A well-known Bay of Plenty man accused of raping a teenager in Wellington has been acquitted - with the judge saying "intoxicated consent is nonetheless consent."
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The man was on trial in Tauranga District Court this week and was today found not guilty of a charge of sexual violation by rape.
The complainant, now aged in her 30s, was in college at the time and told the court she and the defendant began drinking together after meeting at a Wellington bar.
She alleged she had sexual intercourse with the defendant that night but did not recall how she got to the defendant's room.
Under cross-examination by defence lawyer Paul Wicks QC, the complainant agreed her recollections of the alleged sexual encounter were "snapshot and fragmented" memories.
The defendant - who was granted permanent name suppression - chose not to give evidence or call witnesses but a video-recorded police interview was played to the court in which he denied any memories of that time.
Judge Paul Mabey QC, who presided over the judge-alone trial, read his verdict to the court today. "There is no issue as to identity. There is no dispute that sexual intercourse occurred. What is at issue is consent and the Crown must establish guilt beyond a reasonable doubt."
Judge Mabey said the Crown relied on a "circumstantial case" that the complainant was so drunk she was incapable of freely giving her consent, nor had the defendant had reasonable grounds to believe she was consenting.
"The defence position is that the evidence does not go that far and I cannot be satisfied beyond a reasonable doubt that the Crown has ...consent."
Judge Mabey said while the complainant's memory of events was sporadic and in the form of "snapshots" she was able to inform a friend she was going off with the defendant.
"She was sufficiently in control of her mind at that point to be able to not only make a decision to call her friend but to tell her what her plans were," he said.
"I do not consider the complainant's evidence to be sufficiently reliable for me to conclude that matters were as she says. Her reconstruction of past events is infected with unreliability as demonstrated by the evidence of other witnesses," he said.
Judge Mabey said the complainant's actions in going to the motel and the detail she was able to give her friends was consistent with consent.
"I accept that she was intoxicated but an intoxicated consent is nonetheless consent."
Judge Mabey said he also wanted to record in his written verdict that he was "unimpressed" with the defendant's police interview.
"I do not think it is credible that he would have no memory of being with a young girl who vomited in a taxi with whom he had sex with sometime later," he said
"I consider the defendant lied to the police in his interview but there are often reasons for lying that are consistent with innocence. A lie is not always an indication of guilt.
"I am prepared to accept that his deliberate vagueness at the interview was designed to avoid saying anything that may amount to an admission of infidelity when he was a younger married man," the judge said.
The man's lawyer Paul Wicks sought permanent name suppression for his client on hardship grounds.
Judge Mabey said suppression decisions required "balancing public and private interests", noting the presumption of open justice applied in criminal cases.
"I consider there is a real risk of extreme hardship to the defendant if the interim suppression orders made ... are not made permanent, and I am not prepared to take that risk."