Danushka Gunathilaka found not guilty
Sri Lankan cricketer Danushka Gunathilaka has been found not guilty of sexual intercourse without consent following an accusation of “stealthing” involving a Tinder date in Sydney.
The 32-year-old was arrested in November while in Australia for the T-20 World Cup, after he went for drinks with a woman near the Opera House.
He had chatted online for several days and then had dinner with the woman, who can’t be identified for legal reasons, before being invited back to her eastern suburbs home, the NSW District Court heard.
The Crown’s case was that he removed a condom during intercourse without the woman’s knowledge when she had consented only to protected sex.
The complainant told the court she did not see the batsman remove the condom, but saw it on the floor shortly after the intercourse stopped.
Judge Sarah Huggett today found evidence about the “genesis” of the woman’s complaint undermined the reliability of her evidence. The judge said the woman had given different accounts in her two statements; the second, given in April this year, went into further detail about the issue of ‘stealthing’ and added that the complainant did not have a “clear memory” of what happened around the time she saw the condom on the floor.
“The evidence establishes there was no opportunity for the accused to remove the condom during the intercourse because that intercourse was continuous,” she said.
Judge Huggett considered the woman’s first conversations with two close friends, which seemed to frame the complaint in terms of the roughness of the sexual activity.
Gunathilaka’s defence counsel argued the woman lied, gave self-serving evidence and appeared to not remember parts of the night that were inconsistent with a “narrative” she created, which morphed over time.
Murugan Thangaraj SC told the judge the Crown failed to establish the woman’s reliability and highlighted what he said were inconsistencies and implausibility in her version of events.
He said it was “completely illogical” to claim she felt ambushed before lighting candles in her bedroom, effectively setting it up for “a romantic sexual liaison”.
In court, the woman alleged Mr Gunathilaka kissed her “forcefully” on the way home and on her couch, where she felt “ambushed” before moving to the bedroom.
She further alleged he choked her three times during sex, leaving her fearful for her life, and ignored requests to go slow.
Judge Huggett found the woman was an “intelligent witness who gave evidence in a considered way”, and was overall a “calm and responsive” witness.
But the judge said there were times when it appeared the complainant was motivated by a desire to paint the accused in an unfavourable light.
In his police interview, Mr Gunathilaka said he told her his preference generally was to not use condoms but wanted to on the night because it was their first meeting.
In the interview, the cricketer made mention of there being two condoms because one malfunctioned — which the Crown said was a deliberate mistruth.
But Judge Huggett disagreed, finding that his answers were the result of “confusion, fatigue, a language barrier and possibly memory”.
“I formed the distinct impression he was doing his best to be truthful and assist the police,” she said.
Sitting in the interview room, Gunathilaka told police the woman had organised him a taxi and he kissed her before leaving. “She didn’t even text me, I didn’t text her also,” he said. “And that’s it, then I’m here.”
Gunathilaka has been in Australia on bail since mid-November.
(ABC News)
https://www.abc.net.au/news/2023-09-28/nsw-cricketer-danushka-gunathilaka-not-guilty/102911314?utm_campaign=newsweb-article-new-share-null&utm_content=link&utm_medium=content_shared&utm_source=abc_news_web
