It was the early hours of New Year's Day 2025 when three friends allegedly led a German backpacker away from revellers and into a van. Photo / 123rf
An Auckland man accused of participating in the pack rape of a German tourist has told jurors that it was the woman who propositioned him, and that she seemed to be enjoying herself.
The 21-year-old – referred to as O due to ongoing name suppression – added that by the time he and two others dropped off the woman at her hostel on New Year’s morning last year, she was both thankful for the ride and apologetic for having “ruined” their night with a navigation error.
“Throughout the night, was she ever unconscious that you saw?” defence lawyer Annabel Cresswell asked her client.
“No,” he responded through an interpreter yesterday as he spent the entire day in the witness box inside the High Court at Auckland’s largest courtroom.
“Was she ever upset that you saw?” Cresswell followed up.
“No, I never saw that,” the defendant said, briefly breaking into tears as his testimony concluded.
But prosecutor Fiona Culliney suggested during the lengthy and frequently combative cross-examination that almost every major element of O’s account of that night sounded made up – sometimes directly contradicting CCTV from various locations.
“The three of you had found a drunk girl in a bar and made a plan,” the prosecutor put to the defendant. “You made a plan to take her away and pack rape her.”
O, the final witness of what has been a two-week trial, disagreed.
The defendant, along with friends B and S, are all charged with three counts of rape. Each man faces one count for allegedly raping the woman himself and two counts for aiding or encouraging his friends to take part.
O and B, linked to the woman through DNA testing, have both admitted having sex with her but insist it was consensual. S told police he was asleep through the whole incident and didn’t have sex with her at all.
The then-19-year-old complainant, who said she emerged from a blackout to find one of the men having sex with her, didn’t give consent and was too intoxicated to give it anyhow, prosecutors have said. The woman’s own memory from that night, however, was too disjointed to give a precise account of what happened.
O told jurors he had worked out with F on the afternoon of New Year’s Eve 2024 before they drove into the city in O’s car to meet up with friends and drink in an Auckland Central carpark.
It was his first time drinking, O said, mirroring claims made by his two co-defendants.
The trio and two other friends watched the fireworks over the SkyTower before driving about 500m to Family Bar, he said. It was inside the popular Karangahape Rd nightclub, packed with New Year’s revellers, that O said the complainant made her first move on him as he stood near the bar.
“She came to me,” he said. “We talked for some time and then she started dancing with me. She touched my body. She sang, and these types of things.”
He estimated the two interacted for five to seven minutes before the music paused between songs and he turned his attention to his friends, prompting her to walk away.
About 10 minutes later, he estimated, he then saw the woman kissing his friend B. A couple of minutes after that, as the woman and B were still kissing, he took a two-second video of them. It was because “that was such an interesting scene for me”, he said, clarifying later that it was so he could tease his friend about it later.
He next talked to B on the phone, he said, after B and the woman were asked to leave the bar because they were groping each other.
“Please give me the car key because I want to drop off the girl,” O recalled his friend telling him.
But when O went to hand over the key, he said, B instead told him to chauffer the vehicle because that’s what the woman wanted. His intention was to drop her off at her place, he said, but they got detoured to Avondale after a misunderstanding in which he started driving to Hobsonville instead of Auckland Central’s Hobson Lodge.
As O drove, he said, the woman and B were kissing in the van’s middle row of seats with the woman straddling B’s lap. They appeared to get spooked, he said, when an ambulance passed them with its sirens on.
“[B] told me that she said pull over and park somewhere,” O testified, explaining that he at first pulled to the side of the road in Avondale before moving the car to a quiet carpark because the woman didn’t like the headlights of passing trucks.
B and the woman appeared to have been engaging in sexual activity but they suddenly stopped after O parked the car, he said, adding that he didn’t know why. She seemed normal and happy, he said, while B seemed embarassed and distracted.
“And then she started talking to me,” O said. “She asked me to have sex. And after that, for a few seconds I stopped and I said, ‘You sure?’ And she said yes because we were together initially in the bar. And I went to the back seat.”
The woman, he said, “made sounds which shows kind of enjoyment” and was touching him. B, meanwhile, had moved to the front driver’s seat and O said he “had no idea” co-defendant S was even in the car because he had got in the back seat without telling anyone and had fallen asleep before they left the bar.
O then got back in the driver’s seat and continued to Hobsonville before realising with some annoyance that they had gone to the wrong place, he said.
When they finally got the woman to her hostel, he said, B wanted to walk her to the door but O refused because he was parked illegally on the side of the road. As the woman got out of the van, he said, her demeanour was normal.
“First she said, ‘I’m sorry for ruining your night,’ then she thanked me,” he recalled to jurors.
Prosecutors Culliney and Pip McNabb queued up CCTV footage, often repeating it in slow motion and zoomed in, as they reviewed the defendant’s version of events with him.
As the woman could be seen stumbling outside the nightclub – at one point pushing B away then temporarily walking away from him after they had kissed – co-defendants O and S were spotted standing across the street. O had earlier told jurors they were still inside.
“You were watching for a cue from [B], weren’t you?” Culliney asked. “You must have seen how drunk she was.”
O said he didn’t realise his friend and the woman were across the street, and he couldn’t gauge drunkeness because of his own inexperience with alcohol.
“On that call, was [B] saying something like, ‘Hurry up’?” Culliney asked. “Was he indicating there was an urgency: ‘We need to take her now’?”
No, the defendant responded to each question.
The prosecutor pointed out that around that same time, the woman sent a message to her friends that was believed to be a misspelling of the German word for “help”.
At 2.44am, as O said he was called upon to bring B the car keys, it looked on CCTV like B was instead handing keys to O. O then ran to retrieve the van, while S – who at that time was already supposed to have fallen asleep in the van, according to his testimony – was seen running directly behind O.
The rush, Culliney suggested, was because B had given them a signal that the woman was losing interest so they needed to act fast to take her away.
The prosecutors then switched focus to the roughly 10 minutes of CCTV footage from the Avondale carpark, pausing it every few seconds to ask O to explain what was going on.
Almost immediately after pulling into the carpark, O could be seen on camera turning around towards the middle seat – where B, prosecutors alleged, was still in the act of raping the woman.
O acknowledged B was naked and sitting next to the woman, but he said the two weren’t having sex. That’s when she asked O to have sex with her, he said. He could be seen getting out of the driver’s seat and walking around to the side of the van, taking his shirt off.
“You’re waiting outside to have a turn, aren’t you?” Culliney asked.
“I was waiting for [B] to get out of the van because he was looking for something there in the back of the van,” O responded.
Both agreed that B could then be seen climbing into the driver’s seat of the van as O entered the side door.
“So within seconds of [B] moving to the front you’re on top of [the complainant]?” Culliney asked, to which the defendant agreed.
“She was passed out, and what you’ve done is you’ve tagged in for your turn, haven’t you?” the prosecutor asked, pointing out that O spent just one-and-a-half minutes in the centre of the van with the woman. “I suggest that you raped her in that minute and a half.”
O denied the assertion.
Culliney continued the video, showing a third person appearing in the centre row with the woman as O and B sat in the front seats. The prosecutor repeated to O his earlier assertion that he had no inkling that S was also in the van.
The prosecution paused the video multiple other times after flashes of light were seen from the interior of the vehicle. At one point, Culliney said, it looked like O was taking a selfie. He denied taking any photos, suggesting that his phone might have been flashing due to incoming messages or he was watching a video.
At 3.43am, after they had left the carpark, the complainant had texted her fellow backpaker friends: “Can someone please help me?” and “Help.” O insisted her mood seemed normal. He suggested she sent the messages because she wanted help remembering the name of her hostel.
At one point during the cross-examination, O said he wanted to ask a question of the prosecutor. That’s not how it works, Culliney explained, but he asked anyway.
“If I wanted to do this, why I went to a CCTV area?” he said.
“You didn’t know there was a CCTV camera!” the prosecutor shot back with derision.
O responded: “Everyone knows that when you pass some area and there are security lights, they turn on, there should be a camera. I knew that every single part of that area had a camera.”
Culliney suggested the defendant didn’t know and “must have been furious” with himself when he later realised what he had done. Quite the contrary, he responded, arguing that all sorts of things could have been made up about him and his co-defendants had it not been recorded.
O’s testimony was the only evidence called by the defence. Although co-defendants B and S didn’t testify, jurors watched lengthy police interviews with both of them that were recorded last January, days after the alleged incident.
It is expected jurors will hear more of the defence perspective when closing addresses, which started today, conclude on Monday.
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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