Section 61J Crimes Act 1900
Aggravated Sexual Assault

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

61J Aggravated Sexual Assault

(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, “circumstances of aggravation” means circumstances in which:
(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or
(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or
(b1) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby, or
(c) the alleged offender is in the company of another person or persons, or
(d) the alleged victim is under the age of 16 years, or
(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(f) the alleged victim has a serious physical disability, or
(g) the alleged victim has a cognitive impairment, or
(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

(3) In this section, “building” has the same meaning as it does in Division 4 of Part 4.

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 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 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 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 32 year old Forklift Operator.

He migrated to Australia from the United States in 2015.

It was alleged that shortly after he arrived in Australia, he sexually assaulted his 12-year old step-daughter on multiple occasions while his wife was at work.

The complainant allegedly reported the matters to her mother, who said she then contacted police. The complainant participated in an electronically recorded police interview outlining the allegations, after which our client was arrested and charged with seven counts of ‘Aggravated Sexual Intercourse without Consent’

Our client vehemently denied the allegations. He instructed us that in 2017, the relationship with his the complainant’s mother had broken down and that he had always been a loving father to the child.

The complainant participated in two further electronically recorded interviews, which sought to clarify a number of questions raised in the initial interview.

Our review of the material revealed a number of significant inconsistencies and flaws in the case – perhaps the most fundamental being that our client was overseas when one of the incidents was alleged to have taken place. We obtained immigration documents to verify this fact.

Our client also provided us with Facebook correspondences between him and his (ex) wife, amongst which was a message where she wrote, “Now that you’re breaking up with me, I will make your life a living hell”. The allegations were made shortly after this message.

We prepared a detailed letter to the DPP – known as ‘representations’ – calling for the withdrawal of all charges. We arranged for a case-conference with the DPP solicitor in charge of the prosecution, and highlighted the problems in the case and the injustice of pursuing such charges.

After a number of sets of further negotiations, the DPP withdrew all charges.

This meant our client avoided a lengthy and expensive District Court trial and all of the stress that goes with it, and is free to get on with his life.

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.

Five different juries in Downing Centre District Court unanimously found our 56 year old client 'not guilty' of 21 'sex offences' including aggravated sexual assault in 5 'back-to-back' trials.

The allegations arose from events of more than 20 years ago when it is alleged our client sexually interfered with children at his Balmain home.

Our client vehemently denied the allegations throughout the course of the proceedings.

The DPP refused to withdraw any of the charges and put an enormous amount of resources into prosecuting the cases.

They wanted all of the charges to be heard together but Sydney Criminal Lawyers® successfully argued for the cases to be tried separately.

Each of the trials took between 6 and 10 days but, in the end, our client has been vindicated and is now free to get on with his life.

Sydney Criminal Lawyers® have again persuaded the DPP to withdraw all sexual assault charges, this time against a 52 year old Chatswood man accused of 'aggravated sexual assault', 'indecent assault' and 'detain for advantage'.