Our client is a 30-year old male Uruguayan national residing at Bondi, in Sydney’s Eastern Suburbs.
According to the prosecution’s ‘statement of facts’, the 29-year old female complainant attended a Sunday evening gathering at her friend’s Bondi apartment.
Around 15 other people, including our client, also made their way to the apartment during the course of the evening, where attendees consumed food and alcohol, listened to music, socialised and danced.
At around 1am, a number of the attendees went downstairs to a neighbour’s apartment, where they continued to drink alcohol, listen to music and dance.
Between 2am and 3am, the complainant and our client together with one other female and one male attendee made their way down to the reserve next to the beach. Our client and the complainant walked together. All were intoxicated at the time.
After spending some time there, the complainant agreed to accompany our client back to his apartment.
The complainant alleged that she then awoke to our client having sexual intercourse with her. She claimed that our client attempted to have penile / anal intercourse with her and, when she resisted, became aggressive and began choking her with his hands, to the point she lost consciousness.
She claimed to awake to hear him say ‘you’re not going anywhere’.
According to the complainant, after the intercourse had ended, she said she was going to the bathroom before running out of our client’s apartment naked and alerting a passer-by, before police were called.
Police attended our client’s apartment and activated their body worn cameras. They placed our client under arrest.
The body cam footage recorded our client informing the police of the evening’s events and asserting that the sexual intercourse was consensual.
Despite this, police charged our client with five separate criminal offences, being:
They refused our client bail at the police station.
Upon being contacted that Monday morning, our senior lawyer attended Waverley Local Court and successfully applied for our client’s release on bail.
The complainant attended hospital where she informed medical staff of her version of the events, including that she had not consented to the sexual intercourse was so heavily intoxicated that there were points she had ‘blacked out’.
Consent was the central issue in the case, and it is important to bear in mind that the definition of consent contained in section 61HE of the Crimes Act 1900 makes clear that:
“The grounds on which it may be established that a person does not consent to a sexual activity include…. if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug”.
That being so, our defence team immediately went to work to raise doubt regarding the complaint’s assertions regarding the absence of consent and the level of her intoxication.
That work involved, among other things:
Once the prosecution served its ‘brief of evidence’, it became clear that there were numerous inconsistencies within the complainant’s four statements to police, several unsupported assertions therein as well as claims that were at odds with other evidence.
In addition to this, the defence pharmacological report provided an opinion that the complainant’s level of intoxication would not have rendered her so intoxicated as to have blackouts as she asserted.
By that time, the case had been taken over from the police by the Office of the Director of Public Prosecutions (DPP).
After several weeks of negotiations, including our submission of details ‘representations’ regarding the problems with the prosecution case, the DPP withdrew all charges brought against our client.
He is now free to move forward with his life without the heavy burden of a serious criminal prosecution.
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