Callan Sinclair's lawyer has told a jury "consent that is later regretted is still consent" during his closing remarks after outlining the evidence that supports his client's claims that a threesome with footballer Jack de Belin and a woman was consensual.
Barrister Craig Smith SC wrapped up his case on Tuesday afternoon during the fourth week of the NSW District Court trial for de Belin, 29, and Sinclair, 23, who have pleaded not guilty to five counts of aggravated sexual assault.
The pair are alleged to have jointly raped a then 19-year-old woman in a Gipps Street, North Wollongong apartment on December 9, 2018 following a night out at Mr Crown.
Read more: The Jack de Belin rape trial so far
Mr Smith told the jury they "could easily conclude they [de Belin and Sinclair] did not treat the complainant as attentively as they should have."
"Consent given at the relevant time but later regretted is still consent."
During the final moments of his address to jurors, Mr Smith said the prosecution's case relied on the "reliability and accuracy" of the complainant's evidence.
"In my submission, you could not be satisfied of either of those things," he said.
"Where there is objective evidence, it supports that which is said by the accused."
Mr Smith said the CCTV footage at Mr Crown, of the trio in the tuk-tuk and them walking to Fever Nightclub, as well as the telephone intercepts, supported de Belin and Sinclair's version of events.
Mr Smith said the footage of the trio walking to the line of Fever Nightclub was "stark, objective, independent" as well as "compelling".
The jury was shown footage of the woman walking behind the men after getting out of an Uber that had taken them from the apartment to opposite Heydey Nightclub following the alleged sexual assault.
The woman claimed she could not get away from the men, however at one point Sinclair can be seen with his arm around her and the woman appears to smile and laugh while de Belin is asked to take a selfie with fans outside Spotlight.
She is also seen to tap Sinclair on the arm before she walks off and calls an Uber to take her home.
In her evidence the woman said she was trying to put on a brave face and said she did not know why she was laughing.
"The complainant's evidence is completely different, and bears no resemblance to what the footage captures," Mr Smith said.
Mr Smith earlier noted the woman and Sinclair shared "passionate kissing", despite the woman saying they were only short kisses, at Mr Crown before Sinclair touched the woman's breasts.
"People are sexually attracted to each other," he said.
"Everyone is entitled to have a good dance, young women and men, and everyone likewise is entitled to be keen on each other."
Mr Smith said the woman's "affection", particularly to Sinclair, did not cease or stop, and there was nothing wrong with what she was doing.
"By the time they had left Mr Crown they had hooked up," he said.
Mr Smith said the footage of the trio's tuk-tuk ride after leaving Mr Crown showed it to be "a happy time", not the "angry" time described by the woman.
"Independent evidence paints a different picture than what the complainant gives you," he said.
"The complainant's evidence was the whole reason they were leaving town was effectively so the two boys could charge their phones."
But Mr Smith asked if it made sense that two men who had been on a Santa pub crawl would go home to do that or even to change their clothes.
"Or does it make more sense that three people are going somewhere together consensually?" he asked.
Referring to telephone intercepts, Mr Smith submitted they wouldn't have known the men were being recorded.
"Every time there is mention of sexual activity it is consensual sexual activity," he said.
"You might think in the telephone intercepts, there is utter disbelief of the suggestion of a sexual assault.
"You heard the emotions in the calls."
Mr Smith reminded the jury that Sinclair had been recorded saying, "she took her top off and everything ... she was enjoying it, changing positions. It just baffles me."
Mr Smith also noted Dr Ann Ellacott who examined the woman on Sunday, December 9, observed redness to the woman's collarbone region and a linear bruise on the right side of her neck.
"There was no post-assault symptoms relating to the neck, to the abdominal region, to the genital region front or back, and to the scalp," he said.
"Practically, if what occurred as alleged by the complainant did in fact occur, then my submission is, you would expect to see injuries consistent with that allegation," he said.
"It was consistent with consensual activity."
Meanwhile, De Belin's barrister, David Campbell SC, who will continue his address on Wednesday, stressed the "powerful" evidence given about his client's good character and the content of secretly recorded conversations when the accused repeatedly referred to consensual sex.
The trial continues.
- with Australian Associated Press
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