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Warning: This story deals with allegations of sexual assault and may be distressing.

A drunken, but consensual act after an evening of flirtation during St Patrick’s Day festivities - or a man who had sex with an intoxicated sleeping woman who’d put herself to bed?

That was the key question lingering at the end of a week-long trial in the Tauranga District Court - and one the jury was ultimately unable to agree upon.

After about six hours of deliberation, jurors were discharged on Friday night, having failed to reach a verdict.

The matter has now been put to an administrative hearing, where it is expected a date will be set for a retrial.

A fast connection

A man, who was based in Whakatāne at the time but is from overseas, was accused of raping a woman he’d met on March 17, 2023, at a pub.

The man, who can’t be named for legal reasons, told the court he and the woman formed a fast connection during St Patrick’s Day festivities.

Despite him learning she was engaged, and drawing her attention to the ring on her finger, he said she’d continued to flirt with him, touching his chest and arms in public view of his friends, and her fiance.

The Crown said he’d misinterpreted her open and friendly manner, and formed sexual desires for her.

He admitted he’d been interested in having sex, but did not agree he’d misinterpreted her attention.

A man has been on trial for the alleged rape of a woman after St Patrick's Day festivities.

The after party

The Crown says the main question, however, was not about how she’d behaved at the pub; it was about what happened when they got back to the flat she shared with her fiance, and others, for an “after party”.

Once there, the Crown says it became clear his hopes of a consensual sexual encounter were dashed.

The woman vomited in front of the man and the fiance and shortly after “put herself to bed and went to sleep”.

In his closing address, Crown prosecutor Richard Jenson said the woman became overwhelmed by “tiredness and alcohol”.

Her fiance said in evidence that after she said she was going to shower, he instead found her asleep in bed, vomit still in her hair.

He told the court she’d been as drunk as he’d ever seen, so he checked her breathing and that she was lying on her side.

The Crown case is from that point on she was asleep, and unable to consent when sex took place.

Jenson suggested the man’s evidence of the vomiting incident was “crucial” in the jury’s assessment of his credibility.

The man said it was self-induced, and not because of her intoxication, but as though she was bloated with “too much fizzy drink”.

Jenson suggested in closing that the man “appreciates the significance of the fact he saw her vomit” and has constructed his account to suit.

“If she simply wanted to vomit, she would have tied up her hair and taken herself discreetly to the toilet,” Jenson said.

This aspect, “despite [the man’s] composure and smooth manner”, had pushed “his credibility to breaking point”.

The man’s lawyer Phil Mitchell said his client was articulate, educated, used to “speaking to people”, and “able to describe what happened that night”.

His well-spoken manner and education shouldn’t be held against him, Mitchell told the jury.

Why didn’t he use protection?

The Crown claimed because the man hadn’t used a condom he was carrying that night, it suggested the sex was quick, opportunistic, and hadn’t been consensual.

If it had happened as he’d described, with foreplay and build-up, he’d have had “ample” time to put on a condom.

However, Mitchell said “drunk unprotected sex” happened “all the time”.

If it had been a “carefully planned sexual attack”, the jury might logically think he would have used a condom.

“There would be no forensic evidence that anything had happened as far as semen inside her vagina.”

The judge summed up the case saying the case was all about “credibility and veracity”.

The Crown attacked the man’s credibility on the basis it was too polished, rehearsed, and lacking in concessions.

A previous rape complaint

The defence said the woman had a tendency to lie, pointing to a previous false rape complaint which the woman had admitted she’d made.

The woman said the complaint from a decade ago, was made when she was young, and she had been caught up in the lie.

She said “the word rape was used”, once police turned up after a call from her boyfriend, who’d got the wrong idea about her being made “uncomfortable” by a taxi driver, and she “went along with it”.

Mitchell suggested that was the same scenario as the current complaint.

Her fiance, when confronted by her having sex with another man, was left with two choices.

If she was having consensual sex with the good-looking man she’d been flirting with all night, his “whole world would be turned upside down”.

Mitchell said the fiance had chosen to believe she was being raped, and she’d gone along with it, and “played dead” after the sexual encounter to make it appear she’d been asleep during it.

The Crown said the situation was obvious to all who’d witnessed the woman after the sexual encounter.

Both those who knew her best, and experienced police officers who’d come to the house after the alleged attack, could see the woman was heavily intoxicated.

It had been clear to her fiance that she was asleep when he walked in, the Crown said.

SEXUAL HARM

Where to get help:
If it's an emergency and you feel that you or someone else is at risk, call 111.
If you've ever experienced sexual assault or abuse and need to talk to someone, contact  confidentially, any time 24/7:
• Call 0800 044 334
• Text 4334
• Email [email protected]
• For more info or to web chat visit 
Alternatively contact your local police station - 
If you have been sexually assaulted, remember it's not your fault.

Hannah Bartlett is a Tauranga-based Open Justice reporter at ��һ�ǿ�����. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at ��һ�ǿ�����talk ZB.