An Iraqi refugee who raped a 10-year-old boy at a swimming pool has had his conviction overturned because a court didn't prove he realised the boy was saying no.

The rapist, identified as Amir A, 20, violently sexually assaulted the boy in the changing room of Theresienbad pool in Austria claiming it was a 'sexual emergency' because he had not had sex for four months.

But an appeal court in the country accepted the defence lawyer's claim that the lower court had not done enough to prove he knew the schoolboy was saying no and overturned the conviction.

The migrant was jumping from the diving board at Theresienbad pool (pictured above) when police came to arrest him with the man now sentenced to six years jail

The incident occurred in December 2015 as part of the integration process where he traveled with a 15-year-old helper and translator who was meant to be teaching him how to integrate into life in Vienna.

He seized his moment at the pool and dragged the boy into the changing rooms and locked the door before raping him.

The boy, known as Goran, required immediate medical treatment and has been suffering with post-traumatic stress disorder ever since.

Brazen predator Amir A even went back to the swimming pool after the rape and was playing on the diving board when police came to arrest him.

Confessing to the rape in an interview with officers, he said he knew what he did was wrong but did it anyway because it was a 'sexual emergency' having gone four months without sex, according to The Local.

The young victim loved going swimming at the local pool in Vienna but now suffers from severe post-traumatic stress disorder and panic attacks

In the initial court hearing, he was found guilty of sexual assault and the rape of a minor and was sentenced to six years in jail.

But the Supreme Court rescinded the sentence and ordered a re-trial with the court's president Thomas Philipp calling the verdict 'watertight' when it came to the sexual assault of a child, but that rape could not be sufficiently proved, says The Local.

The higher court said it should have been ascertained whether or not the victim agreed to the sexual act or whether Amir A had acted against the will of the boy.