A RETRIAL has been ordered for two Perth men convicted of raping a drunk woman they picked up in Northbridge, after the Court of Appeal found the prosecutor may have “improperly influenced” the jury and racially stereotyped them.

The quashing of the men’s convictions means the alleged victim in this case now faces the prospect of having to give evidence a second time.

The two friends known as MAM and SF, of Middle Eastern background, were found guilty of rape by a District Court jury. They denied that allegation, but claimed they both had consensual sex with the woman in the back seat of a car.

The woman, aged 25 at the time, had been out drinking with friends, but was sitting alone outside a hotel when one of the convicted men approached her. They ended up in Kings Park, with the woman testifying at trial that she can only remember flashes of events in the car including that one of the men was having sex with her in the back seat. When asked if she gave consent to the sex, she said: “Not that I recall, no.”

A passer-by found the woman, who had torn leggings, wandering and in a distressed state back in Northbridge and took her to a police station after she told him she had been raped.

MAM initially lied to police claiming the incident had not happened, but later confessed to it, saying the sex had been consensual after he had approached the woman who looked distressed and asked if she was OK.

After cracking some jokes and sharing some laughs with her on the street, he said they both went back to the car. MAM said she was not slurring her speech and was able to get into the car on her own.

In his evidence, MAM said the woman had sex with his friend first while he waited outside the car and then he went to “try my luck” and “see if she was still up for it”.

In his closing address, the prosecutor likened the men to “vultures” and “hyenas on the savannah in Africa waiting to pick on the most vulnerable animal, helpless, lost and alone.”

He claimed the men were “predators” who had gone “on the hunt” into Northbridge “stone cold sober” with the sole purpose of “looking for the drunkest single, lone female” to have sex with.

The prosecutor also suggested that the men had engaged in predatory behaviour against women on other occasions and treated women within their own community with respect, but not those outside it.

In the appeal decision published on Friday, Chief Justice Wayne Martin said some of the prosecutor’s “ill-advised” comments had the capacity to “evoke notions of racial prejudice against the accused and sympathy for the complainant.”

He said these submissions had no evidentiary foundation and concluded there had been a miscarriage of justice.

“(The prosecutor’s submission) to the effect that MAM, SF and perhaps some of their Middle Eastern friends were respectful of women within the Middle Eastern community but preyed sexually upon women outside that community ... risked evoking cultural stereotypes arising from sensational media reports of sexual offences committed by young men within the Lebanese community in Sydney,” he said.

“The prosecutor’s repeated use of language apt to evoke feelings of prejudice, sympathy and emotion and the submissions which he made which could have had the effect of inducing notions of racial prejudice and corresponding notions of sympathy for the complainant constituted breaches of his duty and of the legal principles.”

Chief Justice Martin added the prosecution’s case was “not overwhelming”, as the woman’s evidence was “equivocal and not emphatic”, but noted “there was clearly sufficient evidence to sustain a conviction”.

The State’s top judge also found the prosecutor went overboard in his “sarcasm” and “mockery” of the men. This related to the prosecutor’s mockery of MAM’s evidence in which he portrayed himself as “so charming” and the incident as a “very romantic, boy meets girl” situation in which he lifted the woman’s mood with “three minutes of sparkling conversation and wit.”

Both the two other appeal judges agreed the convictions should be overturned, but Justice Stephen Hall noted that he did not consider the prosecutor’s language around the men being “predators”, although inappropriate, was intended to or had the capacity to invoke racial stereotypes.