KEY POINTS:
A claim of rape in the street made by a 39-year-old woman - described as "rotten" drunk at the time by the judge - has been thrown out of court.
Two days after the July 2006 incident, the woman made a second statement to the police saying she had consented to the late-night sex with a youth she did not know.
The consent statement was repeated in her depositions evidence and the Crown proceeded to trial on the basis that she was too drunk to have given a proper consent, the Christchurch Court News website reported yesterday.
But four-and-a-half hours into the Christchurch District Court trial of Joshua Allan Schooner in front of Judge Philip Moran and a jury, prosecutor Brent Stanaway decided the Crown would proceed no further.
Judge Moran agreed and discharged Mr Schooner, a 21-year-old labourer. He told the court Mr Schooner had arrived at court as an innocent man and would leave as an innocent man.
He said the woman had later rationalised the sex-in-the-street encounter by saying, "It's not something I would do. I'm not like that".
"When she is sober, she is no doubt a very proper and moral and well behaved lady, but people do strange things when they are drunk. She was rotten, and who knows?
"We can't run the risk of letting this man be convicted of a rape charge which in the end is speculative," Judge Moran said.
The woman had told how she regularly went to the suburban bar and drank heavily with a group of friends. She had regularly walked home "in drunken states".
On that day, she had drunk a mixture of bourbon, and then wine at home, and then beer in the evening at the bar. She set off "very, very drunk" for the 20 minute walk home late at night.
She could recall little of the journey that led to an encounter with Mr Schooner and sex on the concrete step outside a dentist's surgery in suburban Christchurch.
Mr Schooner said in a video statement to the police that he had been approached by her in the street and she had "pashed" him. "She wanted me to."
He noticed that she was crying as they sat together afterwards, though she says he ran off straight away.
The woman told the court she had not consented and she would not have consented. She had a stoma bag taped on her stomach at the time because of surgery five months before the incident. She was embarrassed about it, and did not even let her husband see her body when the bag was in place.
Defence counsel Michael Knowles pointed to the second statement she made to police two days after her rape complaint, in which she said: "I was walking down xxxx Road. A male who was unknown to me asked me for sex. I agreed by saying yes."
At the trial she denied consenting, and said she was scared and traumatised and did not recall making that second statement. She said the first thing she recalled of the encounter was being on the cold concrete step, with a man on top of her, and saying no.
She said the man had got off her a few seconds after she said no.
The other defence counsel, Marcus Zintl, told the court in the opening, that Mr Schooner had stopped as soon as he realised the woman had withdrawn her consent. Both Mr Schooner and the woman had been drinking beforehand. "Drunken consent is still consent even if it is soon regretted afterwards."
After the woman's evidence, Mr Stanaway told the court: "Having regard to the position we have now reached, and the crown's inability to rebut the defence of consent or reasonable belief in consent, I accept it is inappropriate for me to proceed further."
- NZPA
