Defendant’s application refused following sexual assault on partner

Date: Nov 14, 2018

Sexual assault is one of the most sensitive matters we deal with here at Gerard Malouf & Partners. However, in Australia, it's unfortunately also one of the most common. Around one in six women and one in 16 men have been subjected to physical and/or sexual violence by a current or previous cohabiting partner, according to the Australian Bureau of Statistics.

This subject was at the centre of a recent case brought before the District Court of NSW.

Background of the case

The applicant and the complainant were in a de facto relationship for approximately seven years and had two children together. On 30 September 2013, the complainant returned home after finishing a long shift. After engaging in conversation, the applicant got angry over something she said and kicked her in the buttocks and punched her in the jaw.

That night, the applicant wanted to engage in sexual intercourse, to which the complainant refused. After relentless persisting and hitting her with a walking stick, the complainant gave in. Without warning, the applicant forced extreme sex acts upon the victim –  all without her consent. 

The complainant later called the police who arrested the applicant. 

In January 2014, when the applicant was on remand, he wrote a letter to the complainant confessing his love for her and their children, as well as informing her that she could change statements. The judge concluded that this letter, along with another sent a month after, were both attempts to influence the complainant.

The appeal

Following the original hearing, the applicant put forward an appeal for the following reasons:

  • The Crown failed to establish beyond reasonable doubt that the applicant knew that the complainant did not consent to sexual intercourse or was recklessly indifferent to whether she did.
  • The primary judge failed to have regard to the accused's and the complainant's sexual history.
  • The complainant was an unreliable witness and gave untruthful testimony.

The court dismissed each count. However, the applicant pushed his 'poor mental health' as a factor that could potentially shorten his sentence. While they agreed he had suffered severe hardship in his life, they decided it had no relevance to his current behaviour and that he remained in denial and showed no remorse.

With all considerations, the application for leave to appeal against conviction and sentence was refused.

Our sensitive and expert lawyers at Gerard Malouf & Partners are well trained in dealing with cases of sexual assault. If you're a victim of any form of sexual abuse, get in touch with the team today to see how we can help you submit a claim and receive justice for your hardships.

Call us now on 1800 004 878 to book a free appointment with one of my compensation experts, or email your enquiry.