The 34-year-old man has been on trial at the Whangārei District Court defending charges of sexual violation by unlawful sexual connection, rape of a female aged between 12 and 16, threats to kill and perverting the course of justice before Judge John McDonald.
Last week the jury heard in late 2020, the defendant’s family and his cousin’s family spent the day at the beach before returning to his home for the evening.
His wife and his cousin went to play the pokies, leaving his niece and her sisters at home with him.
It is the Crown’s case that while he was watching a movie with his niece, he touched her inappropriately and asked if she “wanted to go and do it up in the bedroom”.
The girl told her uncle “no” and that she didn’t like what he was doing to her, but he allegedly proceeded to rape her on the couch.
The trial was originally set down for 2023 but shortly before it was to begin, the complainant allegedly received a message from the defendant’s Facebook account threatening her not to give evidence.
Throughout the trial, a crucial piece of evidence has been a text message sent from the man’s phone to a friend of the family, who was also a police officer, that said “I did rape a girl. 12 years old. I have file police report. It my fault, very bad, be honest (sic).”
Today defence lawyer Mark Edgar opened his case, telling the jury to suspend their judgement until they heard his side of the story.
Edgar said his client did not rape the girl as there was no penetration but there was consensual sexual contact.
“The law is a 13-year-old can consent. The sexual activity did not reach that level of penetration, he was careful it did not go that far and contact ceased.”
Edgar said the only person he had told about the affair was his wife and that the text he refers to as ‘the rape text’ was sent by her.
Edgar also told the jury the Facebook account used to send threatening messages to the complainant was not his account and his wife had admitted to someone she had his phone and knew everything.
“The evidence will prove he did not have access to the phone over the time the messages were sent. The issue is attribution,” Edgar said.
When the defendant took the witness box he recalled the evening of 2020 but said he had been at work all day, not a beach trip, and arrived home to find the complainant and her mother there.
His wife and the complainant’s mother went to the pokies and he told the court he was on the couch with the girl watching a movie when she began looking at him.
“I asked her what she was smiling at. She inched her way along the couch and said ‘Can I ask you something?” the man said.
The defence will call multiple witnesses to try to prove he did not have his phone. Photo / NZME
The defendant claims the girl told him not to tell her mother and then asked “Can you teach me a few things about sex?”
“I was quite taken aback and I said ‘no’, she repeated it three times and I said ‘no’.
“She said to me ‘If you don’t teach me, I will tell my mother and your wife or I will scream.”
He agreed and alleges after five minutes of sexual contact under a blanket, she asked to go upstairs to the room to which he replied he had had enough.
“She said thank you for teaching me, I won’t tell my mum or your wife I promise.”
The man said there was no penetration at all.
The wife of the defendant gave evidence last week for two days and said she overheard a conversation with her husband and a friend using the words “My fault, girl, touch, rape.”
In her evidence-in-chief, she claimed to have not had a phone in 2021 or 2023, stating someone had taken it, and that she shared her husband’s.
But she gave contrary evidence under cross-examination, stating she had not shared a phone with him.
She also said she had never met the complainant or the complainant’s mother but later said under cross-examination that she recalled the complainant’s mother being at home, going to play the pokies with her and returning to find the children asleep downstairs and her husband asleep upstairs.
Edgar will call multiple witnesses to corroborate it was the wife who had the phone.
Shannon Pitman is a Whangārei based reporter for Open Justice covering courts in the Te Tai Tokerau region. She is of Ngāpuhi/ Ngāti Pūkenga descent and has worked in digital media for the past five years. She joined NZME in 2023.
