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EXCLUSIVE Innocent tradie thought his nightmare was over when he was cleared of a shocking 'downward dog' rape on a yoga mat. But it's now turned out, that was just the start...
A tradie cleared of raping his girlfriend when she was in the 'downward dog' yoga position while on a Blue Mountains getaway is now facing a fresh legal hurdle.
A jury took just 25 minutes to acquit the 35-year-old man of one count of sexual intercourse after three days of evidence and a judge later ruled he should never have faced trial.
Judge Craig Everson, who presided over the hearing in Penrith District Court in late April, ordered the DPP to pay the man's legal costs defending a prosecution he described as 'doomed to fail'.
But on Thursday, the DPP challenged Judge Everson's ruling, claiming in a Court of Criminal Appeal application that his decision was 'unreasonable or plainly unjust'.
In a scathing judgment published on June 12, 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.
As well as appealing against Judge Everson's decision to grant costs against the DPP, the prosecuting authority alleges he 'erred in his assessment' of the woman's evidence.
Maggie Sten, of George Sten & Co Criminal Lawyers - the law firm which represented the man - was stunned the DPP had not accepted Judge Everson's ruling.
'I've never heard of anything like it,' Ms Sten said.
'I can't understand why more taxpayer funds are being wasted on this.
'The judge was quite within his rights to make the findings he found based on the evidence in the case.'
The acquitted man had been likely to claim about $100,000 in costs, sources said.
Daily Mail Australia has chosen not to identify the man because there was no media coverage of his trial and the case against him was dismissed so easily.
The court heard the man and the woman - who worked 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 Tall Timbers Cottage 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 to ten 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 occurred.
'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 her 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.
