Just because a drunk woman can’t remember sex with former NRL player Tristan Sailor does not mean she didn’t consent to it, his lawyer has told a jury.
Sailor is accused of having sex with the woman while she was either unconscious or too intoxicated to consent after a night out in Sydney with friends in October 2020.
The woman has told the court she remembers returning to her apartment, taking two sips of her drink and little else before waking the next morning, naked and bleeding in urine-soiled sheets.
Sailor, 23, has pleaded not guilty to two rape charges and maintains the sex was consensual.
The woman was conscious and engaging the entire time they were having sex, he has told the District Court trial.
In summing up his case on Wednesday, Sailor’s barrister Richard Pontello rubbished the complainant’s evidence, saying she was uncooperative and less than forthcoming.
The woman gave evidence that she had never found Sailor attractive nor did she want to have sex with him.
But Mr Pontello argued those assertions contradicted her behaviour at Bondi’s Beach Road Hotel with Sailor earlier on the evening, where she admits to passionately kissing him.
“There’s over 60 instances … of the complainant initiating or starting some kind of physical contact with Mr Sailor,” he said.
“Now why would that attitude have changed back at the apartment?”
Either she’s a “complete fraud or trickster” who was leading Sailor on, or she was indeed attracted to him.
Mr Pontello also accused her of exaggerating the influence of alcohol.
She had consumed 11 drinks, but over a period of six hours, and seemed “perfectly normal” in CCTV footage captured over the night.
“You don’t even have to take anyone’s word for it really, just watch the CCTV … there’s no wobbling whatsoever,” Mr Pontello said, contradicting the prosecutor’s claims she stumbled at least twice.
He also pointed to evidence given by two experts that the woman’s blood alcohol level would have peaked at around 0.13 per cent – a level more than double the drink drinking limit, but still one at which people can perform complex tasks.
Mr Pontello similarly told the jury to discard the evidence of her friend, who said she found the alleged victim lying naked on the floor of her room after Sailor left, before putting her to bed and cleaning up her vomit.
“She’s just a liar. I can’t put it any more bluntly than that.”
Even if the jury does accept that the alleged victim blacked out, vomited and wet the bed, those things do not prove she was substantially intoxicated, he said.
Likewise, accepting the alleged victim blacked out does not mean she did not consent.
The complainant could have appeared to be conscious, coherent and fully alert during sex and yet have no memory of it the next day, he said.
Sailor was a man of good character and had asked three times for her consent, Mr Pontello said.
“What else is he supposed to do? Get her to sign a memorandum of understanding witnessed by a lawyer?”
The woman had simply subsequently convinced herself she hadn’t given consent after waking up with no memory of the sex.
“She believes it to be true, but she’s wrong,” Mr Pontello said.
The Crown prosecutor on Tuesday argued it was Sailor’s evidence that the jury should disregard, saying it is “fundamentally at odds” with other evidence in the trial.
The jury is expected to retire to consider its verdict on Thursday.
