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A man has been cleared of making Snapchat videos while having sex with a woman he met on Tinder after his lawyer argued she was too drunk to remember giving consent.

However, the man, who has interim name suppression, has been found guilty of showing a video to a mutual friend.

After the one-day judge-alone trial in the Hamilton District Court, Judge Stephen Clark said the woman’s admission that she was “9 or 9 out of 10″ level of intoxicated was a “looming feature of this case”.

“It’s not a situation which I disbelieved her.

“It’s a situation where I have to be sure in terms of reliability and the question of alcohol, loomed really large in this case in terms of recall of events.”

Given the mixed verdicts, the defendant’s lawyer, Glen Prentice asked the judge not to enter a conviction as he would now file a Section 106 discharge without conviction application.

He also successfully asked for interim name suppression.

“Ultimately a discharge without conviction has no benefit if there’s publication of the proceedings.

“This is a young man. Any time he goes for a job, a Google search will reveal he’s involved in this case.”

‘Let’s go to the bedroom'

The pair matched on Tinder in late July 2023 and met at a Hamilton pub the next night.

The woman had been drinking since mid-afternoon as she and her friends got ready to head to a private party at the pub.

After the function, the man and a friend met the woman and her friend there and had more drinks, including shots, before leaving for his house.

The group watched movies before the woman alleged the man said, “let’s go to the bedroom”.

They started having sex and the man admitted grabbing his phone and filming her, twice.

He claimed he asked her and she gave her permission; however, the woman rejected that and told Judge Clark that she would never agree to let anybody film her naked.

The woman said she didn’t remember much of the night; leaving the pub or taking her clothes off but remembered having sex with the man. She admitted being a 9 or 10 out of 10, on an intoxication scale, or “near black-out drunk”.

However, later that day, she began having “flashbacks” of a light, or camera light, being on her and hearing her voice being played back to her.

Concerned, she messaged her two friends in a group chat but was ultimately reassured all would be fine.

That was until the woman and her friend went to a Waipā pub for a party the following week, where the man and his group of friends also turned up.

She claimed one of his friends “screamed my name” and throughout the evening got “weird gestures from him and I felt like they were talking about me”.

“At one point the guy made a sexual act with his fingers and it made me click back to [flashbacks].”

She immediately left the pub, however, her friend later went back to his house for “kick-ons”, or post-pub drinks.

The woman’s friend gave evidence that he “looked like a zombie” and she went up to him and asked if he was all right.

“He asked to speak to me privately and that’s where things escalated,” the friend said.

She claimed the man told her the woman was a “crazy b****” before saying he had “proof”.

He then opened Snapchat and showed her one of the videos, both of which were saved in the app’s memories.

She told him it was disgusting and they deleted both of them.

‘The defendant says you said yes’

Defence counsel Glen Prentice put to the woman that she had agreed to being filmed but she just couldn’t remember.

“[He] says he asked you if he could film you and you said ‘yes’.”

“No, that did not happen,” she replied.

Prentice repeated his suggestion, and she said she would “never say yes to anyone recording me”.

Prentice put to her that people could make decisions that would, “in the cold light of day”, regret.

“People wake up in the morning after lots of drinking the night before and think ‘why did I do that?’

“What I’m suggesting is that this is that situation ... that you had given consent to a video being filmed but you just can’t remember?”

“No,” the woman replied.

“I wouldn’t have agreed to my body being filmed naked.”

The man then took the stand and when questioned by Prentice, denied calling the woman a “crazy b”.

He also said his Snapchat settings were already set up to automatically save videos to his camera roll “months and months” before the incident.

Questioned about seeing the woman at the pub the following week, the man said he didn’t speak to her and didn’t see any of his friends making gestures at her.

He also denied telling her to go to his bedroom, instead, she simply followed him.

In cross-examination from police prosecutor Madeline Kingmar, he said he could “remember clearly” the woman giving him permission to film her.

When asked if he showed the woman’s friend the video, he said “she has seen the video without it being played”.

But in re-examination he backtracked slightly as Prentice asked him if it was possible that the video automatically started playing when he opened his Snapchat memories.

He said it was, and agreed that it wasn’t his intention to play her the video.

He said he kept the videos on his phone as “proof” in case he faced more serious charges.

‘I’m still suspicious he didn’t show others'

In delivering his decision yesterday, Judge Clark said although the man maintained he never showed anyone but the woman’s friend the video, he remained dubious.

“To be frank, I’m suspicious as to whether there was wider publication of the videos,” explaining how one of the man’s friends knew a specific detail that was featured in the video.

“I find that it was shown but as I say it was probably shown to a much wider group.”

He found the man’s excuse for keeping the videos on his phone - to use as evidence - “rather self-serving and an unusual explanation to give when what he said occurred was consensual activity; not only consensual sexual activity but also the video”.

Belinda Feek is an Open Justice reporter based in Waikato. She has worked at ��һ�ǿ����� for 10 years and has been a journalist for 21.