A man who sexually assaulted an overseas tourist after a pimps and prostitute party at a Nelson backpackers has lost appeals against his conviction and sentence.
Ashley Dwayne Guy, a mountain bike trail builder, will start his two years and nine month imprisonment sentence on Friday.
Last month he appealed that sentence and his conviction for sexual violation by unlawful sexual connection.
He appealed on the grounds that there had been a miscarriage of justice after two transcripts that were considered inadmissible evidence were left with the jury when they started deliberating.
In his judgement Justice Arnold said that Guy and the complainant were staying at a backpackers in Nelson and had become quite friendly.
The backpackers held a pimps and prostitute themed party, and during that party the pair danced together in a "rather sexualised way".
Once the party had wound down at about 4am, the complainant went to sleep on a couch in the hostel's TV lounge.
Several other guests were sleeping in the lounge.
Guy went to his van and got a large flag, which he placed over the complainant and lay down beside her on the couch.
The Crown said Guy then sexually violated the woman with his finger. She woke up; screamed and slapped him and then called police.
Guy told police he did not remember anything and at trial said he believed the complainant had consented. The jury rejected that argument.
Justice Arnold said after the trial concluded it was discovered that the court taker had taken two documents into the jury room that were not produced at trial.
The documents were two transcripts, one of the complainant's video interview with police and the other the defendant's police interview video.
The documents were in a manila envelope and after the jury delivered their verdict they were out of that envelope but still in their plastic sleeves.
It was accepted the jury had read the transcripts.
Guy's lawyer Tony Bamford argued that the documents were prejudicial.
In her interview the complainant said when she woke up that Guy was pulling up her pants and she had not said this at trial. Mr Bamford said this was prejudicial.
Mr Bamford said Guy's interview was also prejudicial as it gave the impression he was evasive, he also refused to give a DNA sample.
Justice Arnold ruled that the complainant did make the point that Guy was pulling on his pants when she woke up in the trial and that evidence did not cause a miscarriage of justice.
Justice Arnold also ruled the point that the jury may have gained the impression from the transcript that Guy was being evasive was also not made.
He said the video interview was consistent with evidence that Guy could not remember what had happened after he went to the couch with the flag until the complainant slapped him.
"Unquestionably the transcripts should not have been made available to the jury and it was a serious failure of process they were. But, given the way in which the trial unfolded, we do not see any risk of a miscarriage as a consequence of their availability. We should emphasise, however, that this assessment arises from the particular circumstances of the trial, which are unusual."
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