New trial ordered for man jailed for raping au pair
A FORMER Gladstone manager who was jailed for six years for the rape of a young woman from the Netherlands, who had worked as his family's au pair, will have a retrial.
Mark Kevin Nash, a married father-of-three, was found guilty of rape by a jury in Gladstone District Court on October 24, last year.
Three Court of Appeal judges have unanimously allowed his appeal, set aside the rape conviction and ordered a retrial.
The au pair, who was on a working holiday in Australia, had been working for the family for less than two weeks when she claimed she woke to find Mark Nash having sex with her.
The court heard the au pair had been drinking at the home with Nash and his wife on the night of March 11, 2018, and continued drinking with Nash after his wife went to bed.
The woman, then 24, said when Nash, then 41, told him his wife had locked their bedroom door she said he could sleep next to her if he just got to sleep.
The woman, who said she told Nash she preferred girls, said she woke to find him on top of her, having sexual intercourse, and she told him to stop.
She said he was naked and the bikini bottom and shorts she had been wearing had been taken off.
She later called police to report the alleged rape and made a "pretext phone call" to Nash, asking questions about what had happened, with police recording it.
Nash told the court the au pair had been flirty while they had been drinking and he had told her he and his wife had an open marriage, before they had consensual intercourse.
He said he fell asleep in her bed after about 25 to 30 minutes of sexual activity before waking to her screaming "Why are you in my room? Get out of my bed. Why am I naked? Get out. Get out. Hurry up. Hurry up". During the trial Nash admitted he lied to the au pair during the pretext phone call when he said he could not remember what happened between them.
He said he could remember everything.
Nash said he lied because his wife was listening and despite their open marriage, he was not supposed to have sex with their au pairs and he feared for his marriage.
The Court of Appeal found the trial judge erred in ruling that Nash's false statements about the state of his memory were available to the jury as lies told in consciousness of guilt.
His false claims during the call, and later to his wife, that he had no memory of the events of that night, were not capable of constituting lies which would implicate him in the commission of rape, Justice David Boddice said.
The lies were only relevant to his creditworthiness.
"The leaving of the appellant's lies for consideration by the jury on an erroneous basis deprived the appellant of the prospect of acquittal," Justice Boddice said.
"The jury may have used those lies and false claims during the call and later to his wife to impermissibly reason that the appellant was guilty of the offence of rape."
Originally published as New trial ordered for man jailed for raping au pair