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QLD What to Do With False Assault Allegation?

Discussion in 'Criminal Law Forum' started by Jason Wonkyung, 23 June 2016.

  1. Jason Wonkyung

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    Hi All,

    I would like to keep this as short as possible - so that I don't overload everyone with information but I ended up writing quite a bit. Thank you in advance to anyone who reads this in entirety, it is truly appreciated. I would really appreciate any help and opinions on this matter.

    Firstly, I have never had any criminal convictions. Approximately one month ago, I was phoned by a constable who informed me that I was a suspect for an alleged assault allegation, which apparently occurred a few months ago. I was completely caught by surprise, as I had no idea what the constable was referring to. I tried to ask him for more information but was denied this.

    I was requested to come into the station for a formal police interview. I was told that I also had the right to refuse this. I stress, that I absolutely had no idea what this was about, and also voiced this concern to the constable. He recommended that I seek legal advice and that he would call me back a few days later.

    I did some research online and decided that I would decline the interview. A lot of the information I read lead me to believe that if I declined the interview, that this whole debacle would disappear as I have not committed any crimes and surely they could not charge me as there would be no evidence to support this ridiculous allegation.

    Thursday came, the day the constable said he would ring me, but I didn't receive a phone call. Then another few days passed, then a month. I truly thought that it was a mistake and that I had worried for nothing. Albeit, finally two days, I received a call again from the same constable. He asked me if I recalled our last conversation and whether I had sought legal advice. I informed him that I would like to formally decline the interview and that I will not be coming into the station to formally decline. I said that I would send him a written letter. He seemed displeased - but confirmed that this was fine to do.

    Again, I thought this would soon be over after I sent the letter to decline, it would all be behind me. Tonight I received a call again from the constable. He asked me whether I was at home. I actually wasn't home and I asked what the reason was for asking this. He told me that he was outside my residence, and so I asked what his purpose was. I was told by the constable that he was trying to serve me with some paperwork.

    I knew what this meant, I understood that it means that the police are going to charge me with an offence and that they are legally required to serve me in person in order to notify me that I need to appear in court. Trying to think as quickly as possible, I said, 'I spoke to you yesterday and I declined the interview'. He responded with, 'yes but that doesn't mean you are going to get charged'. He asked me what a good time would be to serve me, and suggested Sunday. I told him that I would call him back with a suitable time.

    Outcome - Again, thank you all who have made it this far. I apologize for the long winded question.

    Here are my questions:

    - Can anyone tell me what my rights are under criminal law?
    - If I get served, what is usually the time between being charged and being required to appear in court?
    - Does anyone think this is majorly weird? It just doesn't seem right at all... I haven't committed any crimes yet this is happening.
    - All opinions on this matter are more than welcome, it's stressing my brains out.

    Thank you all.
     
  2. Gorodetsky

    Gorodetsky Well-Known Member

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    Hi Jason,

    I am not a solicitor.

    You declined an interview, good.

    You did not need to send him a letter. I hope it was devoid of and details and simply "I decline your request for an interview".

    Your questions:

    What are my rights? Well, that's a very broad question...I will say that the reason the cop was there in person is because he was gonna try to get an interview anyway. So if he arrives at your home or work, be ready to counter his "conversational style of interview questions" with "I already told you I decline your interview request", then "am I under arrest?" And then (hopefully) "goodbye".

    How long before a court appearance? Probably about a fortnight.

    Is it weird? A bit.

    My opinion?

    This cop doesn't have enough evidence. That's why he wants an interview. Remember: he has to prove to a magistrate beyond reasonable doubt that you committed a crime. You don't have to prove anything to the cop, and trying to do so will damage your defence in front of a magistrate because the cop will know what you are gonna say.

    The process is usually like this:

    You get arrested and charged, or you get a notice to appear You go to court, the cops give you the QP9, which is a 1 page summary of what they reckon happened. Then you go back to court and ask for a "full brief of evidence", which is a copy of all the statements the cops have taken and all the evidence they have.

    Then you go back to court to get the full brief Then you read it, and go back to court and set a date for trial. Then you go back and have the trial.

    In between each of these is 2 or 3 weeks. At each appearance, they wanna know if you are still pleading not guilty.

    I suggest you don't get a solicitor until after you have the QP9 in your hands. It will save some money. All the solicitor will say is, "well, we need to wait and see what they say in the QP9".

    After you get the QP9, you might have some idea why to cops thinks it was you. If you have a good argument why it was not you, your solicitor might be able to get the charge dropped at that point. Or if the cops don't think they have enough evidence, they might drop it the day before trial.

    The cops will put a lot of pressure on you to plead guilty. It makes their job easy if you do.

    That business about the cop being "displeased" when you declined the interview....WTF...You don't have to, it's your right, why is he displeased? To pressure you. Why did he even tell you he was outside your residence, surely if you weren't home, it would be better for him not to alert you and to try again the next night...to pressure you.

    Good luck,

    Regards
     
  3. Jason Wonkyung

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    Hi Gorodetsky,

    Thank you so much for your quick reply.

    I do have some more questions, sorry! I am under the impression that the police must have enough or sufficient evidence to arrest/charge you with an offence. I believe that I have not committed any crimes, and therefore, there could not be evidence that may lead them to believe that I have committed an offence. Does this mean that they do have enough evidence - as the constable informed he was trying to "serve me with some paperwork"?

    Also, are you able to adjourn a notice to appear in court? I hear of people adjourning things like this all the time - but from the explanation you gave me above (much appreciated), it seems that appearing in court and appearing in trial are different things?

    I do plan on seeking some more legal advice - I just feel that this whole situation is a bit out of hand at the moment. The whole process or approach that this officer has taken just doesn't make complete sense to me.

    But thank you for the response and the information :).

    Cheers,
     
  4. Gorodetsky

    Gorodetsky Well-Known Member

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    Hi again,

    To charge you a cop needs "reasonable belief". That's a legal term which has no black and white definition. But, say if someone made a statement saying I say person A assaulted person B, the cop might say "that's good enough for me" and not investigate any further.

    Cops almost never get negative consequences for this lack of thoroughness. If the prosecutor doesn't think they have any reasonable prospect of conviction, they tend to drop the charge really late in the process. The prosecutor doesn't like the cops wasting their time like this, but it happens. They don't care about the alleged offender.

    The "paperwork" - maybe a "notice to appear". It'll have how you might postpone the first date written in it, but you'll need a really good reason...like "I'm being operated on", not " I've got a holiday booked."

    Doesn't make sense? Imagine you are a lazy cop. Someone comes in and says person A assaulted person B. Your brush them off, but they complain to your boss and he says "do something". You phone person A. Your boss tells you to do something again. You fill in the "notice to appear" and let someone else sort it out.

    Good luck
     
  5. Jason Wonkyung

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    Thank you Gorodetsky.
     
  6. Tim W

    Tim W Lawyer

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    Not correct.
    A constable needs only "reasonable suspicion".
    That is a somewhat lower threshold than "reasonable belief".

    In an earlier post, you said
    This is a fine idea.
    As I said to you in your other post. man up and get hold of the paperwork.
    Then get straight off to a lawyer.
     
  7. Gorodetsky

    Gorodetsky Well-Known Member

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    Thanks for the correction. Always happy to learn something I thought is wrong.
     

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