A former Cricket Australia government has misplaced his bid to have a sexual assault allegation thrown out of courtroom.
Timothy Joseph Whittaker, 38, is dealing with a contested listening to within the Melbourne Magistrates’ Court over two allegations he sexually touched sleeping males in 2016 and 2019.
He strenuously denies the allegations and is combating the fees.
At the tip of the prosecution’s proof on Friday, Mr Whittaker’s barrister Dermot Dann KC argued that the 2016 allegation needs to be dismissed on a no-case-to-prove foundation.
A no-case submission is made when an accused’s defence argues that the case towards their consumer is inadequate to help a discovering of guilt and needs to be dismissed.
Mr Dann argued that whereas the defence didn’t concede there was sexual touching, the prosecution had not confirmed Mr Whittaker was awake when the alleged act occurred.
“He (the alleged victim) said he believed for years he was asleep,” Mr Dann stated.
“His ultimate position is, because he’s heard a rumour, he’s changed his mind.
“His evidence is while the man’s (Mr Whittaker) hand is making contact with his penis, he (Mr Whittaker) looks asleep and sounds asleep. The defect goes to a central element of the case.”
Under Victorian regulation, prosecutors should show an individual accused of sexual offending made a acutely aware, voluntary and deliberate determination to interact within the conduct.
But prosecutor Sharn-Adelle Coombes that that the proof of the alleged sufferer was that Mr Whittaker allegedly had his hand down the complainant’s pants and made a “deliberate movement”.
Mr Whittaker took the stand on Monday to say he denied he was ever current within the mattress and selected to sleep on the sofa.
Rejecting the no-case submission, Justice of the Peace Timothy Gattuso famous that whereas the alleged sufferer had initially believed Mr Whittaker was asleep he had doubts.
“His evidence was that when he heard of another (alleged) incident, without hearing the detail of it, he stopped giving the benefit of the doubt to Mr Whittaker,” he stated.
“That means he must have had an initial doubt about whether he might have been asleep.”
During the listening to, the courtroom was instructed the person allegedly woke to Mr Whittaker stroking or rubbing his penis after a heavy evening of consuming in January 2016.
The courtroom was instructed the person filed a criticism to Cricket Australia in December 2021 after listening to rumours of comparable allegations.
The matter was referred to police who had been already investigating an allegation of sexual touching with out consent following a Cricket Australia end-of-season social gathering in March 2019.
The man alleged he had “blacked out” on Mr Whittaker’s sofa and woke to the accused man touching his penis round 5.30am.
Several former Cricket Australia workers instructed the courtroom they awoke later the identical day to search out missed calls and voicemails from the alleged sufferer.
“They were all from (the alleged victim) saying that something really f–ked up had happened at Tim’s,” former Cricket Australia worker Jane Livesey instructed the courtroom.
The listening to continues.
Source: www.news.com.au
