Sexual assault charge dismissed after a successfully contested hearing
Updated: Jun 24
In this case study our client was charged with sexual assault. The matter progressed through a mention, contest mention, and finally, a 3 day contested hearing at the Melbourne Magistrates' Court. At the end of the hearing, our client was found not guilty of the charge.
Melbourne Magistrates' Court
Summary of allegations & charges
The police case alleged that 6 years earlier and at the end of an end-of-year staff function our client had sexually assaulted the complainant in a car that he occupied with the driver of the car and 2 other passengers. The complainant alleged that during a trip from the venue our client had touched her breasts without her consent and had continued despite the complainant telling him repeatedly to stop. Our client had always maintained his innocence, and the case proceeded to a contested hearing.
What the prosecution had to prove
Our client was charged with sexual assault. Sexual assault is an indictable offence, and is prosecuted under section 40 of the Crimes Act 1958 (Vic). At the contested hearing, the prosecution had to prove several elements:
- That our client intentionally touched the complainant and
- the touching was sexual and
- the complainant did not consent to the touching; and
- our client did not reasonably believe that the complainant consented to the touching.
Consent was not a feature of the contested hearing as our client had always maintained that no touching occurred between himself and the complainant.
Under the Crimes Act (refer to s. 35B) the term touching is defined as occurring:
- with any part of the body
- with anything else
- through anything, including anything worn by the person doing the touching or by the person touched.
Section 35B(2) describes the circumstances whereby touching may be 'sexual' in these terms:
. (a) the area of the body that is touched or used in the touching, including (but not limited to) the genital or anal region, the buttocks or, in the case of a female or a person who identifies as a female, the breasts; or
(b) the fact that the person doing the touching seeks or gets sexual arousal or sexual gratification from the touching; or
(c) any other aspect of the touching, including the circumstances in which it is done.
Discussion regarding the outcome of the contested hearing
This was a case that proceeded through a mention and contest mention before being listed for a contested hearing. From the earliest stages, potential defence witnesses were approached and spoken to with a view to bolstering our client's defence. Because the matter related to historical allegations extensive additional disclosure was sought from the police. The additional material sought included statements and investigative documents that were not initially provided in the prosecution brief and were utilised very effectively in the preparation and running of our client's defence during the contested hearing.
The complainant gave evidence, as did another occupant of the car. Ultimately, the allegations made by the complainant were not supported by the other occupants of the car, and in a setting where several witnesses attended for the defence and gave powerful character evidence in support of our client, the presiding Magistrate could not be satisfied of the allegations beyond reasonable doubt, and the charge was dismissed. An application was then made for the prosecution to pay our client's costs.
Call us if you're facing a sexual offence allegation
Allegations of sexual offences can be successfully defended. Early preparation is key. If you require advice and representation at Court, call our office on 03 9668 7600 or make an appointment through our website.