A former NSW police officer has allegedly sexually assaulted a woman in her home while wearing his uniform. Kristian Dieter Glaser, 44, is now facing trial in the NSW District Court on a charge of having sexual intercourse with the woman without consent between the period of July and August 2013. He has pleaded not guilty.

The jury heard that the complainant told her partner about the incident in 2016 and another two women during counselling sessions. The woman gave evidence about the alleged incident in closed court.

Crown Prosecutor, Michael Gleeson, has revealed that both parties at the time were in the NSW Police Force. It is believed Glaser was either on-duty or had just finished work when he went to the woman’s apartment. He said the pair exchanged pleasantries and the woman was about to give Glaser a goodnight kiss when “Mr Glaser, the accused, forcibly took her by the wrists and took her to her bedroom … removed her clothes and had sexual intercourse with her”.

The Crown will also allege that the woman told Glaser “no” on several occasions, making it clear to the accused that the woman had not provided her consent to his sexual advances.

The Crown has also stated they will play a phone call in which Glaser acknowledges he had sexual intercourse with the complainant. Nevertheless, the “central issue” during the trial will be the issue of whether there was consent.

Glaser’s barrister has issued a statement, stating that Glaser does not deny that he had sexual intercourse with the woman. However, “his case is she was a willing and interested participant in what occurred”. The trial will continue on.

Sexual consent – it takes two

Consent in relation to sexual offences is a contentious issue during trials, particularly when cases involve incidences of “he said, she said”. When there are conflicting reports from two or more parties on an issue with no witnesses, it is harder for both parties to establish consent.

The Crimes Act 1900 specifies what consent means in relation to sexual offences under section 61HE (formerly s 61HA): ‘A person consents to sexual activity if the person freely and voluntarily agrees to the sexual activity’.

If a person is accused of a sexual offence, the prosecution will need to establish that the accused knew that the complainant did not consent. A person will be considered as having knowledge of the consent if:

• the person knows that the complainant does not consent to the sexual activity, or
• the person is reckless as to whether the complainant consents to the sexual activity, or
• the person has no reasonable grounds for believing that the complainant consents to the sexual activity.

There are also specific circumstances where a person cannot consent to sexual activity. These include:

• If the person has no capacity to consent (e.g. due to their young age or mental capacity)
• If the person does not have the opportunity to consent (e.g. if a person is unconscious)
• If the person consents due to threats of force of terror
• If the person consents because they are unlawfully detained

The court will also consider whether a person took steps to ascertain whether the victim consented to the sexual activity.

Much debate has occurred as to whether the consent laws under NSW needs to be changed, particularly after the high-profile retrial of R v Lazarus [2017] NSWCCA 279 led to Lazarus’ acquittal in 2017.

Although the first trial ruled that Lazarus had no grounds for believing the complainant consented, on appeal, the judge held Lazarus did reasonably believe he obtained consent, referring among other details, to the victim’s supposed failure to do anything “physical to prevent the sexual intercourse from happening”. The Crown appealed the acquittal unsuccessfully, with the Court deciding that a retrial was not needed due to the following reasons:

• The amount of time that had passed after the events
• The fact it would be a third trial
• Lazarus had already served 10 months in prison
• The matters leading to the successful crown appeal were not the fault of the accused or his legal representatives

The case raised discussions as to whether explicit verbal consent should be required when people engage in sexual activity, with many organisations advocating that the Crimes Act be changed to reflect modern perceptions of what consent means.

Section 61HE now provides that the complainant’s failure to provide physical resistance is not, by itself, to be regarded as consent.

The Attorney General has asked for the recently drafted Section 61HE to be reviewed by the NSW Law Reform Commission. Their final recommendation is expected to be released this year.

The above information is intended as general information and is not intended to be relied on as legal advice. The part of this article is taken from an article published by Sydney Morning Herald.

Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales. If your matter is at Blacktown Local Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on (02) 9920 1787 to discuss your matter with one of our experienced criminal lawyers today.