Two lawyers battled over how a tampon was removed from a victim in day four of a sex assault trial in Supreme Court on Thursday.

A 42-year-old Pembroke man, who cannot be named for legal reasons, is charged with sexual assault and stealing on or about January 1, 2001.

In earlier testimony the court heard the victim was menstruating on the night of the assault and that she had a tampon inside her. Tampons were also later found in her knapsack. Dr. Basil Wilson examined the woman after the assault and told the court he did not find a tampon during the examination.

Acting Director of Public Prosecutions Kulandra Ratneser suggested to the jury in his closing arguments that the defendant removed the tampon before raping her.

But defence lawyer Larry Scott suggested the victim could have removed her tampon while the defendant was looking for a piece of cardboard for them to sit on, or while she was partying at Blue Juice Bar, Hamilton.

Mr. Ratneser stressed to the jury the importance of circumstantial evidence.

?Circumstances never lie,? he said.

?Mr. Modler (forensic biologist) said he compared the vaginal swab and came to the conclusion that it was of mixed origin. It had a female/male component and the male component belonged to the defendant.

?If his seminal fluid was found in her vagina ? he and he alone is the only one who had sexual intercourse with that woman.

?It is the Crown?s submission that the whole story about her consenting is a lie.?

Mr. Ratneser pointed out the many lies the defendant made to Police.

?In the presence of his lawyer he denied ever touching her. But in his testimony he said he pushed his penis into the lips of her vagina.This is a contradiction on the most crucial evidence,? he said.

He continued: ?He pretended to be a good Samaritan but was he? Would someone leave a woman in that state (unconscious)?.?

He said it was irrelevant how the victim became so drunk and emphasised that she was unconscious and unable to consent to sex while with the defendant.

He also referred to the medical evidence given by Government analyst Christine Quigley.

?According to Ms Quigley this lady would have had 290 millilitres of alcohol in 100 milligrams of blood around midnight on the night of the incident,? he said.

?She would have had slurred speech, memory loss, difficulty walking, impaired judgement, mental confusion, nausea, vomiting, and gross impairment of co-ordination.

?Could this lady have consented to sex in the dark of the night on a piece of cardboard??

Mr. Ratneser finished his arguments by saying: ?The time has come, members of the jury, to remove the cloak of innocence and find this man guilty of both counts.?

In closing, Mr. Scott said his client had told the truth about the incident in court.

?He lied in his statement about the contact he had with her,? he said. ?But he said that he is here now to tell the truth.?

He said the defendant left the woman unconscious out of fear.

?Once she passed out he thought Police would say to him ?what have you done to her,?? Mr. Scott said.

The jury was asked why the Police did not search the defendant?s home for the victim?s missing items.

?It is not her mind that you judge,? Mr. Scott said. ?But, did he honestly believe she was not consenting??

Mr. Scott said the defendant attempted to return the victim?s knapsack to her and that action should be viewed as ?honesty?.

?He could have tossed the bag in the North Shore but no he did not do that,? he said. ?He called her friends to arrange to return it. Then he makes a rendezvous at Rudy?s (now Bistro 12) to return it but is arrested by Police.?

Mr. Scott also argued that men and women behave more promiscuously on New Year?s Eve and are more open to casual sex.

?Some of us may believe it is about party blowers and hats. But today it is about ?let?s do a little hunting?, ?let?s see what?s out there tonight?. Both boys and girls are thinking this way.?

Mr. Scott said people are more comfortable with one night stands and casual relations today.

He asked the jury to acquit the defendant on the basis of his belief that the woman consented to sex.

Chief Justice Richard Ground is expected to read his summary to the jury today.