How Sri Lankan Cricketer Danushka Gunathilaka Almost Got Away

Sri Lankan cricketer, 31-year-old Danushka Gunathilaka will remain in custody in New South Wales, after being charged with four counts of sexual assault.

Gunathilaka was arrested at Sussex Street hotel in Sydney CBD, early in the morning on the Sunday 6 November 2022, where his team were staying for the T20 World Cup.

It is reported that he was scheduled to fly out of the country on the same morning that police officers attended the hotel to charge him.

He was pulled off his team’s bus in the driveway of the hotel.

The rest of the Sri Lankan team flew home on Sunday morning, whilst Gunathilaka remained in Surry Hills Police station holding cells. Had Gunathilaka left the country that morning with his team before police arrived to arrest him, it would have been a time consuming process for Australia to try to extradite him back to face the trial in NSW. It would be more difficult to facilitate this given there is no extradition treaty between Australia and Sri Lanka.

Detectives from the State Crime Command’s Sex Crimes Squad and Eastern Suburbs Police Area Command commenced a joint investigation under ‘Strike Force Veteran’, following reports a 29-year-old woman had been sexually assaulted at a residence in Rose Bay.

As part of the ongoing investigations, a crime scene examination was undertaken by specialist police at the residence.

It is alleged that the woman met Gunathilaka after communicating with him over a number of days via the online dating app, Tinder.

The pair met up for drinks at the Opera Bar in Sydney, before dinner, and then went back to her house.

According to police he then allegedly sexually assaulted the woman multiple times over the course of several hours on the evening of Wednesday, 2 November 2022.

“They met for prearranged drinks, had something to eat and went back to the woman’s home,” explained Detective Superintendent Jayne Doherty.

“The woman had taken all precautions, she met in a public place, it was just unfortunate. It has nothing to do with meeting on a dating app or anything”

The matter was listed before Sydney’s Downing Centre Local Court on 7 November 2022, where Gunathilaka was denied bail, following a bail application made by his legal representative.

The matter was adjourned for the police to serve evidence in relation to the matter, with Gunathilaka to remain in custody until the next court date on 12 January 2023.

Gunathilaka last played for Sri Lanka on 16 October 2022 against Namibia, which was the country’s opening game of the T20 World Cup in Geelong, Melbourne.

Whilst he was not an active member of this year’s squad, due to a hamstring injury recently suffered, he has played almost 100 T20 and one-day internationals for Sri Lanka, as well as eight Tests.

Sri Lanka Cricket have released a statement noting: “Sri Lanka Cricket will have zero tolerance for any such conduct of the players and will provide all required support to law enforcement authorities of Australia over the incident. Every accused person is presumed to be innocent until proven guilty and therefore will take every step possible to assist [Gunathilaka] in his legal battle,”

“In consultation with the (International Cricket Council), (we) will expeditiously initiate a thorough inquiry into the matter and take stern action against the player if found guilty,” it continued.

Sexual Intercourse Without Consent and Rape Laws in NSW

In NSW, it is an offence to have sexual intercourse with another person, without the consent of the other person, whilst knowing that the other person does not consent, as per section 61I of the Crimes Act 1900 (NSW).

A maximum penalty of 14 years imprisonment is applicable.

Sexual intercourse is defined as sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person:

• by any part of the body of another person, or
• any object manipulated by another person (except where the penetration is carried out for proper medical purposes).

It also includes sexual connection occasioned by the introduction of any part of a person’s penis into the mouth of another person, or cunnilingus (orally stimulating a victim’s genitals).

Consent is defined as where a person freely and voluntarily agrees to the sexual activity, as per section 61HI.

Notably, a person may, by words or conduct, withdraw consent to a sexual activity at any time.

Extradition Laws Australia: Extraditing a Person Into Australia

Australia’s extradition laws are separated into four main types of extraditions. The first is the extradition to another State or Territory of Australia. Second is the extradition from Australia to a country other than New Zealand. The third kind is the extradition from Australia to New Zealand. The fourth kind is the extradition to Australia from another country.

The Australian Government processes all incoming and outgoing extradition requests. The legislative framework for this is the Extradition Act 1988 (Cth) (‘Extradition Act’). Australia may make extradition requests to any country in the world, however, its success will ultimately be determined by any extradition treaty, and its terms, between Australia and the other country, in addition to whether the legislative provisions of the Extradition Act are satisfied. If no treaty exists between the two countries, then there will be no responsibility of the country to consider the extradition request. In those circumstances, successful extradition upon request will depend on the laws of that country in the absence of an extradition treaty.

This article focuses on the fourth type of extradition, namely, the law on extraditing a person to Australia from another country. The legislative framework for this is Part 4 of the ‘Extradition Act’.

What is Extradition?

Extradition is the process of preventing people accused of crimes from evading justice by leaving the country or jurisdiction where the crime is alleged to have been committed. Extradition is where one country requests the other country to surrender a person residing in the other country so that the first country can charge that person to be dealt with according to their law.

An example of extradition is when a person who is alleged to have committed a crime in Australia subsequently travels to another country to seek refuge in that country before he or she can be dealt with according to law in Australia. Australia can then submit a request to the other country requesting for that person to be returned to face justice in Australia.

Extradition treaties between countries are the framework for countries to make extradition requests. Extradition treaties may be different between different countries.

What is an Extradition Treaty?

An extradition treaty is basically an agreement or arrangement between two or more countries providing a framework to deal with the extradition process outlining who may be extradited and in what circumstances.

Australia has many extradition treaties with various countries around the world. A lot of those treaties have multiples factors in common. While Australia may make extradition requests to any country around the world, it will ultimately depend on whether there is an existing treaty in place.

Absence of an existing extradition treaty between the country’s will mean that the ultimate successful of the request to extradite a person will depend on the domestic laws of the country that the person is residing in.

Australia cannot accept an extradition request from a country unless that country has been declared an extradition country under any of the 5 main categories of domestic regulations, namely:

• Countries with which Australia has a bilateral extradition treaty, including Germany, France, Greece, Hong Long, Argentina, India, Italy, Korea, Mexico, Philippines, South Africa, Spain, Turkey, United Arab Emirates.
• Multilateral treaties with extradition obligations to which Australia is a signatory
• Members of the London Scheme with which Australia has an extradition relationship
• Countries with an extradition treaty with the UK that was inherited by Australia
• Regulation-based treaty relationships

Some treaties Australia has requires that the offence a person is charged with in another country must also be an offence in Australia. If there are reasonable grounds for believing that the person is being prosecuted for a political offence including terrorism or treason, then Australia generally will not extradite him or her to that country. Similarly, Australia will not extradite a person who on reasonable grounds is being prosecuted for his or her religion, race or sex.

Does Australia Have an Extradition Treaty with Sri Lanka?

There is no extradition treaty between Australia and Sri Lanka. However, Sri Lanka has its own domestic laws which forms the framework for extraditing its own citizens to other countries. In addition, there exists a cooperative arrangement called the “London Scheme” between Australia and Sri Lanka which may facilitate extradition even where no bilateral treaty exists.

What is the Difference Between Extradition and Deportation?

In contrast to extradition, deportation is removing a person from a country in circumstances he or she does not have a legal right to remain in. Extradition has nothing to do with the legal right to remain in the country, instead it is concerned with surrendering the person to another country who wish to prosecute that person to face justice in their country.

The Attorney-General’s Role in Extradition Requests

The Attorney-General of Australia may make or authorise the request for the surrender of a person from another country in relation to an offence against the law of Australia of which that person is accused, according to section 40 of the Extradition Act.

When a person is subsequently surrendered to Australia in relation to the offence he/she is accused of, that person will be brought into Australia and delivered to the appropriate authorities to then be dealt with according to law.

If the Attorney-General suspects that a person is an “extraditable person” (regardless of whether or not the person is believed to be outside Australia), the Attorney-General may authorise the taking of evidence for use in any proceedings for that person’s surrender to Australia. The Attorney-General may do this by giving notice in writing in the statutory form directing any Magistrate or eligible Judge to take such evidence, according to section 43 of the Extradition Act.

If the Attorney-General does this, a Magistrate or eligible Judge may take the evidence on oath or affirmation of each witness appearing before the Magistrate or Judge to give evidence in relation to the matter. Accordingly, the Judge or Magistrate may cause the evidence to be reduced to writing and attach a certificate in the statutory form in relation to the taking of the evidence.

In addition, the Judge or Magistrate will also cause the writing and the certificate to then be sent to the Attorney-General.

Interestingly, a lawyer or representative for the person is not entitled to appear before the Judge or Magistrate in proceedings under section 43 of evidence being taken by the Judge or Magistrate for purposes of the surrender of the person to Australia.

Once an “extraditable person” is surrendered to Australia by another country (other than New Zealand), the person shall not be detained or tried in Australia for the alleged offence before that person’s surrender unless it’s an offence in respect of which the person was surrendered, or any other offence of which the person could be convicted on proof of the conduct constituting the offence, or unless it’s any other offence in respect of which the country consents to the person being detained or tried.

What is an “Extraditable Person”?

An “extraditable person” means a person who is believed to be outside Australia, and where the offence is an “extradition offence”, such as sexual intercourse without consent, being an offence against the law of New South Wales, Australia, carrying a maximum penalty of not less than 1 year, and where there is a warrant in force for the arrest of that person in relation to the offence.

Statistics on Extraditions

According to the Attorney-General’s Department, statistics reveal that Australia extradited 147 people to another country between 2012/13 to 2017/18. In contrast, over the same period of time, Australia extradited 77 people into Australia from another country to be dealt with according to law.

Those countries include UK, USA, Canada, Republic of Ireland, Thailand, Afghanistan, India, and Iraq.

The most common offences that people were extradited to Australia for were sex offences, drug offences, fraud, murder and manslaughter, and people smuggling offences.

The top offences that Australia have extradited people to another country for were child sex offences, assault, drugs, and driving offences. One person was extradited for war crimes over the period 2012/13 to 2017/18.

One of the countries, amongst others, that Australia do not currently have a successful extradition treaty with is China. This is largely due to issues of a fair trial in China generally due to the lack of an independence between the Judiciary and executive arm of Government. Another main reason for the failure of an extradition treaty between the two countries is the fact that China still has the death penalty.

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