\u201cThe idea that this young backpacker … would want to be driven off to some dark, deserted part of the city … to have sex with these three young men \u2013 it just defies logic,\u201d Crown prosecutor Fiona Culliney told jurors during her closing address. \u201cNo reasonable, sober person could have believed she was consenting. They had no regard for her at all.\u201d<\/p>\n
The 19-year-old<\/a> was likely unconscious when the trio violated her, but at a minimum, she was so obviously drunk that she could not have consented, Culliney said. <\/p>\n The complainant has only patchy memories of the night but appeared to be in agony as she described to a police interviewer how she woke up to find a man she didn\u2019t know in the process of intercourse, while others in the vehicle spoke to each other in a language she didn\u2019t recognise. <\/p>\n All three men, aged 19 and 20 at the time of the offences, denied the rape charges, but for different reasons. <\/p>\n B, whose DNA was found on the inside crotch of the complainant\u2019s clothes<\/a>, said he engaged in consensual sexual activity with the woman but did not have penetrative sex. O, whose DNA was found during a gynaecological exam of the victim,<\/a> admitted to having sex with her but claimed it was she who propositioned him. <\/p>\n S admitted he was also in the van but said he was asleep in the back row throughout the incident. DNA testing for him, which he seemed to encourage during an interview with police, was inconclusive. But a witness told police S had bragged later that morning about all three defendants having sex with a woman who was \u201ctoo drunk\u201d. <\/p>\n Each defendant faced three counts of rape, one for being the principal offender and two for aiding or encouraging his co-defendants. <\/p>\n B and O were found guilty of all three charges. Jurors found S guilty of a single charge and convicted him of raping the woman but not of helping his mates. <\/p>\n \u2018Sinister turn\u2019<\/p>\n The complainant recalled to authorities that, before her memories going blank, she had consumed a bottle of wine, two vodka drinks, a glass of prosecco and a Corona beer as she ushered in the New Year with friends from her hostel. <\/p>\n At some point, she met B on the dancefloor at the K Rd bar and CCTV showed them kissing. That was consensual, prosecutors conceded, even though the complainant said she had no memory of it. But later, as the two exited the club, footage showed the woman swaying, stumbling and needing to be pulled up from the ground by B after sitting down with him. <\/p>\n Prosecutors noted she appeared at one point to push B away, although she later embraced him again. The defence suggested it was too subtle and too brief to read anything into the push.<\/p>\n At 2.44am, she sent her friends a one-word text \u2013 \u201cgilde\u201d \u2013 which she said was a misspelling of the German word for help. Defence lawyers noted \u201cgilde\u201d could also be translated as \u201cteam\u201d or \u201cgroup\u201d, although the complainant dismissed that usage as uncommon, outdated and a word she had never used before. <\/p>\n O and S, meanwhile, were standing across the street, watching and waiting for a signal, according to the Crown. A short time later, after B handed them the keys to a mutual friend\u2019s van, they ran off and retrieved it. <\/p>\n When O and S pulled up outside the club in the van, the door was opened from inside before B ushered the woman inside \u2013 a sign, Culliney said, of a highly co-ordinated predatory operation. <\/p>\n \u201cThings took a sinister turn for her when she got into that van,\u201d the prosecutor told jurors. \u201cShe had absolutely no idea what they were planning.\u201d<\/p>\n \u2018A group effort\u2019<\/p>\n Instead of taking her to her nearby hostel, she was driven away from the hustle and bustle of the city centre and to the otherwise empty carpark of an aluminium business in Avondale. <\/p>\n \u201cIt\u2019s not a romantic rendezvous spot,\u201d Culliney said, ridiculing O\u2019s testimony from a day earlier that he not only knew about the camera but was thankful for it so jurors could see he was innocent. <\/p>\n The prosecutor described the assertion as \u201cthe most startling\u201d of the many lies O told in the witness box. <\/p>\n Prosecutors said the footage, which was at times hard to decipher after being zoomed 300% and enhanced, showed B was already naked and on top of the woman in the middle row of seats as the van pulled into the carpark. <\/p>\n O, the driver, is then seen looking back towards the middle row. <\/p>\n \u201cThe idea he doesn\u2019t know what\u2019s going on beggars belief,\u201d Culliney said of O\u2019s testimony, describing O as having then walked around the van and \u201cwaited his turn\u201d at the middle door. <\/p>\n \u201cWithin seconds of [B] finishing … he\u2019s on top of her,\u201d the prosecutor said of O. \u201cNo niceties. No changing positions. [She] is unable to move. She was so intoxicated and likely unconscious that she didn\u2019t know this man had sex with her.\u201d<\/p>\n O told jurors the woman had propositioned him for sex while he was still in the driver\u2019s seat. <\/p>\n After less than 90 seconds on top of the woman, O then \u201ccasually\u201d walked back around to the driver\u2019s seat, where B was sitting naked, and chatted with him, Culliney said of the video. That, she said, was when S \u201cclimbs out from the back and crawls on top of her\u201d, repositioning her body with \u201cno regard for her safety, for her comfort\u201d. <\/p>\n When confronted with the video by police, S said he still wasn\u2019t sure the figure was him even though he acknowledged only him and the other two men were in the van \u2013 and the other two were clearly seen elsewhere. He claimed he had no memory of it. <\/p>\n The CCTV ends with B getting back on top of the woman before the car leaves, Culliney told jurors. <\/p>\n \u201cThey\u2019re encouraging each other,\u201d Culliney said. \u201cThey\u2019re taking photos. They\u2019re watching each other. This is a group effort.\u201d<\/p>\n \u2018Please help me\u2019<\/p>\n At 3.43am, after the van had left the carpark, the woman texted her friends in German: \u201cCan someone please help me?\u201d O suggested she was seeking help getting the forgotten address of Hobson Lodge after the group got lost \u2013 heading to Hobsonville instead. <\/p>\n At 4.21am, she was left about 35m from the hostel.<\/p>\n \u201cThey pushed her out \u2013 didn\u2019t even let her get her underwear on,\u201d Culliney said. \u201cThat\u2019s not the way you behave with a woman if you\u2019ve just had a very lovely, consensual sexual experience.\u201d<\/p>\n B told police he hugged the woman before opening the door for her and bidding her farewell. O told jurors the woman seemed not only happy, but thankful for the ride and apologetic for having gotten them lost. <\/p>\n But witnesses at the hostel said the woman was so inconsolable that she tried to run into traffic, telling one friend repeatedly, \u201cYou don\u2019t know what they did to me\u201d. She was taken to the hospital via ambulance after others at the hostel called 111.<\/p>\n The woman estimated there had been three to five men in the van and said \u201cit was more than just one of them\u201d who had been touching her, although she couldn\u2019t give specifics. As a sign of how drunk she was, prosecutors noted she told police she didn\u2019t think the driver, confirmed to be O, had participated. But he would later admit he had intercourse with her. <\/p>\n A blood test taken at 8.40am, about five hours after the incident, showed her to have an alcohol level of 102mg per 100ml of blood \u2013 double the legal driving limit. A toxicologist gave an estimate that her alcohol level could have been about 180mg \u2013 almost four times the limit \u2013 or higher while in the Avondale carpark. <\/p>\n A physician specialising in sexual assault cases told jurors she couldn\u2019t do a full, proper exam because of \u201cgrossly swollen\u201d genitalia worse than she had seen before \u2013 although she acknowledged that in itself is not proof of non-consent. <\/p>\n Culliney argued the idea the woman would have been \u201chappy\u201d and normal on the way home despite that much pain shows the men\u2019s accounts to be \u201ca complete fabrication\u201d aimed at turning \u201cwhat was inarguably a terrible pack rape into a fantasy\u201d. <\/p>\n Regret or rape?<\/p>\n Lawyers for all three men pointed repeatedly during their closing addresses to the high standard needed \u2013 \u201cbeyond a reasonable doubt\u201d \u2013 to find someone guilty of a crime. They also each emphasised the need to resist being swayed by emotion. <\/p>\n Following those directions, they argued, would result in a realisation the evidence presented during the trial fell short of what was needed for a conviction. <\/p>\n Defence lawyer Petrina Stokes, representing B, spent much of her closing address playing the same CCTV the Crown referred to, but with her own interpretation. How could the kissing outside the nightclub be consensual but then 15 minutes later the woman\u2019s ability to consent disappear, she asked. <\/p>\n \u201cThat just does not make sense here,\u201d Stokes said. <\/p>\n It\u2019s reasonable, Stokes argued, that the woman got carried away inside the van as they continued to kiss and perhaps regretted it later. It\u2019s not reasonable, she argued, to believe the woman was unconscious. The video, she argued, showed the woman\u2019s arms draped over B\u2019s neck.<\/p>\n \u201cDrunk people can and do have consensual sex every day around this country,\u201d Stokes said. \u201cSome may not be able to remember it in the morning, but that doesn\u2019t mean they didn\u2019t consent at the time.\u201d <\/p>\n Annabel Cresswell, representing O, shared similar thoughts. <\/p>\n \u201cNone of us want to see a woman crying and that upset after a night out,\u201d she said, acknowledging that it seemed \u201ca bit sordid\u201d with all three defendants in the vehicle. <\/p>\n \u201cAt the end of the night … she might have felt silly,\u201d Cresswell said. \u201cThey didn\u2019t treat her particularly nicely afterwards.\u201d <\/p>\n But that doesn\u2019t mean she wasn\u2019t consenting at the time, or at the very least acting in a way that led O to reasonably believe she was consenting, the lawyer argued. She urged jurors not to automatically accept the Crown\u2019s interpretation of what could be seen in the CCTV. <\/p>\n \u201cIt\u2019s simply not the smoking gun the Crown thinks it is,\u201d she argued. \u201cYou can\u2019t see much inside the van [but] the Crown keeps insisting and advising what you can see.<\/p>\n \u201cIt\u2019s like The Emperor\u2019s New Clothes. If the Crown keeps shouting you can see something, that doesn\u2019t mean it\u2019s there.\u201d<\/p>\n Lawyer Annabel Maxwell-Scott, representing S, noted her client was seen the least in both videos. She emphasised there was no DNA linking him to the woman and the complainant herself had no memory of S having intercourse with her. <\/p>\n The woman did tell police she recalled a man in the back seat, where it has been confirmed S was, closing his belt as she emerged from a blackout. But to convict her client on that, Maxwell-Scott argued, would be \u201ca huge leap\u201d. <\/p>\n As for S allegedly telling a friend all three of the men had sex with the woman, the defence lawyer noted the witness who told police that later claimed memory issues as he gave evidence in trial. But even if S did say that, it might be proof only of male bravado, she suggested. <\/p>\n \u201cTeenage men have been known to lie about these things, and exaggerate to their mates,\u201d she said. \u201cIt does not prove he actually did have sex with [her].\u201d<\/p>\n \u2018A whopper of a lie\u2019<\/p>\n But prosecutors suggested jurors should be concerned with the number of lies each man was caught telling in their discussions with police or in the witness box. <\/p>\n She described the men\u2019s explanations, including assertions by all three that their memories were hazy because they had been drinking for the first time, as a \u201ccalculated\u201d attempt to cover up their crimes. <\/p>\n It makes no sense they would have taken a friend\u2019s van when O\u2019s own car was nearby unless they wanted \u201cmore room for them to do what they wanted to her\u201d, Culliney argued, pointing out that CCTV shows O and S \u201csprinting\u201d to the vehicle with \u201curgency\u201d as B stayed close to the woman outside the nightclub. <\/p>\n \u201c[The woman] had begun to show she was not interested … and [B] knew he had to act fast to get her into that vehicle,\u201d Culliney said. <\/p>\n The prosecutor described O\u2019s claim that he didn\u2019t know S was even in the van until they got back as \u201ca whopper of a lie\u201d and \u201cludicrous\u201d in light of what was seen on the video. <\/p>\n She also noted that the next day, B went on to the Ministry of Justice website and looked up sexual assault statistics for New Zealand. <\/p>\n \u201cIt\u2019s hardly something you do if you\u2019ve just had an incredible, consensual interaction with a girl,\u201d Culliney said. <\/p>\n The men had been set to lose name suppression at the conclusion of the trial. A different High Court judge denied their interim suppression requests last year, but the decision was overturned in December by the Court of Appeal. <\/p>\n Justice Downs said today that he preferred to deal with suppression at sentencing, allowing \u201cthe dust to settle\u201d and to give lawyers time to consider if they will file fresh applications for permanent name suppression. <\/p>\n \u201cI should foreshadow that there is obvious public interest in the publication of names,\u201d he told the lawyers, adding later while addressing the defendants: \u201cThere is a very real chance name suppression will be lifted come sentencing.\u201d<\/p>\nThe rape victim left the Family Bar in the early hours of New Year’s Day 2025 and was taken to an Avondale carpark where she was repeatedly raped.<\/p>\n
Crown prosecutor Fiona Culliney. File photo \/ Michael Craig<\/p>\n