In the second interview, Constable Andrew Paterson took S step by step through CCTV footage obtained from the carpark of an industrial building in Avondale on the morning of the alleged rape. It’s footage that jurors have watched many times themselves.
The officer pointed out to S that his two co-defendants appeared to be in the front seats, and he agreed.
“And we can see two heads in the back,” Constable Paterson continued, suggesting one was the complainant and the other head was S.
“I don’t know,” S responded. “It looks like mine. I’m not even sure of mine.”
The officer continued: “You’re in the middle and you’re not asleep. It looks like you’re on top of the girl. Can you explain that?”
The defendant responded: “I don’t even remember having sex with her. Is there any way to find out it was 100% me? I’m willing to do that.”
S insisted several more times before the interview ended that he wanted to “do the test”.
“Why don’t you remember?” the constable asked him.
S said it was because he was drunk that morning after having consumed an estimated five Corona beers, three shots of whisky and one-third of a bottle of champagne before midnight.
“It was my first time,” he said of the whisky and champagne, echoing what co-defendant B had told police in a separate interview that same day.
“Did you rape her?” the officer asked.
“I don’t remember,” S replied.
‘Help’
Authorities have charged the three defendants with three counts of rape each. One charge each man faces is for his own alleged sexual assault. The other two charges are for allegedly aiding and encouraging his co-defendants.
Other CCTV, from inside Family Bar on Auckland Central’s Karangahape Rd, showed that the complainant had met defendant B earlier that morning and appeared to kiss him consensually. CCTV from outside the popular bar then showed the men taking her away in a van that they had borrowed from a friend.
Family Bar on Karangahape Rd. Photo / Jason Dorday, File
Around that time, the woman texted to her friends the word “gilde”, which prosecutors believe to have been a misspelling of “hilfe”, the German word for help.
The complainant had very fractured memories of the morning but recalled through tears having come out of a blackout to realise a man was in the middle of having intercourse with her. She remembered other men being in the van as well.
Prosecutors have alleged she either explicitly didn’t give consent for the three men to have sex with her or she was too intoxicated for legal consent to have been given.
Lawyers for B and O have acknowledged their clients engaged in sexual activity with the woman but have argued they had a reasonable belief of consent. S, the defendant whose interview was played for jurors today, is the only one whose lawyer has argued he never had sex with the woman at all.
DNA testing linked B and O to the woman, but it was inconclusive for S.
Friends give evidence
After driving from the Avondale carpark and leaving the woman outside her hostel, the trio returned to an Auckland Central park where they had been drinking on New Year’s Eve with two other friends.
Those men, both also with interim name suppression, gave evidence today.
One of the friends, in an interview with police last month, recalled how S allegedly bragged after they met up again at the park that all three defendants had intercourse with the woman. He recalled S describing the woman as having had too much alcohol.
“That is fine. Whatever I said here, I agree with that,” he said today when prosecutor Fiona Culliney asked him to review a transcript of the police interview.
But the witness, who nodded to one of the defendants as he entered the courtroom, also said repeatedly during today’s testimony that he was too drunk to accurately remember. He was no longer sure, he said, if it was S who said those things or if it was a fifth friend who was angry that the trio had left with his father’s van.
The fifth friend, the witness recalled, was also angry because he had found women’s underwear and a condom inside the returned van.
“Maybe I said in my [police] statement … but I’m still not sure whether he [S] said they had intercourse or not,” the witness said under cross-examination from the defence. “I was too drunk, and I am in doubt still what [he] said to me.”
Drunkenness and memory loss were themes that were repeated when the next witness – the fifth friend – entered the witness box. He said he couldn’t recall being angry at the trio when they returned, and he didn’t recall a conversation in which any of the defendants described what had happened when they were gone.
“Did you ask where they’d been with your car?” the prosecutor asked.
“I don’t think so,” he replied.
The witness did recall today that S was sleeping in the van when the defendants returned to the park. But that would be new information, the prosecutor said, noting that he never indicated that when he was interviewed by police.
The trial is set to resume 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.
Ella Scott-Fleming has been a journalist for three years and previously worked at the Otago Daily Times, Gore Ensign and Metro Magazine. She has an interest in court and general reporting. She’s currently based in Auckland covering justice related stories.