General News
6 June, 2023
Closing arguments presented in rape trial
The trial entered its eighth day on Monday.
Closing arguments in a jury trial for the alleged rape and false imprisonment of a 19-year-old Japanese woman have drawn starkly different perspectives on the key issue of consent in the case.
The trial in Ballarat entered its eighth day on Monday, with James Lithgow, 49, answering seven charges, including two counts of rape, attempted rape, sexual assault, and one charge of false imprisonment.
The charges relate to an alleged incident on September 27, 2018, in which Lithgow was alleged to have touched and sexually penetrated the then 19-year-old without her consent in a caravan at a Halls Gap campsite.
The 19-year-old, who was in Australia on a working visa, had first come into contact with Lithgow the day before, when she responded to a Gumtree advertisement from Lithgow looking for workers to clean his Halls Gap Airbnb.
It was alleged that on the evening of September 27 the pair shared a bottle of wine at a nearby campsite, after which Lithgow took the woman into a nearby caravan and raped her.
In his closing argument, Crown prosecutor David O'Doherty gave a summary of the established series of events in the lead up to the alleged rape.
He said throughout the alleged encounter it was unlikely Lithgow would have thought the woman was consenting, given her evidence about resisting alleged Lithgow's sexual advances as he lay on top of her.
"She (the complainant) says I never consented to it, I told him to stop, I put up with as much resistance as I could but he continued to do it," Mr O'Doherty said.
"Trying to get away, wriggling, hitting her head and getting an injury, that is evidence of what was happening, of her efforts to stop it."
Mr O'Doherty also told the jury to anticipate the defence to focus in on the 19-year-old's actions following the alleged incident, as evidence the sexual encounter was consensual.
The court heard the woman had not immediately left the campsite following the alleged incident, instead messaging her boyfriend, who arrived the morning after to retrieve her from Halls Gap.
Mr O'Doherty said there was no typical or normal response to a non-consensual sexual experience, and for the jury to consider that when reflecting on the woman's actions in the aftermath of the alleged incident.
"One of the main focuses in this case would be the conduct afterwards. That consists of a number of things, her reaction, what did she do, what didn't she do, what steps did she take," he said.
"We weren't in those circumstances so we can't possibly speak with any authority on what we would do.
"There may be good reasons as to why a person who is subjected to a sexual act without their consent may otherwise continue contact with that person."
Defence barrister Moya O'Brien laid out 10 "amber lights", or issues with the prosecution's case, for the jury to consider in their deliberations.
She said the key point of contention in the case was the 19-year-old Japanese complainant's "reliability and credibility".
The barrister said the jury was handicapped in determining her credibility as a witness, as she had to rely on a interpreter to provide evidence to the court.
"When one person is speaking in their mother tongue and another person is speaking in their mother tongue, we all know there is a likelihood of mistranslation," Ms O'Brien said.
Ms O'Brien also called into question the woman's recollection of events, and details on the night of the alleged offending.
She pointed to multiple "internal" and "external" inconsistencies in her story, and in the various times she accounted the alleged incident to people in the weeks following.
The barrister also said the alleged rape was "mechanically" implausible, as it was alleged Lithgow had pinned the woman by both arms and legs, whilst orally penetrating her.
The trial will continue on Tuesday, with the defence to deliver the remainder of their closing arguments.
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