Counsel for man acquitted of rape suggested jurors should reflect on underwear worn by teen complainant

The jury of eight men and four women took one and a half hours of deliberation to reach their unanimous verdict yesterday.

Ms Justice Carmel Stewart thanked the jury in a case dominated by the issue of consent.

The jury heard evidence that in the immediate aftermath of the disputed sexual incident at the centre of the case the complainant said to the accused: “You just raped me” and the defendant said, “No, we just had sex.”

After the accused man told his senior counsel Ms Elizabeth O’Connell that what happened was consensual, he was cross-examined by Tom Creed SC for the prosecution.

Commenting on the night in question, the defendant said they were kissing and he said they "felt attracted to one another on the night.”

Mr Creed said: “There is not one person who saw you kissing.” The defendant named one man who allegedly did see them kissing but this person did not give evidence in the trial.

Mr Creed asked him to describe the sexual contact.

The defendant said they had gone up a lane and were lying down in a muddy area. He said that he could not get fully erect and did not think his penis went into her vagina. He said it was possible that it did but he did not think so.

Mr Creed said: “A witness saw you with your hand to her throat.” The defendant said that was not correct. He said the witness misread the situation.

The defendant denied that and said “she was not crying at any stage.”

When the complainant’s evidence that he dragged her over 30 metres to the spot where the alleged rape occurred, was put to him he said he "didn’t drag anyone anywhere.”

He said she was kind of worried about her dress getting dirty in what he described as “the moist mud”.

He said that after (a witness at the scene) asked was everything alright in a sarcastic manner he replied: "What the fuck does it look like. Mind your own business."

“Then she (the complainant) was getting funny, it was like she snapped out of a buzz. She said stop and I stopped. We were going to have sex, she said stop and I stopped,” he testified.

In her closing address to the jury, Ms Elizabeth O’Connell SC told jurors they should have regard for the underwear the complainant wore on the night.

“Does the evidence out-rule the possibility that she was attracted to the defendant and was open to meeting someone and being with someone? You have to look at the way she was dressed. She was wearing a thong with a lace front.”

Ms O’Connell suggested the complainant was, on the night, open to the possibility of being with someone and that the person she became attracted to ended up being the defendant.

Mr Creed SC for the prosecution said to the jury: “You decide if there was sexual intercourse between them. You decide if there was consent.

“You have heard her say she did not consent. You have heard him say she did consent. The major issue you have to deal with is whether she consented to sexual intercourse. It is one way or the other. Either she did or did not. If you are satisfied she did not consent and that he knew she did not consent then you convict.

“She is quite clear she did not consent She said she never had sexual intercourse before.

“It has been alleged by the defendant there was lots of kissing going on. In terms of kissing there is not one witness in this case who can say they were kissing.”