Police facts sheet: Gunathilaka’s alleged victim was ‘choked repeatedly without consent’

Trigger warning for sexual assault and rape. Details in this story are graphic in nature, and may be unsuitable for some.

The police facts in this case may be reported, after lawyers representing several Australian media organisations [Nine, ABC, Fairfax, Newscorp] had the police withdraw their application “in its entirety”.

The facts sheet stated the “complainant” called a counselling service early the next day, saw her general practitioner, and “couldn’t stop crying”, leaving her unable to work. The day after that, she provided a statement to the police, was administered a sexual assault investigation kit in a hospital, and underwent a brain scan to “check for any injury resulting from the repeated choking”.

Gunathilaka’s lawyers SANS Law Associates issued a brief statement, that said: “Danushka Gunathilaka maintains his innocence of all charges. Given the early stages of proceedings, we do not wish to make any further comment and will allow for the matter to be properly ventilated before the Court.”

According to the police facts sheet, during a recorded interview soon after he was arrested, Gunathilaka denied “any violence or lack of consent with respect to sexual activity”. A translator was present – over the phone – for the interview. “When asked specifically about the nature of consent conversations and actions had the accused could not recall,” the facts sheet said.

The four-page police document largely lays out the alleged victim’s version of events, though parts of her version have been corroborated by Gunathilaka, and the public portion of their meeting is also corroborated by CCTV evidence from the establishments they visited.

Essentially, the pair met for drinks, and then went for pizza. Gunathilaka consumed three standard drinks, according to the facts sheet, and the alleged victim consumed six. They then boarded a ferry after agreeing to go back to her home in the suburb of Rose Bay. Gunathilaka is alleged to have “kissed the victim on the lips forcefully” during transit. They continued to her home. “The complainant was not feeling overly affected by alcohol and did not believe the accused was either,” the document said.

“Investigators, with acknowledgement of [NSW consent legislation] do not find it reasonable that the accused believed he had the free, voluntary and consistent consent of the complainant to the particular sexual activity that took place”

From the police facts sheet

It was once they were inside her home that Gunathilaka allegedly sexually assaulted her on four occasions.

The four charges cover a range of sexual offences, including alleged choking incidents and sex without a condom without consent. Under New South Wales’ new affirmative consent laws, sex without a condom without consent (known as “stealthing”) is an offence. During one of the alleged choking incidents, “the complainant’s breathing was severely restricted for about six seconds”, the facts sheet said. It was soon after this that “the complainant was in shock and she did not feel safe saying anything to the accused out of fear of retribution,” according to the document.

After the encounter, “the complainant was frozen and in shock” the document said, and Gunathilaka left her home shortly before 1am, in a taxi she called for him.

The document further stated: “Investigators, with acknowledgement of [NSW consent legislation] do not find it reasonable that the accused believed he had the free, voluntary and consistent consent of the complainant to the particular sexual activity that took place”.

Gunathilaka has been denied bail by a Sydney magistrate, but may appeal that decision to the Supreme Court. “Investigators believe he is a flight risk,” the document said.

Andrew Fidel Fernando is ESPNcricinfo’s Sri Lanka correspondent. @afidelf

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