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EXCLUSIVE How a 'downward dog' yoga mat sex act on a couple's romantic weekend away turned a tradesman's life upside down: Furious judge SLAMS rape case against him in court
A tradie cleared of raping his yoga-loving girlfriend while she was doing the 'downward dog' during a Blue Mountains getaway should never have faced trial, a judge has ruled.
A jury took just 25 minutes to acquit the 35-year-old man of one count of sexual intercourse after hearing three days of evidence in late April.
Judge Craig Everson, who presided over the trial in Penrith District Court, has now ordered the DPP to pay the man's legal costs for a prosecution he described as 'doomed to fail'.
In a scathing decision published on Thursday, Judge Everson found there were 'glaring differences' between the alleged victim's evidence and what her mother and friends testified she had told them.
'To be clear, I am of the opinion that this prosecution of (the man) was instituted, and maintained, either without, or in spite of, proper professional advertence as to whether there existed reasonable prospects of securing a conviction,' he found.
Daily Mail Australia has chosen not to identify the acquitted man because there has been no previous media coverage of his trial and the case against him was dismissed so easily.
The court heard the man and the woman, who works in the fitness industry, met in Melbourne in 2020 and began dating several weeks later.
The couple enjoyed bushwalking and decided early in 2021 to drive up to the village of Yellow Rock on the lower slopes of the Blue Mountains for a short holiday.
There was tension between the two during the trip which had not been resolved when they arrived at their homestay accommodation at about 7pm on April 2.
The woman gave evidence she got out of the bed she shared with her boyfriend the next morning, put on her gym clothes and rolled out her yoga mat in front of the television.
After warming up with stretches, she began her yoga routine as her boyfriend came out to heat up his breakfast.
'The [woman] gave evidence that when she was in the upside-down V shape referred to in yoga as "downward facing dog", she heard the [man's] chair move in the kitchen,' Judge Everson said in his judgment.
'According to the [woman], the [man] walked up behind her, pulled down her exercise pants and underwear and she started saying "no".'
The woman claimed her boyfriend then digitally penetrated her.
She testified she said 'no' eight or 10 times and 'found it hard to get out of the yoga position that she was in' while her boyfriend continued.
That act was the subject of the formal statement of complaint the woman made to police more than two years later on July 13, 2023.
The man, who was under no obligation to give evidence, told the jury he had initiated sexual activity with his girlfriend while she was doing yoga in the living room.
'In his words, the [man] played with the [woman's] "bum" on the outside of her clothes,' Judge Everson said.
'In response to that, the [woman] rubbed herself against him and the [man] then pulled down her pants and continued to play with her "bum".
The man said when he touched the woman outside her underwear in a more intimate way she said 'no' or 'stop' and he pulled away.
Judge Everson said the man maintained 'that thereafter there was no discussion at all about the incident and the pair remained on holiday for the duration of the period hiking, sightseeing and engaging in further sexual contact'.
The woman first reported the allegation of sexual assault to Victoria Police on December 27, 2022.
According to Judge Everson, the woman initially told police that in the aftermath of the yoga incident she walked outside and was 'crying and hyperventilating, like she was having a panic attack'.
'[The woman] went on to say that the [man] and she slept in the same bed, went on a few hikes, including to the Three Sisters lookout.'
Under cross-examination, and contrary to her evidence-in-chief, the woman conceded she had anal sex with her boyfriend the day after the alleged assault.
Also omitted from her evidence-in-chief was 'an apparently pleasant trip to Bondi and the sending of intimate photos to the accused on 7 April 2021, whilst they were still at Yellow Rock'.
Three of the woman's friends and her mother gave evidence about what she told them had happened.
Judge Everson, a former Deputy Senior Crown Prosecutor, found all four witnesses' testimony was 'inconsistent' with the DPP's case and contradicted the woman's evidence.
In the man's costs application the Crown submitted the case it brought against him was one of 'word against word which involves an assessment of credibility'.
Judge Everson found the prosecution of the man was 'much more than a "word on word" case' and should never have taken place.
'The issue in the proceedings featured significant weaknesses in the Crown case that the Crown must have been aware of at the outset,' he ruled.
'Namely, the glaring differences between what the complainant asserted she told her mother and friends about the alleged sexual assault and what those complaint witnesses stated they had been told by the complainant.
'The relevant facts also include the contrasting aftermath account given by the complainant with the evidence given by her under cross-examination.'
Judge Everson said the inconsistencies between the woman's evidence and that of mother and friends 'meant the prosecution case was doomed to fail'.
'All things considered, I am satisfied the [man] has discharged the onus upon him of showing that it was not reasonable to institute the proceedings brought against him,' he ruled.
The man, who was represented by George Sten & Co Criminal Lawyers, would lodge a claim for costs of about $100,000, sources said.
