A NSW firefighter has successfully appealed his rape conviction and jail sentence of at least two years after it was found the jury's verdicts were inconsistent.
Andrew Thomas Dadley was found not guilty of one count of sexual intercourse without consent, but guilty of the same charge and of committing an indecent act following a second trial in July 2020.
But in the Court of Criminal Appeal on Tuesday his conviction was overturned and his maximum sentence of three years and three months was set aside by Justices Andrew Bell, Michael Walton and Geoff Bellew.
The alleged assaults against a colleague occurred in the early hours after a Christmas party on December 9, 2016, at the woman's apartment.
Mr Dadley sent his wife a text message saying: "Trains not running. Can't get Uber. Going to crash at (the complainant's)."
He gave evidence that he took his shoes off but wore his jeans, shirt and socks to bed in a separate room.
The woman said she passed out straight away in her room but awoke to Mr Dadley having intercourse with her.
He denied this, saying he never entered her bedroom and was found not guilty of this charge.
She gave evidence she then felt like she was being "scooped up out of bed" and was forcibly walked into his bedroom where further intercourse occurred.
"I honestly felt like it was a dream," she earlier told the court.
"Like, I almost felt like I was watching myself in a movie and I just thought if, like, it had to not actually be real, like, it actually had to be a dream because I would just wake up and it wouldn't be real."
Mr Dadley testified he was roused when the woman began shouting and hitting him.
He asked: "What's wrong? Why are you hitting me?"
The woman said when she finally realised what was happening she began screaming and "frog marching" him out of her apartment while he was still undressed.
However, another colleague Adam Richards observed and later took notes from the apartment's lounge room sofa that while Mr Dadley was being kicked out he was still wearing pants.
Mr Richards corroborated Mr Dadley's account that he was questioning the woman who sounded "very angry," using an "aggressive tone".
This evidence was unchallenged.
The fact the woman said she "virtually instantaneously" dragged him to the front door while still unclothed was deemed "no trivial or small inconsistency".
A trace sample of DNA found on the woman's vagina following a test 17-18 hours after the alleged assaults was also questioned given an expert testified such DNA could not survive for more than 12 hours.
It was said to be more likely the DNA was picked in a secondary transfer "in relevantly innocuous circumstances".
Under cross-examination, the woman said by bedtime she had consumed up to a dozen schooners at the party and one gin and tonic at her home, but was not "blithering drunk".
Mr Dadley said he consumed six schooners of beer and three glasses of wine at the end-of-year celebration, and the same gin drink later.
It was ultimately found that the acquittal of one charge was only explicable if the jury held doubts of the complainant's credibility.
In circumstances where there were no other eyewitnesses, and where the events "were so intertwined, both temporarily and contextually," the jury's doubts must have carried over, all judges agreed.