A teen tourist was raped by three men after a night out at the Family Bar on Karangahape Rd, Auckland. Photo / Jason Dorday
Warning: This story deals with allegations of sexual assault and may be upsetting.
Three young men caught on video whisking an intoxicated teen tourist from a Karangahape Rd bar in Auckland to a secluded industrial carpark in the early hours of New Year’s Day last year have been found guilty of pack rape.
The defendants, known as B, O and S because of continuing name suppression, took turns nervously standing in the dock in the High Court at Auckland this afternoon as the jury foreman read aloud the unanimous verdicts after about nine hours of deliberations that started yesterday.
Justice Mathew Downs ordered the men, who had previously been on bail, to await sentencing in jail. That hearing is scheduled for May.
The judge explained to jurors the concept of “vicarious trauma”, which he said could be triggered by the “exceptionally distressing evidence in this case” – especially the jury’s repeated viewings of CCTV footage that he said showed the rapes as they occurred.
If it was any consolation, he said, “I consider your verdicts entirely commensurate with the evidence”.
The two-and-a-half-week trial centred in large part around CCTV footage – both from outside Central Auckland’s crowded Family Bar and from the empty Avondale carpark where the defendants’ van stopped for about 10 minutes that morning. Prosecutors and defence lawyers promoted vastly different interpretations of what the videos showed.
“The 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 – it just defies logic,” Crown prosecutor Fiona Culliney told jurors during her closing address. “No reasonable, sober person could have believed she was consenting. They had no regard for her at all.”
The 19-year-old 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.
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’t know in the process of intercourse, while others in the vehicle spoke to each other in a language she didn’t recognise.
All three men, aged 19 and 20 at the time of the offences, denied the rape charges, but for different reasons.
B, whose DNA was found on the inside crotch of the complainant’s clothes, 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, admitted to having sex with her but claimed it was she who propositioned him.
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 “too drunk”.
Each defendant faced three counts of rape, one for being the principal offender and two for aiding or encouraging his co-defendants.
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.
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.
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.
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.
At 2.44am, she sent her friends a one-word text – “gilde” – which she said was a misspelling of the German word for help. Defence lawyers noted “gilde” could also be translated as “team” or “group”, although the complainant dismissed that usage as uncommon, outdated and a word she had never used before.
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’s van, they ran off and retrieved it.
When O and S pulled up outside the club in the van, the door was opened from inside before B ushered the woman inside – a sign, Culliney said, of a highly co-ordinated predatory operation.
“Things took a sinister turn for her when she got into that van,” the prosecutor told jurors. “She had absolutely no idea what they were planning.”
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.
“It’s not a romantic rendezvous spot,” Culliney said, ridiculing O’s 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.
The prosecutor described the assertion as “the most startling” of the many lies O told in the witness box.
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.
O, the driver, is then seen looking back towards the middle row.
“The idea he doesn’t know what’s going on beggars belief,” Culliney said of O’s testimony, describing O as having then walked around the van and “waited his turn” at the middle door.
“Within seconds of [B] finishing ... he’s on top of her,” the prosecutor said of O. “No niceties. No changing positions. [She] is unable to move. She was so intoxicated and likely unconscious that she didn’t know this man had sex with her.”
O told jurors the woman had propositioned him for sex while he was still in the driver’s seat.
After less than 90 seconds on top of the woman, O then “casually” walked back around to the driver’s seat, where B was sitting naked, and chatted with him, Culliney said of the video. That, she said, was when S “climbs out from the back and crawls on top of her”, repositioning her body with “no regard for her safety, for her comfort”.
When confronted with the video by police, S said he still wasn’t sure the figure was him even though he acknowledged only him and the other two men were in the van – and the other two were clearly seen elsewhere. He claimed he had no memory of it.
The CCTV ends with B getting back on top of the woman before the car leaves, Culliney told jurors.
“They’re encouraging each other,” Culliney said. “They’re taking photos. They’re watching each other. This is a group effort.”
At 3.43am, after the van had left the carpark, the woman texted her friends in German: “Can someone please help me?” O suggested she was seeking help getting the forgotten address of Hobson Lodge after the group got lost – heading to Hobsonville instead.
At 4.21am, she was left about 35m from the hostel.
“They pushed her out – didn’t even let her get her underwear on,” Culliney said. “That’s not the way you behave with a woman if you’ve just had a very lovely, consensual sexual experience.”
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.
But witnesses at the hostel said the woman was so inconsolable that she tried to run into traffic, telling one friend repeatedly, “You don’t know what they did to me”. She was taken to the hospital via ambulance after others at the hostel called 111.
The woman estimated there had been three to five men in the van and said “it was more than just one of them” who had been touching her, although she couldn’t give specifics. As a sign of how drunk she was, prosecutors noted she told police she didn’t think the driver, confirmed to be O, had participated. But he would later admit he had intercourse with her.
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 – double the legal driving limit. A toxicologist gave an estimate that her alcohol level could have been about 180mg – almost four times the limit – or higher while in the Avondale carpark.
A physician specialising in sexual assault cases told jurors she couldn’t do a full, proper exam because of “grossly swollen” genitalia worse than she had seen before – although she acknowledged that in itself is not proof of non-consent.
Culliney argued the idea the woman would have been “happy” and normal on the way home despite that much pain shows the men’s accounts to be “a complete fabrication” aimed at turning “what was inarguably a terrible pack rape into a fantasy”.
Lawyers for all three men pointed repeatedly during their closing addresses to the high standard needed – “beyond a reasonable doubt” – to find someone guilty of a crime. They also each emphasised the need to resist being swayed by emotion.
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.
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’s ability to consent disappear, she asked.
“That just does not make sense here,” Stokes said.
It’s reasonable, Stokes argued, that the woman got carried away inside the van as they continued to kiss and perhaps regretted it later. It’s not reasonable, she argued, to believe the woman was unconscious. The video, she argued, showed the woman’s arms draped over B’s neck.
“Drunk people can and do have consensual sex every day around this country,” Stokes said. “Some may not be able to remember it in the morning, but that doesn’t mean they didn’t consent at the time.”
Annabel Cresswell, representing O, shared similar thoughts.
“None of us want to see a woman crying and that upset after a night out,” she said, acknowledging that it seemed “a bit sordid” with all three defendants in the vehicle.
“At the end of the night ... she might have felt silly,” Cresswell said. “They didn’t treat her particularly nicely afterwards.”
But that doesn’t mean she wasn’t 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’s interpretation of what could be seen in the CCTV.
“It’s simply not the smoking gun the Crown thinks it is,” she argued. “You can’t see much inside the van [but] the Crown keeps insisting and advising what you can see.
“It’s like The Emperor’s New Clothes. If the Crown keeps shouting you can see something, that doesn’t mean it’s there.”
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.
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 “a huge leap”.
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.
“Teenage men have been known to lie about these things, and exaggerate to their mates,” she said. “It does not prove he actually did have sex with [her].”
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.
She described the men’s explanations, including assertions by all three that their memories were hazy because they had been drinking for the first time, as a “calculated” attempt to cover up their crimes.
It makes no sense they would have taken a friend’s van when O’s own car was nearby unless they wanted “more room for them to do what they wanted to her”, Culliney argued, pointing out that CCTV shows O and S “sprinting” to the vehicle with “urgency” as B stayed close to the woman outside the nightclub.
“[The woman] had begun to show she was not interested ... and [B] knew he had to act fast to get her into that vehicle,” Culliney said.
The prosecutor described O’s claim that he didn’t know S was even in the van until they got back as “a whopper of a lie” and “ludicrous” in light of what was seen on the video.
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.
“It’s hardly something you do if you’ve just had an incredible, consensual interaction with a girl,” Culliney said.
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.
Justice Downs said today that he preferred to deal with suppression at sentencing, allowing “the dust to settle” and to give lawyers time to consider if they will file fresh applications for permanent name suppression.
“I should foreshadow that there is obvious public interest in the publication of names,” he told the lawyers, adding later while addressing the defendants: “There is a very real chance name suppression will be lifted come sentencing.”
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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