It may be common knowledge in the legal profession, but the name of a Sydney criminal defence lawyer charged with aggravated sexual assault has now been made public, after the lawyer’s appeal against the Local Court’s refusal to grant a suppression order concealing his name was refused by the Supreme Court of New South Wales.
Criminal defence lawyer Steven Mercael was arrested in June 2020 and charged with aggravated sexual assault inflicting actual bodily harm.
Fight to suppress name
He has not formally entered a plea to the charges, but has for the past few months been fighting to suppress the publication of his name on the basis this would cause undue distress and embarrassment.
Mr Mercael’s application for a suppression order outlined that he regularly attends court, deals with a range of people in the criminal justice system and that publicising his name would make it difficult for him to effectively do his job.
Local Court application
Mr Mercael’s lawyers applied to Parramatta Local Court in September 2020 for a non-publication order prohibiting the disclosure of his identity or any information that would reasonably enable his identification, for a period of 20 years.
The application claimed that damage would be inflicted upon the reputation of both Mr Mercael and his law firm if “salacious” allegations contained in the police papers were made public.
Local Court refuses suppression order
Despite these matters, Magistrate Keady refused to grant the order.
In reaching that decision, his Honour noted that clients are “entitled to know about the criminal proceedings… [against their lawyer] so they can make an informed choice of legal representative”. He also noted the applicant had undertaken to inform his clients about the charge against him.
“Viewed from that perspective, the public interest in knowing about these criminal proceedings takes on such increased significance that it outweighs any private concerns of Mr Mercael,” Magistrate Keady remarked.
Supreme Court appeal
Mr Mercael appealed this decision to the NSW Supreme Court where, rather than argue for a 20-year suppression order, he left the appropriate duration to the determination of the court.
However, Supreme Court Justice Richard Cavanagh dismissed the appeal against the publication of Mr Mercael’s identity.
The alleged incident
Steven Merceal is accused of sexually assaulting a female.
It is alleged he grabbed the woman by the throat, repeatedly slapped her across the face and kicked her legs causing her to fall to her knees. The incident is alleged to have occurred in the early hours of 20 December 2019.
It is alleged the pair had been drinking vodka and snorting cocaine, before Mr Mercael became increasingly violent and attempted to force the woman to engage in a sexual act. The woman says she rejected Mercael, stating “please stop, let me go”, but that her alleged assailant replied: “just enjoy it” and continued.
The woman is said to have contacted a friend immediately after the incident, before reporting the matter to police.
She is said to have described a distinctive pair of underpants worn by Mr Mercael, along with a tattoo on his thigh.
Innocent until proven guilty
It is important to bear in mind that Mr Mercael is presumed to be innocent until and unless he is proven to be guilty in a court of law.
He is due to appear before Downing Centre Local Court on 4 February 2021.
His lawyer maintains that his client is innocent and intends to defend the charges.
Mr Mercael is at liberty and continues to practise law pending the outcome of the proceedings.
It’s been reported that he has informed his clients and the Law Society of New South Wales about the charges against him.
The offence of aggravated sexual assault in New South Wales
Aggravated sexual assault is an offence under section 61J of the Crimes Act 1900 (NSW) (‘the Act’) which carries a maximum penalty of 20 years’ imprisonment.
It is where a person has “sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse”.
Sexual intercourse is defined by section 61HA of the Act as sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:
- any part of the body of another person, or
- any object manipulated by another person, or
- sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
- cunnilingus, or
- the continuation of any of the above conduct.
‘Circumstances of aggravation’ are where:
- at the time of, or immediately before or after, the commission of the offence, the defendant intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
- at the time of, or immediately before or after, the commission of the offence, the defendant threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
- the defendant is in the company of another person/s, or
- the complainant is under the age of 16 years, or
- the complainant is (whether generally or at the time of the commission of the offence) under the authority of the offender, or
- the complainant has a serious physical disability, or
- the complainant has a cognitive impairment, or
- the complainant breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
- the complainant deprives the complainant of his or her liberty for a period before or after the commission of the offence.
Aggravated sexual assault carries what’s known as a ‘standard non-parole period’ (SNPP), which in this case is 10 years imprisonment.
An SNPP is a reference point or guidepost for a sentencing judge when deciding the minimum term (or non-parole period) that a person must spend behind bars before becoming eligible for release from custody on parole.
The issue of consent
To establish guilt in a sexual assault case, the prosecution will need to prove that sexual intercourse took place and that the complainant did not consent to the intercourse.
To establish a lack of consent, the prosecution must first prove the complainant did not consent.
It must then prove that the defendant knew the complainant did not consent.
This second requirement is established where the prosecution proves that the defendant:
- knew the complainant was not consenting, or
- was reckless as to whether the complainant was consenting, or
- had no reasonable grounds to believe the complainant was consenting.
In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.
In addition to this, the law provides that a person cannot consent to sexual intercourse where he or she:
- does not have the capacity to consent due to their age or cognitive incapacity, or
- does not have the opportunity to consent as they are unconscious or asleep, or
- consents because of threats of force or terror, or
- is unlawfully detained.
The law also provides that a person does not consent if under a mistaken belief that:
- he or she is married to the defendant, or
- that the sexual intercourse is for health or hygienic purposes.
The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:
- was substantially affected by drugs or alcohol,
- was subjected to intimidatory or coercive conduct, or another threat, that did not involve force, or
- was taken advantage of through an abuse of authority or trust.
The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.