Prosecutor Richard Jenson said jurors can be sure Jonathan Lumu and Willie Tokon Tankon raped a woman in mid-2020 at the end of the picking season.
The two defendants, along with some women they’d worked with at a packhouse outside Tauranga, were drinking, dancing and hanging out at their accommodation.
The woman told the court that what started as consensual kissing between her and Lumu turned into a forceful rape and sexual violation.
When things turned sexual she had said no, and was crying and upset as she protested but Lumu continued, she told the court.
After the alleged rape she said she’d tried to leave the room. When she eventually did, she ended up in a nearby bedroom where Tankon then allegedly raped and sexually violated her.
“I kept saying it’s too big, stop, get off me,” she said in her police evidential video.
She said Tankon said: “You want me to keep going, you like this, you like this big d***”.
The woman said she had been calling out for help, saying no, crying and screaming.
Both defence lawyers criticised her reliability and credibility – pointing to gaps in her memory, changes in her account and aspects of her evidence they said didn’t make sense.
However, Jenson said while there are inconsistencies, the woman has remained steadfast on the main issue: she said no.
Rape, or regretted one-night-stand?
The core issue at the centre of the trial is consent.
There is scientific evidence of sexual activity between the woman and both men, and it’s accepted the sex took place.
Lumu’s lawyer Marcus Zintl told jurors this was not a case of rape, it was a case of a regretted one-night stand.
“What the Crown are suggesting to you in this trial is that we have come to the point in this country where they expect people who have one-night-stands to enter written signed agreements to have sex with one another,” he said.
The Crown wasn’t living in the “real world” regarding this case, he said.
“The Crown might be in ivory towers, but me and you, we go to bars, we go to nightclubs. People sometimes go out and have random sex, it happens.”
He said this was “exactly the position” his client found himself in and was “at risk of being convicted of serious charges with serious consequences”.
He said the woman had been flirting, dancing and kissing his client, and had willingly gone into a bedroom with him.
“What did she think was going to happen in the bedroom, talk and play tiddlywinks?”
Zintl also highlighted the complainant’s failure to remember other details from the night – she remembered saying no, but couldn’t fill in many gaps of the surrounding events of the night.
“She says ‘I can’t remember’, ‘I don’t remember’, and ‘I don’t recall’ more than 100 times,” Zintl said in his closing address, referring to a count he’d done of the notes of evidence.
But Jenson said the complainant’s gaps in memory weren’t surprising.
“She has not given a crystal clear, blow-by-blow account,” Jenson said.
“But would we have that expected from her?”
Jenson said the inconsistencies weren’t important, and regardless of whatever else happened that night, it was clear she hadn’t wanted anything sexual to take place.
He said after all she’d been through that night she had been met with the response “you were drunk”, “you smiled at him”, “you went into a room with him”.
She had been having fun with kissing and cuddling “but no more”.
The woman’s recollection of events from the night wasn’t the only area of evidence with apparent gaps.
The court heard a variety of accounts from those in attendance – from those who were friends with her and from a fellow RSE worker from Vanuatu.
The accounts all differed – they referred to things happening in a range of timings, order of events, and circumstances.
Nobody recalled the woman calling for help, but some did remember her being upset after the alleged rapes.
Afterwards, she said she got out through the window of a bedroom. She couldn’t remember how she did that; she remembered attempting to get out the window and then being outside.
The Crown said her friends had differing accounts about this aspect, too – one said she led the woman out of the bedroom, upset. Another said they’d seen her outside, around the back of the house. Another said the woman emerged into the lounge of the house, upset.
But Jenson said however the woman got out of the room wasn’t really the issue, it was about the state she was in.
After she left the room she had been “upset, lost, and just wanted to go home”.
“Hardly the actions of a woman who’s had two consensual passionate sexual encounters,” Jenson said.
Tankon’s lawyer John Wayne Howell spent time discussing the mechanics of how she would have got out the window, which only opened 30cm.
It was implausible, he said, as she wouldn’t have fitted unless she went head first and then it would be reasonable to expect she would have injuries to her face or head.
Her insistence she escaped out the window pointed to the lack of credibility of her whole narrative, Howell said.
He also pointed to the fact none of the witnesses said they’d heard cries for help, and he said it didn’t make sense that in a relatively small house, she wouldn’t have been heard.
“The reason no one assisted her was because she wasn’t screaming out for help,” he said.
“That was because the sex she was having was consensual.”
The Crown had submitted that it was a noisy, busy night. There had been a lot going on and people had been drinking, and it was reasonable to assume this could have been why she wasn’t heard, and why the witness accounts had such variations.
Howell also pointed to evidence from one of the friends, who said she had participated in consensual kissing with Tankon, and when he asked for sex she’d said no. He had respected that.
He said the evidence was his client was respectful towards women, and could accept the answer “no”.
On this point, the Crown said the woman could have expected the same, but at the point in the night she came into contact with both Lumu and Tankon, she was not listened to.
Warnings about assumptions
Summing up the case, Judge Melinda Mason gave a number of directions to the jury regarding general assumptions in cases of this nature.
One direction included a warning as to how to treat lies. When Tankon first spoke to police he denied having had any sexual contact with the complainant, but he now accepts it happened.
Judge Mason said people lie for all sorts of reasons and it would be wrong for the jury to assume he was guilty, simply because he lied. The jury would need to assess all the evidence.
Judge Mason also gave a warning about sexual assault myths. She said there isn’t any one particular way a person behaves after being sexually assaulted.
She also said the jury would need to be careful about assumptions regarding consent – for example, just because a woman wears revealing clothing, is flirtatious, or has been drinking, does not mean she is agreeing to consensual sex.
The jury retired to consider its verdict shortly after 4pm on Wednesday.
Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.
