Jury to rule if texts are 'powerful admissions' of rape
A jury is considering the fate of a former Sydney Symphony Orchestra horn player as his trial on sexual assault charges comes to an end.
Central to their deliberations will be whether he was apologising for the alleged assault or placating the complainant and avoiding conflict in messages exchanged between the pair in the aftermath.
Benjamin Lawrence Jacks, 47, has pleaded not guilty to a charge of sexual intercourse without consent.
Jacks is accused of digitally penetrating a sleeping woman, who cannot be named.
Jacks' barrister Philip Strickland SC has told the jury she was awake and gave instructions to Jacks which he understood as consent.
The alleged assault happened the morning after the pair had dinner and drinks to celebrate separating from their respective partners in December 2020.
Giving evidence, Jacks conceded he developed a sexual interest in the woman during their night out, but that dissipated after she vomited when the pair returned to his home.
He said she initiated sexual contact in his bed the next morning, taking his hand from her hip and moving it to her breast.
Judge Leonie Flannery reminded the six women and six men deciding the verdict in his NSW District Court trial to treat his evidence the same as that from any other witness.
"You can accept it or reject it," she told the jury on Wednesday.
The jury will also need to consider text messages.
"I can't believe I woke up with your hands inside me??? Not very cool friend!! I had just spewed my guts up in your garden and was so drunk I could barely tell you my own name," the woman wrote in one.
"My god, I'm really sorry ... I hope you forgive me," Jacks responded.
Crown prosecutor Rossi Kotsis said the messages were "powerful admissions that he had done what she was alleging".
Mr Strickland submitted the texts could be read in a variety of ways.
"He was not admitting that he had sexual intercourse with (her) while she was asleep without her consent," Judge Flannery said, summarising submissions from the defence.
References to feeling guilt or regret were about drinking too much, supported by evidence he made similar references in the same context.
Four women who gave evidence spoke with "one voice", suggesting Jacks had a "passive personality" and was quick to apologise for things that were not necessarily his fault, Mr Strickland submitted.
His sister said he would "tie himself in knots" to avoid conflict.
The jury should accept the evidence presented to show Jacks was a person of good character, which was not challenged by the Crown, the judge said.
However, it was only a factor to take into account, not a defence.
"What weight you give to the fact he is of good character is completely a matter for you."
Mr Kotsis suggested, using Jacks' texts, he was "hammered" and acted out of character.
"But being intoxicated is not a defence," Judge Flannery reminded the jury.