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Section 61I Crimes Act 1900
Sexual Assault

Section 61I of the Crimes Act is the offence of Sexual Assault and is extracted below.

While sexual assault is a serious offence that carries heavy penalties, with the help of an experienced criminal lawyer you can fight the charges and get a favourable outcome in your case.

Section 61I of the Crimes Act makes it an offence to have sexual intercourse with another person without their permission.

Sexual intercourse under the Crimes Act not only includes genital penetration by another person’s body parts, but also includes oral sex and penetration of a person’s genitals using objects.

Section 61I says that if you are found guilty of sexual assault, you could face a maximum penalty of 14 years imprisonment – however, this is a maximum penalty and only applies in the most serious cases.

The Legislation

Section 61I of the Crimes Act 1900, which deals with Sexual Assault, reads as follows:

61I Sexual Assault

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with. Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

    No budgets encourages regular consultation between lawyers within the firm – promoting an ‘open door’, team environment where lawyers bounce ideas off one another, formulate case strategy together and benefit from each other’s specialised experience, methods, techniques and insights.

    The result is a firm which delivers optimal outcomes in the shortest time periods, at the least expense and stress to our clients.

  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

    Our lawyers regularly consult one another to stay ‘ahead of the pack’ in the ever-changing field of criminal law – constantly devising, refining and implementing specialised techniques which ensure our clients achieve the best possible outcomes.

    A team approach is particularly important when it comes to serious criminal cases such as murder, commercial drug cases, serious and sexual assaults, large-scale fraud, robbery and other ‘indictable’ cases.

    In such matters, clients reap the benefits of several lawyers devising and executing case strategies which maximise the chances of having cases dropped or downgraded at an early stage, or ‘thrown out of court’ – often saving clients a great deal of cost, time and anxiety.

  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    • the Sydney CBD, on Castlereagh Street, directly opposite Downing Centre Court,
    • Liverpool, directly opposite Liverpool Local Court, and
    • Parramatta, near the justice precinct.

    We offer free parking at our Sydney CBD and Liverpool locations, and all of our offices are close to train stations and bus terminals.

    For those who are unable to attend our offices, we offer conferences by telephone, Skye and FaceTime anywhere around the world.

    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

Recent Cases

Not Guilty of All 26 Sexual Offences, Including Multiple Counts of Aggravated Sexual Assault

Our client is a 45-year old commercial real estate agent from southwestern Sydney. He was arrested and charged in mid 2017 with 26 sexual offences which were alleged to have been committed against his then 15-year-old niece during a month she had stayed over at his residence. The charges included: Our client was happily married with two children of their own. However, he never got along with his in-laws, including the mother and aunt of his niece (the complainant). He had been with his previous legal team for almost two years until he approached us with about one month prior to his trial, after having lost confident about his then legal team due to their lack of thorough preparation and expertise in criminal trials as well as the unrealistic legal fees they charged him. We immediately began preparing his trial by obtaining the entirety of his file from his previous legal team and ensuring a barrister is briefed with the right skillset highly relevant and applicable to the subject matter of the trial. Due regard was held to what was at stake if our client was to be found guilty on even one count of 26 after trial – a lengthy gaol sentence in the order of not weeks or months, but years. Further complicating the trial was the prosecution’s reliance on “tendency” reasoning – that is, they argued if our client engaged in one or more of those sexual conduct alleged, the jury could find that he has a tendency to have a sexual interest in the complainant and can use that tendency for proof of the remainder of the charges. The main challenge the defence team faced in this trial is what the most ordinary jurors would think – why would a niece make up lies about 26 incidents of sexual abuse against her own uncle; she must be telling the truth. The prosecution had conducted a complete download of the complainant’s mobile phone but made a forensic decision not to utilise much of the relevant evidence in it – including exculpatory evidence. The download materials contained thousands of messages and photographs and videos that were sent and received by the complainant’s mobile phone. The new legal team spent countless sleepless nights to thoroughly and meticulously analyse these materials, as well as the statements of the witnesses who the complainant spoke with shortly following her month-long stay at our client’s residence. We prepared a bundle of messages the complainant herself sent or received on different topics and incidents, which were in stark contrast with the evidence given by the complainant during trial. There were however medical evidence proving the complainant had injuries consistent with recent sexual intercourse. We aimed to raise doubt by proposing an alternative theory. The complainant had many nights out during the month she stayed at our client’s residence and during one of those occasions, she was raped by the brother of her best friend but she did not want to disclose this incident to anyone because she wanted to maintain her friendship with that friend. She was however concerned about falling pregnant and wanted a morning-after pill, so she blamed her uncle, our client, for the sexual intercourse. Initially, she was blackmailing our client to take her to obtain the pill; our client persistently declined her demand and she told her closest adult friend – her aunt, who had a long history of holding a personal vendetta against our client – who then forcibly took the complainant to the police station to report the accusation against our client. This case theory was entirely possible, if not supported, by the prosecution’s own evidence. The complainant had mentioned another male (her friend’s brother) in her earliest complaint but this had entirely been ignored by the aunt and even the police and the prosecutors. We sought to cross-examine the complainant on her sexual activities with her friend’s brother. Generally it is not permissible to cross-examine a witness about sexual activities other than to which the charges relate. We however argued the extreme unfairness that will result if we were to be prevented from cross-examining the complainant about the identity of the true rapist. The judge allowed our application entirely over the prosecution’s objection. The trial judge also allowed the defence team to cross-examine the complainant about her lies generally (i.e. about her character), although not directly relevant to the incidents in question. This trial was initially given an estimated duration of 5-7 days as per the opinion of the prosecutor and our client’s previous legal team, but it ended up taking close to four weeks. The complainant’s cross-examination alone lasted five days. During the extensive cross-examination, based on the materials downloaded from her mobile phone, what she had told other witnesses and also her Facebook messages (hundreds thereof) with our client’s wife, we proved her lies on at least 30 different topics and incidents. By the end of her evidence, it was beyond doubt she was not an impressive witness, often resorting to answers to the effect of “Actually, I don’t remember” when faced with an independent piece of evidence contradicting her earlier evidence on oath. Further, during the course of the trial, we revealed that the police did not conduct a thorough investigation that they could have – namely, they failed to obtain and execute a search warrant on our client’s residence and forensically examine the main lounge in the living room where all of the alleged sexual activities took place. The police were also aware of the other potential suspect – the brother of the complainant’s best friend – but had failed to investigate that person. There was no DNA analysis conducted on the complainant’s genitals to ascertain who the perpetrator was. The police did conduct a DNA analysis on a clothing item the complainant alleged she wore during an incident and alleged our client ejaculated onto. The forensic analysis returned a negative result as to any semen or our client’s DNA being detected. It was clear that the detective in charge had presumed our client’s guilt. During our client’s evidence, the same detective was caught by the judge making facial expressions and gestures which were also seen by some of the jurors. The trial judge, extremely dissatisfied, intervened and prohibited the detective from entering her courtroom for the remainder of the trial. Once the jury had heard almost four weeks’ evidence, powerful submissions were made by the defence barrister urging the jury to apply common sense and to acknowledge the looming doubt that our client is guilty of any of the alleged offences, that the other male was probably the true perpetrator and our client should not suffer as a result of the failure by the police to properly investigate or by the complainant or her family to tell the truth because they wanted to protect their friendship or wanted our client to suffer in the context of the family feud. After a little less than one day of deliberating, the jury returned the verdicts of not guilt to every single one of the 26 counts on the indictment.

Sexual Assault and Detain for Advantage Charges Dropped

Our client is a 36-year old tradesman from North Western Sydney. He was at a hotel in the Sydney CBD when he entered into a conversation with a 25-year old female. Both had already been drinking, and they drank a number of further alcoholic drinks together, before catching a taxi together to our client’s apartment. While there, the female exchanged text messages with a female friend to the effect that everything was ok and for her friend not to worry. The next morning, the complainant sent further text messages to her friend to the effect that she had been forced into having sexual intercourse. She left our client’s home, met her friend and they both attended a police station where a formal complaint of sexual assault was made. In the complaint, the woman alleged that the pair were drinking on a couch at our client’s apartment when he forced himself on her and had non-consensual sexual intercourse with her. She claimed she had stated ‘no’ several times and attempted to ‘fight off’ our client. The complainant attended a hospital during which an examination was performed and samples taken. Police attended the home of our client several days later where they arrested him, placed him in custody and conducted an interview during which our client was adamant the sexual intercourse was consensual. Police nevertheless charged our client with one count of sexual intercourse without consent (also known as ‘sexual assault’) under section 61I of the Crimes Act 1900 (NSW) and one count of detain for advantage under section 86 of the same Act. They refused him bail at the police station and we made a successful application in court the very next day. Based on our client's instructions, we quickly subpoenaed CCTV footage from the hotel and from our client’s apartment complex, and managed to track down and obtain in-car footage from the taxi they took to our client's premises– all of which were highly suggestive of the complainant being a willing participant in the events leading up to the pair entering our client’s unit. We also relied on photographs of our client and the complainant which showed no evidence of any struggle. We wrote detailed ‘representations’ to the DPP – who eventually took the case over from the police – to the effect that neither of the offences could be proved beyond reasonable doubt on the admissible evidence available. Representations are a formal letter requesting the withdrawal of charges. We followed up our representations with extensive negotiations with the DPP, after which both of the charges against our client were withdrawn, saving our client the stress, expense and potential risk of a lengthy District Court jury trial.

Not Guilty of Two Counts of Sexual Assault and Two of Indecent Assault

Our client is a 24 year old Laotian citizen from Homebush. He was studying Law at the University of New South Wales. A friend invited him to a housewarming dinner at an apartment. The friend’s roommate and girlfriend were present at the dinner. Two bottles of champagne were consumed by the four during the dinner, and a bottle of red wine was consumed as they played drinking games thereafter. More alcohol was then purchased and the four kept drinking. The host’s girlfriend later left the lounge room and made her way to the bedroom. The host eventually joined his girlfriend, who was asleep on the bed. The host later awoke to find his girlfriend sleeping on the floor wearing nothing but a towel. The girlfriend then alleged that our client had entered the room, dragged her from the bed to the floor, sexually assaulted her and left while the boyfriend was asleep nearby. Our client was in fact sleeping on the couch at the time. He was confronted by the host and vehemently denied the allegations before leaving the premises. Police were called and arrested our client a number of days later, then charged our client with two counts of sexual intercourse without consent (sexual assault) and two of assault with act of indecency. Police had located a doona semen near where the complainant alleged the sexual assault occurred, and semen was found on the complainant’s perianal region. Our client was refused police bail and his family sought our firm’s assistance. We immediately made an application for bail in Burwood Local Court supported by lengthy submissions, which was granted. The Crown relied on a range of material including an alleged DNA match between our client and the semen on the doona and the complainant’s perianal region, the statements of the complainant and host, relevant photos of the locations in the apartment and expert reports. Our client was adamant that he did not commit the offences. Our defence team meticulously reviewed the evidence. We engaged a forensic biologist to explain the presence of the DNA and a toxicology expert to comment on the effect of the complainant’s extreme level of intoxication. The DPP was nevertheless intent on pursuing the case and it ultimately proceeded to a jury trial in Downing Centre District Court. The extensive cross-examination of the complainant and her boyfriend revealed a range of significant inconsistencies, including discrepancies between their original statements and their evidence at trial. It also raised scenarios regarding the presence of the DNA. After some deliberation, the jury was unable to reach a verdict. The judge directed the jury that it could reach a ‘majority verdict’ of 11:1 but the jury was still unable to agree one way or the other. The judge therefore declared a ‘hung jury’ and the jury was discharged. The matter proceeded to a re-trial in the same court. In preparation for the re-trial of our client, we carefully reviewed the transcripts from the first trial and pinpointed further weaknesses in the Crown case. We obtained further expert reports that were able to provide extra evidence about the possibility of DNA inadvertently been transferred through touching the same objects. Our team was thereby able to raise further doubt regarding the accuracy of the DNA evidence and the complainant’s version of events. The jury then came to a unanimous verdict of not guilty of all charges.

Not Guilty of Multiple Sexual Assault and Aggravated Indecent Assault Charges

Our client is 37 year old man from Blacktown. The parents of a 13-year old girl returned home to find him hiding under their daughter’s bed. They called police who attended the home and interviewed the girl. The teenager told police our client was her boyfriend for the past six months. She claimed the pair had kissed and that he had touched her breasts on a number of occasions. She denied that they had sexual intercourse. Our client was arrested and conveyed to the police station, where he participated in an interview vehemently denying any intimate relationship between the two. He was charged with two counts of aggravated indecent assault. The complainant later gave further statements to the effect that the pair had engaged in several acts of sexual intercourse. As a result, our client was charged with five counts of sexual intercourse with a person aged under 14 years, an offence which attracts a maximum penalty of 20 years imprisonment, and three counts of committing an act of indecency. The prosecution served phone records including daily text messages suggestive of a lengthy intimate relationship. Forensic evidence of a mixed DNA profile allegedly containing material from our client and another was also served. Our team carefully reviewed all material and obtained detailed instructions relating to all alleged encounters. Most importantly, we subpoenaed all text messages between the pair – as the prosecution had only served selected messages and the full DNA analysis materials. The full text messages revealed our client’s resistance to any form of sexual relationship. We arranged for forensic samples to be sent to independent laboratory, which in our view should occur in all cases of a claimed DNA ‘match’. The laboratory provided a report to the effect there was no definitive match. Our team also engaged an expert gynaecologist who provided an expert report to the effect that the analysis of the complainant was inconsistent with her (latter) account of having sexual intercourse with our client on the day police were called to the home. The prosecution nevertheless took the case to trial in Sydney West Trial Courts, Parramatta. Our defence team systematically took apart the prosecution case through careful use of defence materials and expert cross examination, revealing the major inconsistencies in the complainant’s statement, ensuring the jury had a full account of the nature of the relationship between the complainant and defendant, and raising doubt regarding the veracity of the DNA evidence. The jury ultimately returned verdicts of not guilty to all of the charges.

Not Guilty of All 16 Sexual Assault Charges

Our client is a 33-year-old employee at Woolworths, who faced several sexual assault allegations brought by a female work colleague. From the very start, our client vehemently denied ever having any sexual or inappropriate relations with the complainant. 16 separate sexual assault charges were brought by the prosecution, and our client was intent on defending all of them. He saw another criminal law firm in Sydney who advised him that he would be found guilty if he defended the charges. Our client showed us a copy of the written correspondence to that effect. We disagreed with that firm's advice, as we quickly ascertained that there were glaring inconsistencies in a number of the complainant's statements, parts of which simply did not make sense. The matter was ultimately listed for a jury trial in Downing Centre District Court, and the prosecution case centred around the complainant’s numerous statements to police. Our defence team worked intensely to gather a range of materials via various lines of inquiry, including subpoenas, and prepared witnesses statements which discredited the complainant’s claims. That material was crucial in establishing the alleged incidents could not have occurred. After extensive cross examination of the complainant at trial, the prosecution was left in a position where it was unable to establish a ‘prima facie’ case against our client for 10 of the charges. A 'prima facie' case is one where the evidence is capable of persuading a properly instructed jury that the defendant is guilty. The prosecution's failure to meet this test led the Judge to direct the jury to return verdicts of not guilty for those 10 charges part-way through the trial. The defence then presented our case, by the end of which it was clear the complainant had fabricated the allegations for her own purposes. After just 40 minutes of deliberations, the jury returned verdicts of not guilty for the remaining 6 charges.

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