‘Fatal’ flaw claim in cricket exec sex case
Cricket Australia’s former communications head will have to wait until next month to find out his fate over allegations he took advantage of two young men while they were intoxicated and vulnerable in his apartment.
On Tuesday, both prosecutors and defence delivered their closing remarks following a week-long contested hearing of allegations against Timothy Whittaker, 38.
Mr Whittaker has pleaded not guilty to two charges of sexually touching two sleeping colleagues without their consent on separate occasions in January 2016 and March 2019.
Prosecutor Sharn-Adelle Coombs told the Melbourne Magistrates’ Court that while the case boiled down “essentially word on word”, Magistrate Timothy Gattuso should find Mr Whittaker guilty of the alleged offending.
“These two young men, years apart, experienced a strikingly similar experience,” she said.
“Both found themselves alone with him and both to their shock woke up to Mr Whittaker (allegedly) touching their penises.
“And both witnessed him pretend to be asleep.
“You can and should believe what they say, what they told Your Honour happened to them.”
But his barrister, Dermot Dann KC, told the court there were “fatal” obstacles to the 2016 allegation.
“On this man’s version he’s not in a position to say, based on his observations at the time, that Mr Whittaker was awake,” he said.
“In fact he’s saying the opposite, he’s saying he believed Mr Whittaker was asleep. It’s all fatal to the prosecution case.”
Under Victorian law, prosecutors must prove an accused person made a conscious, voluntary and deliberate decision to engage in the sexual offending.
Mr Dann told the court there was nothing corroborating the alleged victim’s account and said his testimony contained key inconsistencies.
He told the court the 2019 allegation contained “glaringly improbable” accounts, including the allegation he woke when his penis was touched but not when he was moved from the couch.
“We can’t close our eyes to the sheer unbelievability of it,” he said.
“You’ve got a man of good character giving evidence in the case of a prosecution case beset with issues.
“We say you should be finding this man not guilty of both charges.”
Mr Whittaker denied the alleged events, saying he slept on his own couch that night, while the alleged victim and a friend took his bed.
The court has heard one man contacted Cricket Australia’s human resources department in March 2019 following an end of season staff party.
He was among a group of employees that continued back to Mr Whittaker’s Abbotsford apartment for a nightcap, where he fell asleep on the accused man’s couch.
Around 5.30am he allegedly woke up in Mr Whittakers’ bed as Mr Whittaker “jerked” his penis.
Responding to the allegation, Mr Whittaker denied touching the man and said when he went to bed the man was still on the couch.
He told the court he woke up to hear his front door closing as the man left.
The second alleged victim contacted Cricket Australia in December 2021, alleging he woke in Mr Whittaker’s bed in January 2016 following a night of heavy drinking.
Mr Whittaker allegedly had his hands down the man’s pants and was “rubbing” his penis.
Giving evidence before the court, the man said he had initially given Mr Whittaker the “benefit of the doubt” and believed he was asleep, but reconsidered after hearing rumours of similar events.
He said he now believed Mr Whittaker was pretending to be asleep.
Mr Gattuso said he would need time to consider the evidence and arguments, adjourning judgment on the case until June 1.
Mr Whittaker will return to court on that date.