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A man who twice raped his host after she had noticed his drunkenness and offered him a bed for the night has lost his appeal.
Anaru Leigh Tutanekai Wetere (38) was jailed for six years, nine months after being found guilty of two counts of rape and one of unlawful sexual connection following a jury trial in the Dunedin District Court last year.
At sentencing, his counsel Anne Stevens QC said her client maintained his innocence and took the case to the Court of Appeal last month.
She argued the jury’s findings were "unreasonable" and there was evidence that pointed to Wetere having a reasonable belief his victim consented.
The defendant had been on a boozy rugby trip on July 8, 2018, and was dressed in a Batman costume for the event, the court heard at trial.
When the victim realised he had no way of getting home, she said he could stay at her house in another room.
Wetere was in such a state of intoxication, the woman had to take off his shoes and put a blanket over him.
She fell asleep too, but woke about 2.30am to find the man violating her.
The victim gave evidence at trial that she had frozen and told the jury she "couldn’t get any words out".
When Wetere finished, she "just shut down" and went back to sleep, she said.
However, he repeated the ordeal again nearly eight hours later.
Again, the victim said nothing.
The court heard she showered and prepared breakfast for Wetere before dropping him at home.
After speaking to a friend later that day about her experience, she went to the police and made a statement.
When interviewed shortly after, Wetere said the entire evening was a "blackout" and claimed not to recall any sexual activity.
Mrs Stevens highlighted before the Court of Appeal the woman’s lack of verbal or physical protests but it did not find favour with Justices Christine French, Matthew Muir and Rebecca Ellis.
"The fact that there was no evidence that the appellant knew she was asleep cannot be relied upon as a reasonable basis for a belief in consent as he also did not know she was awake," Justice Muir said.
There was no sexual history between the pair, the court heard.
"The absence of protest from the complainant, whether verbally or, as Mrs Stevens suggests, by pushing the appellant away or crossing her legs, takes the matter no further ... Indeed it strikes us as a rather unattractive submission given contemporary understanding about how victims of sexual assault may react — and more particularly so where a victim awakes to an assault in progress."
The court similarly dismissed claims the Crown had made overstepped during its closing address, asking jurors to step into the shoes of the victim.
"We are some distance from being persuaded that a jury could not reasonably be sure that the appellant did not have a reasonable belief in consent in these circumstances," Justice Muir said.
Wetere will have his first parole hearing next year.