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

“It’s not what it looks like.”

Those were the words a man accused of rape allegedly said as he attempted to pull up his pants, as the fiance of the woman he was having sex with turned on the lights.

The fiance replied, “It is”.

The man accused of rape, who is from overseas but was working in a professional setting in Whakatāne, met the couple at St Patrick’s Day festivities through a mutual friend.

Now, the man, who has interim name suppression, is on trial in the Tauranga District Court.

The Crown says the woman got so drunk she was passed out and asleep, and unable to consent at the time the sexual encounter took place.

It isn’t in dispute the man had sex with her, the question is whether there was consent, or reasonable grounds to believe there was consent.

The defence says that while the woman may have been drunk, she hadn’t been too drunk to give consent to the man she’d been “flirting” with all night, and exaggerated her intoxication.

The man is on trial in the Tauranga District Court. Photo / File

How many drinks?

The woman told the court she hadn’t really eaten, except for some popcorn, before she started drinking ciders and Guinness.

She thought she had about six or seven pints in total that night. Her fiance estimated it may have been between six and eight.

The defendant’s lawyer, Phil Mitchell, suggested the drinks she was having were around 4% alcohol, and weren’t “particularly potent”.

However, she told him that as a small person who usually doesn’t drink to excess, the amount she consumed had made her “very drunk”.

Her three flatmates, who were there that night, described her as very intoxicated, as did her fiance.

The woman said she didn’t remember much after about 9pm.

However, she remembered having had a good night up until that point, making new friends who she’d invited to an upcoming birthday party.

‘Flirtatious behaviour’

Mitchell asked her about what defence witnesses would describe as “flirtatious” behaviour towards the defendant.

She told him she was an open, friendly and flirty person by nature.

She described herself as an “attentive conversationalist” who liked to hold eye contact, and it wasn’t unusual for her to use physical touch in her interactions with people.

Mitchell said witnesses had observed her dancing with the defendant, holding his hands.

She couldn’t remember holding hands with him, and repeatedly said she had big gaps in her memory from the night, however, she conceded: “It seems in character for me to hold hands with someone I was dancing with.”

Her fiance said both in evidence and under cross-examination that he hadn’t seen any physical contact that caused him any concern.

She hadn’t been more flirtatious than she usually was.

Mitchell suggested he had “chosen” not to see the flirty behaviour that night, and wasn’t being truthful in his account.

“That’s not correct,” the fiance replied.

‘Vague’ memories of vomiting, and a sex dream

The woman did remember being back at her flat, and vomiting into a bucket.

Mitchell suggested she had made herself vomit.

While she conceded it was possible it had been a “tactical vomit” to make herself feel better, she said it was unlikely as it wasn’t the kind of thing she’d normally do.

Her fiance said she hadn’t made herself vomit, and described her lying on her side on the floor next to the bed.

Both the fiance, and the defendant, helped her when she vomited.

Her fiance said the defendant held the bowl while he helped hold his partner’s head up and tried to keep her hair back.

The woman doesn’t remember what happened next, but the fiance said he, the defendant, and the woman all went into the lounge.

The woman said she was going to have a shower, according to her fiance, but when he went to check on her, she was in bed asleep with vomit still in her hair.

He had made sure she was lying on her side in case she vomited again, and left her to sleep.

The next time he saw her, she was on her back with the defendant on top of her, he said.

The woman says she can’t remember the sexual encounter, but did recall what seemed like a “sex dream”.

She said in her police video interview it wasn’t unusual for her to have sex dreams about people.

She remembered the “dream” being about a sexual encounter with the defendant, on a beach, and remembered “blue sky”.

Mitchell told her the defendant would say that she invited him into the bedroom after he’d been in the nearby bathroom.

He says she said, “You come here”, and they began kissing.

The defendant would claim she said, “We’re on a beach, we’re in the sun”, and she wanted the defendant to “f*** [her] on the beach”.

The woman said she didn’t remember saying that, but, if she had, it should have been an indication she wasn’t “present”.

Mitchell suggested to the woman that she was “having some sort of fantasy ... the door bursts open, the fantasy vanishes, and you’re caught having sex with the good-looking guy you’ve been flirting with all night at the pub”.

She had decided to “play dead”, the defence suggested, and pretend to be unconscious.

The woman’s fiance said she had been unresponsive and unconscious as he called her name, after the defendant got off the bed.

The woman said if she’d had consensual sex, she liked to think her relationship would have been “strong enough to talk through that”.

A trial wasn’t “something [she] would want to put [herself] through”, as it wasn’t “pleasant”.

A previous rape complaint

The woman was also questioned by Mitchell about a previous rape complaint she made a decade ago.

The complaint to the police had been retracted, 12 days after it was made.

The woman said her boyfriend at the time called police, reporting she had been raped by a taxi driver.

The woman said she didn’t know why her boyfriend thought that; she only remembered telling him the taxi driver had made her feel “uncomfortable”, and she had been very upset by the encounter.

When she got home, police arrived, the word “rape” was used, and she went along with it. She said she had been young and naive, and had thought nothing would come of the investigation because “there was nothing to investigate”.

When she realised the false complaint wasn’t going to go away, as the police were continuing their investigation, she recanted her statement.

The trial before Judge Melinda Mason continues.

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.