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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.
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