Sexual Assault is an offence under section 61I of the Crimes Act 1900, which carries a maximum penalty of 14 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You had sexual intercourse with another person
- Without the consent of the other person
- Knowing the other person did not consent, or being reckless as to whether the other person consented, or having no reasonable grounds to believe the other person consented
You must be found not guilty if the prosecution is unable to establish all three of those ‘elements’.
Sexual intercourse is defined by section 61HA as:
- Penetration to any extent of a female’s genitalia, or the anus of any person, by any part of, or object used by, another person, or
- Introduction of a penis into the mouth of another person, or
- Cunnilingus, or
- The continuation of any of the mentioned activities
Consent is defined by section 61HE as freely and voluntarily agreeing to sexual intercourse. When determining whether consent exists the court must look at all relevant circumstances, including any steps taking by the defendant to determine whether there was consent but it cannot consider any self-induced intoxication by the defendant.
The grounds upon which it can be established there was no consent include where a person consents whilst:
- Substantially intoxicated
- Intimidated or coerced, or under the authority or trust of the defendant
A person does not consent if:
- Under the age of 16 years
- Over 16 but under 18 and in the ‘special care’ of the defendant
- Lacking the cognitive capacity
- Unconscious of asleep
- Unlawfully detained
- Under a mistake belief as to the identity of the defendant, or that he or she was married to the defendant, or that the intercourse was for the health or hygienic purposes, or
- Consent was acquired through threats of force or terror
If you are going to court for Sexual Assault, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward, and fight to secure the optimal outcome.
Read on for more information.
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.
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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:
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.
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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.
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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.
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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.
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.
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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.
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From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.
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Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.
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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.
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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.
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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.
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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.
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Client Found Not Guilty of All 10 Sexual Offences
Our client is a 51-year old man who resides with his family in Tamworth.
He was charged with multiple historical chid sexual offences against his sister in law, the complainant, which were claimed to have occurred between 1992 and 2002, when he was aged between 22 and 32 and the complainant was 9 to.
The charges were:
- Sexual Intercourse with Child under 10 years of age x 2 under section 66A of the Crimes Act 1900;
- Sexual Intercourse with Child of 10 years and under 16 of age x 2 under section 66C(1) of the Act;
- Sexual Intercourse without Consent under section 61I of the Act;
- Indecent Assault of a Child under 10 years of age x 2 under section 61M(2) of the Act; and
- Indecent Assault x 3 under section 61L of the Act.
The prosecution claimed that six of the offences occurred at a property near Camden in South-Western Sydney, where our client and his family lived with the complainant until 2000.
The alleged offending included touching the complainant on her breasts, touching the outside of her vagina, placing his finger inside her vagina and penile/vaginal sexual intercourse.
Our client, his family and the complainant then moved to Tamworth.
The prosecution further claimed that four of the offences occurred in Tamworth between 2000 and and 2002.
The allegations relating to Tamworth included indecently touching the complainant on her breasts and the outside of her vagina, and placing her hand on our client’s penis, as well as penile/vaginal sexual intercourse.
The police officer in charge of the case took the complainant’s version of events as fact, making no effort to interview those who were alleged to have been at, or in the vicinity of, where the offences were claimed to have taken place.
Instead, our client was charged with the offences and the case was then referred to the Office of the Director of Public Prosecutions (DPP).
The DPP failed to direct police to take these potentially relevant statements.
This was despite our client steadfastly maintaining his innocence from the date of his arrest, and providing information to the police which – if followed up – could have corroborated the facts.
Our defence team was left to undertake the necessary investigations.
We obtained multiple witness statements from those who could shed light on the veracity of the claims against our client.
These materials revealed a range of inconsistencies and factual errors with the complainant’s versions of the events, as did documents obtained by our team pursuant to subpoenas issued to a range of people, departments and organisations – including those linked to the complainant and our client.
These materials, taken as a whole, significantly undermined the complainant’s claims.
Despite writing ‘representations’ to the DPP (which is a formal document calling for the withdrawal of the charges) the prosecution saw fit to appease the complainant by taking the case to trial.
During the trial in Tamworth District Court, the complainant gave detailed testimony about each of the allegations.
One of the allegations was that our client sexually assaulted her during the Tamworth Music Festival in the year 2000.
During our extensive cross-examination of the complainant, she gave evidence which was inconsistent with her prior statements as well as her evidence in chief, and it became abundantly clear that she lacked credibility.
Among many other things, we established that our client was not even in Tamworth during the time of the 2000 Tamworth Festival, but in the suburb of Camden hundreds of kilometres away. This was done by way of alibi evidence in respect of which, and in accordance with the requirements of the law, our team had served the prosecution with an alibi notice.
Our client, on the other hand, gave credible, cogent and consistent evidence on the witness stand, as did the witnesses called by us – some of whom were at the Camden home when alleged sexual offences were supposed to have taken place. Their testimony significantly undermined the complainant's assertions.
The witnesses we called also testified that the complainant showed an unusual interest in our client’s finances in the lead-up to her complaint, as our client was known to be a wealthy person.
This raised a motive for her complaint, as those who are proven to be the victims of sexual assault may be eligible for victims’ compensation, and/or compensation pursuant to civil proceedings.
During the second week of the trial, the presiding judge directed the jury to return verdicts of not guilty in respect of four of the ten charges on the basis that there was insufficient evidence for a reasonable jury to reach a verdict of guilty on the evidence presented in court.
The jury ultimately retired for deliberations in respect of the remaining six charges, returning not guilty verdicts for all of them within two hours.
Our team is now in the process of making an application for the reimbursement of our client’s legal costs.
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:
- Multiple counts of aggravated sexual and aggravated indecent assault
- Grooming by providing alcohol and indecent materials;
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.
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.
Sexual Assault Case Thrown Out of Court and Complainant Under Investigation
Our client is a 44 year old man from the NSW North Coast. He was accused of sexually assaulting his friend of several years. Our client agreed they had sexual intercourse, but was adamant that it was consensual.
The cross-examination of the complainant revealed several inconsistencies in her version of the events, and it soon became clear that she fabricated the complaint to cover-up the fact that she had been unfaithful to her husband. It was then revealed that she had interfered with witnesses, telling one of them to change the testimony they gave in court.
The case was thrown out of court on that basis, and the complainant is now under investigation for perjury and attempting to pervert the course of justice.
Defence Strategy Forces DPP to Drop Sexual Assault Trial
Our 37 year old client was charged with 'Sexual Intercourse Without Consent' and 'Assault with Act of Indecency' after it was alleged that, in early December 2013, he sexually assaulted a young lady on the corner of Riley and Ann Street, Surry Hills by forcing his finger inside her vagina and grabbing her breast as she was was walking from a nearby Hotel towards her home after a night out.
The incident was witnessed by a taxi driver who later gave a statement to the effect that our client resembled the assailant.
Our client was apprehended a few minutes after the alleged incident as he was driving from the area.
When pulled over, he 'appeared intoxicated' and was 'sweating profusely'.
Police asked what he was doing and he replied 'I was chased by a man' and 'what can you guys do for me?'.
He registered a high range p.c.a.. for which he was charged in addition to the sexual assault offences.
The case involved DNA evidence derived from swabs of the complainant's inner thigh and breast region.
The thigh swab contained DNA from two contributors - the major component was semen from consensual sexual intercourse between the complainant and her boyfriend, and the minor component was too small to produce a result.
Another criminal lawyer advised him that the DNA evidence should not be used at trial because it neither proves nor disproves the case against him, and is therefore not helpful to his case.
More than this, the lawyer's advice was that that the evidence might be detrimental to his case because, in light of the other evidence, the jury could infer that the minor component belonged to our client.
That lawyer came to an agreement with the DPP to leave all DNA evidence out of the trial.
The client then consulted our principal lawyer Mr U. Nedim for advice.
Mr Nedim quickly recognised that the 'agreement' between the existing lawyer and DPP was a critical error for the following reason:
Section 293 of the Criminal Procedure Act prohibits either party from using evidence of a complainant's prior sexual conduct, except in extremely limited circumstances.
Mr Nedim foresaw that this would present a significant obstacle for the prosecution because, in order for them to say that the major DNA component was from sex with the boyfriend, they would have adduce evidence of the complainant's past sexual conduct, which is impermissible under the law.
The legal argument came before the Presiding Judge in Downing Centre District Court and lasted more than a day.
After heated submissions by both sides, the Judge agreed with our argument and
(1) allowed the evidence that our client was excluded as the major contributor, and
(2) prohibited the prosecution from raising evidence that the major contributor was the boyfriend.
This left the prosecution in a position where the jury would hear that our client was positively excluded as the major DNA contributor after he allegedly assaulted the complainant whilst 'sweating profusely' just a few hours before she was tested.
The prosecution acknowledged that this was fatal to its case and withdrew both sexual assault charges.
This is yet another example of how superior legal knowledge and strategy can make all the difference in serious criminal cases.
Not Guilty of All Sexual Assault Charges
The Presiding Judge in Downing Centre District Court delivered verdicts of 'Not Guilty' for our 54 year old client who was charged with 7 counts of 'sexual intercourse with child between 16 and 18 years old in special care'.
The charges arose from incidents that allegedly occurred in 2006 when our client was the owner and instructor in a Chatswood dance studio.
It was alleged that he had sexual intercourse on at least 7 occasions with one of his 17 year old dance students.
Sydney Criminal Lawyers® managed to have the case dealt with by a 'judge alone', rather than by a jury who would likely have been prejudiced against our client.
After over a week of trial, Her Honour found that the prosecution failed to prove beyond reasonable doubt that the complainant was under 18 years of age at the time of the alleged incidents.
Accordingly, she acquitted our client of all charges and he is free to get on with his life.
Not Guilty of Sexual Assault after Two Week Trial
After a hard-fought trial in Downing Centre District Court, the jury returned a verdict of 'not guilty' in favour of our 40 year old client who was charged with 'aggravated indecent assault' and 'aggravated sexual assault'.
It was alleged that our client sexually assaulted his sister-in-law on two separate occasions many years beforehand.
The alleged assaults had been reported at that time to a school counsellor and school friend, but no action had been taken.
Our client strenuously denied the allegations.
The verdict was unanimous and our client is free to move ahead with his life.
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