A Melbourne man who sneaked into a woman's bedroom and raped her while she lay powerless to fight back for fear of waking her children has been denied the chance to appeal his conviction.
David Bullmore, 57, tried to appeal his rape conviction, handed down last year, on the grounds the verdict was "unsafe and unsatisfactory" because the complainant's evidence was unreliable.
However, on Wednesday, the Victorian Court of Appeal refused Bullmore's application because it was "well open to the jury to be satisfied beyond reasonable doubt of (his) guilt".
Bullmore and his victim had been friends years before the assault but had lost touch after she separated from her husband, court documents state.
In April 2008, Bullmore contacted the woman to catch up and she invited him over.
He brought a bottle of liquor and drank heavily while they ate and chatted with her children.
The woman's evidence during the trial was that before she went to bed, she offered to let Bullmore sleep on the couch because he was too intoxicated to drive.
She locked her bedroom door, but left another door to the adjoining bathroom open.
The mother awoke a few hours later to find Bullmore naked and on top of her.
"She did not say anything because she did not want to wake her children," the three-judge appeal panel said.
"She did not want them to come in and see what was happening."
When she asked Bullmore to get off, he said it was OK because he had an "open marriage".
Eventually he stopped and the woman told him to leave.
Bullmore drove away but was pulled over by police for drink driving and lost his licence.
He blamed his lost licence on her the next morning with a text message saying: "How dare you let me drive home."
She responded: "How dare you do what you've done to me."
Bullmore's version of events excluded any sexual interaction and claimed instead that the woman had been flirtatious and offered to let him spend the night on her couch, which he felt uncomfortable about but eventually agreed to.
Their texts the next morning were never recovered, a factor which formed part of Bullmore's appeal application.
The case also lacked any forensic, medical or crime scene evidence, making it his word against hers, he argued.
He also highlighted that the woman did not report the assault to police until five years after it happened, which made her evidence less reliable.
The three-judge panel rejected all of Bullmore's arguments, saying it was understandable she delayed in her report to police out of concern for her children.
Bullmore is currently serving a three-year jail term with a non-parole period of two years.