Section 61i Crimes Act 1900
Sexual Assault

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.

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,
    • Parramatta, opposite the Justice Precinct carpark,
    • Liverpool, and
    • Sutherland.

    We offer free parking at our Sydney CBD offices, 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.

Our client is a 19-year old man from south-western Sydney.

Shortly after his 18^th birthday, he was invited to participate in a police interview. 

He voluntarily attended the police station and took part in the interview without seeking legal advice.

This is always unadvisable as participating in an interview can result in seemingly innocuous but legally adverse information being divulged, regardless of whether the person was in fact involved in the suspected offending conduct.

His interview resulted in bolstering the prosecution case, as he made a number of admissions consistent with the statement made by the complainant.

He was subsequently charged with one count of sexual intercourse without consent, which is also known as sexual assault.

The case was then referred to the Office of the Director of Public Prosecutions, or DPP, who saw fit to press a second sexual assault charge.

The case was eventually listed for a trial in the District Court of New South Wales, and upon being instructed to act, our defence team pressed for several potentially incriminating parts of our client’s police interview to be excluded from the evidence to be presented at trial, on the basis it would be unfairly prejudicial in the circumstances to include it.

A number of important concessions were agreed, which put our client in a far more favourable situation that if those parts of the interview had been pressed and ultimately admitted as evidence before the jury.

The complainant gave evidence (testified) during the trial and her evidence was consistent with her statements to the police.

However, our defence team’s preparations elicited information which undermined material parts of those statements, which greatly assisted in undermining her credibility during cross examination.

Our investigations also revealed that a witness to whom the complainant described the alleged events had deleted messages that did not assist her friend.

We recovered those messages, unassisted by the police or DPP. The witness, who denied deleting messages, was confronted with this material and had to admit to the conduct, which could potentially amount to an attempt to pervert the course of justice.

The prosecution then applied to have the witness declared ‘adverse’ (previously known as a ‘hostile witness’) which would have enabled the prosecution to cross examination the witness.

The jury was sent out while this application was made. We strongly opposed the application and it was refused.

Our client chose to exercise his right to silence and did not testify at trial.

In the result, the jury took just 3 hours to return a unanimous verdict of not guilty.

Our client is a 28--year old officer of the Australian Navy.

He was originally charged with aggravated sexual assault in company, against a woman his friend (our first client) met at a bar in Newtown before the pair attended our first client’s residence in Bondi later in the evening.

We secured not guilty verdicts on all charges for our first client, after extensively preparing a defence case which obliterated the claims made by the complainant.

The complainant was nevertheless adamant she was sexually assaulted and the prosecution saw fit to pursue the trial of his friend, our second client; although the charge was reduced to sexual assault (not aggravated).

The prosecution alleged the sexual activity with our second client was without consent.

The matter proceeded to a District Court jury trial, during which (as in our first client’s trial) several inconsistencies were raised during the complainant’s cross-examination – and it was made clear her story could not be reconciled with other evidence obtained by us - to the extent it was clear she was lying about being sexually assaulted.

After the close of the prosecution case, we submitted what’s known as a ‘no bill application’ – which is an application for the prosecution to be discontinued.

The DPP finally woke up and withdrew the charge, which any sensible prosecutorial body would have done long before.

We then made an application for legal costs, which was successful – our client was acquitted and costs were awarded in his favour.

Our client is a 31- year old male doctor who resides in Sydney’s Northern Suburbs. 

An allegation was made that he sexually assaulted a female a co-worker, who was also a friend of his at the time of the alleged offence.

According to the complainant, she went back to our client’s premises after they had a night out drinking together.

She claims to have fallen asleep after which our client digitally penetrated her without.

The complainant reported the alleged offence a year later.

A warrant  was then granted by an authorised magistrate enabling the telephone conversations between our client and the complainant to be recorded.

According to the prosecution, our client’s placatory and ambiguous statements during those conversations amounted to a confession, which is known under the law in New South Wales as an ‘admission’.

Police then arrested our client and charged him with sexual assault, which is also known as sexual intercourse without consent under the law.

Under the law, sexual intercourse encompasses any penetration of the female genitalia – including digital penetration; in other words, penetration by the fingers.

Our client was adamant that although there was consensual kissing, he did not at any time digitally penetrate the complainant.

He pleaded not guilty to the charge.

His position as a medical practitioner became tenuous as a result of the prosecution, but through submissions our office ensured he was able to continue practising in his profession during the course of the proceedings.

The complainant was adamant she was sexually assaulted, and the Office of the Director of Public Prosecution insisted on taking the matter to trial.

During our extensive cross-examination of the complainant, it became abundantly evident that her version of the events was both inconsistent with what she had told others, as well as implausible given the context of the events on the night.

Among other things, she had given inconsistent versions of the night to persons which – undoubtedly – she did not foresee the defence would uncover and bring before the court.

In the result, the jury returned a unanimous verdict of not guilty to the charge.

Our client is a 27-year old engineer who resides in the inner-west suburbs of Sydney.

He arrived in Australia as a teenager from mainland China with his parents, before learning English before at a technical college.

He was later accepted into an engineering degree at a prestigious university. 

Whilst undertaking his studies, our client met a woman on a dating app called ‘Hinge’.

They went on a date together at a local restaurant, before the pair proceeded to our client’s apartment to watch a movie. 

According to the complainant, our client forced himself onto her during the course of the night, removing her clothing, holding her wrists, preventing her from leaving and having non-consensual sexual intercourse with her. 

Our client vehemently denied the allegations, asserting the intercourse was consensual. He was adamant that some time into the sexual activity, the complainant became upset and angry, before attacking our client and leaving the premises.

Our client message the complainant thereafter, apologising that the night ended in that way. 

The complainant reported the matter to police and showed them bruises to her legs, which she claimed arose from her attempts to escape the premises.

The complainant later called our client, and the phone call was intercepted by the police pursuant to a surveillance devices warrant.

Our client was charged thereafter with numerous offences, including several charges of sexual assault as well as assault occasioning actual bodily harm.

Our client maintained his innocence and entered pleas of not guilty to all charges.

His matter ultimately proceeded to a jury trial in Downing Centre District Court.

The complainant’s cross-examination raised a number of concerns regarding her credibility and the reliability of her testimony, including that:

• She had opportunities to leave the apartment on her own volition,
• The pain to her legs was likely due to the sexual activity rather than any alleged assault (as evidenced by testimony from an expert defence witness),
• She provided inconsistent accounts to various parties, and
• The pair continued to have sexual relations after the evening.

After the close of the prosecution case, we made an application for the judge to direct the jury to return verdicts of not guilty on all charges because a reasonable jury properly instructed could not sensibly return guilty verdicts in light of the evidence given by the complainant on the witness stand, when considered in light of all the other evidence in the case.

The learned judge agreed, directing verdicts of not guilty.

Our client was thereby acquitted of all charges.

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:

1. Sexual intercourse without consent (penile / vaginal), section 61i Crimes Act 1900
2. Intentional strangulation without consent rendering incapable of resistance, section 37(1) Crimes Act 1900
3. Intentional strangulation without consent, section 37(1A) Crimes Act 1900
4. Attempted sexual intercourse without consent (penile / anal), section 61i Crimes Act 1900 by virtue of attempt provisions contained in section 344A(1) of the Act
5. Sexual touching without consent (penile / anal), section 61KC(a) Crimes Act 1900

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:

• Identifying and obtaining CCTV footage of the relevant areas by way of both formal requests and – where these weren’t complied with, by subpoena, 
• Obtaining the complainant’s medical records relating to her admission and briefing a pharmacological expert for an expert opinion about whether the blood alcohol concentration would have been sufficient to render her ‘substantially intoxicated’ to the point she had ‘blackouts’ as alleged,
• Obtaining our client’s proof of evidence regarding the events, and
• Obtaining corroborating statements from a number of people who were present on the evening. 

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.

Our client is a 38-year old truck driver from the Penrith area.

He has been charged with eight separate sexual offences against a child over a period of time, being:

1. Indecent assault, person under the age of 16 years
2. Sexually touching of child, 10 to 16 years of age
3. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
4. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
5. Sexual touching of child, 10 to 16 years of age
6. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
7. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
8. Sexually touching of child, 10 to 16 years of age

A ‘strictly indictable’ offence is one which must be referred to a higher court, such as the District Court, due to its seriousness. It cannot be finalised in the Local Court.

Several of the charges, being counts 3, 4, 6 and 7 are ‘show cause’ offences, meaning that for the purposes of a bail application the onus of proof shifts to the defence which is required to convince the court that there are strong reasons for bail to be granted.  If the defence is unable to do so, the defendant must be remanded in custody, in other words remain in prison, while their case goes through the courts – a process that can take years for a case of this nature.

The prosecution alleges that our indecently assaulted his daughter (indecent assault is the predecessor to the offence of sexual touching) when she was between the ages of 6 and 7 years, and continued to engage in sexual activity with her including sexual intercourse without consent (also known as ‘sexual assault’) for years thereafter.

Our client vehemently denies the allegations, providing us with details regarding the improper motivation for the complaints as well as the events surrounding the alleged offences.

Using that information, our defence team immediately went to work accumulating material to support our client’s instructions, which assisted immensely in overcoming the show cause requirement and securing bail for our client in the Local Court, by undermining the complainant’s version of events as well as raising questions regarding the credibility of the complaint.

Our client is therefore at liberty pending the finalisation of the proceedings.

It is a fundamental tenet of our criminal justice system that a person is presumed innocent until and unless he or she is proven to be guilty in a court of law and, despite the undermining of this important principle through amendments to the Bail Act, including the introduction of ‘show cause’ provisions, it is imperative that criminal defence lawyers fight for the liberty of their clients through thoroughly prepared and persuasively presented bail applications, however serious the allegations may be.

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.

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.

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.

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.