A jury will soon retire to deliberate on whether former NRL player Tristan Sailor is guilty of raping a woman who was allegedly so drunk she woke up the next morning naked and bleeding, with no memory of what had happened.
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 23-year-old has pleaded not guilty to two rape charges and maintains the sex was consensual, telling the District Court trial the woman was conscious and engaging the entire time.
In summing up his case on Wednesday, the former St George Illawarra player’s barrister Richard Pontello urged the jury to reject the complainant’s evidence, saying she was uncooperative and less than forthcoming.
Mr Pontello argued she was clearly attracted to Sailor, pointing to her interactions with him at a venue 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?”
He also argued she had 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, Mr Pontello said, contradicting the prosecutor’s claims she stumbled at least twice.
Even if the jury does accept that the alleged victim blacked out, vomited and wet the bed – as she and a friend told the trial – 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 had asked three times for her consent, Mr Pontello said and the woman had simply convinced herself she hadn’t given it after waking up with no memory.
“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.