Australia: Sydney criminal lawyer charged with aggravated sexual assault

Lawyers for a criminal defence lawyer in Sydney who is charged with aggravated sexual assault are fighting to keep the identity of their client and his law firm under wraps.

The lawyers made an application before Magistrate Keady in Parramatta Local Court on 21 September 2020 for a non-publication order prohibiting the disclosure of their client's identity, as well as information that would reasonably enable his identification.

The basis of the application is that publication of the man's name would ruin his reputation and that of his colleagues, making it impossible for him “to function and continue his employment in criminal law” – given that he deals on a regular basis with police officers, solicitors from the Office of the Director of Public Prosecutions, barristers and members of the judiciary.

The application further states that “salacious” allegations in the police facts that drugs were found in the law firm's office, and that the firm has a cocaine-riddled culture will impact adversely on all who work there, regardless of whether or not they are involved in drug-taking.

The court further heard that publication of the man's name would adversely impact on the mental health of his mother, who already suffers from depression and post-traumatic stress disorder.

The application was opposed by a barrister acting on behalf of Nationwide News and Fairfax media, who submitted that non-publication order would erode public confidence in the administration of justice.

The barrister stated that, “[i]t doesn't matter who the defendant is, it doesn't matter if you're a solicitor, a barrister or a judge… Anyone in this court is open to scrutiny by the Australian public”.

The court has reserved its judgment until 9 October 2020.

A non-publication order is in place until that time.

Aggravated sexual assault is an offence under section 61J of the Crimes Act 1900 (NSW) (‘the Act') which carries a maximum penalty of 20 years' imprisonment.

It is where a person 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”.

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.

‘Circumstances of aggravation' are where:

• at the time of, or immediately before or after, the commission of the offence, the defendant intentionally or recklessly inflicts actual bodily harm on the complainant or any other person who is present or nearby, or
• at the time of, or immediately before or after, the commission of the offence, the defendant threatens to inflict actual bodily harm on the complainant or any other person who is present or nearby by means of an offensive weapon or instrument, or
• the defendant is in the company of another person/s, or
• the complainant is under the age of 16 years, or
• the complainant is (whether generally or at the time of the commission of the offence) under the authority of the offender, or
• the complainant has a serious physical disability, or
• the complainant has a cognitive impairment, or
• the complainant breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or
• the complainant deprives the complainant of his or her liberty for a period before or after the commission of the offence.

Aggravated sexual assault carries what's known as a ‘standard non-parole period' (SNPP), which in this case is 10 years imprisonment.

An SNPP is a reference point or guidepost for a sentencing judge when deciding the minimum term (or non-parole period) that a person must spend behind bars before becoming eligible for release from custody on parole.

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

Section 61HE of the Act provides that consent is considered to have been given in the context of sexual assault cases where a person “freely and voluntarily agrees to the sexual intercourse.”

To establish a lack of consent, the prosecution must first prove the complainant did not consent.

It must then prove that the defendant knew the complainant did not consent.

This second requirement is established where the prosecution proves that the defendant:

• knew the complainant was not consenting, or
• was reckless as to whether the complainant was consenting, or
• had no reasonable grounds to believe the complainant was consenting.

In making such a finding, the court must have regard to all of the circumstances of the case including any steps taken by the defendant to ascertain whether the complainant was consenting, but it must not consider any self-induced intoxication by the defendant.

In addition to this, the law provides that a person cannot consent to sexual intercourse where he or she:

• does not have the capacity to consent due to their age or cognitive incapacity, or
• does not have the opportunity to consent as they are unconscious or asleep, or
• consents because of threats of force or terror, or
• is unlawfully detained.

The law also provides that a person does not consent if under a mistaken belief that:

• he or she is married to the defendant, or
• that the sexual intercourse is for health or hygienic purposes.

The law also presently provides that the grounds on which it may be established that a complainant does not consent to sexual intercourse include where he or she:

• was substantially affected by drugs or alcohol,
• was subjected to intimidatory or coercive conduct, or another threat, that did not involve force, or
• was taken advantage of through an abuse of authority or trust.

The law also makes it explicitly clear that a complainant who does not offer physical resistance is not necessarily consenting.

In addition to the requirement that the prosecution must prove each element of the relevant offence, it must also disprove beyond reasonable doubt any of the following defences if properly raised:

• Duress, which is where you were threatened or coerced,
• Necessity, where the act was necessary to avert danger, and
• Self-defence, where you engaged in the act to defend yourself or another.

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.