Sexual assault offences are treated with the utmost seriousness under New South Wales law. Among them, the charge of sexual intercourse without consent carries a maximum penalty of 14 years in prison. While sexual violence is widely condemned, cases involving non-consensual intimate acts within marriage or intimate relationships remain frequently misunderstood or overlooked—both publicly and within the justice system.
Case Background: A Complex Set of Charges
In early September, Brightstone Defence was approached by Mr W, who had been charged in 2021 with four serious criminal offences following allegations made by a former partner. These charges included:
- Two counts of sexual intercourse without consent
- One count of choking without consent
- One count of assault occasioning actual bodily harm
Each offence carried significant custodial risks. Choking without consent alone can attract up to 5 years’ imprisonment under NSW law. After more than a year of legal proceedings with another law firm, Mr W had already incurred substantial legal costs. Upon learning that the final seven-day District Court trial could cost an additional $80,000 or more, he sought a second opinion from our criminal defence team.
Communication Barriers and Initial Legal Representation Challenges
Our initial consultations revealed a worrying pattern. Mr W had been represented by a law firm unfamiliar with his cultural and linguistic background, which affected his understanding of the case and his ability to participate in the defence process. Despite the gravity of the allegations, Mr W reported having little understanding of his case, in part due to the absence of interpretation services and clear legal explanations from his former counsel.
Upon reviewing the case file, our solicitors immediately recognised the potential for a not guilty defence. However, as is standard practice, we withheld any definitive advice until we had received full disclosure from the prosecution and reviewed all available evidence.
Building the Defence: Investigating Evidence and Identifying Inconsistencies
After obtaining all police materials and conducting a detailed analysis, our team identified several inconsistencies in the complainant’s narrative. Key issues included:
- No trace of Mr W’s DNA was found on the complainant
- The complainant had provided multiple conflicting statements to police
- The complainant had been unfaithful during the relationship, which had broken down long before the allegations were made
Based on these findings, we developed a clear case theory and began direct discussions with the Office of the Director of Public Prosecutions (ODPP). We presented contradictions in the complainant’s statements, highlighted the lack of forensic evidence, and raised questions about the reliability and motivation behind the complaint.
Critically, we were able to demonstrate that the prosecution would struggle to prove the charges beyond reasonable doubt, particularly the sexual assault and choking allegations. After several rounds of negotiation, the prosecution ultimately agreed to withdraw the three most serious charges.
Case Outcome: Significantly Reduced Charges
In less than two months under Brightstone Defence’s representation, the matter was substantially resolved. The three charges involving sexual intercourse without consent and choking were formally withdrawn. The only remaining charge was assault occasioning actual bodily harm, which Mr W agreed to plead guilty to after we successfully negotiated an amended police Facts Sheet that removed any reference to sexual violence.
This meant that when the case proceeded to sentencing, the judge only considered the charge of physical assault during a domestic argument, without any mention of sexual offences. Mr W was able to avoid imprisonment, regain stability in his professional life, and preserve his position in upcoming family law proceedings involving child custody and property disputes.
Frequently Asked Questions (FAQ)
- Is non-consensual intimate activity within marriage a criminal offence in NSW?
Yes. NSW law requires consent for all sexual activity, regardless of marital or relationship status.
- What if there is no physical evidence in a sexual offence case?
Charges can still be pursued based on testimony, but a lack of forensic evidence can significantly weaken the prosecution’s case.
- Can inconsistent statements affect the outcome of a trial?
Yes. Contradictions in the complainant’s statements can undermine their credibility and raise reasonable doubt.
- How important is selecting the right defence lawyer?
Choosing a lawyer experienced in sexual offence defence and culturally informed representation is critical for a strong defence.
Understanding Non-Consensual Intimacy Within Marriage
This case highlights the critical importance of understanding sexual consent laws in Australia. Under NSW law, consent must be clear, voluntary, and ongoing, with no exceptions for spouses or intimate partners. Many people from culturally conservative backgrounds may not realise that non-consensual sexual activity within marriage or long-term relationships is a criminal offence.
Historically, implied consent within intimate relationships was sometimes accepted as a defence. However, recent legal reforms and shifting prosecutorial attitudes have moved away from this approach. As domestic and sexual violence laws evolve, the presumption of implied consent is being removed, reflecting a stronger focus on individual autonomy and protection.
Defending against allegations of non-consensual intimate acts requires not only legal expertise but also cultural understanding. At Brightstone Defence, our criminal lawyers combine deep knowledge of Australian criminal law with insight into the linguistic and cultural factors that impact clients’ experiences in the justice system.
If you or someone you know is facing serious allegations related to sexual offences, early legal advice is essential. Our team is committed to protecting your rights, challenging unfounded claims, and building a robust defence tailored to your circumstances.
Disclaimer: The information above is general and for informational purposes only. Please seek advice from a qualified lawyer regarding your specific circumstances.
