The son of rugby league legend Wendell Sailor was led on by a woman who accused him of rape and later developed amnesia, a jury has been told.
Tristan Sailor, 23, is standing trial in the NSW District Court after he was charged with two counts of aggravated sexual assault.
The former St George Illawarra Dragons NRL player is alleged to have had non-consensual vaginal and anal sex with the woman at an apartment in Wolli Creek after a night out on October 3, 2020.
Delivering closing arguments on Wednesday, defence barrister Richard Pontello SC told jurors there was cause “to have serious doubts about the complainant’s honesty”.
Mr Pontello said Mr Sailor and the woman met via the social media app Instagram in March 2019 and exchanged messages in which she called him “honey” and “baby” and sent kissing face and red love heart emojis.
The court was told the woman claimed the emojis were meant to show a desire to end the conversation, but Mr Pontello said the woman later sent Mr Sailor her Snapchat details when he asked for them.
“That’s hardly ending the conversation is it?” Mr Pontello said.
“She didn’t use any of those emojis to end the conversation at all.”
Other messages about the woman’s bed size, and her statement that if Mr Sailor played his cards right there would be room for him in her bed, would cause the jury to have “serious doubts” about the woman’s honesty, Mr Pontello told the court.
“The complainant’s insistence that she was never attracted to Tristan in any way at all flies in the face of that text exchange,” Mr Pontello said.
The woman could have “made up” stories about how she was not attracted to Mr Sailor and only went to an apartment with him after their drinking session because she felt “trapped”, Mr Pontello told the court.
“Either she’s lying when she said she never intended to trick Mr Sailor into thinking she was attracted to him … or she was lying when she said she was being deliberately dishonest by leading him on,” he said, adding the woman’s behaviour could be described as “devious”.
“At best it’s not very nice,” Mr Pontello said.
“The attraction was of course mutual. The underlying physical and sexual attraction manifested itself at the Beach Road Hotel in October 2020.”
Mr Pontello said when Mr Sailor and the woman met in person for the first time on the night of the alleged assaults, she was kissing, hugging and touching him in the beer garden of Bondi’s Beach Road Hotel.
“The complainant here agreed that she consented to all of the physical contact she had with Mr Sailor at the Beach Road Hotel … and there was a lot of it,” he said.
“There’s over 60 instances … 64 to be precise … of the complainant initiating or starting some sort of physical contact with Mr Sailor.
“Why would that attitude have changed back at the apartment?”
During the drinking session with Mr Sailor and one with her friend beforehand, the court was told the woman was estimated to have consumed about 11 standard alcoholic drinks, a number Mr Pontello said amounted to a blood alcohol concentration (BAC) level of 0.13 – the same as someone charged with mid-range drink-driving.
“People can perform complex tasks, like driving a motor vehicle, at 0.13,” he said.
“Sure it’s 11 standard alcoholic drinks … but don’t forget to look at the big picture. It’s over a period of nearly six hours.
“The BAC was on the way down by the time the complainant was at the apartment.”
Mr Pontello told the jury “the complainant was not substantially intoxicated at any time that evening” and CCTV footage of her movements at the pub and apartment complex backed up that assertion.
“There’s no wobbling whatsoever at the Beach Road Hotel,” he said.
“The hotel have the RSA responsible service of alcohol policy, and the Covid marshalls had a role to play in enforcing this policy.
“Really, the complainant deliberately exaggerated her level of intoxication to paint the picture that she was in no fit state to object to sex.”
The woman’s friend who accompanied her to the hotel and the apartment with another NRL player, Eddie Blacker, was also accused of exaggerating the woman’s level of intoxication.
“It’s all lies,” Mr Pontello said of the friend’s testimony, which included a claim she was in a bathroom at the pub with Mr Sailor and the woman despite CCTV showing her outside.
“She’s just a liar, I can’t put it any more bluntly than that,” he said.
“Even when she wasn’t lying she was unreliable to the point where you couldn’t act on her evidence.”
Mr Pontello told the court that a medical expert had told the trial the woman’s level of intoxication meant she could have suffered a blackout and forgotten about having sex with Mr Sailor despite appearing conscious, coherent and fully alert while having sex.
“That’s exactly what happened in this case,” he said.
“The evidence was the complainant was nxjmtzywot a regular drinker so she would have potentially felt the effects of alcohol more than persons with a higher tolerance.
“If the complainant freely and voluntarily consented … but later had no memory … that does not mean she did not consent.”
Minutes before the alleged assaults, the woman was playing an R-rated version of the drinking game Never Have I Ever and Mr Pontello said she was able to answer questions about anal sex coherently.
“Not only does the complainant have a memory of the question being asked but she remembers looking at Mr Sailor when she responded to that question,” he said.
“She wanted to see his reaction. Why would she do that … if she wasn’t interested in having sex with him?
“How could the complainant have gone from functioning normally at the table playing the drinking … and then end up not functioning properly in the bedroom in that short space of time? It’s impossible.”
Mr Pontello told the jury the woman did not initially disclose to police that she had played the Never Have I Ever game.
“Even after she disclosed to police that she took part in the game … she said nothing about the nature of the questions that were asked until February 18 this year … in circumstances where the trial started on February 28,” he said.
“The complainant deliberately withheld material information from the police for fear it would undermine her claim that she was sexually assaulted.”
Mr Pontello said the woman repeatedly told the court she had “no memory of what happened” and sent a message to her ex-boyfriend saying she may have thought Mr Sailor was him.
“If you’ve got no memory of a significant event … you’re always going to try to piece together or recreate in your own mind what happened,” he said.
“When people don’t have a memory of what happened they’re very much open to suggestion. She assumed what she didn’t know and then convinced herself it was the truth.
“He (Mr Sailor) asked her for consent three times, she said yes three times. What else is he supposed to do? Get her to sign a memorandum of understanding witnessed by a lawyer?”
The trial continues.
