She claims she repeatedly warned prosecutors she had no recollection of the incident (alleged rape) and did not believe her testimony alone could secure a guilty conviction. She assumed they were sitting on a pile of evidence that would result in a favourable verdict but that pile never emerged, reports Ellie Dudley in The Australian.
A District Court jury had – after less than an hour of deliberation – unanimously declared the man she believes raped her was not guilty. It was a verdict she always knew was a possibility. (The woman’s name is withheld.)
But the judge had found her “meritless” rape prosecution was never going to result in a conviction. He said there was a severe lack of evidence indicating she did not consent to having sex with her alleged rapist, ordering the government to pay his legal bills. In his judgment awarding the accused legal costs, judge Peter Whitford launched a scathing critique of the ODPP for bringing “meritless” rape accusations before the court, and urged judges not to “remain silent” on cases with no reasonable prospects of a conviction.
The case centred on a meeting between her and her alleged attacker (name withheld) at a bar in Sydney’s inner west on August 14, 2019. The pair at the time were just friends, she says, despite having met on Tinder a year prior and having had a handful of casual sexual encounters throughout their relationship.
She had just returned from an overseas trip. She planned to meet with her boyfriend that night, but agreed to first catch up with the alleged attacker for a drink that afternoon at the Native Rose Hotel in Rozelle. When she arrived, he had ordered them a beer each and they chatted casually. They had a second round of drinks, and then a third. She doesn’t remember anything after that until she woke up in Tyler’s bed.
Evidence adduced at trial showed she had had another two drinks, making five in total. Two forensic pharmacologists explained the phenomenon of an alcoholic blackout – where seasoned drinkers can permanently lose their memory for periods while appearing to observers to be completely normal.
The judgment, which followed similar criticism from other judges in sexual assault matters that never had any hope of conviction, would later become the tipping point for a state-wide audit of all rape cases. It would be intensely debated in state parliament, and circulated as gossip through the legal world.
Judges, barristers, solicitors and defendants have slathered criticism on the ODPP, claiming that running meritless rape cases impedes on trust in the justice system, sees men “falsely accused” of assault, and adds strain to already strained government funds. The ODPP and director Sally Dowling have always rejected this criticism.
“It’s an excruciating experience,” she says. “I’m not certain, I don’t think it was ever put to me that I was just lying, because of my lack of memory. “It was put to me that I had been mistaken, that I’d engaged in a consensual interaction.” She can’t maintain that the incident wasn’t a consensual encounter, because she has no memory of it. But, she says, based on information available to her – the bruises, the blackout, finding her underwear on backwards – it is the most plausible explanation.
“The only person who will ever know that conclusively is the defendant,” she said.
Prosecutors who engage in such cavalier prosecutions have no excuse. The claimant and the system pay the price – in various ways.