R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2)
[2020] ACTSC 274
•9 October 2020
| Introduction Directions General directions Elements of the offences Element of sexual intercourse Assessment of the credibility of some prosecution witnesses Complainant’s evidence-in-chief Events near Mooseheads after the complainant left Mooseheads Complainant’s evidence Events at the unit Complainant’s evidence Leaving the scene of the incident Evidence of the passer-by Complainant’s evidence of events after she arrived home Assessment of Masivesi Assessment of the complainant Findings Count 1 Trial of Vatanitawake Findings Findings Findings in relation to the third man Trial of Masivesi Findings Verdicts Vunilagi Vatanitawake Macanawai Masivesi |
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai (No 2) |
Citation: | [2020] ACTSC 274 |
Hearing Dates: | 8–11, 14–18, 21–24 September 2020 |
DecisionDate: | 9 October 2020 |
Before: | Murrell CJ |
Decision: | The accused Vunilagi is not guilty of Counts 1, 2 and 10 and is guilty of Counts 3, 4, 6, 9, 14, 15, 16 and 17. The accused Vatanitawake is guilty of Count 5. The accused Macanawai is not guilty of Counts 7 and 8. The accused Masivesi is guilty of Counts 11, 12 and 13. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Judge-alone trial – Sexual intercourse without consent – Act of indecency without consent – Offences in company – “Gang rape” |
Legislation Cited: | Crimes Act 1900 (ACT) ss 50, 54, 60, 67 Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA) ss 49, 57, 74, 76, 78, 80B Supreme Court Act 1933 (ACT) s 68BA |
Cases Cited: | Banditt v The Queen [2005] HCA 80; 224 CLR 262 R v Button [2002] NSWCCA 159; 54 NSWLR 455 R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai [2020] ACTSC 225 |
Parties: | The Queen (Crown) Saimoni Vunilagi (Accused) Isimeli Ilimeleki Natuwawa Vatanitawake (Accused) Josefa Navunisinu Masivesi (Accused) Ratu Jone Pio Macanawai (Accused) |
Representation: | Counsel S Jerome (Crown) K Musgrove (Accused Vunilagi) J Sabharwal (Accused Vatanitawake) S Whybrow (Accused Masivesi) J Campbell (Accused Macanawai) |
| Solicitors ACT Director of Public Prosecutions (Crown) McKenna Taylor (Accused Vunilagi) Sharman Robertson (Accused Vatanitawake) Boxall Legal (Accused Masivesi) Legal Aid ACT (Accused Macanawai) | |
File Number(s): | SCC 24, 25, 28, 54 of 2020 |
MURRELL CJ:
Introduction
Pursuant to s 68BA of the Supreme Court Act 1933 (ACT), on 13 August 2020, I ordered that the accused be tried before a judge alone for sexual offences allegedly committed on 3 November 2019: R v Vunilagi; R v Vatanitawake; R v Masivesi; R v Macanawai [2020] ACTSC 225.
When arraigned before me on 8 September 2020, the accused pleaded not guilty to the following charges:
(a)Count 1 (Vunilagi): sexual intercourse without consent (penetration of mouth with penis)
The defence case was that this act occurred but was consensual.
(b)Count 2 (Vunilagi): sexual intercourse without consent (penile/vaginal penetration)
(c)Count 3 (Vunilagi): sexual intercourse without consent (digital/vaginal penetration)
(d)Count 4 (Vunilagi): act of indecency without consent (mouth touching vagina and “dry humping”, i.e. pressing body against the complainant)
The defence case was that the acts the subject of Counts 2–4 did not occur.
(e)Count 5 (Vatanitawake): sexual intercourse without consent in company with Vunilagi (penile/vaginal penetration by Vatanitawake, in the presence of and encouraged by Vunilagi)
(f)Count 6 (Vunilagi): sexual intercourse without consent in company with Vatanitawake (penetration of mouth with penis by Vunilagi during penile/vaginal penetration by Vatanitawake)
The defence case was that the acts the subject of Counts 5 and 6 occurred consensually.
(g)Count 7 (Macanawai): sexual intercourse without consent in company with Vunilagi (penetration of mouth with penis by Macanawai, in Vunilagi’s presence)
(h)Count 8 (Macanawai): sexual intercourse without consent in company with Vunilagi (penile/vaginal penetration by Macanawai, in Vunilagi’s presence)
(i)Count 9 (Vunilagi): sexual intercourse without consent in company with Macanawai (digital/vaginal penetration by Vunilagi, while Macanawai continued penile/vaginal penetration)
(j)Count 10 (Vunilagi): sexual intercourse without consent (digital/vaginal penetration)
(k)Count 11 (Masivesi): act of indecency without consent (touching breasts and vagina and kissed breasts and lips)
(l)Count 12 (Masivesi): sexual intercourse without consent (cunnilingus)
(m)Count 13 (Masivesi): sexual intercourse without consent (digital/vaginal penetration)
(n)Count 14 (Vunilagi): sexual intercourse without consent (digital/vaginal penetration, in bedroom)
(o)Count 15 (Vunilagi): sexual intercourse without consent in company with Vatanitawake, Macanawai and Masivesi (digital/vaginal penetration by Vunilagi in loungeroom, other accused present)
(p)Count 16 (Vunilagi): sexual intercourse without consent (cunnilingus)
(q)Count 17 (Vunilagi): sexual intercourse without consent (penetration of mouth with penis).
The defence case was that the acts the subject of Counts 7–17 did not occur.
To protect the identity of the complainant, in this judgment, her name and those of her partner and friends have been anonymised: Evidence (Miscellaneous Provisions) Act 1991 (ACT) (EMPA) s 74. The names of other lay witnesses have also been anonymised.
The complainant did not know the names of the accused other than Vatanitawake, whom she knew as “Simi”, but in many parts of this judgment, the names of the accused are used to facilitate clarity.
Outline of prosecution case
The prosecution case was that, at about 4:30 AM on 3 November 2019, the complainant, a 22-year-old woman, was heavily intoxicated when she met the four accused at Mooseheads Bar in London Circuit, Civic. Previously, she did not know them. She began to socialise with them.
The complainant and the accused travelled to Masivesi’s one-bedroom unit. A fifth man who cannot be located, TW, was also present.
When they arrived at the unit, Vunilagi took the complainant to the bedroom and, without her consent, engaged in various acts of sexual intercourse (Counts 1–4).
Vunilagi then encouraged Vatanitawake to engage in penile/vaginal intercourse while he engaged in oral intercourse (Counts 5 and 6).
Next, Macanawai engaged in fellatio and penile/vaginal intercourse while Vunilagi engaged in digital intercourse (Counts 7–9). The digital penetration continued (Count 10).
Vunilagi left the room and Masivesi engaged in an act of indecency, cunnilingus, and digital/vaginal penetration (Counts 11–13).
The complainant fell asleep.
She was awoken by Vunilagi digitally penetrating her (Count 14).
After she was escorted to the toilet, in the living room she was digitally penetrated by Vunilagi in front of the other accused and TW (Count 15).
She was further assaulted by Vunilagi in the bedroom (Counts 16 and 17).
The complainant escaped from the house and sought assistance from a passer-by. He called a taxi for her.
When she arrived home, she spoke to a friend, LU. The complainant and LU reported the matter to police. That evening, the complainant was forensically examined at Canberra Hospital.
A DNA analysis of vaginal swabs found extremely strong support for contribution by Vatanitawake.
On 7 November 2019, the complainant participated in a police evidence-in-chief interview.
Vunilagi, Macanawai and Masivesi were interviewed by police. All made limited admissions.
The prosecution case was that the complainant did not consent to any sexual act. The prosecution abandoned reliance on intoxication to negate consent.
Application under s 76 of the Evidence (Miscellaneous Provisions) Act
I granted the prosecution leave to adduce evidence that the complainant had unprotected consensual penile/vaginal intercourse with her partner, EU, a day or two before the alleged offences: EMPA s 76(1). The accused did not oppose the grant of leave.
Nevertheless, the Court is required to give written reasons for granting leave: EMPA s 78(4).
Section 78 of the EMPA provides:
78Decision to give leave under s 76
(1)The Court must not give leave under section 76 unless satisfied that the evidence—
(a) has substantial relevance to the facts in issue; or
…
I granted leave because I was satisfied that the evidence had substantial relevance to the facts in issue in the trial. The samples that were obtained from the complainant’s genital area provided extremely strong support for the proposition that her partner was a contributor to a mixed DNA profile on a sperm fraction. The evidence elucidated the DNA results.
Directions
General directions
The charges upon which the accused were tried were heard together as a matter of convenience.
I must consider each charge separately and return a separate verdict on each charge.
In relation to each accused, I must consider only the evidence that is relevant to him. Masivesi gave evidence, which was admitted in the case against each accused. However, records of interview given by three accused (Masivesi, Vunilagi and Macanawai) were admitted only in the case against the accused who gave the interview. Admissions cannot be used against another accused unless the latter consents: Evidence Act2011 (ACT) (Evidence Act) s 83.
In making findings of fact, I must rely upon the evidence, apply my common sense, bring an open and unbiased mind to the evidence, and consider it dispassionately and logically.
I must consider the reliability of witnesses, looking both at their honesty and the accuracy of their memory. However, if it is logical to do so, I may accept one part of a witness’s evidence and reject another part of the witness’s evidence.
Each accused is presumed to be not guilty of each charge against him. The prosecution bears the onus of proving the guilt of each accused beyond reasonable doubt. If I have a reasonable doubt about whether an accused is guilty of a charge, I must return a verdict of not guilty.
To prove a charge beyond reasonable doubt, the prosecution must prove each legal element of the relevant offence beyond reasonable doubt. The prosecution need not prove each disputed fact beyond reasonable doubt (unless proof of that fact is essential to proof of a legal element).
In relation to each of the offences involving sexual intercourse without consent, the prosecution must prove beyond reasonable doubt that:
(a)the accused engaged in the relevant act of sexual intercourse with the complainant;
(b)the complainant did not consent to the act; and
(c)the accused was reckless as to whether she was consenting.
In addition, for an offence that is alleged to have occurred “in company”, the prosecution must prove beyond reasonable doubt that:
(d)in committing the offence, the accused acted “in company”.
In relation to each charge of committing an act of indecency without consent, the prosecution must prove beyond reasonable doubt that:
(a)the accused committed the relevant act on the complainant;
(b)the act was indecent by ordinary community standards;
(c)the complainant did not consent to the act; and
(d)the accused was reckless as to whether she was consenting.
These elements are discussed in greater detail below.
Directions concerning the complainant
In this trial, the complainant’s evidence was given by an audio-visually recorded police interview and by audio-visual link from a room that was remote from the courtroom. In relation to both types of evidence, a support person was present. These are usual practices. I draw no inference adverse to the accused and accord the complainant’s evidence no greater or lesser weight because these practices were followed: EMPA ss 49, 57.
As the complainant was the critical prosecution witness and the only prosecution witness capable of giving direct evidence of the central events in question, I must examine her evidence carefully before deciding whether I accept the key aspects of her evidence beyond reasonable doubt.
Although each charge must be considered separately, the verdicts must be consistent. Consequently, if I doubt the evidence of the complainant (the critical prosecution witness) on one charge, I must consider whether that doubt causes me to doubt her evidence on other charges.
It was suggested that the complainant lied because, as an engaged woman or for other reasons, she was ashamed of her licentious conduct. It was suggested that, just as the complainant had “false memories” about significant events at Mooseheads, her memory of critical events at Masivesi’s unit may also be false. I must consider these arguments.
However, it is not up to any accused to establish a motive or reason for the complainant to lie or be mistaken. The issue is whether, in the context of all the evidence, I accept the complainant’s evidence about the critical events beyond reasonable doubt.
Complaint direction
On the day of the incident, the complainant made limited disclosures to a passer-by, a taxi driver and LU (her friend). She made more comprehensive disclosures to police and Dr Thomas.
There was an issue as to the terms of the complaint made to LU. As LU herself acknowledged, her memory of the terms of the complaint was probably contaminated by the fact that, before she recorded a police statement, she was present when the complainant made disclosures to the police and (possibly) Dr Thomas.
Consequently, as to the terms of the complaint that was made to her, I place no reliance on LU’s evidence. However, the fact and timing of the complaint and the complainant’s demeanour when making the complaint are relevant, as is the fact that LU considered that the complaint (whatever it was) warranted an immediate report to the police.
The terms of the other complaints were established by reliable evidence.
Reliable complaint evidence can be used in two ways.
First, it may be relevant to the complainant’s credit. I must consider the terms of the complaints, and whether there was a delay in complaint (or any aspect of the complaint), and whether any delay reflects adversely on the complainant, or whether there were good reasons for any delay. The absence of complaint or a delay in making a complaint does not necessarily indicate that an allegation concerning an offence is false. There may be good reasons why a victim of a sexual offence hesitates to make a complaint: s 80B(2) EMPA.
In this case, the prosecution submitted that the complaints support the complainant’s credibility because they were comprehensive and relatively consistent. Further, the complainant’s demeanour at the time of complaint and her injuries support her credibility.
The accused submitted that the complaints cast doubt on the complainant’s credibility because they were inconsistent and failed to refer to important matters.
Second, as each of the complaints was made when the events in question would have been “fresh in the memory” of the complainant (they were made within hours or days of the incident), each complaint provides some evidence of the facts asserted. However, complaint evidence is not of the same quality and independence as direct evidence.
Expert evidence
Dr Thomas and Ms Stone gave expert opinion evidence. Their expertise was accepted, as were their opinions.
Directions concerning the accused
Masivesi gave evidence on oath. He was not obliged to do so. It is not for an accused to prove his innocence, but for the prosecution to prove his guilt beyond reasonable doubt. Masivesi could have said nothing, but he chose to give evidence and subject himself to cross-examination.
That does not mean that his evidence was necessarily true. In assessing the honesty and accuracy of his evidence, I apply the same principles that I apply when assessing the credibility of other witnesses.
In the context of the other evidence admitted against each accused, I must consider whether Masivesi’s evidence gives rise to a reasonable doubt about the guilt of any accused on any charge.
The other accused did not give evidence. They were entitled to exercise this aspect of the “right to silence” and I draw no adverse inference from their decisions to do so. Vatanitawake did not participate in a police interview. I draw no adverse inference from his decision to exercise this aspect of the “right to silence”. The exercise of a “right to silence” cannot strengthen the prosecution case.
In a police record of interview, Vunilagi, Macanawai and Masivesi each provided his version of events. Each interview was admitted only against the accused who gave the interview. In relation to each accused, I must consider whether the version that he gave in the interview gives rise to a reasonable doubt concerning any or all charges against him.
Even if I do not positively believe Masivesi’s evidence (insofar as it relates to the relevant accused) or the interview version of events given by the relevant accused, I must not convict the accused if, based on Masivesi’s evidence and/or the interview version of events given by the accused, I have a reasonable doubt about his guilt of a charge.
If, in the context of all the evidence, the prosecution satisfies me that Masivesi’s evidence (insofar as it concerns the relevant accused) and any version of events given by the relevant accused could not reasonably be true, that does not strengthen the prosecution case against the accused. It is neutral. I still need to consider whether, based on reliable evidence, the prosecution has proved the charges against the accused beyond reasonable doubt.
In this case, there was evidence of the good character of Masivesi and Vunilagi. I must take the good character evidence into account in two ways.
First, in relation to whether the accused committed the offences, which involve physical and sexual violence, I must consider whether the evidence of good character means that it is unlikely that he committed such offences.
Second, I must take the good character evidence into account when considering the truth of the statements that the accused made to police and (in Masivesi’s case) in evidence. I could rely upon the good character evidence to reason that it is unlikely that a person of such prior good character would have lied to the police or given false evidence.
In the trial of Macanawai, additional directions apply; they are dealt with later in this decision.
Elements of the offences
Section 50 of the Crimes Act 1900 (ACT) (Crimes Act) defines “sexual intercourse” as follows.
50 Meaning of sexual intercourse in pt 3
(1) In this part:
sexual intercourse means—
(a) the penetration, to any extent, of the genitalia … of a person by any part of the body of another person, except if that penetration is carried out for a proper medical purpose or is otherwise authorised by law; or
(b)…
(c)the introduction of any part of the penis of a person into the mouth of another person; or
(d)fellatio; or
(e)cunnilingus; or
(f) the continuation of sexual intercourse as defined in paragraph (a), (b), (c), (d) or (e).
Section 54 of the Crimes Act provides:
54Sexual intercourse without consent
(1)A person who engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 12 years.
(2)A person who, acting in company with any other person, engages in sexual intercourse with another person without the consent of that other person and who is reckless as to whether that other person consents to the sexual intercourse is guilty of an offence punishable, on conviction, by imprisonment for 14 years.
(3)For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.
Section 60 provides:
60Act of indecency without consent
(1)A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who is reckless as to whether that other person consents to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 7 years.
(2)…
(3)For this section, proof of knowledge or recklessness is sufficient to establish the element of recklessness.
In relation to consent, s 67 provides:
67 Consent
(1)For sections 54, …, 60 and … and without limiting the grounds on which it may be established that consent is negated, the consent of a person to sexual intercourse with another person, or to the committing of an act of indecency by or with another person, is negated if that consent is caused—
(a)by the infliction of violence or force on the person, …; or
(b)by a threat to inflict violence or force on the person, …; or
…
(j)by the unlawful detention of the person.
(2)A person who does not offer actual physical resistance to sexual intercourse shall not, by reason only of that fact, be regarded as consenting to the sexual intercourse.
(3)If it is established that a person who knows the consent of another person to sexual intercourse or the committing of an act of indecency has been caused by any of the means set out in subsection (1)(a) to (j), the person shall be deemed to know that the other person does not consent to the sexual intercourse or the act of indecency, as the case may be.
Element of sexual intercourse
I am satisfied beyond reasonable doubt that, if it occurred, each of the alleged acts was an act of sexual intercourse, being penile/genital penetration (Counts 2, 5 and 8), the introduction of the penis into the mouth (Counts 1, 6 , 7 and 17), digital penetration of the genitalia or the continuation of digital penetration (Count 3, 9, 10, 13, 14 and 15) or cunnilingus (Count 12 and 16).
There was no dispute about whether the alleged conduct constituted “sexual intercourse”. Rather, the issues were whether some of the acts had occurred, whether the acts had occurred without consent, and whether there had been recklessness as to consent.
Element of lack of consent
The prosecution case was that the complainant did not consent to any act the subject of a charge.
Despite the inferential limitations imposed upon the word “consent” by the terms of s 67(1), it is well-established that consent means consent that is freely and voluntarily given to the particular act of sexual intercourse (or indecency).
Consequently, to establish lack of consent, the prosecution must establish beyond reasonable doubt that the complainant did not freely and voluntarily agree to the act of sexual intercourse (or indecency) that is the subject of the charge in question
Consent obtained after persuasion is still consent, provided that, ultimately, it is given freely and voluntarily. A person who is somewhat intoxicated may freely and voluntarily consent to an act although, if sober, they would not have consented.
Consent is a subjective state of mind. However, a complainant’s subjective state of mind may be evidenced by their words or conduct. In determining the complainant’s state of mind, it is necessary to consider all the surrounding circumstances. For example, acquiescence may not evidence consent in circumstances that cause a complainant to feel intimidated.
The complainant said that she did not consent to any of the acts in question, but had submitted because she had felt intimidated by the circumstances and, in some instances, because she had been physically constrained. She said that, periodically throughout the incident, she had objected verbally, screamed or cried.
The accused said that, insofar as there was sexual interaction, the complainant had participated willingly.
The accused was reckless as to whether the complainant was consenting
If I am satisfied that the complainant did not freely and voluntarily consent to an act, I must also be satisfied beyond reasonable doubt that, in relation to the act, the accused was reckless about consent.
Recklessness as to consent includes knowledge that a complainant is not consenting to the act in question. In addition, a person is reckless as to consent if they fail to consider—are indifferent to—whether she is consenting (could not care less whether she is consenting or not), or they are aware of the possibility that she is not consenting to the act but they go ahead anyway: Banditt v The Queen [2005] HCA 80; 224 CLR 262 at [14], [27], [38] and [42].
In considering whether the prosecution has proved recklessness as to consent, I must consider the effect upon the relevant accused of the alcohol that he had consumed. Intoxication by alcohol is not relevant in deciding whether the accused intentionally (deliberately) had sexual intercourse or committed an act of alleged indecency. However, it is relevant when deciding whether he was reckless as to the complainant’s consent.
In some circumstances, an intoxicated person may act without forming a particular intent. On the other hand, although considerably affected by alcohol, a person may commit an act with a particular state of mind. The fact that, later, the person does not recall the incident does not necessarily mean that they lacked a particular state of mind at the time of the incident. The fact that they would have thought differently if they had been sober does not necessarily mean that they lacked a particular state of mind when intoxicated.
The prosecution said that the circumstances surrounding the acts of intercourse and alleged indecency by each accused establish that the accused must have been reckless as to consent.
If lack of consent is established, the prosecution must prove recklessness beyond reasonable doubt, taking into account the state of intoxication of the relevant accused.
Element of act of indecency
An act is indecent if it is indecent according to ordinary community standards of morality and decency. The act must be viewed in context. An act may be quite acceptable when it occurs between consenting adults, but indecent when one of the adults does not consent.
In the present case, each of the alleged acts involved a high level of intimacy between virtual strangers. I find that, if the complainant consented to any alleged act, it was not indecent; but, if she did not consent, it was indecent by ordinary community standards.
Element of in company
Two people are “in company” if they are present together for a shared purpose: R v Button [2002] NSWCCA 159; 54 NSWLR 455 (Button) per Kirby J at [120]. There must be such physical proximity as would enable the inference that the coercive effect of the pair operated either to embolden or reassure the offender in committing the offence or to intimidate the victim into submission: Button per Kirby J at [125], approved by Ipp JA (Buddin and Shaw JJ agreeing) in R v ITA [2003] NSWCCA 174; 139 A Crim R 340 at [137]–[138].
Assessment of the credibility of some prosecution witnesses
The complainant’s credibility will be considered later in this judgment.
Apart from the complaint evidence given by LU, I find that the evidence given by the lay prosecution witnesses was very reliable. Apart from LU, these witnesses were independent and had a good recall of relevant matters. Much of their evidence was uncontroversial.
English was a second language for the two taxi drivers. I take into account the associated limitation on their capacity to express themselves.
The evidence of Ekeroma (the Mooseheads “bouncer”) fitted well with the CCTV footage, albeit that his recollection of the order of events differed slightly from the footage. He conceded that, when he spoke to the police on 13 November, he did not mention that the complainant had looked scared. He said that, at the time, he may not have remembered her condition. Nor did he mention the complainant’s level of intoxication. He explained that he may not have wished to say anything that reflected adversely on his former employer, Mooseheads. However, he had a clear memory of her state of intoxication. I accept this explanation. I am confident about the reliability of his evidence that the complainant looked scared and as to the level to which Vunilagi and the complainant were intoxicated.
The taxi driver who drove the complainant, Vunilagi, Vatanitawake and Macanawai to Masivesi’s unit provided a police statement on 8 November, in which he failed to mention that the complainant had expressed concern to him or that there had been an argument en route to Masivesi’s unit, after which the complainant’s demeanour had changed. I accept his explanation that he did not do so because his English was poor, he did not appreciate the purpose of the police interview and some things “skipped his mind” at the police station. It is telling that, after transporting the group to Masivesi’s unit, the taxi van driver felt so unnerved that he took no more passengers that night because he “didn’t want any more trouble”.
The evidence of the expert witnesses, Dr Thomas and Ms Stone, was accepted by all parties without criticism and I consider that it was reliable.
Events prior to 4:30 AM
There was little dispute about the events prior to 4:30 AM on 3 November 2019.
As at 2 November 2019, the complainant was engaged and usually wore an engagement ring. She resided with her fiancé but spent considerable time at her family home. Her friend LU resided with the complainant’s mother.
On 2 November 2019, the complainant’s fiancé was out with his cousin.
In her evidence-in-chief interview (recorded at 2:21 PM on 7 November 2019), the complainant’s initial narrative account was as follows:
[O]n Saturday night I went out to the city with a couple friends. Um, but I think around one till three-ish – between twelve thirty and 1 o’clock , um, Sunday morning, I left them and was – I left them because I wanted to go home because my phone was low. Um, but I ended up going back into Mooseheads, um, where I had gone in and got more drinks. And ended up running into people that I knew, so I ended up staying out longer than I was meaning to stay out. Um, as the night went on, I got more and more drunk. And I think it was around three or four o’clock I’d run into a group of – a group of men, um, who kept buying the drinks the whole night …
At about 10:15 PM, the complainant sent a text message to her fiancé saying that she was going to sleep: “love you too but we’re going to sleep now. Have a good night. All of you safe and have fun”.
Within minutes of sending the message, she decided to go out. By phone call or Snapchat, she told her fiancé that she was going to the city with LU and another female friend, X. Afterwards, she planned to return to her mother’s place to sleep.
LU confirmed that she had been preparing to go out with X when, at about 10 PM, the complainant decided to join them. At about 10:20 PM, the three women caught an Uber to the city, arriving at about 10:30 PM.
After spending some time together in the city, at about 11:40 PM the complainant left LU and X, saying that she was going home because her phone was low on battery. They separated near Shorty’s Bar. However, the complainant changed her mind and wanted more to drink, so she went to Mooseheads.
At 11:57 PM, the complainant messaged LU that she was “in Moose”, “downstairs”.
LU said that, just after the complainant left them, they saw the complainant’s fiancé outside Shorty’s Bar. At 12:35 AM, LU messaged the complainant that she had “just [run] into” the complainant’s fiancé. The complainant responded, “can you keep an eye on them please”. The complainant gave evidence that she was concerned that her fiancé and his cousin would get “into trouble”. LU said that the complainant’s fiancé was protective and did not like to be parted from the complainant at any time when they were out.
At 12:37 AM, the complainant messaged LU that she was “at Moose” and was “[g]onna have some drinks then go home” as “my phones on 12%”. At 12:55 AM, she was at “Moose”, “downstairs”. At 1:04 AM, she messaged that she was not yet going home and was “with [Y]” “downstairs” at Mooseheads. The complainant said that, in Moose, she met other friends, including Y and her husband. They introduced her to two other girls.
In her evidence-in-chief interview, the complainant said that, during the night, she consumed a great deal of alcohol and became increasingly drunk. Before leaving home, she had a couple of glasses of wine. She had a cruiser in the car. She had one or two drinks at Shorty’s Bar (two small glasses from a jug containing a vodka cocktail). She went to the upstairs bar at Mooseheads and had a raspberry vodka and half of a Smirnoff double black. At that stage, she was still with LU and X. After separating from them, at Mooseheads she drank three shots in quick succession. She was “drunk” but “knew what was happening around [her]”. After she met Y, she had a “little bit” of a Canadian Club, two drinks of Jack Daniels, two vodka mixed drinks and then a further two vodka mixed drinks. By that stage, she was “pretty drunk”, “starting to forget what [she] was doing” and “[not] remembering much”.
This drinking history is consistent with what the complainant told Dr Thomas on the evening of 3 November 2019, when she provided her first account of alcohol consumption on the previous night.
LU said that, while she was with the complainant, the complainant had one drink. On the complainant’s account, she had a cruiser in the car and two drinks upstairs at Mooseheads. The complainant recalled that, when she was drinking at Shorty’s Bar, she was in the company of LU and X. I consider that this difference in the drinking histories is readily explained by the level of the complainant’s later intoxication.
The complainant recalled being with her two new female acquaintances at the Mooseheads downstairs toilets. She was unsure how she had been separated from them. She recalled that, after they had been to the toilets, she was “walking with” them, they became separated, and she found herself with the accused in the street level bar at Mooseheads.
At 4:23 AM, the complainant messaged LU to ask, “where you?”. LU had gone home and did not receive the message until she woke up later that morning.
Ekeroma, a Mooseheads security officer (bouncer) who was loosely acquainted with the complainant, said that, at some point prior to an incident at about 4:50 AM, he had seen the complainant walking down stairs at Mooseheads. At that stage, she looked drunk; she was stumbling and taking her time to get down the stairs. He observed her for several minutes, considering whether her state of intoxication was such that he should remove her from the premises. Ekeroma is very experienced in dealing with intoxicated persons, having worked as a “bouncer” for 10 years.
CCTV footage showed that, at 4:30 AM, the complainant was outside Mooseheads, near the Bravo Door entrance to that establishment. She chatted to a man in a red shirt and then chatted to another man.
At 4:33 AM, she entered Mooseheads alone, through the Bravo Door. She was not obviously intoxicated; Ekeroma agreed that, at that stage, she did not look too intoxicated to be permitted entry.
Although the complainant was “100 per cent sure” that she had worn her engagement ring on her left ring finger throughout the night, CCTV footage showed that it was absent from that finger by the time that she entered Mooseheads at 4:33 AM. After seeing CCTV footage, the complainant accepted that she was not wearing it and was unable to explain why. She said that she did not recall taking it off. Ultimately, she accepted that, as she did not recall removing it or why, she may have done so because she “wanted to pick up”.
Complainant’s description of the accused
On Thursday, 7 November 2019, the complainant gave police a detailed description of the four men whom she had met at Mooseheads and who had assaulted her at Masivesi’s unit. Although the complainant did not learn their names at the time, the identities of Vunilagi, Vatanitawake and Masivesi were not disputed.
(a)The first man whom she noticed at Mooseheads and who was the first to get drinks for her was an “old guy” (he looked about 50 and was wrinkly) with dreadlocks, some of which reached his shoulders. He was wearing a beanie or hat and was dressed in all black. He was short (about 5’6” tall) and skinny. His nose was wide. He owned the unit to which she was taken.
He was the accused Masivesi.
(b)The second man was “stocky” (a term that she volunteered on several occasions) and, about 5’7” or 5’8” tall. She estimated that he was 32 or 33 years of age. He had short hair and a stubble beard (the term “stubble” was suggested to the complainant and she adopted it). He was wearing all black. She said that “nothing about him stood out”. In cross-examination, she said that the stocky man had stubble but could have had a full beard. When she saw the CCTV footage, she recalled that he had been wearing a vest.
(c)The third man she described was the youngest of the group. He told the complainant that he was her age, 22 years old. He had a “very baby face” and a “snapback” hat. He was skinny and about 6’1” tall. He had long nails. She believed that he had been wearing all black but could not clearly remember what he was wearing. The other men referred to him as “Simi”. He was the man who had taken her downstairs at Mooseheads and then accompanied her back upstairs.
He was the accused Vatanitawake.
(d)The fourth man wore a white shirt and was very tall, about 6’5” in height. He had a slim, athletic build. He had a short beard and two missing teeth. It was this man who had “dragged” her to the taxi van and been the most violent towards her. He bought drinks for her. The other men had seemed to be intimidated by him.
He was the accused Vunilagi.
The complainant said that there had been a fifth man at the unit. In other evidence, the “fifth man” was identified as TW.
Interaction with the accused at Mooseheads
Complainant’s evidence-in-chief
In her evidence-in-chief interview, the complainant recalled that, at 3 or 4 AM, she was drunk and she “ran into” the group of men at a table on the ground level of Mooseheads. They kept buying her drinks and she “became really drunk”. She sat down at the table with the older man (Masivesi), who gave her drinks and talked to her. Later, the tall man (Vunilagi) gave her drinks. The two men gave her a total of about five drinks.
“One of the tall guys” “grabbed” her inside Mooseheads. She did not want to be touched by him. She wanted to get away and feared that “a scene was going to start inside of Mooseheads”. People told him to let go of her, but he did not do so. She was crying because she wanted him to let her go. He was “trying to fight back” someone who was telling him to let her go. They were standing and he had his arm over her from behind, like a seatbelt. He also moved in front of her so that his arm was behind her and she was facing him, and he kept kissing her. A bouncer whom she knew (Ekeroma), came over and told him to let her go. Another bouncer may have come over. A lot of people were trying to get him away from her.
The complainant also said that she did not remember what had occurred between when “the old guy and the tall guy were buying [her] drinks” and “when [she] was crying for [Vunilagi] to let [her] go”. She did not remember whether she was “with them the whole time” or “went back downstairs”, but she did remember Vunilagi grabbing her and that she “didn’t want him touching” her.
The complainant said that she had been “pulled” or “ripped” away from Vunilagi by “baby face” (Vatanitawake). They walked downstairs, where they remained “for a bit”, until “the coast was clear”. She could not recall whether he had just told the tall man to let her go or pulled her from his grip.
In further evidence-in-chief given in the courtroom, for the first time, the complainant said that she and Vatanitawake had kissed and “made out” in the downstairs toilet area, but she could not recall whether it had been consensual.
CCTV footage and other evidence of events inside Mooseheads
At 4:33 AM, the complainant entered Mooseheads through the Bravo Door (from London Circuit) and walked straight to the table (which was directly in her entry path) that the accused were using as their base within the ground floor bar area of Mooseheads. At that stage, the table was occupied by Masivesi, Vunilagi and TW. The complainant chatted to Masivesi and he offered her a drink several times, but she declined. She put her arm around Masivesi and said something into his ear.
At 4:40 AM, Vatanitawake (Simi) approached the table. At 4:43 AM, Macanawai entered the bar area. Thereafter, he spent much of the time on the nearby dance floor.
Ekeroma was enjoying an after-work drink when he saw the men, whom he knew as Joe or Joseph (Masivesi), Simon (Vunilagi) and “JP” (Macanawai). He greeted them.
At 4:37 AM, the complainant approached Vunilagi, put her arms around him and hugged him. They held hands and chatted. She accepted a drink from him. Thereafter, until 4:53 AM, the complainant and Vunilagi chatted, held hands, kissed and embraced while up against a nearby post. At one stage, Vunilagi moved suggestively against her body. She appeared to engage willingly in these activities. At one point, Vunilagi held the complainant’s left buttock and she pulled her dress down.
At 4:46 AM, a man in a red polo shirt approached the complainant and Vunilagi as they were embracing, and the complainant pushed him away.
At 4:47 AM, Vunilagi and the complainant fell over while embracing. A security guard approached and spoke to Vunilagi. Vunilagi and the complainant resumed kissing and embracing.
At 4:50 AM, Vunilagi stumbled, taking the complainant with him. They stood back up.
At 4:51 AM, an unknown male spoke to Vunilagi, who forcefully pushed the man away in a seemingly agitated manner. At 4:52 AM, Vunilagi continued to engage with the unidentified male, releasing the complainant. Macanawai attempted to calm Vunilagi, but Vunilagi struck out at Macanawai. Vunilagi pulled the complainant in and held her with his left arm around the front of her neck. She placed both her hands on his arm.
At 4:52 AM, Ekeroma approached the table and spoke to Vunilagi, who indicated that a man in a T-shirt had caused the problem. Several men crowded around where Vunilagi held the complainant. The complainant placed her hand over her mouth and began to wipe her eyes while she was being held. She appeared to be crying. Vunilagi had his back against a pole and his left arm wrapped around the complainant’s neck and chest in a “seatbelt” grip. She was on his left. Ekeroma gave a “thumbs up” signal to the complainant twice. She responded with a “thumbs up” (indicating that she was okay) and moved away to Vunilagi’s right side.
Ekeroma gave evidence that he had observed Vunilagi’s arm lying diagonally across the complainant’s chest while she had her back to the front of his body. She looked scared. It seemed to Ekeroma that, after a few more drinks, Vunilagi may be “trouble”. He approached to inquire whether the complainant was comfortable. He questioned her with a “thumbs up”. She responded with a “weird” thumbs up, prompting him to ask, “Are you sure?”. Although she responded in the affirmative, she did not smile.
He recalled that a man in a red shirt had argued with Vunilagi and, at one point had seemed to be “trying to stick up for” the complainant. Ekeroma thought that the man in the red shirt had left the premises with Vunilagi.
Ekeroma said that he had observed Vunilagi engaging in an altercation with another man while other men stood around the table. He approached Vunilagi and told him to “calm down before we kick you out”. Vunilagi suggested that the other man was at fault. The complainant was crying and looked scared. Ekeroma told her to “leave” or “go home”, and he guided her from the table. He did not observe the complainant joining Vatanitawake after she separated from Vunilagi.
Ekeroma gave evidence that Vunilagi and the complainant were “really intoxicated”. Their actions showed that they were “onto the sloppy side of drunk”. The complainant’s eyes were hazy, and he could tell her condition from her body language and face. She did not look as though she was aware of her surroundings. Ekeroma contrasted the condition of Vunilagi and the complainant with that of Macanawai, who was “lively drunk”; he was dancing around.
The CCTV footage showed that, after Ekeroma approached, the complainant moved away, and briefly stood behind another man, wiping her eyes. She was beckoned by Vatanitawake and she followed him downstairs to the toilets area, dabbing her eyes.
Vunilagi resumed an agitated exchange with the man in the T-shirt. At 4:55 AM, a security guard escorted Vunilagi towards the door.
Warcaba, a security officer, gave evidence that he had seen Ekeroma attempting to escort a tall man (inferentially, Vunilagi), who was intoxicated and resisting the effort to remove him. Warcaba assisted with the removal.
Masivesi, Macanawai, TW and the man whom Vunilagi had pushed away remained at the table.
Meanwhile, at 4:54 AM, the complainant and Vatanitawake descended stairs to the male and female toilets and another bar area. The complainant’s arms were linked through Vatanitawake’s right arm and she was touching or wiping her face or eyes. They remained downstairs, just outside the entries to the male and female toilets, for about 10 minutes. In the footage, the complainant seemed to be upset, and Vatanitawake appeared to console her. The complainant and Vatanitawake talked, kissed and cuddled, and it appeared that the complainant did so willingly. At times when she spoke, she used animated arm gestures, and seemed to be trying to explain something to Vatanitawake. She wiped her eyes a couple of times. At 5:02 AM, after the complainant used her perfume to spray a woman who was exiting the female toilets, she sprayed Vatanitawake with the perfume.
At 5:04:36 AM, the complainant led Vatanitawake through the door into the female toilets. The movement of their feet, which remained visible through a screen grate near the foot of the door to the female toilets, suggested a continuation of the amorous exchange outside the toilets.
At 5:05:29 AM, Warcaba knocked on the bathroom door and announced himself. The complainant emerged, followed by Vatanitawake. Warcaba observed that they looked embarrassed but were laughing and seemed to be fine.
The complainant and Vatanitawake ascended the stairs to the ground floor of Mooseheads. Halfway up the stairs, the complainant stopped and waited for Vatanitawake. He took her hand at the top of the stairs. They then ceased holding hands and walked separately towards the Bravo Door exit. She exited Mooseheads, followed closely by Vatanitawake.
At 5:09 AM, Macanawai and Masivesi remained inside Mooseheads. Masivesi left at 5:11 AM.
Cross-examination of the complainant
When cross-examined at court, the complainant was shown the CCTV footage from Mooseheads for the first time. She agreed that, although she recalled being dragged into the group of accused, her memory of being pulled (or dragged) into the group and her memory of being forced to consume about five drinks by Vunilagi and Masivesi were “false memories”. She accepted that the footage showed that she had approached the table occupied by the accused. Although she was offered drinks several times, she drank only once from a glass of alcohol. She accepted that her evidence of being forced to do things and having to be dragged from Vunilagi was wrong. Rather, the footage showed that she had approached Vunilagi, voluntarily embraced him, and then continued to kiss and hold him, apparently willingly.
Although she maintained that she did not recall having consensual interaction with Vatanitawake, taking him into the ladies toilet area, or why she did so, she accepted that the footage showed her voluntarily “making out” with Vatanitawake. She agreed that she was not proud of doing that.
She “100 per cent thought” that she had not sprayed perfume on Vatanitawake and agreed that such conduct would be a flirtatious act.
As to kissing or “making out” with Vatanitawake outside the female toilets, the complainant said that she did not remember doing so when she first spoke to the police but, in late 2019/early 2020, she had remembered doing so and had told Senior Constable Linden about it. Linden did not recall or record that the complainant had done so.
The complainant agreed that she knew Ekeroma and believed that, had she sought his help, he would have helped her.
She recalled no interaction with Macanawai inside Mooseheads.
Events near Mooseheads after the complainant left Mooseheads
Complainant’s evidence
The complainant thought that, after she left Mooseheads with Vatanitawake, they “went to go walk somewhere” but she could not recall where.
As she left Mooseheads, she saw (Vunilagi) arguing or “play fighting” with the same man that had tried to “break him off” her. Vatanitawake told her to “just go somewhere”.
Vunilagi grabbed her and they walked to a taxicab in front of the McDonalds at the bus interchange. He grabbed her wrist and pulled her. He was on her left. She tried to pull back, but he was a lot stronger than her. She thought that they had walked through the Mooseheads alleyway. She was “dragged” to a taxi van, and three or four of the accused jumped in. This occurred at about 5 AM, just before 6 AM.
She sat behind the taxi driver, leaned forward and told him that she was scared. The taxi driver was Indian, bearded and wearing a turban. Vatanitawake sat in the front seat, Vunilagi sat to her left in the middle seat. The stocky man entered the very back seat. She also said that she could not remember whether anyone else got in and did not really look behind herself.
At that stage, she was “very drunk”. She “didn’t remember” why she had entered the taxi or why she had stayed in it. She was as drunk as she had been when police had found her “drunk and disorderly” on 1 September 2019. At that time, she had not been slurring her words or unsteady on her feet, but she had become very emotional and would not calm down. She was not like that on the night in question. She was more intoxicated; there were things that she did not remember from the night in question, whereas she did remember what happened on 1 September.
In cross-examination, the complainant said that she had no memory of the period between 5:07–5:16 AM and could not describe her state of mind when she returned to the area outside Mooseheads.
She did not recall walking down Verity Lane or what she was thinking as she walked to the taxi. She conceded that the CCTV footage appeared to show her entering the taxi willingly. She did not recall her purpose in going to the unit, and whether it had involved having sexual intercourse with Vunilagi.
CCTV footage and other evidence, including cross-examination of the complainant
The CCTV footage shows that, at 5:06 AM, the complainant exited Mooseheads by herself, and began to turn left down London Circuit towards East Row. Vunilagi was standing outside the Bravo Door, speaking to the man in the red shirt. As the complainant exited, he reached out and touched her arm. The man in the red shirt removed Vunilagi’s hand. She looked towards them, stepped forward and spoke to Vunilagi. He took her hand, then let go.
The complainant walked east, past Verity Lane to the corner of East Row and London Circuit. At 5:16 AM, she was standing on the corner of London Circuit and East Row.
Vunilagi chatted to the man in the red shirt near the Bravo Door exit. At 5:12 AM, both men walked from the Bravo Door east towards the southern (or top) end of Verity Lane (where Verity Lane meets London Circuit).
Vunilagi was joined by Vatanitawake, who then returned to the colonnade area near the Charlie Door entrance to Mooseheads, where others, including Macanawai, were milling. Macanawai sat down, then fell over.
At 5:16 AM, Vatanitawake went to the area outside the Charlie Door to Mooseheads, followed shortly thereafter by the complainant. En route, she passed Vunilagi and the man in the red shirt, who were still standing at the top of Verity Lane. When the complainant neared the Charlie Door, Vatanitawake beckoned to her. She approached him and spoke to him, another man and Masivesi for several minutes, before sitting down next to where Vatanitawake was standing.
Vunilagi remained speaking to the man in the red shirt at the top end of Verity Lane until, at 5:17 AM, he walked part way down Verity Lane and spoke to Masivesi, who thereafter remained in Verity Lane.
At 5:19 AM, Vunilagi went to the area outside the Charlie Door, where the complainant was seated in a group, near Vatanitawake and Macanawai. Vunilagi pulled the complainant up by her arm, put his left arm around her waist and walked with her back to Verity Lane and north up Verity Lane, holding her left arm and shoulder, then her left hand. She looked at and rubbed her left arm. They stopped and he examined her left arm. They stopped for a second time further down the Lane and were talking. At about 5:22 AM, they embraced.
By 5:22 AM, Vatanitawake, Macanawai and Masivesi were standing in Verity Lane. They followed Vunilagi and the complainant down the Lane. Vatanitawake, Masivesi and Macanawai stood back some distance from Vunilagi and the complainant.
As they exited the northern end of Verity Lane, towards the taxi rank on Alinga Street, the complainant and Vunilagi passed a police vehicle.
The taxi van driver’s evidence and CCTV footage from the taxi van
The taxi van driver collected the complainant, Vunilagi, Vatanitawake and Macanawai from the Alinga Street taxi rank and drove them to Masivesi’s unit at 514 Northbourne Avenue, Downer.
The woman got in first and sat behind him. The muscly guy (Vunilagi) stood beside the taxi and told the driver that two more guys were coming. CCTV footage showed that, at 5:29 AM, the complainant was the first to enter the taxi.
A man got in the rear. He was short and had a stomach. CCTV footage shows that this man was Macanawai.
Vunilagi entered the taxi and sat beside the complainant. They were smiling, and they seemed happy with each other.
Finally, a very dark man (Vatanitawake) sat in the front. He smelled of alcohol and had been smoking a cigarette. By 5:34 AM, Vatanitawake was seated in the front seat. When he started driving, the complainant told him that she was “not comfortable” with Vatanitawake. He thought that she was “making fun”.
Once they were all in the car, the complainant seemed to be troubled and the driver asked, “Are you good?” and she said that she was. She spoke normally.
The complainant did not move next to Vunilagi, but he moved towards her as the taxi travelled down Northbourne Avenue. He pulled her towards himself. She was also friendly, smiling at Vunilagi and acting politely. Everyone was friendly to each other.
However, when the taxi neared the Downer/Dickson lights, the woman “started refusing” Vunilagi. They had an argument. The man in the front said something about coming to his house. He was behaving rudely, and the men had a very rude conversation, about themselves. They spoke partly in English and partly in another language. The conversation sounded aggressive. After the conversation, the woman was not happy or friendly towards the men. She was “refusing stuff” and her behaviour changed.
When the taxi arrived at its destination, Vatanitawake got out first. Vunilagi suggested that they need not pay. The complainant insisted that the driver be paid and offered to pay with a credit card. Macanawai then paid him in cash.
The woman did not seem to be overly drunk (she may have had four to five drinks) but the men were intoxicated.
Events at the unit
Complainant’s evidence
When they arrived at Masivesi’s unit, Vunilagi took the complainant inside. There was a lounge room with a kitchen and a door to the bathroom on the right. The bedroom was on the left.
She removed her shoes inside the front door, and Vunilagi took or dragged her into the bedroom. Later, she told Linden that she had taken her shoes off when she entered as it was a habit.
She removed her hoop earrings and put them in her bag as she thought that they would get pulled.
She was not sure whether the stocky man walked into the house after her. It was possible that she was in the bedroom with the door shut before Masivesi arrived home. She was already in the bedroom when the fifth man arrived.
The complainant did not recall whether she had wanted to go into the bedroom.
“From the beginning”, she told Vunilagi that she “didn’t want to do anything”. She was told to take her clothes off and she began to do so. Vunilagi pulled her dress over her head and she sat down on the bed. He removed her underwear. She could not recall whether she had wanted to remove her clothes or whether she had sat willingly on the bed.
Count 1. The tall man (Vunilagi) was on top of her, kissing her. She was on her back. He directed her to “go down” on him and perform “oral”. He lay down. He was on his back and she was on her knees. He was not wearing a condom. He became erect. The fellatio lasted for a long time, about five minutes. She did not want to perform oral sex, but he grabbed her hair and she felt physically obliged to do so.
Count 2. The complainant could not recall the circumstances in which she got on top of Vunilagi, whether he pulled her or told her to get on top. He penetrated her with his penis. She felt that she had to do what she was told because he seemed very aggressive.
He lost his erection “when [she] started crying …it’s like it turned him off…”.
Count 3. He laid her on her back and started “fingering” her violently. It was painful. She cried and told him to stop but he did not stop.
Count 4. He used his mouth to “go down” on her. He was violently humping her and asking her whether she liked it. She continued crying.
He grabbed her head and told her to suck him again. She tried to curl into a ball, and she thought that it was when she was trying to curl into a ball that he had grabbed her hair and told her to suck him. However, in re-examination, she was unsure whether she had sucked his penis a second time during this first episode.
The complainant said that, when she continued to cry and he remained unable to revive his erection, Vunilagi opened the door and called “Simi” (Vatanitawake) into the room. She was not sure whether the door was then closed or remained open.
Count 5. Vunilagi spoke to Vatanitawake in another language and gestured that Vatanitawake should undress and get on top of the complainant. She stayed on the bed, crying, as she felt too intoxicated to do anything. Vatanitawake undressed quickly, “made out” with the complainant until he became erect and had penile/vaginal intercourse with her while Vunilagi was watching. He ejaculated inside the complainant.
Count 6. While Vatanitawake was having intercourse, Vunilagi grabbed the complainant by her hair and required her to “suck” him again. She was on her back. This continued until Vatanitawake ejaculated.
In cross-examination, it was put to the complainant that she had demanded another person. The stocky man had entered, but the complainant had rejected him. Vunilagi had then obtained Vatanitawake, whom she had accepted. It was put to the complainant that Vatanitawake had engaged in intercourse doggy style while she had willingly sucked Vunilagi’s penis. She had said that she wanted them both at once and Vunilagi had stood by the side of the bed while she had sucked him. She rejected this scenario.
The complainant said that Vatanitawake left the room. The tall man remained in the room with her. She stood to dress.
Count 7. The stocky man walked into the room. When the complainant said that she was leaving, Vunilagi told her that she was not leaving and must get back on the bed. The stocky man undressed and lay on the bed. Vunilagi pushed the complainant onto the bed and told her to have sex with the man. When she refused, he grabbed her hair and pushed her onto the man’s crotch, telling her to “suck him”. She performed oral sex on the man. Vunilagi commented “Where’d you learn to suck?”.
Count 8. Vunilagi pulled the complainant by her hair and required her to sit on the stocky man’s penis. She sat facing him. The stocky man used his hands to hold her hands against her hips so that she could not move freely, and he had penile/vaginal intercourse with her until he ejaculated inside her.
She felt intimidated by Vunilagi as he was very rough. She did what she was told.
Count 9. During the penile/vaginal intercourse, Vunilagi repeatedly pushed his fingers into the complainant’s vagina, and the associated severe pain caused her to cry and scream loudly. However, it was difficult to hear her screams as loud Islander music was playing and drowning out her screams.
After the stocky man ejaculated, she lay on the bed holding a dirty pillow to cover herself, with her back against the wall in a foetal position. The stocky man left.
Count 10. Vunilagi got back on the bed and was “trying to finger” her. She was lying on her back, crying and telling him to stop because it hurt. He was beside her. He was trying to kiss her. He was “still basically fingering [her], trying to”. He said “it’s okay. You’re fine. We’re looking after you.”
While Vunilagi was “still basically fingering” her and she was begging him to stop, the older man (Masivesi) entered and told Vunilagi to stop and to leave the room. This was the first time that the complainant had seen Masivesi at the unit. Vunilagi left the bedroom (for the first time).
Masivesi said, “it’s okay. I’m going to take you home soon. Just get some rest”. He tried to comfort her.
Masivesi left the room for about 20 or 30 seconds. She was on the bed and she moved a curtain (she thought) and looked outside. She had no idea where she was. She did not use her phone because she was so distraught that she “didn’t remember [her] phone”.
Count 11. Masivesi returned. He caressed her face, then her arms and breasts, moving down to her genital area. She cried and asked him to stop. He said “it’s okay. I’m looking after you. You’re safe with me” and “Those guys aren’t going to come back in here. This is my house. I’ll take care of you”. He grabbed her shoulders and started kissing her on her lips and body.
Count 12. Masivesi put his mouth on the complainant’s vagina and “gave her oral”. He licked her vagina for a short time and then she started crying.
Count 13. Masivesi “fingered” her with his right hand until she began to cry uncontrollably in pain, hyperventilating as though she was having a panic attack. His fingers “went in all pretty far”.
He “penetrated her as well”. In cross-examination, she said that he had tried to have sex; he had put his penis into her vagina, but they had not had sex. She said that it was as he was penetrating her that she had had a panic attack.
Masivesi got off her and tried to calm her down and comfort her. He left, saying, “I’m sorry. I’ll leave you alone now. Just go to sleep and I’ll take you back home when you wake up”. He left the room. She fell asleep.
Count 14. The complainant was awoken by Vunilagi “fingering” her again. His fingers were inside her vagina. It was very painful. She was crying and told him to stop but he did not stop. He was wearing a different shirt, like a basketball jersey. It was a bright colour, yellow or orange.
The complainant said that Vunilagi had “dry humped” her and slapped her butt cheek at least three times, extremely hard, telling her to stop crying. She had asked how he would feel if one of his ancestors or daughters was in her place. He responded that she was “okay” and that they were “just looking after” her. He then left the room.
The complainant also gave evidence that she thought that it was when she was on top of the third man that she had been slapped.
The complainant said that she needed to urinate. She dressed herself and went to the lounge room, where the five men were located. She told them that she needed to go to the toilet. She was told that she could go later, but she begged to go.
She was permitted to go to the toilet under escort. The door was left open. Vatanitawake stood at the doorway.
She tried to send a message saying “please help me” on the first occasion that she went to the toilet, at about 7 AM (or 7:30 AM). However, as she did not have credit on her telephone, the message did not transmit.
The attempted transmission was at 7:16 AM.
The complainant also said that the message had been generated on a second occasion when she went to the toilet. In cross-examination, she said that she had mixed up the occasion on which she had attempted to send a message to her friend. She also said that she had tried to message by data, but as her data had run out, her phone had defaulted to sending a text message. Her phone credit had run out and the text message was not delivered. She agreed that it would have been rational to call 000 but said she had been thinking only about getting home, not about the police.
It was after attempting to send the message that she realised that she needed a charger.
The complainant said that there had been a second (later) occasion when she went to the toilet, but she could not recall when that was. On that occasion, she was escorted to the toilet, but the toilet door was closed. The first time that she went to the toilet she was wearing her choker but, on the second toilet visit, she was no longer wearing her choker and she observed scratches on her neck and right side, under her right arm. However, in cross-examination, she agreed that, as no necklace was visible in the taxi van CCTV footage, she must have removed her choker earlier in the evening and placed it in her bag.
When the complainant exited the toilet, she saw her shoes. She sat on the couch trying to put them on. Vunilagi came and sat next to her, on the chair to her left. Vunilagi said, “what are you doing?”. She replied that she was going home. He said, “no you’re not. You’re going to stay here. We are looking after you. You’re okay here”. He removed her shoes and socks and put her socks in her bag.
She said that when she went outside to go to the toilet and was trying to put her shoes on, she passed her telephone to the old guy and asked whether they would charge it for her. He just held onto it and had no apparent interest in charging it. She snatched the phone back from him and sent (or tried to send) the message.
She agreed that when she went to the toilet, she walked past the front door but made no attempt to flee. She did not remember why she had not attempted to leave at that time.
Count 15. When the complainant was seated on the couch, trying to put her shoes on, Vunilagi was seated to her left, on a seat that was immediately adjacent to where she was seated on the couch. He pulled her leg up to facilitate him pushing his fingers into her vagina while she was seated. The other four men who were present were drinking, laughing, and looking. She lay on the couch, crying and begging him to stop but he did not.
Vunilagi pulled the complainant up, grabbed her right arm and took her back to the bedroom, where he made her remove her clothes. He took her back into the bedroom where he “continued to finger” her and “make [her] give him oral again”
Count 16. In the bedroom, Vunilagi required the complainant to “give him oral again” and she fellated him. He was on his knees.
Count 17. He told her to lie on the bed and he “gave her oral”, i.e. he licked her vaginal area.
It is likely that the complainant was intending to convey that Count 17 preceded Count 16.
He dry-humped her and asked her if she liked it. He told her to moan. She was crying and screaming “the whole time”. He then left the bedroom.
The complainant said that all acts of intercourse and other sexual acts at the unit occurred without her consent.
She said that she was choked by Vunilagi. She was not sure when that occurred, although she thought that it had occurred while Vunilagi was dry humping her and had his arm around her neck.
The light was off all the time that she was in the bedroom.
After Vunilagi left the bedroom, the complainant put her long hair up, preparing for the fight that may be required in order to leave.
Masivesi came into the room as the complainant was dressing and gathering her belongings. He “touched” and “felt” the complainant, trying to “feel [her] up” again. At first, she said “just get it over and done with” but then she decided that she “couldn’t take it” so she got up, pushed him away and walked out. By that stage, she was feeling more sober.
The living room was empty although the music was still playing loudly. The front door was wide open. She walked towards the door, but Vunilagi came back in and was “in her face”. He confined her against the wall in front of the front door and asked, “Where are you going?”. He told her to wait until Vatanitawake returned as he had just left to purchase a box of beer and would take her home when he returned. She pushed past Vunilagi, through the front door. He grabbed her and pulled her back in. She thinks that it was at that time that she was accidentally burned by a cigarette that he had been smoking.
She walked briskly down the driveway to the main road.
The complainant’s evidence concerning necklaces was confusing. Ultimately, she agreed that she had not been wearing a necklace in the taxi van and had taken it off during the evening. She seemed to be saying that her second necklace, a choker necklace, “went missing” when she was at Masivesi’s unit, and that Vunilagi may have pulled it from her when he was choking her. She left her bra at the house; she could not find it when she was leaving the house.
Leaving the scene of the incident
The complainant said that, after she walked down the driveway of the premises, she saw a man come out of Masivesi’s unit and she hid behind a huge tree in front of the two-storey house. He walked away.
She waved down a man who was walking towards her. She asked him to call a taxi. He asked whether she wanted him to call the police, but she insisted that she just wanted to go home. She told him that she “felt like” she had been trapped in the house, and that she “basically was trapped in the room”. He called a taxi for her. Her voice was hoarse from screaming and crying. She told him that “I don’t know if I want to say if it was rape”; it was not something that she would want anyone to know about her.
While she was with the man, she saw the little red car that she had been told would drop her home drive back into the driveway, driven by Vatanitawake. However, it may have been the fifth man because he “looked similar” to Vatanitawake and she was not wearing her glasses so she could not see very far.
The taxi arrived. She asked the driver to record the address.
Evidence of the passer-by
The passer-by gave evidence that, at about 10:20 AM on 3 November 2019, he was walking along an access road next to Northbourne Avenue towards a woman standing at the end of a driveway when she gestured to him to come over.
She seemed upset. Her eyes were red and swollen, and it looked like she had been crying. Her voice was wavering, and she was choking back tears. Periodically she burst into tears and shook nervously. He observed scratches on her waist, chin and neck and a red bruise on her throat that looked like a hand mark or fingerprints.
He asked, “Are you okay?”. The first thing that she said was to the effect of “I don’t know you’d call it rape or what you’d call it”. She was worried because she had been intoxicated.
She seemed disorientated. She pointed to a big white two-storey house. She asked him whether he had a pen or knew the number of the house. He looked at the letter box and told her the number.
She said that she had been out, met a guy, and come back to the house with him. She had been drinking. They had taken turns with her throughout the night. She said that she had ended up with three or four men (he could not recall whether she had said three or four). She said that she had screamed, but the men had turned the music up to drown out her shouting. She had been afraid that they would kill her. She told him that one of them was coming back to take her home, but she did not want to get in the car with them.
She said that her phone had run out of battery. He asked her whether she wanted him to call the police, but she said that she was worried because she was intoxicated. He called a taxi for her. After a delay, it arrived.
While he was standing with her three or four driveways away from the house that she had identified, two men came out of the house separately, both in their 30s and of Pacific Islander appearance. The first man came to the end of the driveway, looked around and walked back. About five minutes later, the second man walked to the end of the driveway. He approached the passer-by and they spoke briefly. The man was wearing a red flannelette shirt, was of solid build, and was about 5’8” in height. At that stage, the complainant was hiding behind a bush behind the passer-by and appeared to be very frightened. The passer-by was positioned between the man and the complainant.
Evidence of the taxi driver who collected the complainant
A taxi driver collected the complainant from Northbourne Avenue at 10:33 AM.
The driver said that the complainant was crying and spoke softly. He had to ask her to speak more loudly. He asked why she was crying. She said that, on the previous night, she had gone home with a friend. After some time, he had called two or three more friends (he could not recall whether she said two or three). They were all trying to sexually abuse her. She was shouting for help, but the music was loud, and she could not be heard. Everyone was drunk. When they were asleep, she had an opportunity to escape.
The driver gave the complainant his taxi card and wrote the pickup address on it.
Complainant’s evidence of events after she arrived home
The complainant said that, soon after she arrived home, she saw her friend LU, broke down and told LU what had happened.
LU confirmed that, at about 10:30 AM, she found the complainant lying on her bed. The complainant did not speak; she started to break down. She cried and then just sniffled. Her voice was very hoarse, and LU had difficulty understanding her. She seemed very shocked and numb and did not display much emotion. The complainant showed scratches to LU, including one on her right side under her arm, and LU saw light bruising on the front right side of her neck.
LU told the complainant to shower so that they could go to the police station. The complainant was unsure about attending the police station, but LU told her that it was the best thing to do. They discussed that it may have been a bad idea to have a shower.
The complainant undressed and had a quick shower but did not wash properly with soap. She let the water run on her back and wet her hair. She felt pain in her neck, ribs and vagina. She removed her underwear in the shower, and it became wet.
The complainant spoke to her friend CC by telephone. She told him that something had happened that morning and she was going to the police station.
LU and CC accompanied the complainant to the police station. She had a severe headache, felt exhausted, and had pain throughout her body.
The complainant spoke to a male police officer and then to Linden. She did not mention oral sex to Linden.
After the complainant left the police station, the police collected her underwear (which was still wet) and dress (which was a little wet). She had put the items together in a plastic bag.
At 6:13 PM, the complainant used LU’s phone to bring up Google Maps showing where the incident occurred; she found a shot of the front of the house that matched her memory.
Senior Constable Burnes
Senior Constable Burnes was the first police officer to whom the complainant reported that she had been raped. He interviewed her for about 20 minutes to gain an overview of what had occurred. He then called the detectives.
The complainant told him that she had been at Mooseheads. There was an altercation involving a male holding and kissing her. A “cousin” (the officer understood that it was the man’s cousin) intervened. The complainant then felt safe and the nice man escorted her to a taxi rank. When she entered a taxi van, there were three other men in the back of the taxi. She told the driver that she was scared and did not want to go with the men.
She was taken to a unit off Northbourne Avenue and then to a bedroom inside the unit. A male started “having sex with her after she said no”, then he then called in another male, and another one came in, then another one when they had finished. Four males had sex with her and there were five males in the house. After the four had sex with the complainant, she sat on the couch in the lounge. The man who had missing teeth sexually assaulted her again on the couch while the others watched.
After that, she went to a bedroom where an older male comforted her, and she fell asleep. Shortly afterwards, she awoke to being digitally penetrated; the man said that he wanted to “fuck her one more time before she left”. She responded that she was “too sore”. She then “found clothes and bag that they had had”.
The complainant told the officer that, as she left, a big man stood in the doorway, but she sidestepped him and left. She was chased but she approached a man in the street who called a taxi.
The officer asked her what kind of sexual activity had occurred and she said it was vaginal/penile intercourse without condoms. She did not mention oral sex.
The complainant described the first man who was called in as “Simi”. She described another man as having two missing teeth. She described an older guy with dreadlocks, who lived at the residence. The officer became confused about which male had which features. However, he said that the complainant did not describe any of her assailants as “stocky”.
The complainant told him that the incident had occurred at about 6 AM. She said that she had begged to go to toilet and, eventually, she had been taken to the toilet by a man who had watched her. She had also begged to recharge her telephone.
During the conversation, the complainant’s voice was very crackly and raspy. She was upset and seemed exhausted. The officer asked her why her voice was affected. She said that it was because the men had turned up the music to drown out her cries and screams.
Trial of Macanawai
Additional directions – circumstantial evidence and identification
The case identifying Macanawai as the third man who had sexual intercourse with the complainant (the “stocky” man) was circumstantial.
Consequently, it is necessary to identify the relevant circumstances that are established by reliable evidence. If I am satisfied beyond reasonable doubt that a third man had sexual intercourse with the complainant without her consent and was reckless as to her lack of consent, it is then necessary to enquire whether, taking the established circumstances a whole, the prosecution has excluded the reasonable possibility that the third man was not Macanawai, i.e. has established that the only rational inference is that the third man was Macanawai.
The complainant’s evidence suggesting that the third man who sexually assaulted her, the “stocky” man, was Macanawai (in that he resembled Macanawai) may be characterised as “identification evidence” within the meaning of the Evidence Act: see the Dictionary.
Evidence of identification may be unreliable: Evidence Act s 165(1)(b). The facts that the complainant had had limited prior contact with Macanawai, was in a dark bedroom and was not wearing her glasses, must have been tired, and (on the prosecution case) was distressed may reflect on the reliability of her evidence to the effect that the third man was Macanawai. I must be cautious in determining whether to accept her identification evidence and the weight to be given to it: Evidence Act s 165(2).
Evidence relating only to Macanawai
In a police interview on 4 December 2019, Macanawai stated:
He was 25 years old. He was 5’8” tall.
The men knew Masivesi and they often went to Masivesi’s house. He had Masivesi’s phone number.
Vunilagi was tall, possibly weighed 140–150 kilograms, and “you’re just scared of him when you see him”. They socialised and he was able to contact Vunilagi via Facebook messenger. Vunilagi was quiet when sober, but “so loud” when drunk.
He lived with Vatanitawake, and both played for the Gungahlin Bulls. That night, they changed shirts. Vatanitawake had been wearing a white and black shirt but when Macanawai woke up later that night he was wearing Vatanitawake’s shirt.
He and Vatanitawake were out and met Vunilagi at about 3 AM.
He knew TW, who was in Canberra for work. He was at Mooseheads. He was 37 or 38 years old.
He did not know the girl’s name. However, he may have met her previously.
There was a fight involving Vunilagi and another man. Macanawai tried to block the man. He tried to stop Vunilagi. The girl was scared. Macanawai did not remember the girl walking off with Vatanitawake.
He told the girl to go home. He was worried that he may know her brothers and he had respect. Further, he knew that Vunilagi had a girlfriend and the girl was hugging him and he thought that they would go to bed.
He also told her that she could go with them. She said “I will be coming too”. She was drunk. They were going to Masivesi’s home to drink.
At 6:30 or 7 AM, when Mooseheads closed, they got into a taxi and went to Masivesi’s house. The girl was with Vunilagi in the middle seat. Masivesi and Macanawai sat in the back of the maxi taxi. Vatanitawake was in the front with the driver. TW came to Masivesi’s flat “in the taxi with us”. Macanawai paid cash for the taxi fare. They arrived in daylight, at 7 or 7:30 AM.
When he walked in, the girl and Vunilagi were in the bedroom. He heard them having sex.
He, Masivesi and Vatanitawake were drinking and playing music in the sitting room. They turned up the music when they heard Vunilagi and the girl having sex. He heard her making noises.
After a long time, Vunilagi and the girl came out. She was wearing her clothes. She went to the bathroom by herself; no one accompanied her. Vunilagi had a drink. When the girl was in the bathroom, Vunilagi may have said that the girl had told him that she liked Vatanitawake. However, Vatanitawake respected Vunilagi so he did not want to “go with” the girl.
He recalled the complainant sitting in the lounge. He “couldn’t remember” whether Vunilagi had digitally penetrated her while everyone was sitting in the living room.
The girl followed Vunilagi back into the bedroom as though nothing had happened. At that time, she was “good”. He could hear them having sex again, for 30–35 minutes.
He was in the living room and was awake for the whole time.
He did not touch or kiss the girl. No one went into the bedroom other than Vunilagi. TW did not go into the bedroom.
Vunilagi called Vatanitawake into the bedroom because the girl wanted it but Vatanitawake did not want to go in and he did not go in. When told of the allegation that Vatanitawake had gone into the room, Macanawai just said “Mm”. He then said that Vatanitawake did go into the room and remained there for 5 minutes.
Macanawai showed no apparent surprise when told of allegations that the girl had been forced to have sex with him. When asked whether it was possible that that had occurred or he had entered the bedroom, he replied: “I didn’t remember, I was so drunk”, but then said that it was not possible that he had gone to the bedroom or that the allegations were true.
When the liquor store opened at 9, he and Vatanitawake went by Uber to buy more drinks.
When they returned from buying drinks, the complainant was standing outside, a little bit down from the driveway, crying. He got out of the Uber, saw her standing there. Vunilagi went and took her, and then they came in and sat on the couch and she was crying. His “friend” said “Hey, I’m sorry for like …” because they were having sex nicely when he left them in the room.
After that, Vunilagi came in and the girl went home, at about 9:30 AM. Vunilagi was wearing a different top, a vest.
Macanawai was feeling “so drunk”; he had had 20 drinks by the time that he got home.
I consider that Macanawai’s version of events could not reasonably be true. At first, he said that it was only Vunilagi who was in the bedroom with the complainant and insisted that, out of respect for Vunilagi, Vatanitawake had declined Vunilagi’s suggestion that he go in “because the girl wanted it”, but later he agreed that Vatanitawake did go into the room. He denied that he had touched the complainant but showed no apparent surprise when told of allegations that he had entered the bedroom and the complainant had been forced to have sex with him. Despite claiming a memory of some matters of detail, he also claimed that he could not remember what had occurred because he “was so drunk”.
Of possible relevance, Masivesi said that, at dawn, it was “not that dark” in the bedroom. He said that he did not see TW go into the bedroom, but nor did he recall whether Macanawai entered the bedroom.
Findings
Findings in relation to the third man
The complainant said that, after Vatanitawake left the bedroom, Vunilagi remained. A third man entered. Vunilagi required the complainant to “suck” this man and then to sit on him and engage in penile/vaginal intercourse. She felt intimidated and did what she was told. The third man held her hands down by her sides and engaged in intercourse until he ejaculated. During the penile/vaginal intercourse, Vunilagi repeatedly pushed his fingers into the complainant’s vagina.
It was suggested that there may not have been four assailants. The passer-by said that the complainant told him that she had come home with one man and ended up with three or four (he could not remember whether she had said three or four men). The taxi driver who collected the complainant from Northbourne Avenue said that she had told him that the first man called two or three other men (again, he could not recall whether she had said two or three other men).
I am not troubled by the uncertainty of these witnesses concerning what the complainant said about the number of assailants. The complainant told Burnes that four males had sex with her and there were five males in the house. That complainant has consistently maintained that position.
I accept the complainant’s evidence that she was obliged to engage in fellatio and penile/vaginal intercourse with the third man in the presence and at the direction of Vunilagi, and that she did not consent to the intercourse. The third man was someone other than Vunilagi, Vatanitawake or Masivesi; the complainant provided a very detailed description of each of those men and they were easily identifiable from their interactions with the complainant at Mooseheads.
I am satisfied beyond reasonable doubt that, whatever the identity of the third man, when he engaged in sexual intercourse with the complainant, he was reckless as to her lack of consent. There had been no prior significant exchange between the third man and the complainant and they were virtually unknown to each other, and there was every reason to think that she would not consent to intercourse, particularly as the intercourse occurred at the direction and in the presence of Vunilagi.
Findings concerning the identity of the third man
The real issue in the trial of Macanawai was whether the prosecution had proved beyond reasonable doubt that the third man was Macanawai.
As Macanawai’s counsel submitted, the case identifying Macanawai as the third man was a circumstantial evidence case. In effect, the prosecution had to exclude the possibility that the third man was TW.
I find that the following circumstances are reliably established by evidence independent of the complainant.
(a)TW had a thin, lanky build, as seen in the footage at the Bravo Door at 4:25, 5:11:40 and 5:13:32 AM, within Mooseheads at 4:48 and 4:52 AM, and in Verity Lane at 5:23–24 AM. He could not be described as “stocky”. Rather, the footage tends to support the complainant’s statement that TW “looked similar” to Vatanitawake.
(b)TW wore a hoodie that was primarily blue checked, with a light grey hood, mustard chinos and red sneakers, as seen in the CCTV footage at the Bravo Door at 4:25 AM.
(c)Macanawai wore a dark grey T-shirt, a two-tone dark blue sleeveless puffer vest and black pants.
(d)TW is somewhat taller than Macanawai but, from the footage, it is not possible to say that the height difference is substantial: see CCTV footage taken within Mooseheads at 4:47 and 4:52 AM, and in Verity Lane at 5:24 AM.
(e)TW’s arms were relatively slender as compared to Macanawai’s arms, which were quite bulky: see footage within Mooseheads at 4:48:52 AM and in Verity Lane at 5:23 AM.
(f)Macanawai’s torso was not visible in most of the CCTV footage because he wore a puffer jacket or vest but, at 4:48:52 AM, while dancing, he opened his vest to reveal a “tummy” and, as noted, his arms were bulky. Both features suggest a “stocky” build.
(g)Macanawai and TW had similar close-cropped beards and moustaches. Macanawai’s beard may be somewhat thicker.
(h)Macanawai was 25 years old. He said that TW was 37 or 38 years old, and the CCTV footage is consistent with TW being that age.
(i)Macanawai consented to providing a buccal sample after the police suggested that a sample may eliminate him as the third man. The sample did tend to support the proposition that he had not engaged in sexual intercourse to the point of ejaculation. The complainant was firm in her evidence that the third man had ejaculated inside her. Ms Stone gave evidence that, for most but not all men, penetration with ejaculation would leave semen that provided a good source of DNA. However, in relation to the sperm fractions taken from an endocervical smear, a high vaginal swab/smear and a low vaginal swab/smear, Macanawai was excluded as a possible contributor.
In relation to the third man, Macanawai and TW, and visibility in the bedroom, the following statements by the complainant are relevant.
(a)At Mooseheads, she had little interaction with Macanawai. When shown CCTV footage taken outside Mooseheads, she said that she possibly recognised the man in the hat (Macanawai) as the stocky man and she recalled that the stocky man was wearing a vest.
(b)LU was told of a big Fijian guy, a young Fijian guy and an elderly man. The complainant said that there were four men, but she did not describe the fourth man. LU first heard the fourth man described as “stocky” when the complainant gave her evidence-in-chief interview.
(c)To Burnes, the complainant said that four men had raped her, but she only described three men and she did not describe any man as “stocky”; she referred to a younger man (Simi, “first call”), a 6’5” man with teeth missing, and an older man who was shorter and had dreadlocks.
(d)When Linden first spoke to the complainant, she provided a detailed description of Vunilagi, Vatanitawake and Masivesi. The other man was described as shorter than the complainant (5’7”), “stocky”, wearing black clothes, a short-sleeve polo, and smelling like smoke. Linden agreed that she may have introduced the expression “stocky” in an endeavour to obtain further details about the man; she may have asked whether the man was “thin, fat, stocky”.
(e)To Dr Thomas, the complainant described the third man as short, with a stocky build and a beard.
(f)In her evidence-in-chief interview, the complainant volunteered the expression “stocky guy” and repeated twice that the man was “stocky”. She said that he was maybe 30, 32 or 33, had a short haircut, was probably 5’7” or 5’8” in height (“not that much shorter than me”) and was wearing “all black”. He had a beard, but not a full beard, more like stubble, and she said that “nothing about him stood out”. In relation to him wearing “all black”, she said that she could not tell whether he was wearing a long sleeve shirt or a T-shirt because “that’s just how dark he was”. She remembered that the stocky man had entered the very back seat of the taxi van and had sat behind her, on the left side. That was the position occupied by Macanawai.
(g)In her evidence-in-chief interview, the complainant said that she thought that the fifth man (who did not go into the bedroom) had been wearing a red T-shirt. He looked fairly young, probably around 25. She did not recall having seen him at Mooseheads, but she did recall that he had been seated on the lounge after she was raped by the third man.
(h)The passer-by recalled that a man who approached him while he was waiting with the complainant was wearing a red flannelette shirt, was of solid build and was about 5’8” in height, i.e. significantly shorter than Vunilagi and Vatanitawake and, presumably, lacking dreadlocks.
(i)The light in the bedroom was not illuminated.
(j)The complainant would normally wear glasses, but she was not wearing glasses that night. She has difficulty making out the features of people in the distance when she is not wearing glasses.
The complainant had very limited opportunity to observe the third man either before or after she was assaulted by him. In the bedroom, she faced her assailant during the penile/vaginal intercourse, but the bedroom light was not illuminated, the curtains were closed, she was not wearing her glasses, she was still somewhat intoxicated, and she must have been very distressed. Further, there is a possibility of unconscious bias: that the complainant assumed that the third man who entered the bedroom was the third man who had travelled in the taxi van with her because Masivesi and TW travelled in a second taxi and, when she was assaulted by the third man, the complainant would not have been aware that TW had arrived at the premises.
I consider that it is improbable that the complainant was influenced by any suggestion that the third man was “stocky” (like Macanawai but unlike TW) and improbable that her description of him (which she maintained consistently) was inaccurate in any respect; in relation to her descriptions of the other accused she was remarkably accurate.
I consider it extremely likely that Macanawai was the third assailant. However, I must be cautious about the complainant’s evidence of resemblance between Macanawai and the third man. Approaching her evidence with caution, having regard to the degree of difference between the appearance of Macanawai and that of TW, and in the absence of DNA evidence corroborating that Macanawai was the third man, I am unable to exclude the possibility that the third man was TW.
Trial of Masivesi
Evidence relating only to Masivesi
During the search warrant on 4 November 2019, commencing at 1:44 AM, Linden spoke to Masivesi. In part, Masivesi stated:
His date of birth was 4 June 1975 (he was 44 years old).
On the night in question, he drank kava at the Fijian Embassy in Deakin from 7 or 8 PM and watched a game. At about 11 PM or 12 AM, he dropped his red car back home and changed.
He went by Uber to Mooseheads. He had a few beers on the ground level. He met the other men. He met a Fijian friend, Rody, for the first time at the club. He also met Mini, a Fijian, for the first time at the club. They ended up chatting and drinking together. (After some hesitation) he recalled that another Fijian friend, Leli, whom he had never met before, was also present.
The girl came and joined them at their table. He had never seen her before. She and Mini seemed to know each other. The girl was drinking and “buying too”. Mini was with the girl and she was happy to be with him.
He walked to the taxi rank near McDonalds and caught a taxi to his flat at 3 or 4 AM. “We” (presumably, himself and Rody) caught the next taxi after the others. Mini travelled in a different taxi with the girl. He gave his address to them because Mini did not have a home to take the girl to. He told Mini where the key was. Mini, Rody and Leli left in the same taxi or Uber at 7 or 8.
The girl and Mini “went straight to the room” and “they were just doing their stuff”. When he arrived home, he could hear them moaning in the bedroom. They were in there “for ages”, and probably passed out when they finished their stuff. Everything stopped and the girl must have fallen asleep.
He sat and drank. Fijian music was playing, “not that loud”, at the upper volume of the speaker. He did not hear anything bad happening; he was listening to the music.
The girl just came out and said “Right, I’m going home”. She left at 7, 8 or 9 AM, probably by taxi or Uber. The girl left first.
Mini is Fijian, shoulder height to Masivesi, who is about 175 centimetres, so about 150 centimetres. He had an average body shape. Rody is about 27 or 28 years old, he was wearing a long blue shirt and brown cargo pants and had a number two haircut and a big face. Leli is about the same height as Masivesi, he was aged about early 30s. Everyone had all their teeth.
When interviewed on 9 December 2019, Masivesi said:
He had met Vunilagi in 2018 and Vunilagi had been to his house once before. He had met JP (Macanawai) in 2017 and JP had been to his home a few times. He had met Vatanitawake more recently and he had been to Masivesi’s house a few times. He provided a detailed description of all three men. He described JP as “a bit stocky”.
On the night in question, he was at the Fijian Embassy watching the Rugby World Cup final and drinking kava. He came home, parked his car, and changed.
He went to Mooseheads and was drinking at a table with Vunilagi, Vatanitawake, Macanawai (JP or “Jay”) and others. Another man was present. He wore a checked shirt and was visiting from Sydney.
Vunilagi was “a bit drunk that night”.
The girl appeared at the table. He had never seen her before.
She was snogging Vunilagi, chatting with other boys and interested in everyone, probably in Vatanitawake. She fancied Vunilagi and Vatanitawake and you could not tell which one she wanted to take home.
They left Mooseheads at closing time. Vunilagi wanted to have a sleepover with the girl at Masivesi’s house; he could not go to his own home because he lived with his girlfriend. Vunilagi asked to use his house and he provided the address and told them where the key was located.
Vunilagi and the girl caught the first taxi and he caught the second taxi. The man in the checked shirt came for a short time, had a few beers and then went home.
When he arrived home, Vunilagi and the girl were already in the bedroom. For approximately the next 10 minutes, they remained in the room. He could hear the girl moaning. He thought that they were having a good time, having sex.
Vunilagi came out of the bedroom and dragged Macanawai or Vatanitawake inside. Vunilagi “just come out and drag those two boys in the room”. Vunilagi came out and said to Macanawai “you go in the room” and the two men were in the room for about 10 minutes, probably just having sex. When Vunilagi and Macanawai came out, Vatanitawake went in. They kept swapping with Vatanitawake to go inside. At one stage, Vunilagi was on his own, at one stage it was Vunilagi and Macanawai together, “and after that they just go one by one”. At one stage the girl called for Vatanitawake; she wanted him.
He knew that men had been “sneaking” into the room during the drinking. He only saw it once or twice, but men could have gone into the room without him seeing. He knew what they were doing was not right and he was telling them to stop.
He had a few arguments a few times about letting the girl sleep and rest, find something to eat and go home. They were drunk and he tried to advise them “look, this is not right”. After Vunilagi and Macanawai probably had been in at the same time and had come out, Vunilagi wanted the girl to drink beer but Masivesi said “no. This girl has to go”.
He was drinking on the couch with the other three men and was drunk. They listened to Fijian music and sometimes turned up the volume when their favourite songs came on. Every time that a man went into the room, they closed the door and, apart from the first time when Vunilagi was in the room, Masivesi did not hear anything because he was enjoying the drinking and music.
At one stage, he chased Vatanitawake out from the toilet because he wanted to go and have sex with the girl. Vatanitawake or Vunilagi wanted to follow the girl around. Someone followed her to the toilet.
He thinks that it was after the girl went to the toilet that she returned to the bedroom to have a rest.
When the girl was on the couch, he realised that she was sad. After that he went into the bedroom and Vunilagi was there. Another time he went in to get his charger.
He went into the bedroom at one stage to get his charger. He shut the door behind him. The girl was sleeping and the light in the bedroom was on. She was wearing her dress and panties. He knew that she must be tired because a few boys had been sneaking into the room. He said to the complainant, “This is my house. If you want to sleep, wake up, you can have something to eat, then you go”. She said, “I know what you want. Like, you just want to come here and have sex” and she started taking off her panties. He said “no, that’s not me, this is not right” and left the room with his charger. His hands and penis did not touch her and he does not think that his mouth touched her. Masivesi explained:
Because she wasn’t … by the time she start putting her pants off that’s what I thought, my wife’s face just appeared because it’s all by my bed and then she telling me off. I know I can’t do this. This is … this is my wife’s home … then I come back out.
Masivesi agreed with the proposition put by the police that, after Macanawai left the room, Vunilagi was in the room with his fingers in the complainant’s vagina and then Masivesi walked into the room. The girl was lying down and Vunilagi was “touching her up”. Masivesi spoke to him and told him to stop. He was unsure whether she had her panties on. He reassured the complainant that they were going to take her home soon and told her that she should get some rest. He left the room. He returned a few seconds later and that was when she tried to take her panties off. She wanted to have sex with him, but he did not want to do it.
She was crying. She was just tired. He kissed her, just on the cheek and did not or did “not really” kiss her on the mouth.
Masivesi said that, at one stage, he went into the room to stop Vunilagi, who had been inside a couple of times. Masivesi knew that the girl was not happy after the couch episode. At an earlier stage, he had gone in and she had been asleep with her clothes on. It was at this earlier point that he had advised her to have a good rest and food, but she had started to take her panties off.
The girl wanted a charger for her phone, but he did not have the correct charger. The phone did not work.
At one time when the girl was sitting on the lounge, Vunilagi tried to “touch her up” and he thinks that Vunilagi was trying to touch her genital area. When Vunilagi was trying to touch her vagina, the girl had an expression indicating that she did not want it. Macanawai and Vatanitawake were present when this occurred. Masivesi told Vunilagi to stop it because it was not right. Vatanitawake also tried to get Vunilagi to stop.
Vunilagi was very drunk and he was a big man. When they tried to stop him, Vunilagi pushed them away and Masivesi said “this girl has to go, this is not right, she’s no animal, you don’t want to do that to your sisters”.
After the incident on the couch, Vunilagi grabbed the girl and took her “nicely” to the bedroom, where they probably had sex again.
About 7 or 10 minutes later, when the girl came out of the room, she was not happy with Vunilagi and said that she wanted to leave. He stopped Vunilagi because it “was not right”. They “almost [had] a fight” because Vunilagi was so drunk. After that, the girl came out with Vunilagi and wanted to go but Vunilagi wanted her to stay, so Masivesi “just stand up and sort him out” because he “know what … will do to her”. Vunilagi was trying to pull the girl to stay in the house; he grabbed her wrist. They were speaking in Fijian and Masivesi told Vunilagi to go and have a rest.
He stepped in and told Vunilagi, “it’s not right” because everyone was drunk and Vunilagi is very big. He released the girl’s hand and let her go. She grabbed her bag when she wanted to leave and Vunilagi just gave the bag to her. She ran out and closed the door. Vunilagi was angry at Masivesi for letting the girl go and he slammed the door.
Vatanitawake and possibly Macanawai went to Dickson to buy alcohol.
He thought that the girl was happy to have sex with at least three people because of her behaviour at Mooseheads. First, she was with Vunilagi, then she tried to chat up Vatanitawake. She did not ever complain. She could have left if she was not happy. He thought that she knew Simi, was in love with him and wanted him too.
He had spoken to the boys the previous week. He had contacted Macanawai at 8:35 on 4 December to say that the police were looking for them. JP said that Vunilagi had ruined everything.
The girl was “really drunk”.
He said that when Vunilagi started pulling the other two, that was when things went wrong.
He thinks that the other two men were scared of Vunilagi because he was big and drunk.
The mattress was put out over the fence after the girl left because people had been using it for sex and he did not want to sleep on it.
First, he thought that the woman would enjoy herself and they would have a few drinks. But he regretted that he did not make good decisions because he was drunk.
Masivesi called substantial evidence of good character.
He has no prior criminal record.
A diplomat with the Fijian High Commission gave evidence that he has known Masivesi since early 2017. The families are close friends and regular worshippers at the Methodist Church. The Masivesis were a very close and loving family. Masivesi was not the sort of person to cheat on his wife. He had been very reliable and helpful to the High Commission in assisting with visits from dignitaries. When he was drunk, Masivesi’s personality did not change.
Masivesi’s wife holds responsible employment. She said that she married the accused in 2006, when he was in the Royal Navy. From 2008–2011, they lived together in England. In 2012, Masivesi resigned from the Royal Navy and returned to Fiji to care for their daughter. In 2017, she obtained a scholarship to study at the ANU, and they came to Canberra in early 2017. In Canberra, they participated in the Fijian community, largely through the Methodist Church in Canberra. In late 2018, she returned to Fiji, where she was required to serve for two years under the scholarship conditions. Masivesi applied for a protection visa and stayed in Australia.
She described Masivesi as loving, respectful, caring, and honest. She said that the couple was used to being separated and was honest and trusting towards each other. She has never doubted that he has been faithful to her. Masivesi would not lie to her. He always let her know where he was and what he was doing. She believed that Masivesi was incapable of the alleged conduct. He was raised among women and was very respectful of women. He knew that any misconduct would impact negatively on her. When intoxicated, Masivesi was very happy and maintained his composure.
Ekeroma, who knew Masivesi through his work as a bouncer, confirmed that Masivesi was normally quiet and respectful (inferentially, even when intoxicated).
Findings
For the reasons discussed above, I found Masivesi to be a very unimpressive witness upon whom no reliance could be placed, except insofar as he corroborated the complainant’s evidence or made limited admissions against interest.
The statements that he made when interviewed during the search warrant and on 9 December 2019 confirm the unreliability of the various versions that he has advanced. When interviewed during the search warrant, he stated that he had met three Fijian friends for the first time that night and referred to them as ”Mini” (inferentially, Vunilagi), “Rody” (to whom he referred in evidence as “JP”) and “Leli” (to whom he referred in evidence as “Simi”). He described Mini as being about 150 centimetres tall and having an “average” body shape, although Vunilagi is strikingly tall and athletic in appearance. Clearly, Masivesi was prepared to lie to protect the co-accused.
I have approached the complainant’s evidence against the other accused with considerable caution, inter alia, because her memory of events at Mooseheads was demonstrably flawed.
In relation to the case against Masivesi, the position is somewhat different. The version of events provided by Masivesi on 9 December 2019, while unreliable, contains some admissions against interest and features that support the complainant’s account of the sequence of events, the sexual assaults by the co-accused, and some of her interactions with Masivesi. It bolsters her reliability. In particular, he said that:
(a)Vunilagi and the complainant were in the bedroom when he arrived home and were apparently having sex.
(b)Vunilagi “dragged” Vatanitawake and Macanawai into the bedroom and they were “probably” having sex. At one stage, Vunilagi and Macanawai were in the bedroom together.
(c)The men were drunk. The other men were scared of Vunilagi because he was big and drunk. (If so, that is strong support for the complainant’s assertion that she was intimidated.)
(d)At one stage, the complainant went to the toilet and either Vunilagi or Vatanitawake followed her.
(e)Masivesi went into the bedroom either once or twice (his evidence was unclear on this point). He reassured the complainant and advised her to rest. There was a discussion about a charger.
(f)At one stage, when he walked into the bedroom, Vunilagi was in the bedroom with his fingers in the complainant, “touching her up”. He told Vunilagi to stop and reassured the complainant.
(g)At that stage or when he re-entered the bedroom a few seconds later, the complainant said words to the effect of “I know what you want, you just want to have sex”. When she said that, his wife’s face flashed before him and “told him off”.
(h)When the complainant was on the lounge, Vunilagi tried to “touch her up” and was trying to touch her genital area. The complainant’s expression indicated that she did not consent. Macanawai and Vatanitawake were present at the time. Masivesi told Vunilagi to stop because it was “not right”.
(i)After that incident, Vunilagi grabbed the complainant and took her to the bedroom, where they probably had sex again.
(j)When the girl wanted to leave, Vunilagi wanted her to stay and became angry with Masivesi for letting the girl go.
(k)He disapproved of what was occurring and told Vunilagi that the girl was “no animal”.
On 4 November, 9 December and in evidence, Masivesi also made many assertions that exonerated or tended to exonerate himself or the co-accused. Insofar as he made such statements, I consider that no reliance can be placed upon them.
By his own admission, Masivesi felt tempted to engage in sexual intercourse; in effect, he asserted that the complainant offered herself to him, but he refrained because his wife’s face flashed before him. Further, he seemed to agree with the complainant that he had entered the bedroom after the other men had been in the bedroom. If so, it must have been not long before the complainant attempted to send the message “please help me” at 7:16 AM. It is hardly likely that the complainant offered herself to him at about the same time.
It was submitted that Masivesi had forcefully and convincingly denied the distasteful suggestion that he performed cunnilingus on the complainant after his three friends had assaulted her. No doubt, on sober reflection, Masivesi finds such conduct to be very distasteful, but that does not mean that he did not engage in the conduct when highly intoxicated and disinhibited.
The complainant gave a detailed and consistent account of Masivesi’s conduct. Her evidence is consistent with Masivesi equivocating about whether he should give way to temptation (appreciating that the conduct was wrong); he comforted her, left the room, and then returned shortly thereafter and assaulted her.
I find that there is no reasonable possibility that—as Masivesi stated in the record of interview—the complainant was right about the sexual activity of his drunken friends but was wrong about Masivesi himself abusing her.
I am satisfied beyond reasonable doubt that Masivesi performed the acts the subject of Count 11 (touched the complainant’s breasts, genital area and kissed her lips and breasts), Count 12 (cunnilingus) and Count 13 (digital/vaginal penetration).
I am satisfied beyond reasonable doubt that each act occurred without the complainant’s consent.
I am satisfied beyond reasonable doubt that the acts the subject of Count 11 were indecent by ordinary community standards because they occurred without the complainant’s consent.
I am satisfied beyond reasonable doubt that Masivesi was reckless about the complainant’s lack of consent; indeed, as he counselled the co-accused against similar conduct, he must have known that she probably did not consent.
In reaching these conclusions, I have taken the impressive evidence of Masivesi’s good character into account. I also bear in mind that, on his own admission, Masivesi provided an opportunity for his friend, Vunilagi, to cheat on his girlfriend and, over a lengthy period, failed to control the actions of the younger men. Consistent with the character evidence, Masivesi did not become aggressive, recognised that what was occurring was disrespectful to the complainant, and was somewhat sympathetic to the complainant’s plight. Regrettably, in his intoxicated condition, he also succumbed to the temptation to abuse her.
Verdicts
Vunilagi
In relation to the accused Vunilagi, the verdicts are as follows:
(a)Count 1: sexual intercourse without consent (penetration of mouth with penis)—Not guilty;
(b)Count 2: sexual intercourse without consent (penile/vaginal penetration)—Not guilty;
(c)Count 3: sexual intercourse without consent (digital/vaginal penetration)— Guilty;
(d)Count 4: act of indecency without consent (“dry humping”)—Guilty;
(e)Count 6: sexual intercourse without consent in company with Vatanitawake (penetration of mouth with penis by Vunilagi during penile/vaginal penetration by Vatanitawake)—Guilty;
(f)Count 9: sexual intercourse without consent in company with Macanawai (digital/vaginal penetration by Vunilagi, while Macanawai continued penile/vaginal penetration)—Guilty;
(g)Count 10: sexual intercourse without consent (continuation of digital/vaginal penetration)—Not guilty;
(h)Count 14: sexual intercourse without consent (digital/vaginal penetration)—Guilty;
(i)Count 15: sexual intercourse without consent in company with Vatanitawake, Macanawai and Masivesi (digital/vaginal penetration by Vunilagi in loungeroom, other accused present)—Guilty;
(j)Count 16: sexual intercourse without consent (cunnilingus)—Guilty;
(k)Count 17: sexual intercourse without consent (penetration of mouth with penis)—Guilty.
Vatanitawake
In relation to the accused Vatanitawake, the verdict is as follows:
(a)Count 5: sexual intercourse without consent in company with Vunilagi (penile/vaginal penetration by Vatanitawake, in the presence of and encouraged by Vunilagi)—Guilty.
Macanawai
In relation to the accused Macanawai, the verdicts are as follows:
(a)Count 7: sexual intercourse without consent in company with Vunilagi (penetration of mouth with penis by Macanawai, in Vunilagi’s presence)—Not guilty;
(b)Count 8: sexual intercourse without consent in company with Vunilagi (penile/vaginal penetration by Macanawai, in Vunilagi’s presence)—Not guilty.
Masivesi
In relation to the accused Masivesi, the verdicts are as follows:
(a)Count 11: act of indecency without consent (touching breasts and vagina and kissed breasts and lips)—Guilty;
(b)Count 12: sexual intercourse without consent (cunnilingus)—Guilty;
(c)Count 13: sexual intercourse without consent (digital/vaginal penetration)—Guilty.
| I certify that the preceding five hundred and twenty-nine [529] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 9 October 2020 |
9
4
4