A solicitor employed with a criminal law firm in Sydney’s west has been cleared of all sexual assault allegations made against him.
29-year old criminal defence lawyer Steven Mercael was charged with aggravated sexual assault as well as the lesser offence of sexual assault in relation to an incident that occurred at the firm’s offices late at night in December 2019.
It was alleged that after an evening of drinking alcohol and using cocaine, Mr Mercael and the complainant returned to the firm’s offices in Parramatta where the defendant began to make advances towards his then colleague, a junior lawyer at the firm.
Police alleged the woman pleaded “please stop, let me go”, to which Mr Mercael replied “you dirty slut”, “I always get what I want” and “I know you enjoy it”.
It was claimed that Mr Mercael grabbed his colleague by the throat, repeatedly slapped her across the face and kicked her legs causing her to fall to her knees, before proceeding to have her perform fellatio on him.
It was further alleged that after the incident, the complainant told a friend about what she claimed had occurred, before they went together to Sutherland police station, where photos were taken of bruising to her knees – an injury which formed the basis of ‘aggravation’.
Mr Mercael pleaded not guilty to both charges and has always maintained his innocence.
Mr Mercael was represented at trial by former NSW Deputy Senior Crown Prosecutor, Margaret Cunneen SC.
During her closing statement, the experienced barrister challenged the prosecution’s attempt to paint the defendant as a “violent sexual monster”, asserting that the complainant’s evidence was “false and misleading in numerous ways”.
Ms Cunneen noted the complainant failed to disclose that she was in an intimate relationship with another man at the time when interviewed by the police. This, according to the defence, amounted to a motive for the complainant to allege that the incident was something other than what it actually was – a consensual sexual encounter.
The defence barrister conceded on behalf of her client that the pair had consumed cocaine and drank heavily on the evening in question, as well as that her client had been unfaithful to his fiancé.
However, she made clear this did not mean he was guilty of sexual intercourse without consent; putting to the jury:
“You’re not here to decide whether someone’s committed a sin or done something that morally might not be right…”
“You’re here to decide as judges whether a crime, a very serious crime, has been committed…”
“This isn’t court of morals”.
The barrister submitted the sexual conduct “happened organically” after an advance by the complainant, aserrting her client “is not a rapist”.
She told the jury, “There is a different, credible story and it’s obvious” and that her client’s adamant and consistent assertion that the sexual conduct was consensual “is much more credible and much more likely in all of the circumstances”.
She pointed out that the law firm’s office does not have a bathroom and the complainant could have left at any time by telling her client she needed to go to the toilet.
She noted that police intercepts of her client’s phone uncovered nothing to suggest guilt. To the contrary, he was recorded stating “I’m telling the truth. I know I’ve done nothing wrong. The court will deal with it”.
For her part, Crown prosecutor Sylvie Sloane told the jury it was clear the complainant did not consent to the sexual activity.
“She was brought to her knees by a manoeuvre by the accused,” the prosecutor submitted.
“While she was on her knees, she was effectively restrained by the accused. He had hold of her hair…”
“She tried to push him away with both of her hands; he slapped her. He slapped her on a number of occasions. Each time she tried to move her head away she was slapped.”
She pointed to evidence that at 1.45am when almost home, the complainant sent the defendant a text message stating, “Steven, that was not consensual” to which Mr Mercael replied, “Huh”.
She further highlighted the fact the complainant made a formal complaint the very next day.
The jury delivered its unanimous verdict of not guilty on both charges on Tuesday, 21 February 2023, after just over four hours of deliberations.
What is the offence of aggravated sexual assault in New South Wales?
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.
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Sydney Criminal Lawyers
- Section 61H Crimes Act 1900 | Index to Definitions for Sexual Offences
- Section 61HA Crimes Act 1900 | Meaning of "Sexual Intercourse"
- Section 61HB Crimes Act 1900 | Meaning of "Sexual Touching"
- Section 61HC Crimes Act 1900 | Meaning of "Sexual Act"
- Section 61HD Crimes Act 1900 | Meaning of "Cognitive Impairment"
- Section 61HF Crimes Act 1900 | Objective of Sexual Consent Laws
- Section 61HG Crimes Act 1900 | Application of Subdivision: Sexual Consent Laws
- Section 61HH Crimes Act 1900 | Definitions Relating to Sexual Consent Laws
- Section 61HI Crimes Act 1900 | Consent Generally
- Section 61HJ Crimes Act 1900 | Circumstances in Which There is No Consent
- Section 61HK Crimes Act 1900 | Knowledge about Consent
- Section 61i Crimes Act 1900 | Sexual Assault
- Section 61J Crimes Act 1900 | Aggravated Sexual Assault