A mistrial has been declared in the case against St George Illawarra Dragons player Jack de Belin and his friend Callan Sinclair after the jury were unable to reach a unanimous or majority verdict.
A 12-person jury told Judge Andrew Haesler that after deliberating for less than two days they were unable to come to a decision.
The Crown alleged NRL forward, 29, and his friend, Sinclair, 23, had aggravated sexual intercourse without consent in company with a then 19-year-old woman at a North Wollongong townhouse on December 9, 2018 following a night out at Mr Crown.
The men pleaded not guilty to each of the five charges and claim the threesome was consensual.
The jury consisting of five women and seven men first retired to consider their decision after nearly four weeks of evidence at about 10.30am last Thursday.
When they could not come to an agreement by Thursday afternoon they were dismissed until Monday 9.30am, when deliberations resumed at Wollongong courthouse.
Judge Andrew Haesler received a note about 11.30am on Monday that read, "despite careful consideration of all available evidence we have been given, we are unable to reach a unanimous verdict."
He has asked all 12 jurors to return to deliberations, to calmly discuss the evidence and the points of difference that had resulted in them being unable to reach a unanimous decision.
Judge Haesler asked the jury to go back, calmly reconsider the evidence and the reasons why they disagreed.
However, jurors came back in at 3.20pm and once again told the Judge a decision could not be reached.
He asked whether a majority verdict of 11 jurors could come to a unanimous agreement, with only one juror not agreeing.
After short deliberations, the foreperson and jury returned to say "absolutely not, no" a majority verdict could not be reached.
Judge Andrew Haesler then formally discharged the jury and thanked them for their role as jurors.
"The fact that you cannot reach a unanimous verdict to either accused or any of the counts. It is sad but it happens in about one in 100 cases," he told jurors.
"Don't beat yourself up about it. You have done it your best."
Haelser told de Belin and Sinclair he did not have a three to four week trial availability until August 2021 and said a court in Sydney may be able to hear the trial earlier.
Crown prosecutor David Scully alleged the woman agreed to accompany the men from the nightclub to another nightspot after she shared a kiss with Sinclair late on December 8, 2018.
Mr Scully suggested the men diverted their tuk-tuk to an empty Gipps Street apartment belonging to de Belin's cousin, telling the woman they needed to charge their phones.
The woman claimed she initially told the men she would stay outside, but then decided to go in to use the toilet.
Mr Scully said de Belin walked into the bathroom naked and began showering while the woman was on the toilet.
De Belin allegedly walked out of the bathroom, undid her top and pushed her onto the bed before the men told her "show us your tits".
De Belin allegedly took off her shorts and underwear, forced open her legs and grabbed her by the throat and lent on her chest.
Mr Scully said the men "spurred each other on" with de Belin telling Sinclair "nice, Cal" as they simultaneously raped the woman vaginally and orally, switching multiple times, before it was alleged de Belin tried to have anal intercourse with her.
The woman told the jury she had "tears coming out of her eyes," said "no", and "felt dead and numb inside".
Both men claim the woman was moaning in pleasure, said "yes" and that it was "normal sex".
After the alleged assault, the woman ordered them a Uber and she accompanied them back into the CBD.
De Belin allegedly told the woman "here is $50 for the Uber and to keep your mouth shut."
They got out opposite Heyday nightclub on Crown Street.
The trio then walked to Fever Nightclub, where the woman could be seen on CCTV footage laughing, before they joined the queue. She told the court she was trying to put on a brave face and felt she could not get away from the men.
She left the line shortly after arriving and sent a message moments later to a friend saying "help" before she ordered an Uber and went home.
The next morning she told her work managers about the alleged assault before she went to the police station and hospital.
However, the men's lawyers suggested the men believed the woman was consenting during the threesome.
They also submitted that her evidence was unreliable, detailing several inconsistencies, and was not supported by the objective evidence of CCTV footage and telephone intercepts.
De Belin's defence lawyer David Campbell SC said during his closing remarks that his client and Sinclair had not committed a crime.
"He (de Belin) conducted himself in a way that was morally wrong. He knows that. He cheated on his partner. He knows that. He should have been more respectful. He knows that," he said.
"Whilst what happened is not something to be praised, it certainly does not for the reasons we have outlined, involve any criminal conduct."