Author: Phillip Gibson
Sexual Assault – a case study by Phillip Gibson, Accredited Specialist Criminal Law
Facts: The accused was from Norway, staying in Australia at a 3 bedroom terrace in the inner city with his sister and a group of other people who rented bedrooms in the place.
They were out to celebrate New Year’s Eve and all consumed alcohol. In the early hours of the morning, the accused was asleep on the floor of one of the bedrooms. All of the occupants knew each other from the evening’s celebrations. He woke to find himself curled up next to one of the female guests. Her husband was asleep on the other side. She made allegations that our client digitally penetrated her vagina with his fingers, thereby committing sexual assault. Police were called and statements were taken from witnesses. The accused recalled waking up with his arm around the woman, whilst intoxicated.
The accused was charged with sexual assault which carries a potential period of imprisonment of up to 14 years with a standard non parole period of 7 years. The accused had no recollection of sexually assaulting the woman. Based on the content of the brief of evidence, it seemed that he may well be found guilty of indecent assault.
The woman was taken to the hospital for a sexual assault investigation kit to be compiled. There was equivocal evidence of an abrasion on the outer part of the vagina, consistent with sexual activity. The notes revealed however that the woman had sexual intercourse only a short time prior to making the claim against the accused.
The Director of Public Prosecutions office would not accept a plea of guilty to the lesser charge of indecent assault. The alleged victim lived in England and was being offered a free trip to Australia to give evidence, which she accepted.
An offer of a plea to Indecent Assault was made 8 months prior to the jury trial but was not accepted by the DPP. The trial commenced in the Sydney District Court. Evidence of previous sexual activity just prior to incident with her husband meant that it could have caused scratching to the vagina.
There was no DNA of the accused where one would have expected there to be such DNA including on his fingers and on her underwear. The jury could not be satisfied that there was penetration of the vagina by the accused and he was found not guilty. We then formally entered a guilty plea to the indecent assault and the accused was convicted and placed on a suspended prison sentence, allowing him to return overseas. This was a tremendous result for him, given his inability to recall the events of the night and the circumstantial case.