Sexual Assault Lawyer Tweed Heads

Any allegation of sexual offending is devastating. It will give rise to issues surrounding a grant of bail and the security of your employment, right through to continued contact with your family and friends.

Sexual offences encompass a wide array of behaviours that induce feelings of discomfort, fear, or threat in a person. These can include acts such as rape, sexual assault, and child sexual abuse. Over the years, the law has strengthened very much in favour of the alleged victims, so more than ever, very careful preparation and presentation of your case is paramount.

Sexual offences in New South Wales range from minor offences to sexual assaults, which carry a maximum penalty of life imprisonment. Most sexual offences are governed by the Criminal Code Act 1899 and are based on a lack of consent by the victim.

We can assist with defending sex-related charges including (but not limited to):

• Sexual Assault
• Indecent Treatment of a Child
• Incest
• Carnal Knowledge
• Rape
• Maintaining an Unlawful Sexual Relationship
• Civil Claims for Damages
• Child Pornography
• Willful Exposure & Indecent Acts
• Bestiality

If you’ve been charged with a sexual offence in Tweed Heads, contact criminal defence lawyer Michael McMillan for assistance and legal advice
on 0409 273 430

What Do All of These Offences Mean?

Sexual Assault

There is a very clear distinction between these phrases as they are found in Queensland and New South Wales. In New South Wales, Sexual Assault can be defined as sexual intercourse without consent, or sexual touching, depending on the nature of the allegation. A sexual assault charge can be defended before a Local Court where the maximum penalty that can be imposed is only 2 years imprisonment.

Notwithstanding that apparent concession, these are still charges to be treated with care as statistics from New South Wales indicate that nearly 20% of all offenders dealt with for that offence before a Local Court are sentenced to a term of imprisonment. Even though these are serious offences, it is still possible for a conviction not to be recorded against your name on sentence.

A good example of where this occurred is a case in which I was involved which is referred to as DMS v Commissioner of Police [2020].  In that case, the appellant had excellent personal features but what I emphasized was the need she had to return to the workforce, and that would be curtailed if a conviction was recorded.

As can be seen from the judgement, the failure by the Magistrate to properly take that into account saw the appeal succeed. The position in New South Wales is a lot stricter in that the law that relates to sentencing substantially impedes avoiding a recorded conviction for most of those sentenced for this type of offending, but it is not impossible.

A great deal of work is required to mount a case at sentence that has a prospect of avoiding a conviction there.

Indecent Treatment of a Child

In New South Wales, the offence of Sexual Touching of Children in the Crimes Act relates to the mistreatment of children. These types of cases are typically finalised in the District Court, and securing a non-custodial sentence is often difficult after a conviction. In the landmark case R v De Jesus [1986] HCA 61, the High Court acknowledged that sexual offences are often highly prejudicial and that it is difficult to prevent such prejudice, even with jury directions. As such, those charged with these offences should carefully consider whether their case should be decided by a jury or a judge alone.

A 2024 study from New South Wales shows that there is a 9% higher likelihood of acquittal in judge-alone trials compared to jury trials. Given the potential for juries to misapply the law, requesting a judge-alone trial may increase the chances of a fairer outcome. However, this request requires solid, evidence-based reasoning; simply stating potential jury prejudice is not enough.

In sexual offence cases, community standards often play a crucial role, particularly when determining whether the alleged conduct is deemed indecent. Both Queensland and New South Wales allow for judge-alone trials when it is in the interests of justice to order one. A mixed plea is one scenario where a judge-alone trial might be appropriate. For example, in R v Johnston [2014] QDC 174, the court was concerned about the prejudicial impact on a jury hearing a case where the defendant had already pleaded guilty to one count of maintaining an unlawful sexual relationship with the same alleged victim, while also facing two counts of rape. As a result, a judge-alone trial was ordered.

Judge-alone trials are something I consider in nearly every sexual offence case I handle. A notable example is The Queen v MMH [2020] QDC 70. In this case, I was involved in defending the accused where the trial judge adhered to all relevant legal directions and was not swayed by the emotional evidence presented by the Crown witnesses. The result was a successful acquittal. When it comes to community standards, this concept can be an invaluable avenue for a defence lawyer to explore. A common point of contention in these cases is whether the conduct in question meets the current community standards of what is considered indecent.

For instance, in R v Nathaniel [2021] QDCPR 77, the case focused on the fact that our client had no prior sexual interest in the alleged victim, was heavily intoxicated in an unfamiliar house, and that the touching was not accompanied by lewd comments. The points of contact were also not in areas of obvious sexual interest. This argument ultimately led to an acquittal. Importantly, this case was also a judge-alone trial, not a jury trial. Again, this was a deliberate decision that proved to be successful in the long run.

Multiple Complainants

When multiple victims testify against a defendant, the likelihood of a jury convicting increases. To improve the chances of an acquittal, it’s often beneficial to request that the alleged victims be tried separately. In R v P [2020] QDC 197, we successfully applied to separate the victims, arguing that the connection between them was insufficient to be heard together. The court agreed, and our client had only one victim’s testimony presented in court.

Defences for Sexual Touching Offences

In New South Wales, a defence exists if the alleged victim is 14 years or older, and the age difference between the victim and the defendant is no more than two years. If this can be proven, the charge is dismissed.

Penalties

In New South Wales, penalties are based on the age of the victim. For victims aged under 10, the maximum penalty is 16 years’ imprisonment, while for those over 10, the penalty is 10 years. Importantly, sexual assault offences involving victims under 10 have a mandatory non-parole period of 8 years, meaning the offender must serve at least 8 years before being eligible for parole.

Incest

Although not a common offence, Incest is treated very differently in Queensland and New South Wales. In Queensland, anyone convicted of engaging in intercourse with a family member can face a life imprisonment sentence. In contrast, in New South Wales, the same conduct only carries a maximum sentence of 8 years imprisonment.

Carnal Knowledge

In New South Wales, the law now allows judges to identify inconsistencies in the accuser’s complaint and provide the jury with a list of reasons to doubt the testimony, even without evidence from the accuser or the person they complained to regarding why their recollections may differ.

Despite this, cases like R v Van Der Zyden [2012] QCA 89 have raised concerns about the reliability of complaint evidence. The Court of Appeal stated that even without corroborating testimony, a complainant’s evidence of a preliminary complaint could bolster their credibility if believed. This makes it essential for defence lawyers to investigate potential complaint witnesses thoroughly, even if the Crown does not intend to call them.

Importantly, these hearsay exceptions do not apply to an accused person. However, there is a similar provision in New South Wales that can assist the accused. In R v Rymer [2005] NSWCCA 310, the Court of Criminal Appeal ruled that exculpatory statements made by an accused person—such as denying the offence—should be allowed as evidence to support the credibility of the accused.

This decision highlights the importance of advising clients on how to handle allegations, particularly when facing imminent police charges. A statement such as “I didn’t do it” could play a pivotal role in establishing the accused’s credibility during the trial.

Rape

In New South Wales, those convicted of rape face a maximum sentence of 14 years imprisonment. Rape convictions are subject to a standard non-parole period, which establishes a baseline for the time an offender will serve if the offence is of mid-range seriousness. For such cases, the non-parole period starts at seven years. If the offence is considered more serious, this can rise to as much as 15 years of actual incarceration. To put this into perspective, a 15-year sentence would mean a head sentence of over 20 years in total. At its core, rape is an offence that arises when sexual activity occurs without consent between the parties. Most trials focus on the issue of consent, which can be complex from both the accused and the alleged victim’s perspectives. One common defence is mistake of fact, where the accused argues that they honestly believed consent had been given, even if it hadn’t.

A significant point of contention for this defence, especially in cases involving intoxication, is whether the accused misinterpreted the consent due to their level of intoxication. Since 2021, however, New South Wales law no longer allows intoxication to be considered when determining a mistake of fact, even for charges arising before the law changed. Though this change makes it harder for the accused to rely on the defence of ‘mistake of fact’, it places greater emphasis on the accused’s actions and potential cues for consent before the alleged offence.

Despite the aggressive connotations often associated with rape, the factual basis of such allegations can vary significantly. The law allows for rape to occur even when the alleged victim is unaware of the act, such as when asleep. Rape can also happen within a marriage, where consensual intercourse turns non-consensual. It can even arise in situations where the intercourse begins consensually, but the alleged victim withdraws consent during the act, often through subtle non-verbal communication.

The key element in a rape charge is the lack of consent. This is typically established through the testimony of the alleged victim, but police will often look for additional evidence to support the accusation. One method used is the pre-text telephone call, where police record a conversation between the accuser and the accused. During this call, the accuser may ask questions designed to elicit an admission or confession from the accused.

In New South Wales, such recorded calls require a Listen Device Warrant, meaning the consent of the person being recorded is needed.

Maintaining an Unlawful Sexual Relationship with a Child

Both States criminalise ongoing sexual misconduct against a child, and in both States the maximum penalty that can be imposed upon conviction for that offence is life imprisonment.

Often in matters like this the Crown is allowed to adduce evidence against an accused of what is known as ‘discreditable acts’ in Queensland or ‘Tendency’ evidence in New South Wales. This is conduct that is not necessarily sexual, but they say demonstrates a sexual interest in the alleged victim.

In my experience, this type of evidence needs to be identified very early in the proceedings so that early plans can be made to potentially neutralize it. The admissibility of this type of evidence depends on the conduct having some or unusual features about it showing the sexual interest alleged.

On some occasions it may be that an accused can simply provide a compelling and innocent explanation about it, on other occasions the witness that refers to it might need to be cross-examined at a committal hearing about it to determine if it does indeed fit the relevant criteria.

The results of this approach can then be used in a pre-trial application in which it is sought to exclude it the ultimate trial.

Civil Claims for Damages

The ordeal for those charged with these offences doesn’t always conclude with an acquittal.  There is a growing number of laws promulgated in Queensland that allow an accuser to take a second bite at the accused.

A perfect example is found in the Human Rights Act 2019 which allows an alleged victim of sexual misconduct to bring a second claim against the accused person, but this time seeking money.

These claims can extend into the many hundreds of thousands of dollars.  And the protections that exist in the criminal courts don’t necessarily apply in these cases because the standard of proof is a lot lower for the complainant to meet.

Contact Us for Legal Advice & Representation in Tweed Heads, NSW

Whether you’ve been charged with drug offences, drink driving, or dealing with an assault & unlawful wounding accusation, it’s crucial to speak with experienced Tweed Heads Criminal Lawyer Michael McMillan about your criminal matter before it’s too late.

Contact Michael McMillan immediately on 0409 273 430 . Alternatively, you can send an enquiry online.