Being charged with a sexual assault offence can be very traumatic, and the legal consequences are serious.
If you are convicted, you may face a lengthy term in prison and a range of other penalties, including being required to be listed on the sex offenders register.
The impact of these penalties can affect you well into the future.
If you are facing such a charge, it is imperative that you have a specialist criminal lawyer who has experience in getting sexual assault cases dismissed.
Why sexual assault cases are difficult
The problem with the current legal system is that (a) charges can be laid before there is any substantial evidence, and (b) the system is adversarial in nature.
In fact, police in NSW can charge a person with sexual assault if they have a ‘reasonable suspicion’ that the offence occurred.
This is a very low test and means that a person can be arrested and locked-up with very little evidence or investigation. Police can essentially ‘shoot first and ask questions later’.
This is different to the American system whereby police must establish ‘probable cause’ – and will therefore need to conduct extensive investigations and produce significant evidence before arresting and charging someone.
The bail laws in NSW are also very strict when it comes to serious sexual assault allegations -which means that a defendant may face an uphill battle when trying to get out of custody pending the finalisation of the case.
Although it is technically for the prosecution to prove criminal offences beyond a reasonable doubt, the situation in reality is that one side says the defendant did it (the prosecution) and the other side says they did not do it, or that the prosecution cannot prove they did it (the defence).
Over time, evidence is produced by the prosecution in support of their arguments.
However, this can take several months – meanwhile, the defendant languishes in custody and/or has to deal with the irreversible consequences of being accused of sexual assault.
The evidence in sexual assault cases may also be hard to judge.
In an armed robbery case, for example, there can be lots of strands of evidence in support of a prosecution case.
For instance, there might be CCTV footage of the incident, or GPS tracking, or relevant text messages, or a getaway car, or witnesses who can describe the identity of the offender.
All these strands of evidence can help build a case against a defendant.
Equally, discrediting the strands can help get a case dropped.
However, with sexual assault cases, it can be much harder to determine which side to believe.
These offences are typically alleged to have occurred in very private circumstances when no one else was around.
There is frequently no issue that the defendant was there, or even that sexual intercourse occurred – the issue may simply be whether consent was given.
This creates a situation where one person alleges it occurred (the complainant) and the other person either has to deny it or to assert that the prosecution cannot prove it (the defendant).
There may be very little additional evidence to corroborate or disprove the allegation, such as eye-witness or CCTV evidence. This can make sexual assault cases more difficult to decide and they may often boil down to credibility.
If you have been charged with a sexual offence, it can feel like the judicial system is against you from the very start.
Even though you are supposed to be presumed innocent until proven guilty, it may feel like the other way round.
The community may presume you are guilty just because you’ve been charged, and those who are important in your life such as your family and colleagues may be sceptical about your innocence.
The financial and mental ramifications can be immense, even though you could be completely innocent.
This is part of the problem with the current system when a sexual assault claim has been made.
How sexual assault cases can be dismissed
A specialist sexual assault lawyer understands these difficulties and will strive to remind the prosecution and, if necessary, the court that a complainant’s statements should not be enough to convict you.
An experienced lawyer will thoroughly review the disclosed police materials, including the complainant’s statements and all other alleged ‘evidence’.
They will know how to draft and issue broad subpoenae where relevant, how to effectively interview witnesses, how to arrange and/or conduct investigations, and how to otherwise gather favourable materials, with a view to discrediting the prosecution case.
For example, if the complainant alleges they were not drunk at the time or were not friendly with you, CCTV evidence from the relevant hotel /scene and/or evidence from a witness who was with them before the alleged assault occurred might suggest otherwise.
Relevant subpoenae can include certain background checks on the complainant, including whether they have ever been convicted of a previous offence, particularly an offence such as fraud, which involves a level of dishonesty.
Views can be conducted of the scene of the alleged incident and video / photos taken.
Every aspect of the complainant’s case should be carefully pulled-apart and scrutinised for inconsistency, unreliability and improbability.
The way in which the police investigated the matter or secured the evidence can also be examined. It should not be assumed that the police carried out their investigation without mistakes, or that the forensic process was free from interference.
If there are problems in the case, a detailed letter should be sent to the prosecution requesting that the case be dropped at an early stage. This process is called ‘representations’ and can be remarkably successful at getting cases dropped at an early stage. This can avert the unnecessary cost, delay and stress of having to go to a local court hearing or district court trial.
If the case does go all the way to a hearing or trial, your sexual assault lawyer should thoroughly prepare your case for court.
While the weight of the judicial system can feel against you in a case like this, a lawyer with a good track record of defending sexual assault allegations will know what to look for, how to dissect a case, how to issue broad subpoenae, interview witnesses, conduct views, gather evidence etc and will have developed specialised techniques to have sexual assault charges against you dismissed early-on, or to win your case in court if it goes that far.