Max Cleary: Newtown sexual assault trial begins

A Sydney landscaper accused of raping a woman he met online on his friend’s bathroom floor has denied the allegations of non-consensual sex as his District Court trial begins.

Max Cleary The Manly landscaper and son of ex-Sea Eagle CEO Tim Cleary has been charged with rape after meeting a woman on social media

The trial for a northern beaches landscaper accused of raping a woman he met online after a boozy night out at a Sydney cocktail bar has begun.

Max Cleary, 24, was charged with two counts of sexual intercourse without consent after an incident at a Camperdown home on August 15 2020.

Cleary has pleaded not guilty to both charges and is fighting the allegations in a jury trial at Sydney District Court before Judge Nicole Noman.

The Manly landscaper is the son of former Manly Sea Eagles CEO and ex-Sydney Catholic School principal Tim Cleary.

It is not disputed that Cleary, then 22, had been communicating with the complainant for some hours via Instagram before she travelled to Newtown cocktail bar Kuleto’s to meet him on the night in question.

The pair had both been at Webster’s in Newtown hours earlier but did not meet in person at that time.

The Crown anticipates the complainant will say she felt “intoxicated” from drinking beers and vodka pineapples throughout the night.

Cleary, his friend, and the complainant then travelled to Cleary’s friend’s home nearby in Camperdown, where the offences are alleged to have occurred.

The Crown will allege the complainant was using the toilet alone when Cleary entered the bathroom and kissed her, before she pushed him away.

Cleary is then alleged to have removed the complainant’s underwear and jeans, inserted his fingers into her vagina, put on a condom and then had penetrative sex with her – constituting the two counts of sexual intercourse without consent.

Max Cleary at Downing Centre Court in Sydney. Picture: NCA NewsWire/Joel Carrett

Defence barrister Angela Cook told the jury Cleary would not dispute that he had sex with the complainant – but will give evidence that it was consensual, and that if she had not consented, he did not know she was not consenting.

Barrister appearing for the Crown, Talitha Hennessy, told the jury she expects the complainant to allege she did not consent to either sexual act, which occurred while she was lying on the bathroom floor.

“I expect the complainant will tell you that the accused pushed her against the wall between the sink and the door and kissed her on the lips – neither said anything but the complainant pushed the accused away,” Ms Hennessy told the jury.

“I expect the complainant will give more detail about how many times he pushed his penis into her vagina, and that she kept mumbling no, no, no, and shaking her head.”

Ms Hennessy told the jury the complainant called an Uber and asked him to take her to the nearest police station sometime after the incident occurred.

The Uber driver is among witnesses who will be called by the Crown to give evidence about the complainant’s words and demeanour after he picked her up and conveyed her to Ashfield police station.

“The Crown case is that she did not consent, and that she showed that by pushing him away, shaking her head, and saying no, no, no,” Ms Hennessy said.

“The Crown’s case is that he did know that because she indicated that to him by her words and actions.”

Ms Cook told the jury the defence would allege Cleary and the complainant met on a dating app, and that she sent him a photo from the pub bathroom with “her legs exposed and cleavage shown”.

Ms Cook also said it would also be alleged the complainant’s phone shows an internet app was used to search “sex shops near me” at a time shortly before she met Cleary at Kuleto’s.

The barrister acknowledged there may be some dispute by the Crown as to the nature of the photo sent, and the circumstances in which a search was made for nearby sex shops.

She did not specify what inference the jury might be expected to draw from these alleged events.

In opening, Ms Cook said there would be no dispute Cleary had left his friend’s home, purchased condoms at a nearby 7/11, returned to the address and had both digital and penetrative sex with the complainant in the bathroom.

“I expect his friend will say he could hear kissing, and I expect he will say they walked into the bathroom holding hands,” Ms Cook told the jury.

“What is at issue is where the Crown can prove that the complainant did not consent to the sexual act, and whether they can prove the accused knew she was not consenting.

“Put simply, Max Cleary denies that anything occurred without the complainant’s consent, and further denies knowing that she was not consenting.”

Ms Cook said there would also be no dispute the complainant called herself an Uber, went to the police station, and then went to Royal Prince Alfred Hospital in Camperdown.

“There will be no dispute a few days later the complainant made a formal written statement to police,” she said.

“The accused sent the complainant a message, and it was checking that she got home okay – there was no reply.”

Ms Cook told the jury Cleary is “a person of good character”, with no criminal convictions or prior charges of any kind, who is described by those who know him as “caring and gentle”.

“The witnesses will say the allegations are not consistent with the Max Cleary that they know, and know well,” Ms Cook said.

The jury has so far watched more than an hour of condensed CCTV footage showing Cleary and the complainant at the bars on the night in question as part of NSW Police officer James Vaughan’s evidence.

Detective Snr Cnst Vaughan is the officer in charge of the case and was among the first to speak with the complainant when she arrived at Ashfield police station.

The trial continues on Thursday.