A former Cricket Australia executive has lost his bid to have a sexual assault allegation thrown out of court.
Timothy Joseph Whittaker, 38, is facing a contested hearing in the Melbourne Magistrates’ Court over two allegations he sexually touched sleeping men in 2016 and 2019.
He strenuously denies the allegations and is fighting the charges.
At the end of the prosecution’s evidence on Friday, Mr Whittaker’s barrister Dermot Dann KC argued that the 2016 allegation should be dismissed on a no-case-to-prove basis.
A no-case submission is made when an accused’s defence argues that the case against their client is insufficient to support a finding of guilt and should be dismissed.
Tim Whittaker is fighting the charges in court. Picture: NCA NewsWire / Nicki Connolly
Mr Dann argued that while the defence did not concede there was sexual touching, the prosecution had not proven Mr Whittaker was awake when the alleged act occurred.
“He (the alleged victim) said he believed for years he was asleep,” Mr Dann said.
“His ultimate position is, because he’s heard a rumour, he’s changed his mind.
“His evidence is while the man’s (Mr Whittaker) hand is making contact with his penis, he (Mr Whittaker) looks asleep and sounds asleep. The defect goes to a central element of the case.”
Under Victorian law, prosecutors must prove a person accused of sexual offending made a conscious, voluntary and deliberate decision to engage in the conduct.
But prosecutor Sharn-Adelle Coombes that that the evidence of the alleged victim was that Mr Whittaker allegedly had his hand down the complainant’s pants and made a “deliberate movement”.
Mr Whittaker took the stand on Monday to say he denied he was ever present in the bed and chose to sleep on the couch.
Rejecting the no-case submission, magistrate Timothy Gattuso noted that while the alleged victim had initially believed Mr Whittaker was asleep he had doubts.
“His evidence was that when he heard of another (alleged) incident, without hearing the detail of it, he stopped giving the benefit of the doubt to Mr Whittaker,” he said.
“That means he must have had an initial doubt about whether he might have been asleep.”
In separate alleged incidents, two men say they woke in Mr Whittaker’s apartment to him allegedly sexually touching them. Picture: NCA NewsWire / Nicki Connolly
During the hearing, the court was told the man allegedly woke to Mr Whittaker stroking or rubbing his penis after a heavy night of drinking in January 2016.
The court was told the man filed a complaint to Cricket Australia in December 2021 after hearing rumours of similar allegations.
The matter was referred to police who were already investigating an allegation of sexual touching without consent following a Cricket Australia end-of-season party in March 2019.
The man alleged he had “blacked out” on Mr Whittaker’s couch and woke to the accused man touching his penis around 5.30am.
Several former Cricket Australia employees told the court they woke up later the same day to find missed calls and voicemails from the alleged victim.
“They were all from (the alleged victim) saying that something really f–ked up had happened at Tim’s,” former Cricket Australia employee Jane Livesey told the court.
The hearing continues.