Case facts
The accused worked in a legitimate massage parlour and was trained in Chinese massage. Two females who were former lovers attended and one received a massage from our client and the other from another masseur. At the end of the massage, the complainant was slow to get dressed. Her friend asked if everything was alright, and she said words to the effect, “Not really. I think he may have touched me inappropriately.”
According to her friend, the alleged victim specifically said that there had been no penetration.
Notwithstanding what she said, she paid for the massage and left, going outside to a car where the pair was joined by another person. The alleged victim was crying. The three of them discussed what had happened, and at the insistence of the third person, they went to the police station.
The three of them went to a room where the complainant detailed to police what had happened. Statements were then taken from all three persons. By the time police went to the parlour, our client had completed his shift. Police gathered evidence for DNA testing – including a towel and a sheet. They also took photos. The complainant told police she could feel the air-conditioning on her vagina and that the accused was pinching her perineum repeatedly before inserting a finger into her vagina.
The woman was taken to hospital for examination and the preparation of a Sexual Assault Investigation Kit (S.A.I.K.). Our client was arrested the next day. He took part in a record of interview (ERISP) and denied any wrongdoing. He described the alleged victim as being ‘quite large’ and told police that not only did he have no sexual interest in her at all, but also the woman’s claim was physically impossible (the woman claimed that the accused was pinning her down by an elbow pressed down on her shoulder at the time she was violated). He gave a detailed description of the format of a Chinese massage.
He was charged with Sexual Assault [section 61I Crimes Act – carries 14 years imprisonment and a standard non parole period of 7 years section 54D Crimes (Sentencing Procedure) Act] and Indecent Assault [section 61L Crimes Act – carries 5 years imprisonment]
Application for committal hearing
It is increasingly difficult to get permission to cross examine an alleged victim of a sexual assault. All sorts of protections exist to reduce the frequency of a complainant having to give evidence at a committal and later at a trial. It is acknowledged that there are legitimate reasons for doing so – the law requires that special reasons exist in the interest of justice before an alleged victim can be cross examined at a committal hearing.
In this case, there was a significant inconsistency in the complaint. The complainant initially told her friend there had been no penetration – changing her version at the police station. The medical evidence found nothing that would corroborate the allegation. Despite the claim of the perineum being pinched repeatedly, there were no marks, redness, scratches, tearing of the skin tissue etc. DNA of the accused was found on the towel used by the alleged victim to wipe her down after the massage. Application was made pursuant to sections 91 and 93 Criminal Procedure Act 1986.
Committal hearing
The friend gave evidence that the complainant told her weeks later that the accused had penetrated her anus, not her vagina. She agreed that she had told police that the complainant originally told her there had been no penetration. Witnesses generally agreed that they had all been together at the police station when the complainant was telling police what happened – a tactical blunder by police who should have separated the witnesses to preserve the integrity of their evidence. The DNA expert conceded that the accused’s DNA could have been on the towel for a number of reasons, including him handling the towel or the transference of DNA from the massage bed surface – it rendered such evidence neutral.
No bill application
The accused was committed for trial. Due to the unreliability of the evidence, an application was made to the Director of Public Prosecutions to discontinue the prosecution. This was rejected.
Trial by jury
The jury came back with a not guilty verdict to both charges in quick time. It is hard to accept the evidence of a complainant when three significant inconsistencies are claimed – no penetration then became penetration of the vagina which then changed to penetration of the anus – the latter claim not recorded anywhere in the brief of evidence including in the doctor’s report. We demonstrated through photographs that the air conditioner did not operate in the direction of the complainant lying on the table – there just happened to be a solid partition in the way!
With no other corroborative evidence at all, to find the accused guilty, the jury would had to have accepted the alleged victim’s evidence – clearly they were unable to do so.
Why use an accredited specialist in criminal law?
Such allegations are sometimes easily made and willingly prosecuted. The potential penalties are severe including standard non-parole periods. By following expert advice, our client gave himself the best possible opportunity of defending these dubious allegations. (It is acknowledged that many sexual assault allegations are genuine).
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law.
Contact us if you require assistance.
