Acting Magistrate Mark Pettingill told a foreign cruise ship worker he was ?free to go? yesterday after finding him not guilty of sexually assaulting a co-worker.

Finding the prosecution had presented insufficient evidence against the man, Mr. Pettingill did warn the man that he hopes ?you learned your lesson about what you do and learn how to better conduct yourself? as the man was being congratulated by friends in the gallery.

Mr. Pettingill had heard the co-workers had been drinking at a local bar on May 19. Yesterday Mr. Pettingill remarked: ?Alcohol has played a part in a major way to what has transpired.?

The complainant admitted having six beers that night and admitted to being someone who enjoys to drink, however she did not feel that she was drunk.

The woman also admitted to being a ?tactile person? he said, therefore someone who often touches, hugs and holds hands etc. After the bar, the two co-workers went to the defendant?s cabin on the ship which was docked in Hamilton.

?Something doesn?t strike me... From being at a bar and being tactile, to being in a place and suddenly turning things off,? said Mr. Pettingill when considering the evidence.

The woman claimed she thought they would just listen to music. Photos shown of the cruise cabin showed the bunks were small in size. Mr. Pettingill said ?the complainant was not, in respects, a small lady?, and questioned why the two had been in the tiny bed together, rather than in separate bunks.

Mr. Pettingill did accept the evidence that the man got into the bunk first, and the co-worker went to the bathroom to change into her pyjamas. ?The evidence is that the complainant woke up and found some discomfort in her vaginal area and found the defendant thrusting inside of her,? recalled Mr. Pettingill.

It is also alleged the woman woke up and found her legs spread at a 45 degree angle, while the defendant was having sex with her from behind.

She asked the defendant to stop, which he did. ?I am of the view there reasonably could have been this type of position that caused the defendant to believe that she was compliant,? said Mr. Pettingill.

The woman was unsure how her pyjama bottoms were taken off and believes that the defendant had removed them. ?She is sure about certain things and unsure about others,? remarked Mr. Pettingill.

Nonetheless the case was dismissed as the Crown was unable to prove their case without a reasonable doubt, he said.

The defendant, represented by Elizabeth Christopher, was allowed to walk away a free man and cried tears of joy with his supporters.