Jury urged to consider alternate attempted rape verdict in case of US navy sailor Hugh Malone
The crown prosecutor in the Northern Territory rape trial of a US navy sailor has told the jury it could consider an alternative verdict of attempted rape if it is not satisfied with evidence presented in the case.
Hugh Patrick Malone, 23, is accused of non-consensual sexual intercourse with a Darwin woman in a hotel room on September 4 last year.
The court heard Malone and other sailors from the USS Denver had met the woman and two of her friends in a Darwin bar, where they all drank and danced, before the alleged incident.
Several of these friends and acquaintances of Malone and the complainant have been witnesses in the trial.
At the beginning of his closing address, prosecutor Matthew Nathan told the jury there had been "inconsistencies in evidence in the case", when explaining to the jury its role in assessing the evidence and witnesses' credibility.
Mr Nathan repeated this statement when he suggested the jury consider an alternative verdict of attempted rape.
He told the jury they could rule attempted "sexual intercourse without consent" if they were "not satisfied beyond a reasonable doubt that she was raped".
Withhold moral judgements, prosecutor urges
Mr Nathan opened his address by asking the jury to withhold any moral judgements or prejudice about the woman's relationship with other American sailors.
The court heard the woman was in a casual sexual relationship with a sailor, and had sex once with one of his colleagues.
The court also heard the woman and her friends had been out with the sailors most nights leading up to the alleged incident.
Mr Nathan told the jury: "There's no subtlety in how the [defence] has placed his case in talking of this atmosphere ... US sailors coming into town and women coming to meet them.
"You may have held long-term beliefs about this ... but I ask you to refer back to the elements of the case."
Mr Nathan said those elements included whether Malone did digitally penetrate the complainant, whether the complainant consented to it, and whether Malone was aware the complainant was not consenting.
He reminded the jury the case was not about "some sort of sexual provocativity on the form of the complainant" and said "the urge to judge that person morally is a tough one to break".
He said she may have consented to sex with two other sailors, but at this point, not Malone.
Mr Nathan said: "Does that mean all sailors on the USS Denver are allowed to have sex with her?"
"She has the right to choose sexual partners and decline others."
Mr Nathan outlined possible reasons behind some of the witnesses' inconsistent evidence, but said the crucial evidence is what occurred in the hotel room.
The case has been adjourned until Friday when the defence will give his closing address and the judge will deliver his summation.
