A government employee who made a sex tape with a woman he met through his work has been cleared of criminal culpability.
The man, in his 30s, was on trial before the Dunedin District Court earlier this week after pleading not guilty to a charge of making an intimate visual recording.
The woman told the court from the witness box that she had consented to their sexual liaison in May 2022 but had not agreed to being filmed and had only realised the footage was being captured midway through their meeting.
However, Judge Emma Parsons was not convinced by her testimony.
"There is sufficient evidence to find that the complainant knew that the recording was being undertaken during the sexual encounter," she said in a written decision.
"I am left in some doubt as to whether she did not also consent to the recording as she has maintained."
Judge Parsons found the defendant not guilty of the charge and continued the suppression order, which covers his identity and occupation.
During the judge-alone trial, the court heard the pair had come into contact in February 2021 through the defendant’s work.
A chance meeting at the complainant’s workplace more than a year later resulted in the man messaging her through social media app Instagram.
"What followed from that initial messaging was a rapid and assertive evolution into sexualised discussion.
"This involved photos and videos taken and sent by the complainant," the judge said.
She noted the risque photos were not reciprocated by the defendant, but he commented on the woman’s appearance in her profile photo early in their exchange.
The complainant readily accepted at trial that she was seeking intimacy with the man and the court heard she offered to send him "wee pornos".
She did send him a recording of her engaged in X-rated acts with another person.
When the pair eventually met, the woman said things immediately became physical but took an unexpected turn.
"I turned around to look at him ... and it was at that moment he had his phone out in his hand with the camera pointing at me," she told the court.
But Judge Parsons pointed to other statements the woman had made which contradicted that.
She told one of the defendant’s work colleagues he had placed a camera on a dresser to record the incident and after being confronted online by the man’s wife, said the recording began at an earlier point.
"The complainant’s evidence [at trial] conflicted with some of her earlier comments made to others closer to the time of the encounter which demonstrated knowledge of the recording at the time it occurred, if not articulated consent," the judge said.
The pair exchanged messages immediately after the sexual encounter in which the woman asked whether the government employee was going to keep the footage for himself and use it for his own erotic purposes.
"Nowhere in the messages is there any reference to the video being taken without the complainant’s consent," Judge Parsons said.
When the defendant was interviewed by police in March 2024, he guessed the allegation was revenge for him recently shunning the woman in social settings.
"This is bulls... this has ruined my life," he said.
"It’s a mistake. I slept with the wrong person."
He told police the woman had explicitly agreed to their encounter being recorded.
Arguments on the issue of suppression are due next month, after which a final ruling will be made.
rob.kidd@odt.co.nz , Court reporter
