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A man who was jailed for up to seven years for raping a sex worker without a condom will face a fresh trial after a successful appeal.
Leon Pompei, who once ran a marine business in Melbourne's southeast, was last year found guilty by a jury of the rape and assault of a woman at a brothel.
He visited the brothel and paid for a "deluxe package" from the woman, once alone in the room together he allegedly choked her and then had sex with her without a condom, the Court of Appeal was told.
The woman pushed him off her, screamed that the booking was cancelled, was distressed and complained to fellow workers.
He told police he knew condoms were required to be worn at the brothel, but denied the woman offered him a condom and claimed he did not put his hands around her throat.
Pompei was jailed in 2022 for a minimum of four year and six months.
He launched an appeal against his conviction, claiming the trial prosecutor relied on incriminating conduct without informing his legal team, in her closing address to the jury.
The prosecutor told the jury Pompei left the brothel without talking to anyone and walked straight out halfway through the booking "because he knew he had assaulted [the woman] and he wasn't hanging around".
Court of Appeal Justices David Beach, Terry Forrest and Stephen Kaye on Tuesday found this was an error and warranted a retrial.
"It is as clear an invitation to infer the guilt of the applicant from his post-offence conduct as can be imagined," the judges wrote, in their reasons.
"Put another way we are unable to be satisfied that the prosecutor's invitation was either rejected or not processed by the jury."
The judges found it could have made a difference in the outcome of the trial and ordered Pompei to stand trial again for the rape and assault.
Pompei will return to the County Court on May 1.
