“I wouldn’t say something like that,” she eventually responded, but conceded that because of her own spotty memory due to intoxication: “I don’t know.”
The rape trial began in the High Court at Auckland on Monday with jurors watching a police interview with the then-19-year-old that had been recorded days after the incident. The woman had been scheduled to give live evidence yesterday but the trial was postponed due to an issue with translation.
All of the defendants, referred to in public court documents only as B, S and O, have interim name suppression until the end of the trial. Sexual abuse complainants have automatic suppression.
The woman said repeatedly in the police interview and again today that she remembered arriving at Family Bar on K Rd and dancing with friends from the Auckland Central hostel where she was staying. She said her memory then went blank until later that morning, when she recalled realising a man was on top of her inside a van, having sex with her.
A woman who has accused three men of rape says she met one of them while intoxicated at Family Bar on Auckland Central’s Karangahape Rd.
“I know that I was quite drunk and had very little memory,” she explained today, speaking in German before an interpreter in the courtroom translated for jurors. “I don’t know how to say it but it seems like I lost consciousness every now and again.”
Enhanced CCTV from the Avondale carpark shows what prosecutors Fiona Culliney and Pip McNabb have contended is evidence of three people taking turns raping the woman inside the van.
She either explicitly didn’t consent to sex with the trio that night or was too intoxicated to give consent, prosecutors said, explaining that the law states either scenario equates to rape.
Defence lawyers for defendants B and O, however, have said they are not guilty because there was a reasonable belief on the morning that the sex was consensual. The lawyer for S has said he’s not guilty because he slept through the entire incident in the back of the van, not participating.
DNA evidence links B and O to sexual activity with the woman. Although DNA tests for S were inconclusive, prosecutors said he bragged to a friend after the incident about having participated.
The complainant was emotional throughout her evidence today, but some of her strongest responses were when lawyer Petrina Stokes, representing B, played CCTV footage from outside Family Bar.
Crown prosecutor Fiona Culliney. Photo / Michael Craig
It showed her and B together before the van – purportedly with the other two defendants in it – arrived. The two kissed at one point. At another point, she moved the defendant’s hand down to her bottom, the defence lawyer pointed out.
The footage also appeared to show her unsteady on her feet.
Prosecutors have said the kissing at the nightclub was consensual but not the sex with the three defendants. For her part, the complainant said she had no memory of any of it but conceded it appeared to be her on film.
“You might have seen in the video that I kissed the man, but you also saw that I was so drunk that he lifted me up,” she said. “I didn’t want to get in the car with any strange people.”
At some point around the time they were outside the nightclub, the woman sent a one-word message to her fellow backpacker friends on a WhatsApp chat group: “gilde”.
“I’m pretty sure it was either a typo or an auto-correction of the German word for ‘help’,” the complainant said, explaining that “help” translates to “hilfe”.
Defence lawyers pointed out the “gilde” can mean “team” or “group” in German, but the woman dismissed it as an “ancient” word that she has never before used.
She texted more clearly about an hour later, telling her friends in German: “Can somebody help me please.”
The defence suggested that when in the van, the woman was sexually forward towards B, helping him take off his black singlet. She repeated that she had no memory of it. It was suggested she had her hand around the back of the man’s neck as he lay on top of her.
“Not in my memory,” she said.
“I do remember feeling there were hands everywhere, but I don’t know what situation.”
The defence lawyer suggested that B suddenly appeared to be embarrassed about something and moved away from her.
“I have no idea,” she repeated, adding in seeming exasperation: “I don’t know what you want me to say.”
“Is it fair to say it could have happened but you don’t remember?” Stokes asked.
“If course you could say that … but you could say that about anything,” the complainant replied.
In her final question, Stokes suggested the woman had consented to what happened with B that morning. The woman cried loudly then replied in a fast, raised voice.
“I can’t remember,” she said. “But if I had done so I wouldn’t have landed in the hospital afterwards, would I?”
The lawyer for O, the driver of the van, later suggested through her questioning that the woman had also kissed her client in the nightclub before getting into the van.
“You asked him to have sex with you, is that right?” Cresswell asked.
“I can’t remember, but I would be fairly certain I didn’t do it,” the woman responded through tears.
She later elaborated when questioned again by prosecutors.
“It just doesn’t make sense to me,” she said of the contention she welcomed the sexual activity. “I didn’t even know until the police told me that several people had sex with me – I didn’t even know about that.”
The woman was also asked about how she was left at the hostel after the Avondale incident. Prosecutors have suggested she was “pushed” out of the vehicle in a final act of inhumane treatment by the defendants.
The woman said her memory of that, too, remains murky.
“But I remember feeling that it was a hard exit and I was on the street and my legs hurt,” she explained.
Detective Constable Tessa Bassett, one of only two other witnesses to give evidence today, shed more light on that portion of the morning. She recalled talking to the complainant’s friend at the hostel, another backpacker who said the complainant initially told her she had been “pushed out” of the vehicle in front of the hostel.
“You don’t know what they did to me,” the friend recalled the complainant saying as she tried to run into the street.
By the time Bassett got to the complainant, she was in a room of the hostel with about eight beds. A paramedic described her to jurors as “catatonic in nature” and curled into a foetal position half off the bed, with some grass and leaves in her hair.
“She still seemed like she was intoxicated and really did not want to get out of bed,” the detective said. “I just remember that she was trying to stay asleep and just saying she did not want to go – just physically resisting.”
They talked again in the hospital several hours later, after the woman woke up from a rest.
“The guys raped me,” the complainant told her, according to her handwritten bullet-point notes. “Don’t know how many guys. Can’t remember if I lost consciousness or if it was just a blur …
“They were moving me all the time. I couldn’t stop it … It was already happening by the time I woke up …
“I can’t remember anything else. I just want this to be over and forget about it.”
The defendants, who were between the ages of 19 and 20 at the time, face three charges each of rape. One count is for the act each defendant allegedly committed himself, and the other two counts are for having allegedly aided or encouraged his co-defendants to rape the woman.
The trial continues tomorrow before Justice Mathew Downs and the jury.
Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.
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