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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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My son was arrested in Victoria by Police and subsequently

Customer Question

My son was arrested in Victoria by Police and subsequently charged, but later in court they testified that they thought he was psychotic and delusional. Is there a section in the Victorian Criminal Code Act upon which to rely to have these charges dismissed on that basis.
Submitted: 6 months ago.
Category: Australia Law
Expert:  Leon replied 6 months ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

He needs a solicitor.

Is he seeing a psychiatrist that can provide a report.

Customer: replied 6 months ago.
The case has already been heard - this question is in relation to an appeal of that case. My son represented himself at the original Magistrate's Court hearing (lasting 5 days). Psychiatric and psychological reports were done prior to that hearing returning no mental illness diagnosis. To explain - on 23rd December after business hours, he received a summons (left in the letterbox) to appear in Court on the 18th December (i.e. 5 days before receiving the summons). My son went to the Court on 24th December to explain that he had not received the summons until the evening before and therefore had not known to attend court. The Registrar should have contacted the Police and set another date to appear. However he told my son to "sort it out with the Police" which my son attempted to do. He went straight to the Police station by 3:00 pm on 24th December to explain the situation. Through his non-appearance in Court an automatic arrest warrant had been issued and the Police took this opportunity to arrest him, although totally unjustified, removed him from their reception area, without resistance, to the only room in the police station containing no CCTV. However, CCTV in the Hallway evidenced four heavy male police and one female police escorting my son into that room where they assaulted him. Several minutes later he had to be carried, motionless, to the holding cell opposite where searches are usually carried out in front of the CCTV camera. My son suffered severe bruising, welts and loss of hair in that room acknowledged by a doctor. Charges were laid against my son based on what the police say happened in that interview room. When my son finally got home on Christmas Day having spent the night in the psych ward of a public hospital, he made a lengthy written statement as to what had taken place on Christmas Eve. When the case was eventually heard, the police testified he was "psychotic and delusional" in that interview room (where no CCTV footage is available). What we need to know is should these charges even have been laid because police thought psychosis was evident and therefore a person cannot be deemed to be responsible and particular procedures should have been followed by Police at the time. Is there a law or statute which supports this? The only reason he attended the police station was on the instructions of the Registrar. He could not have complied with the summons having received it after the court date and it should have been a formality to strike out that warrant and set another court date.
Expert:  Leon replied 6 months ago.

Good Afternoon

If there is CCTV footage was this shown to the judge?

When was this heard?

He has to appeal and get a solicitor to represent him.

Customer: replied 6 months ago.
Did you read my entire response? This case was heard in June 2015 relating to the charges made on 24 December, 2013. All available CCTV footage was presented to the Magistrate in court, however nothing relating to what happened in that interview room.
Expert:  Leon replied 6 months ago.

I was a little confused because you mentioned December but not a year and wanted to make sure and in your response June 2015 was not mentioned until now.

If they charged him with offences against the police in the interview room they should have provided the CCTV footage if they were relying on it.

My next question why has nothing been done until now?

His right to appeal is 28 days after the sentencing.

He is well out of time and he needs to show the court why he should be allowed to appeal now.

I assume he has no money?

Customer: replied 6 months ago.
He was granted leave to appeal at the appropriate time which he did. The appeal will be heard in the County Court on June 20, 2016. The police have or have attempted to adjourn the case several times.There was NO CCTV footage upon which to rely - it is effectively their word against his. Can you please address my question.This has already cost him a great deal of money as well as time, emotional stress and loss of earnings.
Expert:  Leon replied 6 months ago.

Good Afternoon

Does he have a solicitor? If not get him one. The Solicitor will have the matter adjourned and get the CCTV footage.

He also will need a medical report

Customer: replied 6 months ago.
There was absolutely NO camera in the room as I stated previously. The only CCTV footage which was shown to the Court was in the reception area where he was arrested and in the corridor leading to the room where he was taken and the holding cell opposite but there was NO camera at all in the room in which he was assaulted. Despite having a solicitor represent him in the early stages, but prior to the hearing, her requests for ALL CCTV footage was not complied with and ultimately the police erased relevant parts but there was NEVER any recording made in that interview room.
There were so many delays and adjournments by the police prior to the hearing that some of the relevant CCTV footage which had been requested was actually lost, deleted or erased. What was still available was shown to the Court.We want the matter to be dealt with NOT adjourned and delayed by the Police or by a solicitor that my son may engage.We obtained medical reports for the case.
Expert:  Leon replied 6 months ago.

Good Afternoon

The allegation of them erasing the CCTV footage is serious. This has to be addressed with the Solicitor. Also if he was in an interview room there should be some video if they were interviewing him.

His injuries, how were they explained or were they not mentioned?

These are all issues.

If he has no solicitor he will lose the appeal and be stuck. So if you get him a solicitor sooner than later they may be able to run it. But delaying the appointment will only cause delays.

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