Herbert's defence barrister, George Costantine, told the court that the woman's use of the "face with peeking eye" emoji signalled she was open to boundaries being broken in a sexual encounter. The pair had met on a sex-positive dating app in late 2024 and exchanged messages about consensual non-consent (CNC), a fantasy where partners agree in advance to act out a scenario of non-consent.
The woman testified that while she consented to some sex acts, she told Herbert in the hours before the meet-up she did not consent to others. She said he ignored her when she told him she was in pain and repeatedly asked him to stop. She told the court she understood CNC to involve safe words and boundaries, but said the pair never discussed details because she believed they would not be engaging in CNC.
"My understanding was that we weren't going to enact any fantasies, but he would come over for sex," she said.
Herbert initially denied a sex act to police before saying it may have happened "unintentionally". The woman spent three days in the witness box, where she was questioned about her fantasies and emoji meanings, and accused of fabricating the assault to re-establish contact with her ex-boyfriend. She described the defence's line of questioning as "offensive".
The trial before Judge Christopher O'Brien at Sydney Downing Centre District Court in August resulted in a hung jury. A retrial is scheduled for April.