Former policeman Jamie Foster has lost his appeal following his conviction for raping a fellow police officer in 2019.
Foster took his appeal to the Supreme Court in April, claiming the indecent act was actually consensual, and that the pair had been flirting prior to the incident.
Today it was confirmed that the appeal had been dismissed by the Supreme Court.
Foster was jailed for six years in 2020 after being found guilty of indecent assault and sexual violation.
The incident happened at a Kerikeri motel following a night of socialising and drinking.
Foster and the complainant, also a police officer, were part of a police contingent deployed to the Waitangi Day commemorations in Northland 2019.
The victim told the court she was groped when she found herself alone at the motel with Foster. Her response was to push his hand away and she put his behaviour down to his alcohol consumption.
The complainant then removed herself from the group they had been socialising with and eventually went to bed.
Later that night Foster entered her room while everyone slept. She told the jury she woke up to him sexually violating her.
The Crown’s case was that Foster started to have sexual intercourse with her as she lay sleeping on her bed.
“Flirting is not an invitation for sexual assault and that is not what this trial is
about,” the Crown prosecutor had told the court.
“[The victim] is a bubbly, friendly, chatty and kind person and that was clear enough
from her evidence and from the evidence of others.
“She told him no she was not interested. She pushed him away, she forced him away from her.
“She deserved to be safe, she ought to have been safe that night and that’s the bottom line, and she wasn’t.”
Foster raised 11 separate points on his appeal which he claimed were errors that created a real risk and that the result in his trial was therefore unfair.
Foster’s lawyer argued inflammatory and inappropriate language was used by the Crown prosecutor in her opening and closing addresses, including the words “he helped himself” and the phrase “sense of entitlement”.
“There is simply no way a sleeping woman could’ve consented,” the prosecutor had said.
“Put simply, he helped himself to the sleeping complainant, he took the risks given his own intoxication and sense of entitlement.”
But in the just-released Supreme Court decision, the court ruled there was no reasonable possibility that other verdicts would have been reached, or that any errors were made to Foster’s trial being rendered unfair.
“Despite the number of grounds of appeal put forward and the extensive argument made to us, we are not satisfied that any of the grounds have resulted in a miscarriage of justice.”
The Crown prosecutor had told the court the victim’s account was supported by sufficient evidence, including a distressing two-minute video recording of an interaction between her and Foster, and Foster’s reaction on the recording.
Foster was also reported to have deleted Snapchat evidence between the victim and himself.
He had called a lawyer in the early hours of the morning, shortly after the victim protested against him.
The lawyer spoke to Foster about how that might equally be consistent with being worried about allegations or false allegations being made, or what the employment ramifications might be.
There was also an unusual lack of DNA evidence on Foster’s swabs suggesting that he washed himself, the prosecutor said.
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