ADFA cadet accused of rape 'is not a mind reader', defence barrister says as trial ends

CONTENT WARNING: This article refers to an alleged sexual assault.

The defence barrister for a man accused of sexually assaulting a fellow cadet at the Australian Defence Force Academy (ADFA) noted how the alleged victim said “Yeah, sure” out loud during the incident and that her client was “not a mind reader”.

Angus Ross Robertson, 24, pleaded not guilty to two counts each of sexual intercourse without consent and committing an act of indecency without consent when his ACT Supreme Court trial began last week.

Jurors heard that on the night he allegedly assaulted the woman at ADFA in October 2022, she allegedly repeatedly told him things like, “We’re not having sex”.

But he allegedly made “very pushy, persistent comments”, such as, “Oh come on, you know you want to have sex with me”.

She said they began having sex after she said, “Yeah, sure”, but then alleged he didn’t stop when she told him to, and she had to push him off her.

During closing submissions on Monday (7 April), Mr Robertson’s barrister, Sharyn Hall SC, claimed the woman gave a very affirmative example of consent.

“‘Yeah, sure’; you can’t get more affirmative than ‘yes’,” she said.

“Those were the words she said out loud.”

Ms Hall noted the woman reported she gave consent for sex, but that Mr Robertson was “persistent in getting that answer”.

“That does not mean that consent has not been freely and voluntarily given,” she said.

“Otherwise, it would mean that every time you asked twice, you are being persistent.”

The barrister also responded to the woman’s claims that she felt “disgusted” after the alleged incident.

“Regrets … a lack of enjoyment does not undo consent,” she said.

“[She] would not be the first woman to ever think to themselves, ‘I don’t care, just get it over and done with’.

“But Mr Robertson … is not a mind reader.”

Ms Hall said when another woman who’d also had sex with Mr Robertson told the alleged victim he had a sexually transmitted disease (STD), the alleged victim told her she hadn’t had sex with him.

“[Mr Robertson is] certainly not the only one who told lies along the way,” Ms Hall said.

Ms Hall said language was important, and the first time the woman told someone else she’d had sex with Mr Robertson that night, she said nothing about being pressured into it, and the words she used were, “I have a problem, I slept with Robbo”.

When this person asked if she wanted to have sex with him, she said, “Not really”.

Ms Hall said this language then changed to phrases like, “I never wanted to”, as she repeated her allegations to others.

“A person can honestly believe in their own mind that an event happened,” she said.

“But are they accurate?”

Prosecutor Marcus Dyason said Ms Hall might suggest that the woman’s version of events was unreliable as she only told others her allegations after she heard about the STD, but he said in the days after the alleged assault, “she was trying to move past it”.

He said this was a normal way of dealing with a traumatic event and “it speaks to an ordinary human response”.

Mr Dyason said before the alleged assault, the woman “clearly and repeatedly” told Mr Robertson that all she wanted to do was kiss, but he “goes directly beyond the limit that [she] has just set”.

He alleged Mr Robertson repeated persistent and forceful comments about letting him have sex with the woman and performed non-consensual acts on her before she said, “Yeah, sure”.

He alleged this meant when she said, “Yeah, sure”, her consent was not freely given.

“[The woman] clearly describes someone who is not participating, who is not okay with what is going on,” he alleged.

Jurors have begun their deliberations.

If this story has raised any concerns for you, 1800RESPECT, the national 24-hour sexual assault, family and domestic violence counselling line, can be contacted on 1800 737 732. Help and support are also available through the Canberra Rape Crisis Centre on 02 6247 2525, the Domestic Violence Crisis Service ACT 02 6280 0900, the Sexual Violence Legal Services on 6257 4377 and Lifeline on 13 11 14. In an emergency, call Triple Zero.