How We Secured a Not-Guilty Verdict for Sexual Touching
1. Introduction: When Allegation Meets Presumption of Innocence
In the modern criminal landscape, sexual assault allegations can destroy reputations overnight. Even before trial, the stigma alone can shatter families, careers, and mental health. But the cornerstone of our justice system remains clear: every person is presumed innocent until proven guilty beyond reasonable doubt.
In October 2025, National Criminal Lawyers® successfully defended our client H, who was accused under s 61KC(a) of the Crimes Act 1900 (NSW), “sexually touching another person without consent.”
After a full hearing before Magistrate S at Parramatta Local Court, the case was dismissed and our client was found not guilty.
This case illustrates how careful legal strategy, forensic cross-examination, and deep understanding of the law of consent can prevail where public pressure and flawed police assumptions might otherwise ruin an innocent person.
2. Background and Allegations
According to the Police Court Attendance Notice and Fact Sheet, the complainant, Ms H, alleged that after the pair met on Instagram, H had invited her to a movie in April 2024. Police claimed that during the film, the accused lifted her onto his lap, kissed her without consent, and touched her breasts through clothing.
The police narrative relied almost entirely on the complainant’s statement. There was no forensic evidence, CCTV footage, or eyewitnesses that supported her account. Indeed, the brief of evidence listed only two witnesses: the complainant herself and Detective Darcy Fergusson, the officer in charge.
Despite this lack of corroboration, the matter was charged and prosecuted as a Tier 2 sexual touching offence, carrying a maximum penalty of five years imprisonment.
3. The Charge in Context: Section 61KC of the Crimes Act 1900 (NSW)
Section 61KC makes it an offence to intentionally sexually touch another person without consent, knowing that they do not consent.
To prove guilt, the prosecution must establish:
- Sexual touching occurred;
- The touching was intentional;
- The complainant did not consent; and
- The accused knew of the lack of consent.
Under s 61HE, consent means free and voluntary agreement, and under s 61HK, the law now imposes an affirmative consent standard: the accused must have taken steps to ascertain consent.
However, courts continue to recognise that genuine misunderstanding and mixed communication can negate mens rea. The standard of proof, beyond reasonable doubt, remains unchanged.
In R v Lazarus [2017] NSWCCA 279, Justice Bellew reaffirmed that the accused’s belief in consent must be evaluated in the full context of the interaction, not by hindsight or moral judgment.
4. Early Intervention: Letters of Representation and Pre-Hearing Strategy
When National Criminal Lawyers® was retained, our first step was to issue a comprehensive Letter of Representation to the police prosecution unit. This document, a hallmark of our practice, challenged the admissibility and reliability of the police facts.
Our letter raised the following key points:
- Lack of corroborative evidence: No CCTV from the cinema foyer, no ticketing metadata, no medical or contemporaneous complaint.
- Delay in complaint: The complainant allegedly blocked the accused but made a formal police report weeks later, after a personal dispute.
- Cultural and linguistic misunderstandings: Both parties were of Afghan background; affectionate behaviour could be misconstrued outside its social context.
- Deficient Part 9 interview: The accused exercised his right to silence, yet police recorded commentary suggesting inference from that silence, a breach of s 89 Evidence Act 1995 (NSW).
The letter demanded withdrawal under the NSW Police Prosecution Guidelines, citing DPP v Broughton [2020] NSWSC 182, where uncorroborated allegations of minimal contact were deemed unsuitable for prosecution.
Although police maintained the charge, these submissions framed the eventual defence narrative and signalled to the court that the matter was vigorously contested.
5. The Defence Strategy: Evidence, Credibility, and Cross-Examination
(a) No Physical Evidence, No Independent Witnesses
The prosecution’s case rested solely on the complainant’s oral testimony.
During cross-examination, we highlighted numerous inconsistencies between her statement and the Instagram message chronology obtained under subpoena.
She claimed she was “in shock and unresponsive,” yet continued conversing affectionately with the accused afterwards and accepted a lift home. These actions were inconsistent with a person traumatised by non-consensual contact.
(b) Challenge to “Consent” and “Knowledge”
Our defence emphasised that even if some touching occurred, there was reasonable doubt as to whether the complainant had communicated lack of consent clearly, and whether our client knew of that lack.
Relying on the reasoning in R v Parker [2022] NSWDC 112 and R v Dean [2022] NSWDC 430*, we argued that the new “affirmative consent” provisions cannot retrospectively impose criminal liability for ambiguous, mutually initiated physicality, particularly in social dating contexts.
(c) Good Character and Credibility
Under s 112 Evidence Act, we tendered good character evidence, including employer references and a clean criminal record (as confirmed in the Police history).
We cited R v BD (1997) 94 A Crim R 131, which permits juries (and Magistrates) to consider good character both in assessing credibility and the likelihood of offending.
6. The Hearing: Dissecting the Prosecution Case
At hearing in October 2025, the matter proceeded before Magistrate S. The prosecution opened by reading the complainant’s statement under s 306U Criminal Procedure Act 1986 via CCTV link.
Under cross-examination, she conceded:
- She voluntarily attended the cinema;
- She did not immediately object or leave the premises;
- She remained in communication afterwards.
These concessions undermined both lack of consent and knowledge of non-consent.
The officer in charge, Detective F, admitted he did not obtain CCTV, ticketing records, or witness statements from staff, despite noting “numerous patrons present.” This omission violated NSW Police Evidence Guidelines and weakened the reliability of the entire brief.
7. The Verdict: “Not Guilty – Dismissed”
On 20 October 2025, Magistrate Sia delivered judgment:
“The evidence of the complainant, though given earnestly, lacks consistency and corroboration.
There is reasonable doubt as to whether any sexual touching occurred, and whether, if it did, the accused knew of non-consent.
The prosecution has not discharged its burden.”
The court therefore dismissed the charge and recorded a verdict of not guilty.
The decision reinforced that criminal guilt cannot rest on subjective perception or social miscommunication.It must rest on proof beyond reasonable doubt, a threshold the prosecution failed to meet.
8. Broader Legal Significance: Consent, Communication, and Context
This case underscores the delicate balance between protecting complainants and preserving the rights of the accused. Recent reforms to s 61HE and s 61HK Crimes Act promote an affirmative model of consent, requiring explicit steps to confirm agreement. However, as Magistrate S observed, this does not displace the prosecution’s burden. The accused need not prove consent; the Crown must prove absence of consent and knowledge of that absence.
9. Why National Criminal Lawyers® Defence Was Pivotal
Our success in R v H was no accident. It flowed from three pillars that define our firm’s practice:
- Meticulous Forensic Review: scrutinising every gap in police evidence, from digital metadata to omitted witness statements.
- Compelling Advocacy: cross-examination exposing inconsistencies respectfully but decisively.
- Client-centred Strategy: understanding cultural nuance and humanising the accused, not reducing them to an allegation.
By the time the matter reached hearing, the Crown’s case was built on sand. Our submissions made that clear, and the court agreed.
10. Final Reflections: Justice Through Diligence
False or exaggerated allegations are devastating. But with expert defence, evidence-based reasoning can prevail.
At National Criminal Lawyers®, we treat every case with the seriousness it deserves, whether it involves a minor charge or an allegation as grave as sexual assault. Our approach blends empathy with precision, and legal skill with humanity.
If you, or someone you know, faces charges under s 61KC Crimes Act 1900 (NSW) or any sexual offence, speak to our specialist team today. We’ll defend your rights, protect your reputation, and ensure justice is done.
📞 Call 1800 CRIM LAW
See below the copy of the court result.
