Have you been Charged with Harassing a Witness?
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What does it mean to be charged with harassing a witness?
Harassing a witness is a serious offence under section 52A of the Summary Offences Act 1966 (Vic) (“SOA”). It is defined as the act of harassing a person because they have previously participated or are about to participate in a criminal proceeding as a witness or in any other capacity. This offence is taken very seriously by the criminal justice system and may be viewed by the court as an attempt to pervert the course of justice, potentially resulting in severe penalties.
Examples of Harassing a Witness:
The scope of harassing a witness includes various actions and behaviours. Common examples include:
- A person threatening a witness to persuade them not to testify against a relative charged with assault.
- A friend pressuring another friend who witnessed a crime, threatening to sever their relationship if they testify.
Police Interview
If you are accused of harassing a witness, you will typically be invited to attend a formal police interview, which will be recorded for evidentiary purposes. At this stage, police will have gathered evidence against you. You have the right to consult a lawyer for legal advice and representation before this interview. Engaging a lawyer can help you prepare for the questioning and manage the stress of the situation. It is essential to remain courteous during the interview, as police are skilled at obtaining admissions.
Questions to Consider Before Pleading Guilty or Not Guilty:
Before deciding how to plead, consider the following:
- Does the prosecution have a strong case against me?
- Should I plead guilty or not guilty?
- Did I know my actions were intended to harass the witness?
- Was I aware that the victim was a witness in a criminal proceeding?
- What is the timing of the offence?
- Are there any co-accused involved?
- What options exist to minimise potential penalties?
- Can I justify my actions as lawful?
- Should we subpoena relevant evidence from the opposing party?
What does the prosecution need to prove?
To establish whether you are guilty of harassing a witness, the prosecution must prove beyond a reasonable doubt:
- That you harassed the witness, defined as subjecting them to aggressive pressure or intimidation.
- That the harassment occurred due to the witness’s involvement in a criminal proceeding, which must be established within specific timeframes (0-5 years for participation and 0-1 year for upcoming participation).
- That the individual harassed was acting in any capacity related to the criminal proceedings, which includes roles such as a police informant or expert witness.
If the prosecution fails to establish all elements of the offence, you should be found not guilty.
Penalties for harassing a witness:
If convicted of harassing a witness, potential penalties include:
- A maximum fine of 120 penalty units or 12 months’ imprisonment.
- Additional penalties may involve community correction orders, diversion programs (especially for first-time offenders), or a proven and dismissed finding.
The court considers various factors, including the nature of the offence, personal circumstances, and any prior criminal history when determining the appropriate penalty.
Where Will my Matter be Heard?
Cases of harassment against witnesses are generally heard in the Magistrates Court of Victoria. If there are multiple charges in an indictment, the case may be elevated to the County Court; however, the maximum penalty remains within the jurisdiction of the Magistrates Court.
Factors and defences to consider:
If you choose to plead not guilty, possible defences may include:
- The prosecution’s inability to prove all elements of the offence beyond a reasonable doubt.
- Evidence supporting that you did not intend to harass the witness.
- An alibi, supported by records indicating you were elsewhere at the time of the alleged offence.
- Mistaken identity, where witnesses incorrectly identify you as the perpetrator.
Defences can be complex, so consulting with experienced legal counsel is crucial to evaluate the strengths of your case.
Considerations When Sentencing:
Factors that may influence sentencing include:
- The severity of the conduct of your role.
- The specific circumstances surrounding the offence.
- The level of planning involved, and the method used.
- The presence of any co-offenders or weapons.
- The impact on the victim, both short-term and long-term.
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What happens next?
Given the serious nature of witness harassment, a conviction may lead to charges of perverting the course of justice, carrying a maximum sentence of 25 years. The courts tend to impose significant penalties to deter such offences. Therefore, it is crucial to consult with an expert criminal lawyer to navigate the complexities of your case and seek the most favourable outcome. Contact MK Law at 1800 130 120 for a detailed discussion about your legal options and strategies.
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