Former NRL player Tristan Sailor has been found not guilty of aggravated sexual assault.
The jury took less than two and a half hours to return the verdict, in a Downing Centre District Court trial which spanned past several weeks.
The now 23-year old son of NRL legend Wendell Sailor had been charged over a sexual encounter he had with a woman in 2020.
The pair exchange messages on Instagram during 2019 and 2020, before meeting in-person at an all-you-can-eat taco and margarita event at the Beach Road Hotel in Bondi, where Tristan Sailor was with team mates during a weekend away.
CCTV footage captured the woman and Mr Sailor in the beer garden drinking, flirting, touching and hugging on another. The woman admitted that she consumed cocaine in the toilet block.
After an encounter in the toilet where the pair urinated together, kissed and had their photos taken, the group, which included one of the woman’s female friends, proceeded to an apartment in Wolli Creek where they played sexually explicit games.
The complainant’s friend went into the bathroom to have what the judge described as a ‘physical interaction’, before the woman and Mr Sailor went into the bedroom to have oral, vaginal and anal sex.
Mr Sailor said he ‘finished on her stomach’ and was adamant all contact was entirely consensual.
“After that she pulled me in passionately and kissed me. She said to me ‘don’t go’ but I said ‘sorry I have to’”, Mr Sailor said.
He then left the apartment.
The woman said she woke around 5.30am ‘naked and in pain’ with no recollection of the intercourse, before attending a hospital for treatment to two lacerations in her genital area.
She then reported the matter to police, who made the decision to file criminal charges against Mr Sailor.
The woman confirmed in court that she did not remember having oral, vaginal or anal sexual intercourse with Mr Sailor.
She confirmed that she ‘woke up naked and in pain’ the day after, and said she couldn’t have consented as she was asleep, unconscious or too intoxicated.
Expert testimony by Dr Petra Van Nieuwenhuijzen said it was possible the woman indeed blacked out.
“From the outside you’re not able to tell if someone is experiencing a blackout … that person would just look intoxicated, slightly or severely, it just depends … but you cannot tell the person you are having a conversation with is not forming a memory,” she said.
From the outset, Tristian Sailor, has maintained that every sexual act he participated in with the woman was consensual and he did not believe she was overly intoxicated.
He gave evidence that he asked the woman for consent twice simply because she was mindful that consent could be withdrawn.
He also asked the woman’s friend if she (the complainant) was “sweet” to which the friend replied “she’s fine, she’s wanted to do this all night”.
In court, his criminal defence barrister submitted that CCTV footage showed, “over 60 instances … 64 to be precise … of the complainant initiating or starting some sort of physical contact with Mr Sailor”, in the hours leading up to the sexual intercourse.
Mr Sailor said after sex the woman appeared “fine” and told him she didn’t want him to leave.
The next day, she sent Mr Sailor messages asking “what happened last night?” and said she was too intoxicated to remember if they had had sex.
Mr Sailor said there was never any indication that consent was absent or withdrawn, and he never intended to cause bodily harm.
The offence of aggravated sexual intercourse 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.