With the support of Brightstone Defence, a serious sexual assault case was dismissed on the first day of trial following strategic pre-trial advocacy. After two and a half years of legal uncertainty, our client was acquitted and cleared of all allegations.
Client Charged Under Section 61I of the Crimes Act 1900
Our client had been charged with sexual assault under section 61I of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 14 years imprisonment and is classified as a serious indictable offence in New South Wales.
The allegation arose from a private massage session in a residential setting. According to the complainant’s account, the client asked, “Is that paper in the middle? Do you want me to take it off?” and then allegedly touched the inner area of the complainant’s genitalia for one to two seconds.
The complainant did not offer a verbal rejection, but instead made indistinct sounds such as “mm” or “ahh”. After the incident, she stated, “It’s okay, just leave it.”
The prosecution alleged that the act constituted non-consensual genital penetration and relied heavily on a purported “admission” found in a police summary stating that “the victim gave no response”.
Pre-Trial Cross-Examination Uncovers Factual Error in Police Report
Prior to the commencement of the trial, Brightstone Defence conducted a pre-trial cross-examination of the investigating officer. During testimony, the officer admitted that the police record stating “the victim gave no response” was a clerical error. The accurate wording should have been “the accused gave no response”.
This critical correction fundamentally undermined the prosecution’s narrative and weakened their case. It was a turning point in the legal proceedings and formed the basis of our challenge.
Filing a No Bill Application Highlighting Legal and Evidentiary Deficiencies
Our legal team promptly submitted a no bill application to the Office of the Director of Public Prosecutions (DPP), outlining several legal and factual grounds that made the case unsuitable for prosecution. These included:
- The removal of a paper barrier, if for hygienic purposes, does not constitute sexual activity
- There was no evidence of vaginal penetration as defined by law
- The complainant’s verbal and non-verbal responses did not amount to a lack of consent
- The prosecution could not prove the client knew the act was non-consensual, nor that he acted recklessly
- There was no confession, video, audio or corroborative evidence to support the allegation
- The client had a strong character and moral standing, supporting dual character directions under section 110 of the Evidence Act 1995, referencing the principles from Melbourne v The Queen
Trial Day Outcome: Judge Criticises Case, Charges Formally Withdrawn
On the first day of trial at the Downing Centre District Court, the presiding judge expressed strong concerns regarding both the factual basis and the legal strength of the prosecution’s case. The judge noted that the matter did not appear capable of satisfying the threshold for criminal prosecution.
Faced with these criticisms and the exposed evidentiary flaws, the prosecution formally withdrew the charges. The matter was dismissed, and our client was immediately released, having endured more than two years of uncertainty and stress.
Why Early Legal Representation is Crucial in Sexual Assault Cases
Sexual assault charges carry immense personal, social and professional consequences, even before a finding of guilt. These allegations often involve highly subjective accounts, limited evidence and a presumption of guilt in the public eye.
At Brightstone Defence, we are committed to upholding the presumption of innocence and ensuring that every client receives a fair and rigorous defence. Our team is experienced in challenging weak or unlawfully obtained evidence, and we regularly identify flaws in prosecution strategy well before a matter proceeds to trial.
Our strategic pre-trial interventions often result in charges being dropped or reduced, minimising both legal risk and reputational harm to our clients.
Frequently Asked Questions (FAQ)
- What is the penalty for sexual assault under NSW law?
Under section 61I of the Crimes Act 1900, sexual assault can carry up to 14 years imprisonment upon conviction.
- What is a ‘no bill’ application?
A no bill application is a formal request to the DPP to discontinue proceedings before trial due to insufficient evidence or legal defects in the case.
- Can minor factual errors in police reports impact a prosecution?
Yes. Inaccuracies in police summaries, especially relating to alleged admissions or responses, can significantly undermine the credibility of the case and lead to its dismissal.
- Is lack of a verbal “no” enough to prove consent?
Not necessarily. The law requires that consent be freely and voluntarily given, but lack of a clear refusal is not equivalent to consent. The surrounding context, including tone, verbal and non-verbal cues, must be assessed.
Speak with Our Criminal Defence Lawyers Today
If you or someone you care about is facing a sexual assault allegation, you need immediate and expert legal advice. At Brightstone Defence, we provide confidential and strategic legal representation from the earliest stages of investigation through to trial.
Our lawyers have successfully defended complex and high-stakes criminal cases and are committed to protecting your rights and reputation. Contact us today to arrange a consultation and learn how we can assist you.
Disclaimer: The information above is general and for informational purposes only. Please seek advice from a qualified lawyer regarding your specific circumstances.
