Two men accused of raping an intoxicated woman say they had consensual sex with her before one of the men posted an intimate picture of her on Facebook.
The phone camera image depicted one of the accused astride the woman - whom he had met on Tinder - in a Napier hotel room after a night out at the Hawke's Bay Hospitality Awards in 2017, a jury was told in the Napier District Court today.
Jason Robert Trembath, 30, and Joshua Craig Pauling, 30, were arrested after police were made aware of the picture.
The pair today appeared before Judge Geoff Rea and a jury of nine women and three men, in a trial that is set down for two days.
Both men are accused of rape, sexual violation and unlawful sexual connection.
Trembath has admitted making and being party to an intimate visual recording.
Pauling has denied that charge.
Crown prosecutor Steve Manning told the jury that in 2017, Pauling had met the woman on the online dating app Tinder and they had consensually slept together in the days leading up to the incident.
Both Trembath and Pauling worked together at a wholesale food retailer and attended the Hawke's Bay Hospitality Awards held on August 14, 2017.
The woman also attended the awards and met up with Pauling at the after party celebrations where she was introduced to Trembath.
She had about four to five glasses of white wine, which she said she drank slowly.
Pauling offered her rose, which she didn't usually drink, but she consumed about two to three glasses.
"She later said her memory was gone. She's drunk to excess in the past but has never experienced a lack of memory like she did on this occasion," Manning said.
She and Pauling took a taxi back to her Napier Hotel where Trembath later joined them.
"There were multiple short phone calls in the lead up to midnight that suggested they (Pauling and Trembath) were not together, then no communication between their phones, then a photo posted to Facebook," Manning said.
"It's alleged that these two engaged in sexual conduct with a women in a hotel room where she was so drunk that she was unable to provide consent."
"They knew damn well she wasn't consenting."
Trembath took a photo of Pauling "straddling" the passed-out woman and posted it to Facebook as well as texting it to people he worked with and played cricket with.
Defense counsel for Pauling, Alan Cressy and counsel for Trembath, Nicola Graham, told Judge Rea that the act had been consensual.
"He (Pauling) believed the sex was consensual – therefore he's not guilty to the rape. Mr Pauling did not know he (Trembath) was about to take a photo and he did not insist or ask him to take a photo," Cressy said.
Graham told the court: "You will hear he (Trembath) accepts that he had sex. He believes she was consenting".
The woman gave evidence at the trial and said she woke up the next morning beside Pauling feeling "really sick".
She went to get a glass of water before going back to bed, but noticed the hotel door wasn't "quite shut."
"I was aware someone else had been there, but they weren't there when I woke up," she said.
Later that morning she and Pauling consensually slept together before he left the hotel.
Graham asked if the woman remembered Trembath having sex with her on the floor of the hotel room the night before. The woman said she "vaguely remembered him being on top of her".
"You said something happened the night before but you didn't know what, yet you had sexual intercourse (with Pauling) the next morning, so you can't have been that concerned," Graham said.
"Despite knowing what happened, you still liked Joshua Pauling."
The woman later contacted Pauling as she began recalling memories from the night.
"I don't understand how I went here (the hotel) with you – to not just you. I have these horrible memories that keep coming back and I don't understand why," she wrote in a text message.
The photo taken by Trembath later came to the attention of the police who approached the woman, who had not seen it, Manning said.
"I had no idea about the photo until a few months later, " the woman said tearfully.
She told Graham she recalled Trembath having sex with her after the photograph was shown.
The trial continues.