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Counsel focuses on credibility at rape trial

A 26-year-old Pembroke man charged with sexual assault denied his accuser's version of events at his Supreme Court trial yesterday.

The man who cannot be named for legal reasons took the stand and insisted that he and the alleged victim had consensual sex.

"The whole story she told was a make-up,'' said the accused while being cross examined by prosecutor Charmaine Smith.

The complainant had previously testified that a night of drinking and dancing had ended with her being raped in her own car.

Yesterday's Supreme Court session ended with Ms Smith and defence counsel Richard Horseman addressing the jury.

Only three witnesses -- the defendant, a Police officer and the complainant -- have testified in the two-day-long trial in front of Acting Puisne Judge Archibald Warner and a seven-man, five-woman jury.

The complainant testified she went out with a girlfriend one night in May last year and encountered the defendant who was known to both of them in two nightclubs.

She told the court that the defendant hopped into the back of her car, uninvited by her, when she and her girlfriend left Ambassadors nightclub later that night.

The girlfriend drove herself home, with a male friend following on a bike behind, the jury heard. When they arrived at the girlfriend's house, the complainant went inside to use the bathroom and when she returned she found the defendant in the driver's seat.

The woman told the court that her anxiety was calmed by her friend and the fact that another friend was following them to make sure she got home safely.

But, said the woman, her anxiety began to mount when he started speeding and driving recklessly through Hamilton, and he ignored her pleas to stop.

The man stopped at a secluded area on Berkeley Hill, but continued on because the gate to the field was locked, she said.

She testified that they then went on to Ducking Stool Park where a struggle ensued and he succeeded in forcing her to have sexual intercourse with him.

The woman testified that she felt "hopeless'' and so she asked him to use a condom.

Under cross-examination the woman denied defence counsel Richard Horseman's suggestion that she had made up the story as an excuse for her boyfriend. She also denied the lawyer's suggestion that she wanted to go for a drive with the accused. And she admitted that no scratches or marks were found on her body when she was medically examined the next day at the hospital.

The woman also denied Mr. Horseman's suggestion that they had consensual sex.

Under further cross examination the woman testified that she could not recall when her underwear came off and she accepted that her boots were on when it was taken off.

She also denied his suggestion -- and the man's testimony later -- that they began caressing each other at the Ducking Stool Park, he pulled her underwear down to her knees and got out of the car to put on the condom.

"You were out all night. Your boyfriend was upset and you came up with an excuse, didn't you?'' asked Mr. Horseman.

"No that is not true,'' the woman said looking directly at the jury.

In her address to the jury, prosecutor Charmaine Smith said that assessing whether the sex was consensual was "the only issue in this case''. But, she said, the jury would also have to decide who was telling the truth.

Ms Smith said that an indication that the complainant was credible was that she had revealed things that she did not necessarily have to tell the court, such as smoking marijuana in the bathroom of Champion's nightclub.

She also questioned why some aspects of the woman's testimony had not been aggressively questioned when cross examined by her accuser's lawyer.

Mr. Horseman focused on the burden of proof.

"It's called beyond a reasonable doubt,'' he told the jury. And he said that the standard for declaring his client guilty was "very high'' and "one you should not take lightly. It's not enough to look at all the evidence and say `I think he did it' or `he probably did it'. You have to be sure he did it.'' He went on to say that the prosecution had not presented any medical evidence indicating rape or damaged clothes despite the fact that the witness testified that a violent struggle had taken place.

Mr. Horseman continued his address by inferring that it would have been practically impossible for his client to put on a condom while pinning the woman down in the front seat of her car.

"It doesn't ring true,'' he said.

He reminded the jury that his client is presumed by the law to be innocent.

And he said that they only need to look at the fact that the complainant apparently remembered everything else but could not explain how her underwear came off.

"If you are looking for doubt ... that's all you need to look at,'' he said. "I say if you look at the evidence. If you adopt a clinical approach -- there is not enough evidence.'' Mr. Justice Warner will address the jury this morning.