21 Nov 2023

Rape trial: Consent at centre of closing arguments as jury retires

7:35 pm on 21 November 2023


A jury has been told the question of consent stands at the heart of a rape trial in Wellington District Court today.

A 26-year-old man is accused of raping two women as they slept or were affected by alcohol.

The court was told the incidents happened within a group of hard-partying friends where excessive drinking, drug taking and sharing beds in a central city flat were common occurrences.

The Crown prosecution and defence counsel gave their closing addresses to a jury of six men and six women who retired just ahead of 2.30pm.

Crown prosecutor Rushika De Silva said the two female complainants were honest, and reliable in their admission that drugs and alcohol affected their recall of encounters with the defendant.

Both said they awoke to find the man having sex with them.

One said they went along with it because they were unsure as to whether they had consented in their state.

"Oh, OK. In my head I thought I must have consented to it when I was drunk," De Silva recounted from the complainant's testimony.

De Silva contrasted the complainant's accounts with the defendant's descriptions where he described in detail nearly every aspect of the encounter despite allegations emerging a year after the events.

She said his testimony described how he wished the events unfolded but his account was implausible and untruthful.

"Do you think the detailed picture he paints are the sort of thing you would remember so long after? What made these nights stand out in such detail that he could remember it so vividly some time later," she said.

She said the complainant being "unsure" of what was happening at the time was consistent with a lack of consent because she was asleep.

"The defence may suggest that the complainants have forgotten that the sex was consensual. Forgotten all the foreplay, forgotten all the events that led up to this consensual sex. But it is not that simple. Because these complainants do have memory of what happened and these memories just don't match up to that of the defendant," De Silva said.

She attacked the testimony of witnesses in support of the defendant for inconsistencies in their statements whereas, despite lapses in memory, each complainant had described a similar pattern of behaviour in the defendant's actions.

Counsel for the defence said witness statements showed they were recounting events to the best of their ability.

Val Nisbet said two witnesses recalled leaving the rooms where incidents occurred on realising people were having sex.

"They said they would have acted if they believed something was wrong. He would have done something about it. Those differences don't mean he's lying but supports that he was telling the truth as he remembered it," Nisbet said.

Nisbet said the defendant was not obliged to prove his innocence but testified anyway.

He said he was frightened and upset by the allegations that emerged on social media ahead of charges being laid.

In his summation, Judge Peter Hobbs said at no point did either party deny intercourse had taken place.

He reminded the jury a person inviting another person into their bed did not mean they consented to sex nor did the consumption of drugs and alcohol imply consent.

"A person does not consent to sexual activity if he or she is so affected by alcohol or some other drug that [they] cannot consent or refuse to consent the activity. On the other hand the fact that a complainant can't remember, or says she can't remember, is not conclusive. People sometimes do things when they are drunk that they would never do sober. A consent given by someone who is disinhibited by drugs or alcohol is still a consent," Hobbs said.

He reminded the jury not to be distracted by feelings of sympathy for either party but to focus solely on the evidence presented to them.

He said there was no typical complainant or offender in cases of sexual assault and no typical response to rape.

Hobbs said the jury must be satisfied beyond a reasonable doubt that no consent was given and that no reasonable person could have believed the complainants were consenting to sex.

The jury was unable to reach a verdict on Tuesday and would continue deliberations on Wednesday.