A person who sexually penetrates another person without the consent of that person faces a maximum penalty of 14 years imprisonment. This charge is more commonly known as “rape”.
It is a serious offence, which if found guilty, would inevitably end in a period of immediate imprisonment.
Two years ago, our client was charged with two counts of Sexual Penetration Without Consent. Pleas of not guilty were entered, and so began a long two year journey to trial. This is unfortunately a normal waiting period to get to trial, and is outside of our control.
We briefed experienced trial counsel for this matter to appear at the trial along with our lawyer Yasmin Mah.
The trial was heard in the District Court, and lasted three days before a Judge and jury, comprising of 12 members of the public.
There was never any denial that the sexual penetration itself took place.
The central issue at trial was – was there consent, and if not, was there an honest and reasonable but mistaken belief that there was consent?
Consent
Consent must be freely and voluntarily given.
Consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit or any fraudulent means.
Mistake of Fact Defence
A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
Prior sexual history
In our jurisdiction, we are not allowed to question a complainant on their prior sexual history, including with the accused, without the leave (permission) of the court.
The court will only consider granting leave if there is substantial relevance to the facts in issue, and if the probative value of the evidence sought outweighs any distress, humiliation or embarrassment the complainant may suffer.
In this case, the parties had a prior sexual history, which was relevant to our case, particularly in the mistake of fact defence.
We were allowed to question the complainant on the prior sexual history between the two.
After hearing from several witnesses for the prosecution and defence, counsel for both sides made closing submissions to the jury.
The jury retired to consider their verdict in the afternoon of the third day. After one hour and sixteen minutes, we received notification that the jury had a verdict to each charge.
We returned to the court, and were pleased to hear the jury foreman say “not guilty” to each of the charges.
Our client was acquitted, and was free to leave the court and go home with family.
The verdicts showed that the jury either believed that there was in fact consent given, or that they believed that our client was under an honest and reasonable but mistaken belief that consent had been given, or that there was at least reasonable doubt in the prosecution’s case.
If you have been charged with Sexual Penetration Without Consent, and would like legal advice as to any legal defences and prospects of success at trial, please contact Chambers Legal on (08) 9500 8915 or at [email protected].