A Sri Lankan cricketer who has been stuck in Australia for almost a year as he fought a “stealthing” charge in court will be free to return home after he was found not guilty of sexual assault without consent.
Danushka Gunathilaka learned his fate on Thursday following a judge alone trial at the Downing Centre District Court after pleading not guilty to the single charge.
He did not react as Judge Huggett read out her verdict, and he hugged and kissed a woman who has supported him throughout the trial.
Judge Sarah Huggett heard four days of evidence, including from the alleged victim who said the cricketer was “forceful” and “aggressive”.
The 32-year-old batsman met up with the woman at Sydney’s Opera Bar on November 2 last year after matching on Tinder while Mr Gunathilaka was in Australia to play in the T20 World Cup.
It was not in dispute the pair had chatted several times through Tinder, Instagram and video called on WhatsApp from October 31 before their meeting three days later.
CCTV footage played to the court shows the pair hugging as they meet and kissing while waiting for a ferry back to the woman’s home about 11pm.
Judge Sarah Huggett found while Mr Gunathilaka told the woman he preferred not to wear a condom, he used one during the encounter and had consensual sex with the woman.
After playing guitar and kissing on the couch, the pair moved to the bedroom where the woman, who gave evidence via AVL, told the court she asked Mr Gunathilaka to use a condom but he allegedly said he “didn’t like them”.
According to the woman’s evidence, Mr Gunathilaka said: “Don’t worry I don’t get you pregnant darling, don’t you trust me?”
“I remember him saying that he hated them, he said something like ‘I hate using condoms, I don’t like them, it doesn’t feel good you should trust me’,” the woman told the court.
During his interview with police days later, Mr Gunathilaka admitted he preferred to have sex without a condom, but denied saying he didn’t want to use one with the woman.
He said: “I just said ‘normally I don’t like to have sex with condoms’, I didn’t say ‘I don’t want to have sex without a condom’.”
While the woman told the court Mr Gunathilaka stood up from the bed and she thought he didn’t have a condom on, Judge Huggett found the woman’s version of events were not accurate and the cricketer used a condom the entire time.
Mr Gunathilaka was arrested in the early hours of November 6 at the Hyatt Regency and taken to Day Street Police Station where he answered questions for more than two hours.
The recorded interview shows the cricketer becoming emotional as he spoke about a spiritual conversation he had with the alleged victim where she said she had the power to “see the future”. He told police he was “interested” as he was a Buddhist.
“We were talking about religious things … she can see in a past life and we chatted about that kind of stuff,” he said in the interview as he broke down in tears.
Gunathilaka told officers he asked the woman to tell him about his past life. He said she told him they used to be neighbours in Thailand.
The cricketer told police he became scared and “got a feeling” the woman was “a bit weird”, prompting him to leave. She ordered him a taxi.
He was asked if at any point he put his penis “into her without a condom on”.
“No, no, definitely not,” Mr Gunathilaka replied.
Under cross-examination from Mr Gunathilaka’s barrister, Murugan Thangaraj SC, the woman denied claims she was the one to bring up the topic, and told the court it was the cricketer who said they knew each other in a past life.
Crown prosecutor Gabrielle Steedman told the court the victim’s evidence “must be accepted beyond a reasonable doubt” and there was “no other rational inference other than the accused removed his condom”.
She argued the cricketer was rough and did not “care or respect” the woman’s requests or boundaries, and Mr Gunathilaka “pursued the woman quite relentlessly”.
Mr Thangaraj argued the alleged victim provided a narrative that had “morphed” and “shaped to fit the allegation”.
He claimed the woman gave false and self-serving evidence throughout in court as well as in her two statements to police.
“She does not remember matters inconsistent with her narrative on many occasions,” he said.
The main issue in the trial was Gunathilaka’s state of mind as to whether or not he removed the condom without the woman’s knowledge, which is known as stealthing.
A week after the trial ended, Judge Huggett on Thursday did not agree with the Crown case and found Gunathilaka did not remove the condom during intercourse.
Judge Huggett said during her judgment there was “no oopportunity” to remove the condom “because that intercourse was continuous”.
Judge Huggett described the complainant as an “intelligent” and “calm and responsive” witness.
However, she said she formed the impression she was at times “motivated by a desire to paint the accused in an unfavourable light”.
Mr Gunathilaka was declared not guilty and is free to return to his hometown of Colombo in Sri Lanka.
