Youth Olympian Ned Stuart Middlehurst to stand trial on ‘stealth’ rape charge

A young athlete from the Mornington Peninsula has been ordered to stand trial for allegedly failing to use a condom without the woman’s consent.

Ned Middlehurst is accused of failing to use a condom without the consent of the woman.

An Australian athlete who competed in the 2018 Youth Olympics in Buenos Aires has been ordered to stand trial over an alleged “stealth” rape.

Sport climber Ned Stuart Middlehurst pleaded not guilty to two charges — rape and procuring a sexual act by false representations — at Melbourne Magistrates’ Court on Friday.

Police allege Mr Middlehurst, 21, from Bittern, failed to use a condom without the consent of the woman.

The court heard when interviewed by police, it was the indoor rock climber’s understanding that the woman’s concerns were “mostly centred around” him not ejaculating inside of her.

“I didn’t realise she didn’t want unprotected sex full stop,” he told investigators.

Mr Middlehurst has pleaded not guilty to two charges — rape and procuring a sexual act by false representations.

He also said: “I didn’t realise the full extent of putting my penis inside of her without a condom was rape.”

Asked if he thought it was harmless to put it in for the purpose of lubrication, he replied: “Yes.”

His lawyer Sam Norton argued the rape charge should be struck out, saying a jury would be unable to conclude the penetration was non-consensual, or that Mr Middlehurst was acting without reasonable belief in consent.

He said Mr Middlehurst and the woman had “a practice” that they would start off sexual activity without a condom.

“On each occasion … her evidence was they commenced sex without a condom being on his penis … including on the very night in question,” Mr Norton said.

“So that’s a distraction, in my submission.

“It plainly gives rise to a reasonable belief that she was consenting to what he did.

“The understanding was that he would stop, take his penis out of her vagina and put a condom on at some point.”

Mr Middlehurst’s lawyer argued the rape charge should be struck out.

Prosecutor Shivani Pillai said the matter of reasonable belief in consent should be determined by a jury.

She said the woman had previously aborted an unwanted pregnancy and was “persistent” that Mr Middlehurst use protection.

“The complainant became pregnant and had an abortion, and it was after that time, she was persistent, and I don’t use that word lightly either, on the accused wearing a condom,” Ms Pillai said.

Magistrate Johanna Metcalf said a jury could conclude, on the evidence, that the woman did not consent to unprotected sex, and ordered Mr Middlehurst stand trial in the County Court.

“In my view, the question of whether the complainant freely agreed to the penetration is for a jury to consider,” she said.

“There is evidence of a clear request prior to the second incident for condom use.

“There is evidence to do with the conversations between them … the actions that she saw that led her to believe that there was a condom being put on.”

Mr Middlehurst, who not only competed at the Youth Olympics but also has taken out multiple national and state championships for his climbing, will face a directions hearing, where a trial date will be set, in the County Court on October 10.