Warning: This story deals with details of alleged sexual violence, which some readers may find upsetting.
A woman was raped by an RSE worker after what a jury decided may have been consensual sex with another seasonal worker at a party.
Two RSE workers from Vanuatu, Willie Tokon Tankon and Jonathan Lumu, and have been on trial for rape and sexual violation in the Tauranga District Court this week.
Forensic evidence showed both men had sex with the woman at their shared accommodation on the last night of the picking season in 2020. The woman said the men raped her, but they said the sex had been consensual.
Late on Thursday, the jury acquitted Jonathan Lumu on the two charges he faced, one of rape and one of sexual violation.
However, Willie Tokon Tankon was found guilty by a majority verdict on a rape charge. He was acquitted by a majority verdict on one charge of sexual violation, and acquitted by a unanimous verdict on a second charge of sexual violation.
The court heard how Lumu and the woman had been flirting through the night, struck up a rapport and went into a room together, where they engaged in consensual kissing.
It was at this point the narratives split – the woman said she said no to anything “sexual”, that she had been happy with the kissing but hadn’t wanted anything more.
The defence said the pair had continued to engage in kissing, which progressed to sexual intercourse, and all of it had been consensual.
Crown prosecutor Richard Jenson said Lumu’s account didn’t make sense, and he hadn’t even been able to recall the woman’s name in his police interview, which undermined his account of the sex being consensual.
But Lumu’s lawyer Marcus Zintl told jurors this was a case of a regretted one-night stand, suggesting the woman may have behaved in a way, while under the influence of alcohol, that she wouldn’t have in the cold light of day.
But this didn’t mean she had been raped.
“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”, 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 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 had also cited a Crown witness who was a friend of the woman’s, who said that later in the evening, after the alleged rape was meant to have happened, she had asked the woman about the sex with Lumu.
The court heard in the friend’s evidence that Lumu had confided in her about the sexual encounter after he emerged from the bedroom, and allegedly said he’d asked the woman out after they’d finished having sex.
The friend told the court she’d later asked the woman about it, and the woman confirmed the sex happened but hadn’t said anything about it being non-consensual.
Another friend said she’d asked the woman if she was “okay”, after the alleged rapes, and the woman said she was.
Jenson said it was a busy noisy, chaotic and alcohol-fuelled night, and it would have been easy for people to have been mistaken about what was said in conversations.
However, the defence focused on the woman’s credibility and reliability, pointing to apparent inconsistencies and large gaps in her memory.
She couldn’t piece together large portions of the night, and seemed to have difficulty remembering how she had got out of the bedroom she said she was held in.
She said she had started in one room with Lumu, and then when she left after the first alleged rape, had been bundled into another, and at that point was raped by Tankon.
She described an encounter with Tankon in her police interview, although at the time she didn’t know who the man was.
“I kept saying ... get off me,” she said.
She alleged the man said: “You want me to keep going, you like this.”
She said she climbed out a window afterwards, but she couldn’t remember how. She just remembered attempting to get out the window and then being outside.
The Crown also pointed to her friends’ differing accounts about this aspect – 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 how the woman got out of the room wasn’t the issue, it was about the state she was in afterwards.
She was “upset, lost, and just wanted to go home”.
“Hardly the actions of a woman who’s had two consensual passionate sexual encounters,” Jenson said.
He said the jury could hardly expect her to be able to give a crystal-clear, blow-by-blow account of the night.
All the Crown witnesses recalled seeing her being upset in the latter part of the night, though no one knew at the time the scope of the allegations that later emerged.
But Tankon’s lawyer John Wayne Howell spent time discussing the mechanics of how she would have got out of the window, which only opened 30cm, and the implausibility of it.
He said she wouldn’t have fitted unless she went head first and if she had done this, 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.
But Jenson said on the things that mattered, the woman had been sure. She hadn’t wanted anything sexual, she said no, she was crying and screaming for help during both rapes, and she was ignored.
Howell said it wasn’t plausible that her screams for help weren’t heard, and that even when a friend opened the door when the woman was allegedly being raped by Lumu, she hadn’t heard the pleas for help.
“The reason no one assisted her was because she wasn’t screaming out for help,” he said.
Jenson said it was a noisy night, with a lot going on and people had been drinking. This could be why she wasn’t heard, and why the witness accounts had such variations.
There had also been an apparent fight after the rape by Tankon. Witnesses, including Lumu himself, said Lumu had returned to the room to find Tankon inside with the woman, and he started a fight with him over it.
But Howell pointed to evidence of how Tankon had behaved earlier in the night when rebuffed by another woman.
One of the witnesses went into a room with him and they had lain down and kissed.
He had asked her to have sex, and when she said no, they both left the room.
Howell said the jury could infer how Tankon responded to a “no” – he accepted it.
On this point, the Crown said the woman could have expected the same, but when she came into contact with Tankon, she was not listened to.
Tankon was remanded in custody ahead of sentencing in February.
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.
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