‘Cruel humiliation’: prosecutors rejected plea to spare rape complainant

Prosecutors put a university student on trial for rape despite being repeatedly warned it would only end up humiliating and further damaging the young woman who made the allegation.

Stephen Whybrow in his chambers at Key Chambers law firm in Canberra. Picture: NCA NewsWire/Martin Ollman

Prosecutors in the ACT went ahead with the rape trial of a university student despite being repeatedly warned it would only end up humiliating and further damaging the young woman who had made the allegation because there was clear evidence she had lied.

Defence barrister Steven Whybrow SC wrote to the prosecutor before the man’s trial in April pointing out that the complainant’s story was so wildly contradictory and at odds with the evidence that “even the gentlest cross-examination of this complainant is going to be devastating and humiliating for her”.

“I am genuinely concerned about the effect running this case might have on this young woman,” he said. “Such a prosecution will not advance the position of persons genuinely subjected to sexual assault.”

In the event, the prosecution rejected Mr Whybrow’s plea for the prosecution against 21-year-old Alex Matters to be discontinued and the trial went ahead.

The jury found Mr Matters, an Australian National University student and former Labor staffer, not guilty of the charges.

He and the complainant had been in a “friends with benefits” relationship but on one occasion, the woman said, he would not stop sex when she asked him to.

She contacted police in 2021 after seeing media reports that Mr Matters had been charged with assaulting another woman. Those charges were later dropped, but Mr Matters was sacked from his job in the office of federal Labor MP David Smith.

Mr Matters strenuously denies the allegations made by both women.

During the April trial, mess­ages sent by the woman to her friends were presented in court, including one that said: “I slept with him multiple times … I don’t know if I got raped.”

In recorded audio messages to Mr Matters the day after the ­alleged rape, the woman asked him for sex.

“F..k me Daddy,” she texted.

“I want you to f..k me so hard,” she wrote in another message.

The woman, who had given evidence remotely from a separate room, could be heard crying as the audio messages were played.

Months later, when the pair went for a walk, the woman asked Mr Matters to have no-strings-attached sex that night. Three days later, she reported him.

Revelations about the Matters case come in the wake of findings against ACT Director of Public Prosecutions Shane Drumgold SC, who resigned after the Sofronoff inquiry accused him of “serious misconduct” during the investigation into and prosecution of Bruce Lehrmann for the alleged rape of Brittany Higgins.

Former ACT Director of Public Prosecutions Shane Drumgold. Picture: AAP Image/Mick Tsikas

Police have expressed anger at continued claims by Mr Drumgold following the inquiry that police were undercharging in sexual assault cases.

Mr Drumgold did not act directly in the prosecution case against the university student but Mr Matters has demanded to know whether the then-DPP was involved behind the scenes.

In an email on May 19, 2023, just after Mr Drumgold had completed his five days in the witness box at the Sofronoff inquiry, Mr Whybrow told Mr Matters his case was “a pretty damning indictment (no pun intended) in my view as to the ‘run everything no matter what’ attitude that pervaded that office – both as at August 2021 but ongoing to now”.

ACT Chief Minister Andrew Barr has ruled out any investigation of cases conducted or authorised by Mr Drumgold during his term in office.

Mr Whybrow says the Office of the DPP caused unnecessary harm to the young woman in the Matters case, as well as his client.

After watching the evidence-in-chief-interview conducted by police with the woman, Mr Whybrow messaged the prosecutor before the trial requesting it be discontinued. “It’s going to be just humiliating for (the complainant) if this matter runs. Happy to take you through step by step 80% of what our xxm (cross-examination) will be - though it’s not rocket science,” he wrote.

After going through some of the evidence, Mr Whybrow said: “Can I urge, if only for the sake of protecting (the complainant) from what on her own EICI and the added calls to Alex (Matters) will be nothing short of a cruel humiliation, that the prosecution reconsiders this matter. Sorry to rant but I genuinely want to try and have (the complainant) avoid what is coming if at all possible.”

The prosecutor advised: “I will speak to the complainant in general terms about the court process, including cross-examination.”

Mr Whybrow wrote back noting the woman’s “very unusual understanding as to the nature of consent … might explain why she has claimed to have been sexually assaulted by at least four others we have identified so far”.

“Even within the EICI itself there are a number of statements that suggest a belief by the complainant that if she has sex that she subsequently regrets or was less than 100% enthusiastic about (notwithstanding she objectively agreed to engage in that activity), it nonetheless becomes non-­consensual at her election or discretion after the event,” he wrote.

“The jury and wider world does not need to hear that (the complainant) asked Mr Matters if she could call him ‘Daddy’ while having sex … something she confirms the very next day when she sends him a voicemail saying ‘F..k me Daddy’.”

The woman was highly active in the #MeToo movement and her friends had been aware she was in a casual sexual relationship with Mr Matters “which extended to propositioning him for sex only a few days before accusing him of raping her 4 months previously”.

“Suggestions she has either made this complaint to (literally) #metoo herself on the bandwagon, or to try and address as what she sees as a massive risk to her image as an outspoken ‘victim survivor’ by regularly sleeping with someone now publicly named as an accused rapist – or both – will be difficult for the prosecution to refute.

“The legitimate challenges that will necessarily have to be made to her credibility if this prosecution is maintained are going to be multiple and significant.

“A simple Google search will show some of the multitude of prior claims of having been sexually assaulted with descriptions by her at times that are simply inconsistent with such allegations or any sensible understanding of what is consent – or personal responsibility and accountability for her own behaviour and choices.

Former Labor staffer and ANU student Alex Matters. Picture: Twitter

“I suggest there is neither reasonable prospects of obtaining a conviction nor any public interest in requiring (her) to be subjected to cross-examination on what are objectively inconsistent complaints which at their worst could be said to be fabricated.

“We have identified four persons we are hoping to obtain statements from to the effect that they had consensual sex with (the complainant) and she subsequently accused them of sexual assault.”

The prosecutor wrote back stating that “close regard has been had to the concerns raised by you … At the time of writing, there is no evidence that I am aware of that any prior allegation of sexual ­assault made by the complainant was demonstrably false.”

The case would go ahead, the prosecutor said.

Mr Whybrow told The Australian: “For good or bad, our criminal justice system is an adversarial one and if an accused person is not permitted (within appropriate bounds) to challenge the accuracy or veracity of a witness, even if the collateral effect may be humiliating or embarrassing, it’s hard to see how there can be a fair trial.”

Mr Matters told Sky last week that while he would never regain the two years of life he had lost, he would be speaking to lawyers about potentially suing the ACT government.