A man found guilty of multiple sex offences has been granted a retrial after evidence from two former partners that he was non-violent, pleasant, friendly, gentle, kind and caring was not heard during his original trial.
In 2020, a NSW district court jury found the man guilty of two counts of aggravated sexual intercourse without consent, five counts of sexual intercourse without consent and two counts of common assault committed against his wife.
He was sentenced in December 2020 to seven years’ imprisonment, with a non-parole period of four years.
But the NSW court of criminal appeal granted the man a retrial last week, finding that there had been a miscarriage of justice when the evidence of the man’s former partners was not heard.
The man’s trial solicitor failed to brief trial counsel – the senior lawyer tasked with representing him during the trial – about the statements, meaning they were never presented as evidence.
The man’s sole ground of appeal was that the evidence of his former partners was relevant to the likelihood of him having committed the offences and to his credibility.
The man argued during the trial that the alleged offences were consensual sexual acts.
The court heard the alleged victim’s family arranged for her to marry the man in 2018. The couple only met once before the wedding.
Police alleged sexual offences were committed by the man during the couple’s honeymoon.
During the trial, the prosecution relied on what is known as tendency evidence as part of its case.
The court of appeal said in its judgment that the trial judge had told the jury that the alleged victim’s evidence revealed that the man had “a tendency to … have sexual intercourse with the complainant in circumstances where she was not consenting or withdrew her consent, and in circumstances where the complainant expressed that the sexual acts caused her pain”.
It also said in the judgment that in his evidence during the trial, the man denied any form of excessive control or violence towards the alleged victim.
He said that any sexual activity that took place during the honeymoon was consensual, and that once it was apparent that intercourse was painful for the complainant, the sexual activity stopped. He denied ever sexually assaulting her, striking her or seeking to control her.
The court of appeal found that while evidence was given during the trial from a police officer that the applicant had no prior criminal record, and the trial judge gave the jury what is known as a good character direction, no actual evidence was called in his case on this issue.
Lawyers for the man submitted to the court of appeal that if the evidence of his former partners had been given at trial, the case “would have had a different character as he could refer to the relationships with these women which had not been violent, forceful or abusive”.
The former partners had signed statutory declarations and declared they were willing to give evidence in support of the man.
One former partner said she had a three-year relationship with the man. He was pleasant and friendly and seemed gentle, she said.
“Throughout our friendship and dating history, he never laid a hand on me. I cannot imagine [him] to be a violent person and I truly hope he overcomes this difficult time in his life.”
In her statement, the other former partner said she was in a relationship with the man for almost two years.
He was “always kind and caring” and she said it was “unbelievable” he was facing serious charges.
“All my friends loved [him]. He was funny, kind, respectful, energetic and would give you the shirt from his back in a second.”
The man’s convictions were quashed and a new trial was ordered, with a mention to be heard in court this week.
• Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 802 9999. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
