Sexual Assault

The Law

Section 61I of the Crimes Act 1900 (NSW) states:
“Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.”

What constitutes “sexual intercourse”?

• Penetration of the vagina or anus of a person using a body part or an object, or
• Oral sex.

Consent in relation to Sexual Assault offences

The law explains that the first person knows that the second person is not consenting even if the first person is just reckless as to whether the second person is consenting. This includes circumstances where a person does not know if the second person is consenting, realises they might not be consenting, but goes ahead anyway.

The law also says that a person is taken to “know” that the other person is not consenting if the first person has no reasonable grounds upon which to conclude that the other person was consenting.

Jurisdiction / Case Law

An offence of Sexual Assault is strictly indictable, meaning it will be finalised in the District or Supreme Court.

The nature and elements of the offence of Sexual Assault were considered in the case of R v Beserick (1993) 30 NSWLR 510 which held:
“The Crown must prove that the complainant, being aware that it was an act of a sexual nature, did not consent to the physical act of the accused, and it is irrelevant that the complainant failed to appreciate that the act was morally and criminally wrong”.

What must the prosecution prove?

Since Sexual Assault is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt. That is a high standard of proof that the prosecution must achieve before someone can be convicted.

To establish Sexual Assault, the prosecution must prove each of the following matters beyond reasonable doubt:

• You had sexual intercourse with another person,
• That person did not consent, and
• You knew that person did not consent.

If you are charged with the offence of Sexual Assault, what are your options?

National Criminal Lawyers (NCL) have been successful in defending multiple Sexual Assault charges where the prosecution could not establish each of the elements to the required threshold of beyond reasonable doubt. We have also achieved several non-convictions for these charges for those who are found guilty or plead guilty.

It is for that reason that National Criminal Lawyers are the preferred specialist criminal solicitors in Sydney.

Our Senior Criminal Defence Lawyers, headed by Michael Moussa, one of Sydney’s Best Criminal Lawyers, will ensure that your case is closely examined to achieve the best of results.

NCL offer the following options for those who have been charged with Sexual Assault:

1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that the prosecution has not proven its case beyond reasonable doubt;
3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Please contact us now for more information about your options.