Stephen Milne arrives at court
RAW VIDEO: St Kilda forward arrives with his wife, Melissa, at a committal hearing court dealing with four charges of rape dating back to 2004.PT0M40S http://www.canberratimes.com.au/action/externalEmbeddedPlayer?id=d-2tpza 620 349 September 13, 2013
Lawyers for retired St Kilda AFL player Stephen Milne are considering making an application that the rape charges against him are an "abuse of process" and should be thrown out of court.
Defence barrister Philip Dunn, QC, told Melbourne Magistrates Court on Friday the application could potentially be made before a committal hearing into the charges begins in November.
The hearing, which has been set down for at least three days from November 12 involving 17 witnesses, will determine if Mr Milne should stand trial on four rape charges.
St Kilda footballer Stephen Milne arrives at the Melbourne Magistrates Court. Photo: Michael Clayton-Jones
Mr Milne, 33, of Cheltenham, who appeared in court with his wife, Melissa, is accused of raping a 19-year-old woman at the Highett home of his teammate Leigh Montagna on March 15, 2004, after St Kilda’s family day to celebrate the club’s win in that year’s pre-season competition the previous night.
Mr Milne and Mr Montagna were investigated at the time but no charges were laid.
Mr Milne was charged on June 18 this year after a police review of the case had been requested by the Office of Police Integrity.
In a statement released after Milne was charged, Victoria Police acknowledged the original investigation had been "substantially inadequate".
Mr Dunn told the court on Friday eight of the witnesses at the hearing would be police investigators from the original 2004 investigation and those involved in the 2010 investigation, which had been prompted by a television interview given by former detective Scott Gladman.
Mr Gladman claimed police members with alleged links to the football club had attempted to sabotage their investigation into the 2004 rape accusations.
The former detective told Nine News at the time that tapes of interviews with the two Saints were stolen from his desk and the alleged victim’s statement was leaked to the club during the six-week investigation.
Mr Dunn told the court on Friday questions would be asked about the original investigation and if the OPI was pressured into reactivating the case in 2010.
The defence barrister also asked for permission to cross-examine the alleged victim during November’s committal hearing about her past sexual activity with Mr Montagna.
During the night in question, the alleged victim and her girlfriend had met up with Mr Montagna and Mr Milne before the then 19-year-old had sex with Mr Montagna.
Mr Dunn said the alleged victim had later gone into another room and spoken with Mr Milne before the pair had sex, with the woman later telling police she believed Mr Milne had been Mr Montagna.
The defence barrister described this scenario as ‘‘improbable’’ because the alleged victim had previously had sex with Mr Montagna so she had an understanding of his body shape, his physical characteristics and the shape of his penis.
Magistrate Peter Reardon agreed this evidence was highly relevant and granted Mr Dunn permission to cross-examine the alleged victim about her previous sexual activity with Mr Montagna.
Prosecutor Brett Sonnet told the court the alleged rape victim and Mr Gladman would give evidence via videolink during the November committal hearing.
He said Mr Gladman was currently somewhere in central America.
Mr Dunn then raised the issue of a subpoena Mr Milne’s defence team had issued to Radio 3AW and talkback host Neil Mitchell demanding they hand over the tape of an interview he had with the alleged victim and her mother on May 17, 2004.
Mr Dunn said the tape was important to the case because the alleged victim’s story had varied from time to time and her mother did not provide a statement to police until last year.
Mr Mitchell told listeners on Friday he had agreed not to broadcast the interview, which has never been aired, unless they approved or the alleged victim spoke to another media outlet.
Lawyers for 3AW and Mr Mitchell told the court they were claiming legal professional privilege and would not release the tape to Mr Dunn.
A special hearing into the matter will be held on September 30.
Mr Milne, who played 275 games for St Kilda and was a member of the 2009 and 2010 grand final teams, retired after the final round game against Fremantle at Etihad Stadium on August 31.