The jury in the County Court trial of a Ballarat man accused of five counts of rape has retired to consider its verdict.
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It is the second week in the trial of the 35-year-old man (who The Courier has chosen not to name to protect the complainant’s identity), who is accused of raping his estranged wife at two locations over three days in February 2017.
On Tuesday the jury heard closing addresses from both the Crown and defence, followed by final directions from Judge Bill Stuart.
A ballot was then held to dismiss one of the 13 jury members before the remaining 12 retired to deliberate.
Crown prosecutor Mr David O’Doherty reminded the jury of testimony from prosecution witnesses who all supported the complainant’s account of what was alleged, including the detailed evidnce given by the older of the children in a Visual and Audio Recording of Evidence (VARE) on 9 February 2017.
Following prosecutor Mr O’Doherty’s closing summary, defence barrister Alan Hands told the jury “Mr O’Doherty is a very plausible prosecutor and he could present a pig’s ear as a silk purse, but … it is still a pig’s ear.”
Mr Hands went on to say that the prosecution case “beggars belief.” He said the complainant had fabricated the rape allegations because, on 22 February 2015, the accused “had walked out on her and never looked back”.
Mr Hands said the complainant had been angry that the accused was not able to have the children for an access visit on 14 February 2017, “on Valentine’s Day” and had “begun building a case against his client.”
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He said the allegation of rape on 2 February 2017 was “patently false”, because there was “no witness and she didn’t report it straight away”, and “it simply didn’t happen.”
Mr Hands told the jury that on 3 February 2017, when police allege the third charge of rape occurred, the accused had been at the house to pick up (a child) at the request of the complainant.
In responding to a jury question as to why the accused had taken a “selfie” photo with the child at 7.09am that day, which was later tendered as evidence for the defence, Mr Hands said “because my client was so chuffed to have his (child) with him.”
Mr Hands said the accused did not know how the complainant sustained bruising on her leg or the 2cm scratch on her perineum.
He said it was possible the scratch had occurred when the complainant sat on a record player and it had “broken” while she was at the former family home on 7 February 2017.
Police allege the complainant was raped by the accused on 7 February while they were at the house to meet with real estate agents to discuss listing the house for sale.
Judge Stuart told the jury that the DNA evidence was “inadmissable” and directed the jury to “draw conclusions from accepted facts”.
“This is an exercise of the intellect and the mind, not the heart. You stand between the prosecutor and the accused,” he said.
He also cautioned the jury about inconsistency of evidence and said “the onus always lies with the prosecution to prove the case beyond reasonable doubt.”
“Your responsibility is to decide on the basis of the totality of the evidence,” he said. “In a criminal trial you can’t speculate, you can’t guess.”
Judge Stuart said there were three elements of rape that must be proven for the jury to find a person guilty; “that the accused intentionally sexually penetrated the complainant, that the complainant did not consent at the time of the sexual penetration and that the accused at the time of the sexual penetration did not reasonably believe she had consented.”
The jury were reminded that the verdict of all 12 members is required.
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