Rape charge dismissed against Ashburton man
An Ashburton man on trial in Timaru for rape had the charge against him dismissed on Thursday morning.
The scheduled five day jury trial of Angus James Mackenzie, which began in the Timaru District Court on Monday, was cut short after Judge Joanna Maze ruled there was insufficient evidence for a properly directed jury to convict Mackenzie of the charge.
Judge Maze said there was "simply no evidential basis ... that a reasonable person doing what the defendant did ... would have thought that sex actually was being pursued without her consent".
The complainant alleged she met Mackenzie at a house party on Taits Rd, in Ashburton, on June 27, 2015.
In a dvd police interview played to the court, the complainant said that after sharing a litre bottle of vodka with her friends, she kissed the complainant in the bathroom of the house.
The group at the house decided to walk into central Ashburton and left the property, and the complainant became separated from her friends.
In the interview the complainant said she was "taken back to the house ... this part is where it is quite blurry ... I was very drunk".
She remembered "lying down on the bed, him taking off the bottom half of my clothes, it hurting, didn't feel quite right ... I just remember it was happening, him kissing me on the boobs as well, having sex".
During cross examination of the complainant's evidence to the court on Monday, Defence Counsel James Rapley asked if she had been kissing Mackenzie while the two of them were on there way back to the Taits Rd house.
"It might have happened," she replied.
Rapley asked the complainant if "because it [the sex] was hurting you turned on the light"?
"There's also a big patch I don't remember either, I remember it hurting ... and being wrong and turning on the lights," the complainant replied.
"You didn't tell Angus [Mackenzie] it was hurting," Rapley asked.
"I don't remember any conversation, i just remember it hurting quite a lot," she replied.
Rapley asked if the complainant had done anything to suggest to Mackenzie "there was anything wrong".
The complainant replied that she "wasn't really in a state to respond".
"Accepting you are sore and not quite right, and off kind of feeling, there's nothing you said or did that would suggest to Angus [Mackenzie] you didn't want to do that?," Rapley asked
"I don't know what was said, I don't recall many details of conversation," she replied.
Rapley asked the complainant if what had happened was "you had sex, it was quick and hurt, then this boy you have just had sex with runs off and leaves you on your own in the dark, and that's understandably why you are so upset"?
"It was a mistreatment it was something i didn't want, and shouldn't have happened," she replied.
In her explanation for dismissing the case, Judge Maze said for the charge to be proved, the crown had to prove beyond a reasonable doubt that penile penetration occurred, that it was without the complainant's consent, and without the defendant thinking he had reasonable grounds for consent.
Judge Maze said the complainant's evidence was that such penetration occurred, and that it was not consensual.
The defendant denied that penetration occurred, however he believed he had consent, Judge Maze said.
The question of penetration and the complainant's consent could be assessed by the jury on the "credibility and reliability" of their evidence, Judge Maze said.
However in assessing the question of whether the complainant had reasonable grounds for consent, Judge Maze said the complainant didn't know if she had said or done anything to make Mackenzie think she didn't want to have sex with him.
That didn't mean he had in fact had sex with her, Judge Maze said.
"The only evidence you have got is that the defendant believed he had consent.
"The only evidence you have been given indicates continued consent right up to point where she said the sex act ceased, she registered discomfort or pain, got up and switched on the light.
"There's no evidence the defendant made any further sexual advance, no evidence that could remotely suggest anything other than consent up to that point."