Tristan Sailor tries to get his life back on track after being found not guilty of rape
In the case of Tristan Sailor there was one star contrast the jury could not ignore and the believability of a key witness completely hinged on it.
For 17 months Tristan Sailor’s life was put on hold after a woman, who had too much to drink and could not remember having sex, accused him of rape.
When the allegation was first made in October 2020, the 23-year-old son of former Kangaroos and Wallabies icon Wendell Sailor had just been told his services were no longer required after he struggled to get game time and made just five appearances for the St George Illawarra Dragons in the NRL.
Rumours swirled about the young gun’s future. Everything from a potential code switch to union, mirroring his father’s career trajectory, to potential deals with the Melbourne Storm, Canterbury Bulldogs and Wests Tigers were being talked about.
The talk of hope for the future and bright career prospects came to a grinding halt when police confirmed the young man described as a “gentleman” by a former coach was forced to front court and thrust into the media spotlight, accused of the most heinous of crimes.
“Predatory and planned” was how police in the Local Court initially described the sexual assaults Mr Sailor has now been acquitted of by a jury and consistently denied committing. There was also an allegation made that he drugged the woman with an antihistamine.
Neither claim survived the test of time and when Mr Sailor’s trial commenced in the NSW District Court last month, the prosecution case included no claim of predatory or planned conduct, or drugging the woman.
Booze, drugs and selfies
The court heard the pair started talking on Instagram in March 2019 when they exchanged flirty messages which referenced the size of the woman’s bed and whether or not there was room for Mr Sailor in it.
When he and the woman met for the first time in-person on the night they had sex, the woman and a friend had been at a venue in Bondi consuming margaritas while Mr Sailor was at the Beach Road Hotel with teammates, who were in Sydney for an end of season punters club celebration.
The court heard the woman and her friend consumed cocaine before they arrived to meet Mr Sailor and his teammates.
After playing drinking games, Mr Sailor and the woman went to a bathroom to urinate together, kiss and take selfies.
“To me, she was completely fine; I didn’t see any signs of intoxication,” he told the court during his trial.
“She just had a bubbly demeanour and I hadn’t met her before, so just assumed that was her character.”
R-rated foreplay
The pair later left the pub with the woman’s friend and Mr Sailor’s teammate, Eddie Blacker.
At an apartment in Wolli Creek, the group consumed more alcohol and played an R-rated version of a drinking game Never Have I Ever, before Mr Sailor and the woman went to her bedroom.
When the woman’s friend came to the bedroom door, Mr Sailor said he asked the friend if the woman was “sweet” and if she was “speaking to anyone” else.
He told the court he asked the friend about consent because “previously on a night out I had asked a girl if she was speaking to anyone or had a boyfriend and she said no”.
“Subsequently, we slept together and the next morning I found out from her friend that she did have a boyfriend and that boyfriend ended up being a teammate of mine later on, so it was quite an awkward position to be in,” Mr Sailor said.
“I didn’t see any harm in just making sure that didn’t arise again.”
The court heard the woman’s friend told Mr Sailor the woman had “wanted to do this [sex] all night”.
“I got on the bed fully then and we started kissing and fondling,” Mr Sailor said.
“We continued doing that and we took her top off. My top came off and then my pants came off as well and we continued just kissing and fondling.”
Barefoot departure
Mr Sailor said he performed oral sex on the woman before they had vaginal and anal sex without a condom.
“I don’t usually have conversations about condoms,” he told the court.
“I think it had progressed so passionately it didn’t get brought up.”
The woman was repeatedly asked if she consented to what was taking place, Mr Sailor said.
“I finished on her stomach,” he said.
“After that, she pulled me in and passionately kissed me. She said to me ‘don’t go’ but I said sorry, I have to.”
The court was played CCTV from the apartment complex, which showed Mr Sailor leaving the lobby without shoes on.
“I knew we had a half an hour Uber trip, so I just thought I’d put them on in there,” Mr Sailor said.
The next day the woman sent Mr Sailor a message saying she could not remember what happened and the court heard he told her they had sex and that he sought and was given consent.
Woman’s shock
When the woman gave evidence in a closed court, crown prosecutor Jeffrey Tunks told the court she recalled sitting in the apartment drinking vodka Mr Sailor poured before they had sex.
The woman said “I remember I was having, like, headspins”.
“I felt really wobbly … I didn’t really have much control over any part of me,” she said.
“I woke up the next morning completely naked, 5.30-ish; I didn’t know what had happened. I barely knew where I was … I just remember I was in pain.”
The woman said there were no sheets on her bed and the court heard she vomited when she woke and had bleeding in her anal region.
“One sheet was totally saturated with my urine and that’s when I called my ex that morning and I said I think I’ve been raped,” the woman told the jury.
Expert’s evidence
Responding to the woman’s claim she suffered a blackout and could not remember the sex, forensic pharmacologist and toxicologist Dr Petra van Nieuwenhuijzen told the court the woman could have appeared conscious, coherent and fully alert when she had sex with Mr Sailor and still have no memory of it the next day.
“A blackout means you do not remember what happened during the night and you’re not able to recall it because while you were drinking, no memory was formed,” Dr van Nieuwenhuijzen said.
“From the outside you’re not able to tell if somebody is experiencing a blackout … from the outside that person would just look intoxicated, slightly or severely, it just depends. But you cannot tell that the person you are having a conversation with is not forming a memory.”
Good character
Among the witnesses called to give character evidence in support of Mr Sailor were his ex-girlfriend, NRL super coach Wayne Bennett and another former St George Illawarra coach, Paul McGregor.
Mr Bennett told the court he had known Mr Sailor since birth, through his connection to Mr Sailor’s father, whom he coached at Brisbane and St George Illawarra.
“I always asked about him because I was terribly interested to make sure he was on the right track with his behaviour, particularly alcohol and drugs,” Mr Bennett said of Mr Sailor.
“I got constant feedback he’s a really decent young man. And had a great training ethic, always respectful, certainly wasn’t into alcohol or drugs in any way.”
Mr McGregor said he coached Mr Sailor, whom he described as a “gentleman” involved with charity work.
Case closed
Summing up the Crown case against Mr Sailor, prosecutor Jeffrey Tunks said the woman had messaged friends to tell them she was “so lit” she could not function or “see straight” when she arrived at the Beach Road Hotel.
“The accused’s state of mind was such that he failed to consider whether or not (the woman) was consenting and went ahead with the sexual intercourse,” Mr Tunks told the jury.
“Even though the risk that (the woman) was not consenting would have been obvious.”
Defence barrister Richard Pontello SC said Mr Sailor asked the woman for consent three times and her loss of memory did not mean she had not given consent.
“The evidence was the complainant was not a regular drinker, so she would have potentially felt the effects of alcohol more than persons with a higher tolerance,” Mr Pontello said.
“If you’ve got no memory of a significant event… you’re always going to try to piece together or recreate in your own mind what happened.
“When people don’t have a memory of what happened, they’re very much open to suggestion. She assumed what she didn’t know and then convinced herself it was the truth.”
Self-confessed liar
Mr Pontello told the jury the woman’s claims she was not attracted to Mr Sailor did not stack up and she was able to clearly recall playing the drinking game minutes before the assaults were alleged to have took place.
“The complainant here agreed that she consented to all of the physical contact she had with Mr Sailor at the Beach Road Hotel … and there was a lot of it,” he said in reference to CCTV footage which showed the pair touching each other in the pub’s garden.
“There’s over 60 instances … 64 to be precise … of the complainant initiating or starting some sort of physical contact with Mr Sailor.
“Why would that attitude have changed back at the apartment?”
The jury was told the woman had admitted in court that she had previously been “deliberately dishonest” in Instagram messages and falsely led Mr Sailor to develop a perception a romantic attraction existed because she “didn’t want to be rude”.
Mr Pontello said the woman also lied to a doctor and did not disclose consuming the cocaine when explicitly asked about her drug use.
Stark contrast
Before the jury was sent off to consider verdicts, Judge Antony Townsend said “the woman’s truthfulness and reliability are central to the issues in this trial”.
Faced with a choice of believing Mr Sailor and a woman who had candidly confessed to being “deliberately dishonest”, it took the 10-member jury about two hours to return verdicts of not guilty for the two aggravated sexual assault charges Mr Sailor was on trial for.
While the jury did not take long to mull over its final decision, it could take years for Mr Sailor to recover from the 17 months of intense public scrutiny, anxiety and stress of having to perform tasks like fronting court to beg a magistrate to change bail conditions so he could work in a pub or travel around NSW.
Similarly vindicated
Other former NRL players accused of sex crimes and later cleared after public court battles have said the ordeals changed their lives forever.
Former Manly fullback Brett Stewart was acquitted after a teenage girl accused him of forcing his tongue down her throat outside his home.
“It is too big of a thing in my life just to block out,” he told The Daily Telegraph.
“I don’t trust many people any more where before it happened I was pretty open and talked to anyone.
“The hardest part was my family. I knew I was strong enough to get through it but the people it affected around you, that’s the hardest bit.”
Dragons star Jack de Belin faced two jury trials which both ended in hung juries after he was charged with multiple counts of aggravated sexual assault allegedly inflicted on a 19-year-old woman.
The charges were eventually withdrawn and Mr de Belin spoke last month, for the first time about his ordeal.
“The darkest moment was definitely going to the police station,” he said.
“The people who know me and who are in my inner circle know for a fact I’d never do anything like what I’ve been accused of. I can hold my head high.”
Outside court following his acquittal, Mr Sailor said he would have more to say once he had come to terms with the verdict and ordeal being over.
Already with a Bachelor of Commerce and Arts already under his belt, Mr Sailor is now studying to become a lawyer.
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