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Former NRL player Tristan Sailor has been found not guilty of aggravated sexual assault of a woman.

The jury took just one hour to make the unanimous decision.

The incident occurred after a night out drinking alcohol in Sydney when the former Dragons player and a teammate attended an apartment in Wolli Creek with two females.

The woman claimed she was too intoxicated to consent, but Sailor stated that she gave consent numerous times before and after the incident.

Tristan Sailor Sexual Assault Allegations

Tristan Sailor was accused of having sexual intercourse without consent at the woman’s residence in Wolli Creek on 3 October 2020.

The pair had never met in person before the incident but had sent messages over Instagram in 2019.

23-year-old Sailor and his friends were drinking at the Beach Road Hotel in Bondi when the woman and her friend joined them.

CCTV from the hotel showed the pair cuddling and kissing throughout the night.

Later in the night the former Dragons player, his teammate Eddie Blacker, the woman and her friend took an Uber to the complainant’s apartment in Wolli Creek.

The group played drinking games including an explicit version of ‘never have I ever’, before Mr Sailor and the woman went to her bedroom.

The woman consumed approximately 11 standard drinks over the course of the night.

He gave evidence that he asked her if she was “sweet” to which she replied “yes”. He also asked if she was “sure” she wanted to have sex and “wasn’t talking to anyone”.

He explained that he had been in situations before where he had slept with women who were seeing his teammates.

He also asked the woman’s friend if the complainant was “sweet” to which she replied “she’s fine, she’s wanted to do this all night”.

The 23-year-old former NRL player said after sex the woman appeared “fine”. Throughout the night she was described as “not very” intoxicated and just seemed “happy” and “chatty”.

He said the woman told him she didn’t want him to leave after sex, however he told her he had to leave.

The next day, she sent Mr Sailor messages asking “what happened last night?” and said she was too intoxicated to remember if they had had sex.

She also said she sustained injuries to her genitals and claimed she couldn’t have consented due to her level of intoxication.

Mr Sailor said there was never any indication consent was absent or withdrawn and he never intended to cause bodily harm.

He also gave evidence that she was completely conscious during sex and never seemed overly intoxicated.

Sexual Assault Consent Education

Mr Sailor, who is the son of rugby league and union great Wendell Sailor, said that he asked the woman for consent twice as he was mindful that consent could be withdrawn.

He said he aimed to follow the guidance provided through the NRL on respectful relationships and was aware of the “general climate” about accountability by men.

Tristan Sailor said that he had asked the woman three times if she consented.

His aggravated sexual assault lawyers rhetorically asked the jury, “Without wanting to be flippant or melodramatic about it, what else is he supposed to do? Get her to sign a memorandum of understanding witnessed by a lawyer?”

No Consent to Sexual Intercourse Questioned

Tristan Sailors sexual assault lawyers argued that the woman had convinced herself she didn’t consent to sexual intercourse after the incident.

During closing submissions, the burden of proof in criminal trials – beyond reasonable doubt – was highlighted. The jury was told that if they accepted Sailor’s evidence was – or could be – true, they must acquit.

But if they rejected his evidence, they should have a good reason to and it was submitted that there was none.

It was argued that the jury would have “serious doubts about the complainant’s honesty as a witness” based on inconsistencies in her evidence as to her feelings towards Tristan Sailor.

The jury was told that the “overwhelming weight of evidence” showed that the woman had been attracted to Mr Sailor for a period of 17 months. This evidence included text messages from 2019 in which she used the kissing face and red heart emojis as well as calling him “honey” and “baby”.

The messages were said to be relevant to whether she in fact consented to the sexual intercourse, and to whether the Crown could establish beyond reasonable doubt that Mr Sailor “had no reasonable grounds to believe the complainant consented” or was reckless as to her consent.

Complainant’s Friend Called a ‘Liar’

Tristan Sailor’s criminal defence lawyers labelled the woman’s friend a “liar”. This was because her evidence about the complainant’s level of intoxication at the Beach Road Hotel was contradicted by CCTV footage.

She claimed that drinks were spilled and she went to the bathroom to take selfies with the complainant. But the footage showed that neither of these things occurred.

She went on to say that she discovered the complainant naked and grunting on the floor after Mr Sailor left. It was submitted that the jury should not reject this when considering the sexual assault charges.  

Complainant’s Evidence

While there was no dispute that the complainant was intoxicated, her level of intoxication was challenged. Her last drink at the hotel was consumed at 7.58pm, and her evidence was that more than an hour later she next had “two sips” of a vodka with water during the drinking games.

The 11 standard drinks she consumed was over a period of six hours. It was argued that her blood alcohol concentration would have been “on the way down”.

Significantly, just because the woman did not remember the sexual intercourse did not mean she did not consent.

Expert evidence suggested that “it’s reasonably possible… that the complainant could have appeared to have been conscious, coherent and fully alert during the period that she engaged in sexual intercourse with Mr Sailer and yet have no memory of it the next day”.

“That’s it. That’s exactly what happened in this case.”

Without her own memory of what occurred, the woman had tried to “piece together” what happened the following day and “subsequently convinced herself she didn’t consent”.

It was argued that, “she believes it to be true, but she’s wrong”.

Not Guilty to Aggravated Sexual Assault

The jury at Sydney District Court took approximately one hour to return verdicts of not guilty on two counts of aggravated sexual assault.

This is an exceptionally short time to reach a unanimous verdict.

Leaving court today, Mr Sailor declined to take questions but thanked his supporters.

“I think I’ll just wait to digest it (the verdict) and then make a statement at a later date,” he told waiting media.

The decision follows the recent Jarryd Hayne appeal case.

The Offence of Aggravated Sexual Assault

The offence of aggravated sexual assault is set out in Section 61J of the Crimes Act 1900 (NSW) which defines it as engaging in sexual intercourse with another person without their consent, and at the time a circumstance of aggravation existed. 

Defences to Aggravated Sexual Assault

You may be found ‘not guilty’ to this offence under the following circumstances:

1. Consent: We can argue that the alleged victim consented to the sexual intercourse. There are however some situations where this cannot be used as a defence (for example if the alleged victim was too intoxicated to consent).
2. Honest and reasonable mistake: You held an honest and reasonable belief that the alleged victim was consenting.
3. Identification: The Crown cannot establish that you were responsible. We have a number of experts (such as DNA, fingerprint, CCTV and intoxication experts) who are able to cast doubt on identification in certain situations;
4. Automatism: This is where the offending was involuntary. This can sometimes involve sleep disorders.
5. Duress: You were forced to commit the offence
6. Necessity: the commission of the offence was necessary in the circumstances
7. There was a proper medical purpose for the sexual intercourse;
8. A circumstance of aggravation cannot be proved
9. If you are charged with ‘Aggravated sexual assault in company’ and the prosecution cannot prove that you were in company of at least one other person.

Sexual assault allegations are far more common today than at any time in the past. Community attitudes have changed shifted, in large part due to the #metoo movement. Unsurprisingly, this has made fighting such allegations more difficult than ever before.

In the present case, the defence of ‘honest and reasonable mistake’ was raised on the issue of consent. The accused clearly took positive steps to determine whether consent was given. The jury did not accept that the complainant was substantially intoxicated.

As such, it appears the jury accepted that Tristan Sailor held an honest and reasonable belief that consent was present.

There have been a number of recent examples of these charges being dismissed after an accused retains experienced criminal defence lawyers. Having the best aggravated sexual assault lawyers will go a long way towards beating these charges.

Call Astor Legal on (02) 7804 2823. Or, you can email info@astorlegal.com.au.

Penalty for Aggravated Sexual Assault

The maximum penalty for aggravated sexual assault is 20 years imprisonment.

There is also a Standard Non-Parole Period (SNPP)which is 10 years imprisonment. The SNPP is the starting point for the period of time you must spend in jail. This is not mandatory but more of a guide.

Looking at statistics since 2018, it is no surprise that 100% of persons found guilty of this offence were sentenced to full-time imprisonment. The length of imprisonment ranges from 3 years to over 20 years.