Men fight Daley rape and death convictions
The horrific injuries suffered by a woman who bled to death on a secluded beach have been aired in court as two men found guilty of raping her before she died fight to overturn their convictions.
It was open to a jury to find Lynette Daley was not consenting to the rough sex that left her with two severe lacerations to her vagina, the NSW Court of Appeal heard on Thursday.
Ms Daley was 33 when she died on the morning of January 27m 2011 while on an Australia Day camping trip with her boyfriend Adrian Attwater and Paul Maris.
Maris rang triple-0 from Ten Mile Beach near Iluka in northern NSW at 6.01am and again at 6.08am, telling operators Ms Daley was not breathing.
In the background of the call, Attwater was heard saying "Come on. Wake up, babe. Where are ya … ya f***ing bitch".
When paramedics arrived some 40 minutes later, they found Ms Daley cold, naked, bloody and lying on the sand with a drag mark stretching from her feet to the ocean.
Both men said they had consensual, simultaneous "wild sex" with Ms Daley the night before.
Attwater said Ms Daley had enjoyed it, continued to chat with him afterwards and undressed for an early morning swim on January 27 before collapsing in the ocean.
But a jury rejected the story in 2017 and found Attwater guilty of Ms Daley's manslaughter and aggravated sexual assault.
Maris was found guilty of hindering a police investigation for burning a mattress and clothes stained with Ms Daley's blood, and also of aggravated sexual assault.
The two men have now launched an appeal, arguing the jury could not reasonably have found them guilty based on the evidence.
Attwater says the jury could not have been satisfied beyond reasonable doubt that Ms Daley wasn't consenting to the sex.
If his sexual assault conviction is quashed, then there is no evidence of an unlawful act and he should be acquitted of manslaughter too, he said in written submissions to the court.
Eyewitnesses testified Ms Daley was extremely intoxicated at a grocery store around four hours before the sexual activity, and a toxicology report found her blood alcohol level was 0.303 at the time of her death.
But there were many unknowns, Attwater argued, including how much she drank after visiting the grocery store, and her tolerance to alcohol.
Maris' barrister John Stratton SC said it was not open to the jury to accept his client had sexual intercourse with Ms Daley but reject everything else he said.
David Kell SC told the Court of Appeal on Thursday the Crown maintains Ms Daley was either unconscious, in a stupor or so intoxicated she could not have freely agreed to sex.
The jury was entitled to accept just the one part of Maris' evidence and reject the rest, including that on his account the act was consensual, he said.
Mr Kell said that the amount of force that would have been used on Ms Daley for her to suffer the lacerations was a "powerful factor telling against consent".
The fact she did not cry out in pain, on the evidence of both men, also suggested she was either unconscious or so impaired she did not consent, he said.
Medical evidence suggested there would have been "immediate and profuse bleeding" following the injury and Attwater would have been aware he inflicted it, Mr Kell said.
The men are also appealing on the ground that they suffered a miscarriage of justice when Justice Elizabeth Fullerton directed the jury about how to consider lies when reaching a verdict.
Attwater's barrister argued on Wednesday jurors may have had an "emotive visceral reaction" to the graphic autopsy photos in the case.
Mr Kell said Justice Fullerton had made sure the jury would not be swayed.
She had appropriately warned potential jurors about the graphic evidence, telling them they should ask to be dismissed if they would find it too confronting, Mr Kell said.
She had also clearly told the jury they were not to deliver a verdict based on an "emotional response" as she summed up the case.
Attwater and Maris are also appealing their sentences.
The hearing is expected to finish on Friday.
Originally published as Men fight Daley rape and death convictions