The verdicts against three men found guilty of raping a woman after a night at Mooseheads were "infected" by sexual stereotypes and should be thrown out, a defence barrister has argued.
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Simon Vunilagi, 32, Josefa Navunisinu Masivesi, 45, and Isimeli Ilimeleki Natuwawa Vatanitawake, 22, on Monday appeared in the ACT Court of Appeal to challenge the guilty verdicts.
At a judge-alone trial last year Chief Justice Helen Murrell had found the trio raped the 22-year-old woman they had just met at the nightclub, finding the woman did not consent to the sexual activity. A fourth man was acquitted.
Prosecutors said the woman was very drunk when she was taken to Vunilagi's Downer flat at about 4am where she was raped by Vunilagi.
They said Vunilagi, a rugby player and the accused ringleader, encouraged Vatanitawake to rape the woman before a third man and then Masivesi also raped her.
Masivesi alone denied any sexual activity with her, telling the court he went in to the bedroom once to get his phone charger and the woman suggested he wanted sex, but he said no and quickly left.
At the appeal on Monday, defence barrister Steven Whybrow argued the judge had made her findings based on sexual stereotypes about how people would and would not behave.
In one example, he pointed to the judge's dismissal of Maisivesi's evidence, where she said that after willingly having sex with two other men, the woman "willingly offered herself to him (a drunken stranger twice her age) but he stoically declined, is contrary to ordinary human experience and common sense".
He said the judge had "bent over backwards" to find why the woman's evidence could not be rejected and had repeatedly assessed the evidence through that "prism".
Later, when defence barrister Katrina Musgrove was making similar arguments about stereotypes, Justice David Mossop suggested jurors had to assess evidence like that all the time. "Isn't it just a juror drawing on their life experiences?" he said.
Director of Public Prosecutions Shane Drumgold SC is expected to make the prosecution's appeal arguments on Tuesday.
The appeal, before Justice Chrissa Loukas-Karlsson, Justice Mossop and Justice Wendy Abraham, continues.
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