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On 6 April 2024, Lauren MacDougall & Margaret Cunneen SC were interviewed by The Saturday Telegraph:
High-profile sexual assault cases often draw strong public views before a court has heard all the evidence. For an accused person, that can feel like being presumed guilty before the trial begins.
The MacDougall & Hydes article “Presumed Guilty – Top lawyers slam ‘weak’ rape cases” refers to comments made by Lauren MacDougall and Margaret Cunneen SC in The Saturday Telegraph on 6 April 2024, raising concern about rape prosecutions said to have little chance of conviction.
This topic sits at a difficult point in criminal justice NSW: complainants deserve to be heard with care, and accused people must receive a fair trial based on admissible evidence, not public pressure.
MacDougall & Hydes’ brand guidance calls for clear, discreet and client-focused legal content, with a serious tone, plain language, and no sensationalism. The firm’s ideal audience includes people facing serious indictable matters, high-profile defendants, and families seeking urgent guidance where liberty, reputation and livelihood may be at risk.
Key takeaways
- A weak sexual assault prosecution can still place an accused person under severe pressure.
- In NSW criminal trials, the prosecution must prove each element of the charge beyond a reasonable doubt.
- Consent law in NSW changed on 1 June 2022, with consent framed as free, voluntary, ongoing and mutual communication.
- Appeal grounds may include legal error, unreasonable verdict, procedural unfairness, or problems with evidence.
- Early advice from a criminal appeal lawyer in NSW can help assess trial risk, appeal prospects and next steps.
Why “weak” cases still matter
A case may be called weak when the evidence does not appear capable of proving the charge to the criminal standard. That does not mean the allegation is treated lightly. It means the legal test must still be met.
The NSW Judicial Commission states that the Crown must prove the elements of a criminal charge beyond a reasonable doubt. It does not need to prove every disputed fact, yet it must prove the elements that make up the offence.
In sexual assault matters, this often means the court will look closely at:
| Issue | Why it matters |
| Consent | The court must assess whether consent existed under NSW law. |
| Knowledge of consent | The court may need to assess what the accused knew, believed, or failed to do. |
| Complaint evidence | Timing, consistency and context may become central issues. |
| Forensic material | CCTV, phone data, medical evidence, DNA or messages may support or weaken a case. |
| Trial directions | The judge may need to guide the jury on how to assess evidence fairly. |
This is why serious sexual offence cases need careful preparation from the earliest stage. For people searching for sexual offence defence in Sydney, the key issue is often not public opinion. It is whether the prosecution can prove the charge in court.
If you are facing similar charges, MacDougall & Hydes can help — contact MacDougall & Hydes.
Evidentiary standards in sexual assault prosecutions
The added focus for this page should be on evidentiary standards. A suitable 400-word content expansion is below.
Sexual assault prosecutions can turn on detailed evidence. In many cases, there may be no independent eyewitness. The trial may depend on the complainant’s account, the accused person’s account, messages, timing, conduct after the alleged incident, medical evidence, toxicology, CCTV, phone records, location data, or statements from people who saw either person before or after the event.
NSW law now makes clear that consent is not presumed. The NSW Department of Communities and Justice states that reforms which commenced on 1 June 2022 clarified consent as a free and voluntary agreement, confirmed that consent involves ongoing and mutual communication, and confirmed that consent can be withdrawn.
These reforms changed how many sexual assault trials are argued. They can place attention on what was said, what was done, what steps were taken, and whether any belief in consent was reasonable in the circumstances. Yet the prosecution must still prove the case beyond a reasonable doubt. That standard remains central to a fair trial.
Evidence may be challenged where there are gaps, inconsistencies, missing records, unreliable identification, a delay that causes forensic disadvantage, or a failure to investigate material that could assist the defence. A defence lawyer may review whether police obtained CCTV in time, preserved digital material, tested relevant forensic evidence, or properly explored evidence that may weaken the prosecution’s case.
Jury directions can matter as well. The Judicial Commission of NSW notes that specific directions about misconceptions in sexual assault trials were inserted into the Criminal Procedure Act 1986 by the 2021 consent reforms. These directions are intended to help juries avoid unfair assumptions, such as assumptions about delayed complaint or how a person should behave after trauma.
Fairness runs both ways. A complainant should not be rejected due to myths about sexual assault. An accused person should not be convicted unless the evidence proves guilt to the required standard.
This is where appeal advice may become critical. A criminal appeal lawyer can review the transcript, judge’s directions, objections, rulings, evidence, verdicts and sentencing material to assess whether there is a proper legal basis to appeal.
What the data says about sexual assault matters in NSW
BOCSAR’s 2024 work on sexual assault attrition tracked sexual assaults reported to NSW Police in 2018 through the criminal justice process and examined incidents, defendants and charges from report through to proven outcome.
Public reporting of that research stated that fewer than 10% of sexual assaults reported to NSW Police ended in a conviction, with reported rates of 8% for contemporary child sexual assault, 7% for historic child sexual assault, and 6% for adult sexual assault.
These figures are often discussed from the viewpoint of complainants. They are important in that context. They also show why careful case screening, strong investigation and fair prosecution decisions matter. Weak cases harm public confidence, place complainants under stress, and expose accused people to life-changing consequences.
When an appeal may be possible
An appeal is not a second trial where every issue is argued again from scratch. It usually requires a legal basis.
Common appeal issues may include:
- the verdict was unreasonable or unsupported by the evidence
- the judge gave an incorrect or unfair direction to the jury
- evidence was wrongly admitted or excluded
- the trial process caused unfairness
- sentence was too severe
- fresh evidence has emerged
MacDougall & Hydes has published on serious sexual assault appeal outcomes, including its note on Jarryd Hayne being released after the NSW Court of Criminal Appeal quashed his convictions.
People seeking appeal advice should act quickly. Appeal time limits can be strict, and transcript review can take time.
What to do if you are accused of a sexual offence
If you have been charged, contacted by police, or asked to attend an interview, avoid guessing your way through the process.
Practical steps include:
- Get legal advice before speaking to police.
- Save messages, call logs, photos, receipts, travel records and location data.
- Write down key dates and names while they are fresh.
- Do not contact the complainant.
- Avoid posting about the case online.
- Speak with a lawyer about bail, court dates and evidence.
For serious allegations, early advice can affect the whole direction of the case.
Where this leaves the accused people and their families
Sexual assault cases are serious. They affect complainants, accused people, families, employers and reputations. The justice system must treat allegations carefully, yet it must also protect the presumption of innocence.
When a prosecution is weak, the answer is not trial by media. The answer is careful evidence review, proper legal testing and clear advice.
If you need urgent advice about sexual assault charges, appeal options, or a high-profile criminal matter, speak with MacDougall & Hydes. A criminal appeal lawyer in NSW can review your position and explain the next step in plain English.