Danushka Gunathilaka found not guilty of sexual intercourse without consent

Sri Lankan international cricketer Danushka Gunathilaka has been found not guilty of sexual assault by a Sydney judge who said the evidence established there was “no opportunity” for him to have removed a condom during sex, and that he was truthful in his police interview.

The 32-year-old batsman was accused of “stealthing” during sex with a 29-year-old woman without her knowledge in her eastern suburbs home on November 2, 2022. He pleaded not guilty to sexual intercourse without consent and faced a four-day trial before Judge Sarah Huggett in Downing Centre District Court.

Delivering a verdict of not guilty on Thursday, the judge said: “The evidence establishes that there was no opportunity for the accused to remove the condom … because that intercourse was continuous.”

The trial heard Gunathilaka, also known as Danny, and the woman matched on Tinder on October 29 and talked over Instagram and WhatsApp, including via video calls.

They met for drinks at the Opera Bar followed by dinner at Frankie’s Pizza and then caught a ferry to the complainant’s home, where Gunathilaka recorded her playing guitar and singing.

“The mood as captured by those videos seemed relaxed, happy and playful,” the judge said.

She said the complainant came across as intelligent and not as a witness “motivated by a desire to give deliberately false evidence”, but there were occasions when she formed the impression the woman appeared “motivated to paint the accused in an unfavourable light”.

The woman, who testified over two days, alleged Gunathilaka kissed her forcefully and slapped her buttocks on the ferry to her house, and “ambushed” her by pushing her back on the lounge. She accepted under cross-examination she had said “let’s go to my room” and lit candles “to create a mood”.

The woman claimed Gunathilaka choked her at least three times and slapped her buttocks during forceful intercourse in her bedroom for 10 to 15 minutes.

She said she noticed a condom on her bedroom floor within three to five seconds of the sex ending. The woman alleged Gunathilaka threw it there, but did not see him do it.

Crown prosecutor Gabrielle Steedman submitted the sexual episode “turned out very differently to what she [the woman] expected or wanted” and his behaviour was “entirely consistent with someone who would, in that state of mind, remove his condom, despite her clear wishes to the contrary”.

Gunathilaka’s barrister Murugan Thangaraj, SC, said there was “no window” for Gunathilaka to have removed the condom during sex, and the woman had described it as “continuous sexual activity”.

“That ends it. The Crown cannot prove its case at all, let alone to the requisite standard, with that evidence,” Thangaraj said.

Gunathilaka was arrested in the early hours of November 6 in the Hyatt Regency Hotel as the Sri Lanka team left for the airport. He let police search his hotel room, where they found a Burberry satchel bag containing two wrapped condoms.

“That he would wear a condom on occasion is supported by the fact that two unused condoms were located in his property,” the judge said.

Gunathilaka participated in a two-and-a-half hour recorded interview. Asked by police “At any point, did you put your penis into her without a condom on?” Gunathilaka replied, “No, no, no.”

He admitted he had told the woman he did not like to have sex with a condom, and she was the one who got a packet out.

“I never said ‘I want to do it without condoms’, and we did it with condoms,” Gunathilaka said.

The judge said Gunathilaka “answered every question asked of him in the interview, and I formed the distinct impression he was doing his best to be truthful and assist the police”.

“There is no reason at all to reject or disbelieve what he said in that interview,” Huggett said.

The court heard the woman had cried while telling friends Gunathilaka “turned into an animal” and “something really terrible happened”. Regarding the condom, she told them “I don’t know if he took it off” and “I’m not sure, I just have a feeling”.

The judge said: “In my view, the complaint evidence undermines rather than supports the complainant.”

Thangaraj said the woman was “demonstrably unreliable” and CCTV from the ferry and wharf showed the pair kissing and hugging, which did not match her narrative that his client was forceful and aggressive.

Gunathilaka was suspended from cricket following his arrest. He made his international debut in 2015 and has represented Sri Lanka in more than 100 matches including eight Tests. He travelled to Australia for the T20 World Cup but was ruled out with a hamstring tear after playing one match.

He was granted a judge-alone trial due in part to pre-trial media interest. The proceedings were expedited by consent after the court heard he financially supported his parents with his earnings.

(The Sydney Morning Herald)