Carla Agatiello

Following a judge-alone criminal trial, the court considered allegations of prolonged sexual abuse of two child complainants by their mother’s intimate partner, together with a domestic assault allegation involving the mother.

The defence theory was that the complainants colluded to fabricate allegations to assist the mother in ongoing family court litigation about the home and custody issues.

The court found the complainants credible and reliable, treated the identified inconsistencies as minor, rejected the suggested motive to lie, and found the accused occupied a position of trust or authority over one complainant.

Findings of guilt were entered on all eight counts, subject to possible further submissions on whether any convictions should be stayed under the rule against multiple convictions arising from the same delict.

Following a judge-alone trial on a charge of sexual assault, the court found the Crown proved beyond a reasonable doubt that the accused sexually assaulted the complainant in a bedroom after she had been put to bed fully clothed and later woke to vaginal and anal intercourse.

The court accepted the complainant’s fractured but detailed account of the bedroom assault, relied on corroborative surrounding circumstances, and rejected the accused’s lack-of-memory evidence as not credible.

The court held that an unconscious person cannot consent and that the complainant’s express direction to stop established non-consent and the accused’s knowledge of it.

The court was not satisfied beyond a reasonable doubt that the complainant did not consent to earlier sexual activity alleged to have occurred in the living room, given memory gaps, intoxication evidence, and the absence of scientific evidence on incapacity.

The accused was nevertheless found guilty of sexual assault as charged based on the bedroom assault.