Verdict likely today for men accused of raping woman in hotel room

Jason Trembath, pictured in 2017 batting for Taradale in club cricket, has been on trial in the Napier District Court this week. Photo / File

A jury has retired to consider its verdict for two men charged with raping a woman in a Napier hotel room.

Joshua Craig Pauling, 30, and Jason Robert Trembath, 30, have been on trial in the Napier District Court this week.

The Crown has alleged the men raped a woman in a Napier hotel room on August 14, 2017, with one of them posting an explicit photo of the night on Facebook.

Both defence counsels told a jury of nine women and three men that the sex was consensual but the Crown says the woman was too intoxicated to give consent.

Both men are accused of rape, sexual violation and unlawful sexual connection.

Trembath previously pleaded guilty to making an intimate visual recording. Pauling pleaded not guilty to being party to taking the photo.

Joshua Pauling said the sex was fully consensual between him and a woman at a Napier Hotel in August 2017.

The woman said she met Pauling days before the incident occurred on dating app Tinder and the pair slept together, but Pauling told the jury he had met the woman in June 2017, not August.

Crown prosecutor Steve Manning said the woman was not in Hawke's Bay in June at the time Pauling had specified; she had flown to another city in New Zealand to visit family.

He produced evidence of her flight and hotel bookings to prove the woman and Pauling could not have met at the time he claimed.

Defence counsel for Pauling, Darren Foster, told the jury in his summary that Pauling simply mixed up the dates that they met.

Pauling and the woman met again on August 14 at a social event and went back to a hotel she was staying at - Trembath later joined them near midnight.

In a police interview played to the court, Pauling told a detective he had sex with the woman after they arrived at the hotel.

But during the trial he told the court he had no recollection of sleeping with the woman and he could only remember doing a sexual act with her.

Trembath admitted having sex with the woman shortly after arriving at the hotel, but he said it was consensual.

At 12.27am on August 15, he then posted an explicit photo of a smiling Pauling "straddling" the woman and gesturing at the camera on Facebook.

Pauling said he didn't know about the photo until days later and told the court that he didn't know it had been taken, nor did he give consent.

When it came to what happened in the hotel room Foster said there was no evidence that the woman did "not 'not' consent to the activity".

"You cannot be sure that she was unconscious or that she did not consent to what happened that night," he said.

Defence counsel for Trembath, Nicola Graham, also told the jury that in order to convict both men, they had to be sure that the woman was not consenting.

"You might not agree with the choices made by these people, but you don't judge their morals or life choices," she said.

Graham said the woman remembered part of the intercourse with Trembath, but still had consensual sex with Pauling the next morning.

Prosecutor Steve Manning said the men took advantage of a woman who was too drunk to give proper "lawful" consent.

"She says she doesn't remember … it speaks to the level of intoxication at the time," he said.

"She was the absolute object of derision ... it was a joke to them, not so funny now … but at the time that was their reaction."

Judge Rea said it was important for the jury to leave any level of emotion out of their decision making.

"You must come to your decisions free from any prejudice or sympathy," Judge Rea said.

"It's extraordinarily easy to feel sorry for people involved in something like this. You must make your decisions based on the evidence and not on your emotions."