawyers are highly resourceful superstar QCs; I have been able to help with a couple friends' defenses: twice, lawyers were sure there would be a conviction and sentence - in both cases, they ended up with none. (In another case, the lawyer was absolutely insisting on a guilty plea. I couldn't come up with anything except change lawyers. My friend did, and wound up with an acquittal and a hefty legal bill.)

    The police, in the report, say they identified themselves to the first person. There's no mention of them doing so to my friend or when the latter was present. And that's what I'm thinking he could go with.

    Also, if there's any CCTV footage, it would disprove much of the police version.

    So I was hoping for some practical suggestions. I'm wondering if it's reasonable for him to go to the spot and look for cameras, whether if the police get there first that footage might wind up being accidentally erased, where he stands if there was nothing identifying the violent group as police, whether their excessive force towards the first individual - if proven - would work in his favor... that sort of thing.
     
  5. Rod

    Rod Well-Known Member

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    re: your outline of events.

    There are normally good signs police are involved, even if not in uniform - like use of police batons, police radios, handcuffs. Why didn't your friend notice them? Also, police training is to keep bystanders/others out of the immediate area. Suspect they would have warned your friend to stay away which he ignored.

    re: your original question - 'does he have any chance?' is completely unrealistic. There is clearly not enough information for people here to be able to answer it. Sounds like you wanted a fairy tale answer saying 'yes, your mate could get off because of xyz'. So much depends on the detail of events and what was said at the time. None of that has been provided in your post, nor would I expect to see it posted online.

    Ask some hard questions of the lawyer he has. If the lawyer is not the right lawyer then find another. But then you already know this.
     
  6. Kip Purdy

    Kip Purdy Active Member

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    I'm not so sure I was after a "fairy tale answer". What I'm looking for is something he or his friends could do that I haven't thought of. For example, there no uniforms involved, but the report claims there were. The only uniform was standing well off to one side. The report also repeatedly states they identified themselves as police to the first person - who himself thought he was intervening in some kind of street assault and denies that they identified themselves as police - but doesn't mention any such thing about the second.

    Lawyers, no matter how skilled, are going to be limited in resources. If the accused's friends can go to the bar and talk to people, they might get, for example, that the only uniformed police officer was standing about ten meters away from the fracas. Since the report states that there were uniformed police involved the whole time, that would cast doubt on their version.

    And I would think this has to be done fairly quickly while the incident is still fresh in people's minds.

    The sort of genuinely useful replies that would be possible, given the information, would be things like precedents anyone is aware of in which it's happened that police failed to properly identify themselves, what sort of things would be valuable in witness statements, would have identified the police as police.

    What's actually useful is something like the mention of batons, etc. As these aren't mentioned in the report, and the first person wasn't in cuffs, that could well go in favor of the honest misunderstanding argument - batons weren't deployed at the time, cuffs weren't out, no one was holding a radio... and witnesses can confirm all of that.

    That's the sort of thing that needs to be recorded in witness statements quickly. The lawyer, like most any lawyer, isn't going to be doing much on it until he has a bit more information.


    Even if all you have to go on is that there were plainclothes officers and someone made an honest mistake, it should be possible to offer a reasonable reply. Eg, This is what they have to do to identify themselves; here's a similar case or two; this is how he might strengthen his defense; what might be a good approach here is X - I'm thinking honest misunderstanding is going to work a lot better than saying, "Those ba*****d piggies are f*******g lying!"

    Because what I'm guessing here is that that would be his best shot. Anyone who sees an assault and tries intervene is doing something that would be appropriate for any reasonable person. It's well possible the police intended to identify themselves, but in the midst of struggling with two people already, just, shall we say, overlooked that bit. Another person had already, by his version, failed to understand that they were, in fact, police, and then a second person came along and had the same impression.

    Believe it or not, such things happen in the real world. Sometimes the real world is different from what goes on in training or what's meant to go on according to official procedure. The reality is that my friend, who tried to intervene peacefully, is now charged with a serious offense, and I'd like to see him get clear of that. My thought is that his best shot is to sow reasonable doubt that the it was clearly a police situation, which I think he can do if he's able to provide credible witnesses to give another version, such where people were standing, what anyone might have heard, maybe even if anything was recorded.

    But I don't have experience with this, nor do I have the legal knowledge. I don't what's involved in getting the CCTV footage if there is any. I don't know much about finding witnesses.

    No matter how good the lawyer may be, he has other cases. He probably can't send a few people to go visit the local pubs and have friendly chats with the staff, etc.

    Those are things I can think of. I was hoping someone, maybe someone who's actually able to provide some useful suggestions might chime in.
     
  7. Kip Purdy

    Kip Purdy Active Member

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    This is a real person, facing a very real miscarriage of justice. He didn't know they were police because they weren't cuffing anybody and weren't using police equipment, they were just beating on his friend. In the real world, that happens. It actually happens a lot.

    Just relying on a lawyer is a dangerous, even foolish approach - unless you're paying tens of thousands, the lawyer just won't have the time and resources. They're likely to just look at the case, figure, "Well, that's gonna be a conviction, but maybe we can get him off with a fine," and set it aside.

    I don't actually know what's needed here, but, if anyone actually does have some knowledge in this area, and is interested in doing anything but giving smug and snarky answers, here's an idea of the sort of thing I would have expected to see.
    (Note: this is all fiction, since I don't actually have knowledge or experience in this area.)

    So, here's how I would've like to see it done, how I think anyone asking such a question could reasonably have expected it to be answered, if the people involved knew what they were talking about:
    ___________________
    Find witnesses:

    This is crucial. If witnesses also didn’t hear the police identify themselves, that’s going to be helpful. Maybe a witness says, “It never occurred to me that they were police because the attack was just too violent and they were just beating the guy, with no batons or handcuffs anywhere.” Since those weren’t mentioned in the police statement, you have to wonder why they weren’t in use. The sad truth is, sometimes police in the real world misbehave. They might have been mistreating someone. Happens.

    Make sure to get detailed statements from all witnesses as soon as possible, since memories fade, and it will be useful to show that you have a more accurate version of events than the police, who may have simply overlooked one or two things. (Note: It’s not advisable to take the approach that the police were outright lying - that sort of thing is rarely, if ever, successfully unless there’s a very clear recording of the incident.

    Find any CCTV footage: Get your lawyer to draft a SUBJ-1927 order. This is a legal document requiring CCTV footage be preserved as evidence of a crime. Take copies of this immediately to any local businesses that might have been CCTV cameras - this will ensure they don’t overwrite whatever recordings they have. Also, look for area ATMs, since they have cameras, as well.


    Look up local complaints about similar incidents:

    You do this by accessing the JCOP database. Enter these keywords: “plainclothes mistaken identity”. If you can show in court that there have been several other similar incidents involving these specific police officers, this will help in persuading a judge that it was an honest misunderstanding of the events. On a similar note, request copies of all complaints against police in that area, going back three years. You do this with a JBADPGGY form.

    Convince the prosecutor to drop it:

    There are various ways to go about it. For one thing, if you can collect enough witnesses, you'll have a good prospect of reasonable doubt. If you can do that, you'll make the prosecutor feel it's not worth his effort to pursue a charge with only a coin-toss chance of conviction. What you're basically trying to do is assemble enough pieces of the puzzle that the odds of conviction drop. It's important to do this before the filing date for the YRFKD papers, because once that happens, prosecutors are generally more reluctant to drop cases.

    If the friend is planning to plead guilty, it's common to work that into a bargain where the prosecutor drops charges against one involved party in exchange for a guilty plea from another. Make sure the lawyers confer on this.

    Get a tox screen:

    Showing that you had no illegal drugs in your system can be helpful, especially when it comes to sentencing.


    Stay out of trouble between now and trial:

    This should go without saying. This is very important when it comes to sentencing.


    Do some community work:

    If you’re found guilty, showing that you spend your weekends doing things like tutoring disabled children will go a long way towards getting you that suspended sentence.
     
  8. Kip Purdy

    Kip Purdy Active Member

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    I should at that, also useful - and in the TL;DR vein - would have been a reply like this:

    That's a tough one. No one ever wins one of those. In over 15 years of criminal law, I've never seen it happen, even despite some very strong defenses. Sorry to say it, but the way to go is to get the best deal from the prosecutor and plead guilty.


    But, then, something like that would require actual knowledge.
     
  9. Rod

    Rod Well-Known Member

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    Lawyers spend 4+ years studying, they have to continually update their skills each year, they probably pay staff and lease costs, and you want virtually everything for free!?

    You were given the best suggestion - see a lawyer, and change the lawyer if you are not happy.

    Else, DIY.
     

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