A man is accused of raping his girlfriend while she was asleep.
A man is accused of raping his girlfriend while she was asleep. COMPSERV/SUPPLIED

Woman alleges vids show ex having sex with her as she slept

A MACKAY district man claims he did not rape his former girlfriend while she slept because she was "always awake at the start".

Mackay District Court heard the man was charged with a single count of rape after the woman allegedly found a series of images and about 10 videos on his phone in mid 2016.

It is alleged the videos showed her in the foetal position asleep with the man, who cannot be named for legal reasons, naked and having sex with her from behind.

She also alleges the photos showed her asleep either wearing underwear or naked.

The court heard the alleged images and videos, which have since been deleted, sparked a memory of an incident when she was lying in bed with her then partner and woke up with a "pain in her anus".

It is alleged he told her she had farted a few minutes earlier.

The court heard six months after she confronted the man about the videos - and after speaking with multiple people - she complained to police and he was charged with one count of anal rape.

Lawyers for the man are trying to permanently stall the case on the grounds he would not receive a fair trial because a jury was likely to focus on "discreditable" conduct.

"The issue comes down to a causal link between the incident which she recalled when she saw the videos ... and a specific act of anal intercourse," barrister Anthony Collins said.

"My submission is the difficulty for the defendant lies in the fact that in order to be able to defend this (the Crown) would have to particularise a particular act of anal intercourse at a particular time, which isn't recalled by the complainant amongst a group of uncharged other acts which could either be regarded as criminal acts or alternatively disreputable acts."

Mr Collins said the jury could be satisfied the man had done something wrong "at some stage", but argued there was nothing to link the alleged crime to what she saw in the video.

The court heard the man claimed the woman had been awake at the start, while she said she had always been asleep and had no recollection of any of the events.

"Your client clearly was at least having sex with her when she was asleep ... on his text messages," Judge Deborah Richards said.

The court heard the man allegedly sent texts that read "they were just for me, they were not for anyone else to see".

In another text he allegedly said "you were awake at first" but that he kept going.

"Do you say that these text messages amount to admissions of rape or not?" Judge Richards said.

"Your honour, my answer at this stage is no," Mr Collins said.

"So he's entitled to have sex with her when she's asleep if it starts as a consensual act?" Judge Richards asked.

"It would depend on whether she was asleep or not," Mr Collins said, adding that the text messages occurred during a heated argument as they were breaking up and property was being separated.

Crown prosecutor Ben Jackson argued the matter was more a no case submission than a "rare" stay application.

Judge Richards will hand down her decision later this morning.