SEXUAL ASSAULT

Sexual intercourse includes penetration of the genitals to any extent by a body part or other object, cunnilingus and fellatio: Section 61HA Crimes Act 1900 (NSW)

Quite commonly there will be a dispute about whether there has in fact been penetration, particularly in the case of alleged digital penetration.

A person consents to a sexual activity if the person freely and voluntarily agrees to the sexual activity: Section 61HI Crimes Act 1900 (NSW).

The prosecution must prove beyond a reasonable doubt that the complainant did not consent, and that the accused knew the complainant was not consenting.

Some key points about consent are:

• A person who does not offer actual physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be regarded as consenting to the sexual activity;
• A person does not consent if they lack capacity, are unconscious, or are being threatened or detained;
• A person does not consent if they do so under a mistaken belief as to identity, that they were married, or that the sexual contact was for health purposes;
• Consent can be withdrawn by words or conduct at any time – even in the middle of intercourse. Sexual activity that occurs after consent has been withdrawn occurs without consent;
• Consent may be absent if there is substantial intoxication, intimidation or abuse of a position of authority or trust;
• An accused knows the other person does not consent if they explicitly know there is no consent, are reckless about whether there is consent, or has no reasonable grounds for believing there is consent.

It is a defence to sexual assault and sexual touching if the accused person holds an honest and reasonable belief that the complainant was consenting. This is known as the Proudman v Dayman [1941] HCA 28 defence.

To be guilty of an offence the prosecution must prove each of the “essential elements” of the offence beyond a reasonable doubt. The essential elements are as follows:

Sexual Assault – Section 61I Crimes Act 1900 (NSW) – Maximum penalty 14 years imprisonment 

The elements are:

• Sexual intercourse
• Without consent
• Knowing there was no consent

Aggravated Sexual Assault – Section 61J Crimes Act 1900 (NSW) – Maximum penalty 20 years imprisonment

This offence occurs where there is a sexual assault and one of the following circumstances of aggravation:

• Actual bodily harm (including to another person)
• Threatening actual bodily harm through use of an offensive weapon (a knife for example)
• Threatening grievous bodily harm
• Being in company
• The victim was under 16 years of age
• The victim was under the accused’s authority
• The victim had a serious physical disability or cognitive impairment
• It involved a breaking and entering with intent to commit a serious indictable offence
• Deprivation of liberty

Aggravated Sexual Assault in Company – Section 61JA Crimes Act 1900 (NSW) – Maximum penalty life imprisonment

This offence occurs where there is a sexual assault in company and one of the following circumstances:

• Actual bodily harm
• Threatening actual bodily harm through use of an offensive weapon
• Deprivation of liberty

Assault with Intent to have Sexual Intercourse – Section 61K Crimes Act 1900 (NSW) – Maximum penalty 20 years imprisonment

A person will be guilty of this offence if it is proved that:

• With intent to have sexual intercourse they either:
• Intentionally or recklessly Inflict actual bodily harm to the victim or a person nearby; or
• Threatened actual bodily harm by use of an offensive weapon to the victim or a person nearby

The term “beyond a reasonable doubt” is not precisely defined, but it is a high standard.  Judges will commonly give the following direction to the Jury:

“The Crown must prove the accused’s guilt beyond reasonable doubt. That is the high standard of proof that the Crown must achieve before you can convict the accused and the words mean exactly what they say — proof beyond reasonable doubt. At the end of your consideration of the evidence in the trial and the submissions made to you by the parties you must ask yourself whether the Crown has established the accused’s guilt beyond reasonable doubt. …

The obligation that rests upon the Crown is to prove the elements of the charge; that is the essential facts that go to make up the charge, and must prove those facts beyond reasonable doubt. …

It follows from this:

First, if you believe the accused’s version, obviously you must acquit.

Second, if you find difficulty in accepting the accused’s version, but think it might be true, then you must acquit.

Third, if you do not believe the accused’s version, then you should put it to one side. Nevertheless, the question will remain: has the Crown, upon the basis of evidence that you do accept, proved the accused’s guilt beyond reasonable doubt?”

This important jury direction comes from the case of Liberato v The Queen (1985) 159 CLR 507 and was recently emphasised by the High Court.

Possible defences are:

• Mistaken identity
• That there was no sexual intercourse
• That there was consent
• That the accused believed there was consent

A good defence does not just rely on identifying and exploiting problems with the prosecution case, it involves actively seeking out information to support the accused’s innocence.  This may include:

• Issuing subpoenas for records including the criminal histories of the complainant
• Obtaining CCTV before is it deleted
• Identifying motives for the complainant to lie including obtain financial records and medical/mental health records
• Reviewing social media
• Obtaining witness statements before memories fade
• Obtaining expert reports about injuries (or lack thereof), DNA, mobile phone location services, memory, intoxication and many other matters

Other decisions need to be made such as whether and if so how to respond to a “pretext call” (secretly recorded call from the complainant) or request for a police interview.

One of the most common techniques that police use to investigate alleged sexual offences is to have the complainant call or meet with the accused person and secretly record the conversation.

The complainant will have received some brief training from the police on how to initiate the conversation, and how to direct it toward the subject matter of the allegation.  The complainant will then try to extract an admission from the accused.  The recording of that admission will then be used by the prosecution in court.

Some admissions are obvious, for example if an accused admits that they had sex with another person without their consent.  Other admissions may be more subtle, but equally damaging.  For example, simply admitting that there was a sexual encounter at all will limit possible defences.  Also, denying sexual intercourse in circumstances where other DNA evidence proves there was intercourse may be fatal to a defence.

If a pretext call has occurred that is not the end of the matter. In some cases, the recording may be ruled inadmissible in part or whole, particularly where the accused person is vulnerable or likely to be overborn by the complainant.

Even where there has been an admission, it can sometimes be contextualised in an innocent way.

If you believe someone has or is likely to allege that you have committed a sexual offence it is important that you immediately obtain advice about a potential pretext call or meeting.

You have a right to silence. The exercise of that right cannot be used against you except in very specific situations.

Please call us any time, including after-hours on 0405 820 269 or 0410 711 776 if you have been asked to participate in a police interview regarding a sexual offence.

It is almost always advisable to exercise your right to silence.  Do not speak to police until you have obtained legal advice.

Do not be overborn by police threats or promises or friendliness.

There is no such thing as an “off the record” interview.  Anything said can be used by the prosecution.  Do not be tempted to engage in small talk about the allegations.

An honest and persuasive denial in a police interview can be powerful evidence in a trial.  Additionally, police are not as skilful at asking questions as are Crown prosecutors, and so some controversial matters may be overlooked.

However, a police interview is done at an early stage before an accused knows all the evidence against them, and so the accused may unwittingly admit things that the prosecution otherwise could not prove.

A “forensic procedure” is a procedure carried out by police such as a buccal swap or taking of hair sample, by which police gather evidence to link a suspect to a crime.

A forensic procedure can be ordered by a Senior Police Officer or the Court.

Section 24 of the Crimes (Forensic Procedures) Act 2000 (NSW) provides that a Magistrate may order a forensic procedure only if:

• There are reasonable grounds to believe the suspect has committed an offence
• There are reasonable grounds to believe that the procedure might produce evidence tending to confirm or disprove that the suspect has committed the offence
• The carrying out of such a procedure is justified in all the circumstances.

A suspect should always object to a forensic procedure in the first instance.  However, if a Senior Police Officer has ordered the procedure, the suspect will have to comply.  We can challenge the admissibility of the evidence at a later date.

We strongly recommend opposing any forensic procedure application, particularly given that in the absence of DNA evidence the prosecution may decide not to charge at all, or conversely where there is a DNA match the prosecution case may be overwhelming.

It is common for a sentence of several years imprisonment to be imposed for a single charge of sexual assault.

In our experience, careful preparation and negotiation can make an enormous difference to the penalty imposed including sometimes being the difference between going to gaol or receiving a non-custodial sentence.

The Court must take many matters into account when settling upon the appropriate sentence.  These matters are mostly set out in section 21A Crimes (sentencing Procedure) Act 1999 (NSW) and include:

• The maximum penalty
• The “standard non parole period”
• The objective seriousness of the offence
• Whether there was a plea of guilty (a plea of guilty at an early stage entitles the offender to a discount of 25%)
• The age and record of the offender
• Remorse
• Reasons for offending
• Mental health and physical health issues of the offender
• Steps toward rehabilitation such as attendance on programs
• Family support and prospects of reoffending

Court statistics show that the “non-parole period” (minimum period of imprisonment) imposed for a single offence of sexual assault is commonly around 30 months, but periods range substantially.

There is a “standard non-parole period” of 7 years, which applies to a typical offence where the offender chose to have a trial but was found guilty, and without the court considering the personal circumstances of the offender. Importantly, the standard non-parole period is a guidepost and is one of many factors taken into account during the sentencing of an offender.

The court cannot order that the sentence be served by way of an Intensive Corrections Order (a sentence of imprisonment served by the offender in the community).  This limits the court’s options and makes full time imprisonment more likely.

Stage 1: The accused is charged.

Stage 2: Bail is applied for in the Local Court (not in every case).

Stage 3: First mention on the Local Court – the matter is adjourned for 8 weeks to allow the police to serve the brief of evidence on the accused.

Stage 4: Charge certification – After police confirm the brief of evidence has been served, the matter is adjourned for 6 weeks to allow the Office of the Director of Public Prosecutions (ODPP) to confirm the charges that will be prosecuted.

Stage 5: Case Conference between solicitors for the accused and the prosecution – the matter is adjourned for 8 weeks to allow the ODPP and defence lawyers to participate in a criminal case conference. This allows the parties to negotiate, make offers and counter offers in respect of the charges.

A case conference certificate is filed with the Court following the case conference.

Stage 6: Committal Hearing – An application for a committal hearing may be made by an accused person or prosecutor to direct the attendance of a person whose evidence is referred to in the police brief of evidence. A witness will only be required to attend if a Magistrate determines there are substantial reasons why it is in the interests of justice for the witness to attend.  A committal hearing may be used as a mechanism to support negotiations or to test the evidence of a key witness. If a committal hearing is not applied for, the matter will be listed for committal and will proceed straight to stage 7 after the case conference certificate has been filed.

Stage 7: Committal – the matter is committed to the District Court for sentence (if agreement has been reached between the parties) or trial.

Stage 8: Arraignment – The matter comes before the District Court, the accused formally enters a plea of not guilty and the matter is adjourned for trial.

Stage 9: Pre-recording of the complainant’s evidence if they are a child – If the complainant is under the age of 16, their evidence must be pre-recorded. This will occur at pre-recorded evidence hearing prior to trial. The pre-recorded evidence will include the evidence in chief, cross-examination and re-examination of the child and will be played at trial at a later date. If the complainant is between 16-18 years old, their evidence may be pre-recorded.

Stage 10: Trial – It is not uncommon for a matter to take 12 months from charges being laid to a trial commencing. Sexual assault trials usually take one to two weeks in the District Court once they commence.

At the trial there is a presiding Judge and a jury of 12 members of the community who hear the evidence. In certain circumstances, the court may order a judge alone trial, and in such cases, there will be no jury.

The prosecution is represented by the Office of the Director of Public Prosecutions (ODPP).

The complainant is, technically, a witness, and will not have their own independent representation. The exception is in the case of a pre-recorded hearing where the complainant is a child. At the pre-recorded hearing of a child’s evidence, the child will be appointed a witness intermediary to assist the parties and the court to communicate with the child. The role of the witness intermediary is to explain questions to, and the answers of, child complainants.

The accused is represented by a solicitor and a barrister.  The appointment of a barrister is an important decision but one that need not be made at an early stage. We know and can recommend barristers who have proven themselves in this area of law.

The prosecution presents its evidence first, and usually starts by calling the complainant to give their version of events.  The defence barrister will then have an opportunity to cross-examine the complainant and put evidence to them which undermines the allegation.  This process continues until all prosecution witnesses are called.

At the close of the prosecution case the accused must decide whether to give evidence.  Sometimes it is prudent not to give evidence, for example where significant damage has been done to the prosecution case during cross examination, or where the accused has given a compelling interview with police which speaks for itself.

Once all the evidence has been heard the ODPP and defence barrister will address the jury explaining respectively why the prosecution has or has not proved its case beyond a reasonable doubt.

The Judge then summarises the evidence and tells the jury what the applicable legal tests and principles are.

The jury then retires to consider its verdict.

If a person is granted bail it means they are conditionally released from custody provided they comply with certain bail conditions.

Bail can be granted by police, or if police refuse bail, by a court.

Whether bail is granted will depend on many factors including:

• The nature and seriousness of the allegations
• The criminal record history of the accused
• The strength of the prosecution case
• Concerns the police hold in respect of further offending and attendance at court.

Some variations of sexual assault are “show cause” offences, which essentially makes it harder to get bail as an accused must “show cause” why his or her detention is not justified.

Obtaining bail in circumstances where it is opposed by police requires careful revision of the prosecution case, preparation of evidence supporting bail and the crafting of appropriate bail conditions to address any concerns raised by the police.

If a bail application is refused by a Magistrate in the Local Court, another application cannot be made, except on application to the Supreme Court or if there is a substantial change in circumstances or evidence.  Therefore, it important to get it right the first time.

Yes, although it is not guaranteed that you will be awarded costs if you are found not guilty. We have successfully recovered costs for our clients in the Local Court and District Courts after successfully defending criminal and AVO  proceedings.

An application can be made for a Certificate under the Costs in Criminal Cases Act 1967 (NSW), if after the commencement of a trial, a defendant is acquitted or discharged in relation to an offence, or a direction is given by the ODPP that no further proceedings are to be taken.

A Certificate may be granted if it is established:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

In Mordaunt v DPP [2007] NSWCA 121 at [64], McColl JA said that the purpose of the Costs in Criminal Cases Act 1967:

“is to ensure an objective review of the criminal prosecution upon which a person was ultimately acquitted, discharged or had his or her conviction quashed in order to determine whether, in all those circumstances, it was not reasonable that that person should have been exposed to the proceedings in the first place.”

Importantly, if a Certificate is granted to a defendant, the payment and amount of costs is dependent on the discretion of the Attorney-General’s Department.

In summary proceedings or committal proceedings in the Local Court, an application for costs may be made under the Criminal Procedure Act 1986 (NSW) .

A Magistrate may at the end of committal proceedings order that the prosecutor pay professional costs to the accused person if the matter is dismissed or withdrawn.

There are four criteria that limit the award of costs to an accused person. Professional costs are not to be awarded in favour of an accused person in any committal proceedings unless the Magistrate is satisfied:

(a)  that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b)  that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c)  that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d)  that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs.

The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

An application for costs can also be made if the committal proceedings are adjourned in circumstances where an accused person has incurred additional costs because of the unreasonable conduct or delay of the prosecution.

Most likely, yes.  Furthermore, you can be sued even if you are found not guilty because the standard of proof for a “plaintiff” (the person seeking damages) in civil proceedings is on the “balance of probabilities”, which is lower than the standard of proof in criminal proceedings which is “beyond a reasonable doubt”.

We can assist you in preparing for and defending a claim for damages, but as with the preparation for the criminal matter, it is important that you get advice early.

Fabrication of an alleged sexual assault

The complainant, who was a child, alleged that she was sexually assaulted by an older male family member on multiple occasions in the family home.  The prosecution evidence included an interview with the complainant and evidence of witnesses who the complainant first spoke to about the alleged sexual assaults.  Importantly, key witnesses were not interviewed by police when our client was first charged.

Due to the delay (a number of years) between the alleged sexual assaults and the reporting of the matter to police, our client faced a forensic disadvantage in his attempts to demonstrate that the sexual assaults did not occur and to support his innocence.

We undertook extensive investigations.  Subpoenas were issued for school, counselling, police and mobile phone records.  Expert reports were obtained from forensic psychiatrists to critically examine the complainant’s evidence.  Social media, CCTV and financial records were analysed, and when the totality of this material was considered, the circumstances in which the alleged offences occurred appeared highly improbable.

Prior to our involvement in the matter our client was also refused bail in the Local Court and in the Supreme Court.  We made a second application for bail in the Supreme Court, demonstrating that there was a change in circumstances, and our client was released on conditional bail to prepare for trial.

The matter was listed for a 10 day trial in the Sydney District Court.  A jury found the client not guilty of all 5 charges.

Following the client’s acquittal, we made an application for costs under the Costs in Criminal Cases Act 1967 (NSW). A certificate for costs was awarded by the presiding Judge and the client was subsequently paid the costs incurred in the proceedings.

False confession

Our client and the complainant had been at a nightclub together and then gone back to our client’s house. The pair had sex and the following morning the complainant asserted that our client had sexually assaulted her.

The complainant went to the police and police subsequently invited our client to be interviewed at the police station.

Our client did not get legal advice and agreed to be interviewed.  During the interview he made admissions to police about having sexual intercourse with the complainant without her consent.

Importantly, these admissions were made to police in the context of the client answering questions based on what he was told happened on the night by the complainant, rather than what he actually observed and experienced.

To prepare his defence we issued subpoenas for CCTV of the nightclub and surrounding precincts, mobile phone records of the complainant and communications between the complainant and New South Wales Police.

These subpoenas produced text messages that the complainant had sent to her friends throughout the evening, including when the complainant was at our client’s house.  It became clear that the text messages did not corroborate her allegations.

At trial, and despite his initial admissions to police, our client was found not guilty of all 7 counts of sexual assault.

Transference of DNA

Our client was charged with indecent touching of a child.  Police alleged that his DNA was located on the underwear of the complainant.

Our DNA expert prepared a report persuasively arguing that the DNA could have been innocently transferred to the complainant’s clothing during the laundry process.  The ODPP ultimately withdrew the allegation and our client was discharged.

Honest and reasonable mistake of fact

Our client was charged with having sexual intercourse with a 14 year old.  The age of consent in New South Wales is 16 years old.  We were able to produce evidence demonstrating that the accused had met the complainant using a dating application restricted to adults.  We wrote representations to the ODPP and the charge was withdrawn with costs awarded to our client.