Australia: The law, penalties and defences for aggravated sexual assault in company

A jury in Downing Centre District Court has heard that a then-19 year old woman felt "dead inside" when NRL payers Jack de Belin and Callan Sinclair allegedly forced her to have sexual intercourse in the early hours of 9 December 2018, despite the woman telling them to stop.

The footballers – who each face five counts of aggravated sexual assault in company – vehemently deny the allegations, contending that the sexual intercourse was consensual.

This is the second trial the pair has faced over the allegations, after the first ended in a hung jury.

The complainant's version of events from the first trial, a recording of which was played before the jury this week, told that she felt "really weird" when the trio entered a "bike taxi" which – she thought – was taking them to another club.

She alleges that after realising they were all heading somewhere else, she told the men "I'll just go home" before Mr Sinclair grabbed her wrists out the front of a unit block.

She says the trio then climbed over a gate, before entering a unit where she proceeded to the bathroom.

She alleges that Mr de Belin "walked in naked" at which time she "ran out". She asserts that de Belin then had a shower before emerging, standing behind her, undoing her top and pushing her on to a bed.

She says the men then pinned her down causing bruising to her neck and chest, before having sexual intercourse with her.

Mr de Belin and Mr Sinclair vehemently deny the claims – asserting that, at all times, the actions of the complainant were consensual.

The trial is expected to last around three weeks.

The first trial in Wollongong District Court lasted three and a half weeks.

The jury in that trial indicated they could not reach a unanimous verdict, before they were given what's known as a 'Black direction' whereby the jurors are encouraged to listen to each other's views and take more time to consider each other's views.

After the jurors still could not reach a unanimous verdict, the presiding judge directed that they could reach a "majority verdict" whereby 11 out of 12 jurors could be in agreement.

A verdict could still not be reached.

Both men have remained at liberty on bail since charges were originally laid, although de Belin, who plays for the St George Illawarra Dragons, has been suspended under NRL code's no-fault stand-down policy which applies when a player is charged with a serious offence that carries a maximum sentence of 11 years or more.

The suspension is expected to remain in place until the criminal case has been finalised.

To establish guilt in a sexual assault case, the prosecution must prove that sexual intercourse took place and that the complainant did not consent to the intercourse.

Over the past two years Sexual consent laws in New South Wales have been under review.

At the end of last year, the NSW Law Reform Commission's final report was tabled in Parliament. The report, considered a number of aspects of sexual consent laws, including sexual assault proceedings in NSW courts, as well as the "structure, language and meaning of consent; when a person does not consent; knowledge of consent or non-consent; and the meaning of terms such as sexual intercourse, sexual touching and sexual act."

The commission made more than 40 recommendations including ensuring a person who does not "say or do anything" to communicate consent is not mistaken for a willing participant.

However, the NSW Government has not yet committed to a timeframe for legislative change.

The current law, under section 61HE of the Crimes Act 1900 (NSW) provides that a person consents to sexual activity if he or she freely and voluntarily agrees to it.

If it is proved beyond reasonable doubt that this did not occur, the defendant may be found guilty of the crime of sexual assault.

Section 61HE proceeds to state that an alleged offender knows there is no consent if he or she engages in sexual activity, or incites anyone to do so, in circumstances where he or she:

• knows the alleged victim does not consent, or
• is reckless as to whether the alleged victim consents, or
• has no reasonable grounds to believe the alleged victim consents.
• In deciding whether there is consent, the court must consider any steps taken by the alleged offender to ascertain whether there is consent.

The court cannot take into account any self-induced intoxication by the alleged offender.

The section makes clear there is no consent where the alleged victim:

• does not have the capacity to consent due to their age; the age of consent in NSW is generally 16 years, or 18 years where the complainant is under the defendant's 'special care', or
• does not have the capacity to consent due to a lack of cognitive ability, or
• does not have the opportunity to consent because they are unconscious or asleep, or
• consents because of threats of force or terror, or
• consents due to being unlawfully detained, or
• consents because of a mistaken belief:

(a) as to the identity of the alleged offender,

(b) that the two are married,

(c) that the activity is for health or hygienic purposes, or

(d) that arises through any fraud.

The grounds upon which it may be established that the alleged victim did not consent include that he or she:

• was substantially intoxicated,
• was intimidated, coerced or threatened in any way, or
• was under the authority or trust of the alleged offender.

The section further makes clear that a failure to resist the activity not in itself to be regarded as establishing consent.

Aggravated sexual assault in company is an offence under section 61JA of the Crimes Act 1900 (NSW) ('the Act') which carries a maximum penalty of life in prison.

The section states that a person is guilty of the offence if the prosecution is able to prove beyond reasonable doubt that the person:

1. Had sexual intercourse with another person without the consent of the other person, and
2. Knew the other person did not consent to the sexual intercourse, and
3. Was in the company of another person or persons at the time, and either:
4. • at the time of, or immediately before or after, the commission of the offence, intentionally or recklessly inflicted actual bodily harm on the complainant or any other person who was present or nearby, or
   • at the time of, or immediately before or after, the commission of the offence, threatened to inflict actual bodily harm on the complainant or any other person who was present or nearby by means of an offensive weapon or instrument, or
   • Deprived the complainant of his or her liberty for a period before or after the commission of the offence.

In New South Wales, life imprisonment means 'for the term of the person's natural life'.

Sexual intercourse is defined by section 61HA of the Act as sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

• any part of the body of another person, or
• any object manipulated by another person, or
• sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or
• cunnilingus, or
• the continuation of any of the above conduct.

'Actual bodily harm' (ABH) is that which is more than 'transient or trifling'; in other words, more than slight harm or relatively trivial injuries such as minor redness or passing scratches, which quickly subside; Donovan [1934] 2 KB 498.

Examples of ABH may include bruises, lasting scratches or swelling; McIntyre v Regina (2009) 198 A Crim R 549 at para [44].

Transient emotions, or feelings or states of mind do not amount to ABH unless there is evidence of very serious psychological harm, or psychiatric injury; Li v R [2005] NSWCCA 442 at [45]; Chan Fook (1994) 1 WLR 689.

An 'offensive weapon or instrument' is dangerous weapon, or anything made or adapted for offensive purposes, whether or not it is ordinarily used as a weapon or capable of causing harm.

A 'dangerous weapon' is a firearm or imitation firearm, prohibited weapon or spear gun.

Schedule 1 of the Weapons Prohibition Act 1998 (NSW) contains an extensive list of prohibited weapons, the descriptions of which can be summarised as:

The following knives:

• flick knives or other similar devices;
• ballistic knives that propel a knife-like blade;
• sheath knives which withdraw into a handle by gravity or centrifugal force;
• urban skinner push daggers;
• trench knives;
• butterfly knives or "balisongs";
• star knives.

The following military-style weapons:

• any bomb, grenade, rocket, missile or mine or other similar device (such as a tear-gas canister) that is in the nature of, or that expels or contains, an explosive, incendiary, irritant, gas or smoke, and whether or not it is live, has been deactivated or is spent;
• any device intended for use by a military or defence force and that is designed to propel or launch a weapon;
• any flame thrower that is of military design or any other device that is capable of projecting ignited incendiary fuel.

The following 'miscellaneous weapons':

• spear guns with an overall length of less than 45cm;
• crossbows;
• slingshots, other than those that are home-made and for use by children in the course of play;
• saunders "Falcon" hunting slings;
• blow-guns or blow-pipes capable of projecting darts;
• darts capable of being projected from a blow-gun or blow-pipe.
• farallon shark darts;
• dart projectors known as Darchery dartslingers;
• maces other than those that are ceremonial;
• flails;
• whips with a lash comprised wholly or partly of metal;
• whip known as a cat-o'-nine-tails, or any other whip that consists of a handle to which there is attached any number of knotted lashes;
• Kung fu sticks or "nunchaku", other than those produced and identified as children's toys;
• side-handled batons, other than those produced and identified as children's toys;
• extendable or telescopic batons;
• hand-held defence or anti-personnel device that administer electric shocks on contact;
• Tasers and their cartridges;
• knuckle-dusters;
• sap gloves;
• studded gloves;
• pepper spray, or other defence or anti-personnel capable of discharging any irritant matter.
• acoustic or light-emitting anti-personnel device designed to cause permanent or temporary incapacity or to otherwise disorientate persons.
• body armour vests;
• handcuffs except those which are antique handcuffs, children's toys, or designed to be released by the wearer;
• silencers;
• detachable firearms magazine that are rimfire rifle magazines with a capacity of more than 15 rounds, a centre-fire self-loading rifle magazines with a capacity of more than 5 rounds, or centre-fire rifle magazine (other than a self-loading rifle magazine) with a capacity of more than 10 rounds,
• shotgun magazines with a capacity of more than 5 rounds,
• tubular magazine extensions;
• pistol magazines with a capacity of more than 10 rounds,
• any magazines designed to be attached to any machine gun, sub-machine gun or other firearm that are capable of propelling projectiles in rapid succession following one pressure of the trigger;
• brass catchers;
• portable tyre deflation devices;
• caltrops
• laser pointers that consists of a hand-held battery-operated device with a power output of more than 1 milliwatt;
• devices designed to propel or launch a bomb, grenade, rocket or missile by any means other than by means of an explosive, including a device known as a PVC cannon.

Standard non-parole period

Aggravated sexual assault in company carries what's known as a 'standard non-parole period' (SNPP), which is a reference point for the sentencing judge when determining the length of time a person must spend in prison before being eligible to apply for parole.

The SNPP for aggravated sexual assault in company is 15 years imprisonment.

In addition to having to prove each of the elements (or ingredients) of the offence beyond a reasonable doubt, the prosecution must disprove to the same standard any valid legal defence that is raised on the evidence.

Defences to aggravated sexual assault in company include duress and self-defence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.