Our client was charged with two serious sexual offences against a woman he knew. The DPP prosecuted the matter on indictment in the District Court of Western Australia. He pleaded not guilty. While he waited for his trial, our client was subject to strict bail conditions for around two years.
When police interviewed him, our client gave a recorded account in which he said, consistently and many times, that he genuinely believed the complainant was consenting. It was not in dispute that there was sexual activity.
We prepared the defence case and briefed experienced trial counsel. Before the trial began, we took steps to narrow the issues and make sure our client’s account was put fairly before the jury. A formal admission of the physical acts was made under s 32 of the Evidence Act 1906 (WA), so the trial could focus squarely on the issue of consent. We negotiated edits to the recording of our client’s police interview before it was played to the jury.
The trial ran for three days and the complainant was cross-examined by our briefed counsel. The jury retired late in the afternoon of the third day and, in under an hour, returned verdicts of not guilty on both counts.
That was not quite the end of the matter. While on bail, our client had also been charged in the Magistrates Court with breaching a protective bail condition. Police alleged he had attempted to communicate with the complainant through an indirect online interaction. After the acquittals at trial, we wrote to the police prosecutor submitting that the charge should be discontinued. There was no phone download or expert evidence to show that the profile had been “liked” while our client was on bail, rather than before his bail conditions were imposed. It was also doubtful whether the conduct could amount to an attempt to communicate at all, because the app did not allow messages unless both users had “liked” each other. We also pointed to the public interest: our client had already been acquitted by a jury, a further trial would require witnesses to be subjected to a further hearing, and this was the only alleged breach in around two years on bail.
Police accepted our representations and agreed to discontinue the remaining charge. The magistrate then granted our application for costs under the Official Prosecutions (Accused’s Costs) Act 1973 (WA).