SunLive – Mix of sentences in Tauranga rape case

Late Thursday, a jury acquitted Jonathan Luma of two charges against him: rape and sexual assault.

However, Willy Tocon Tancon was found guilty by a majority vote on the rape charge. He was acquitted by a majority on one charge of sexual assault and acquitted by a unanimous verdict on a second charge of sexual assault.

Rape or one night stand?

The court heard Lumu and the woman flirted throughout the night, developed a rapport and entered a room together where they shared a consensual kiss.

It was at this point that the narratives split – the woman said she said no to anything “sexual”, that she was happy with the kisses, but did not want anything more.

The defense said the couple continued to kiss, which turned into sexual intercourse, and it was all consensual.

Crown prosecutor Richard Jenson said Lumu’s account made no sense and he could not even remember the woman’s name when interviewed by police, refuting his account that the sex was consensual.

But Lumu’s lawyer Markus Zintle told jurors it was a case of one night’s regret, suggesting the woman may have behaved under the influence of alcohol in a way she would not have behaved in the cold light of day.

But that didn’t mean she was raped.

“What the Crown is suggesting to you in this trial is that we have reached a point in this country where they expect people who have one-night stands to make written, signed agreements about sex with each other,” he said.

Corona didn’t live in the “real world,” he said.

“The crown may be in ivory towers, but you and I go to bars, we go to nightclubs. People sometimes go out and have casual sex, it happens.”

He said the woman flirted, danced and kissed his client and willingly went into the bedroom with him.

“What did she think was going on in the bedroom, talking and winking?”

Zintle also quoted a Crown witness who was a friend of the woman as saying that later in the evening, after the alleged rape was about to occur, she asked the woman about sex with Lumu.

The court heard evidence from a friend that Lumu told her about the sexual encounter after leaving the bedroom and allegedly said he asked the woman out after they had finished having sex.

The friend told the court she later asked the woman about it and the woman confirmed sex had taken place but said nothing about it being non-consensual.

Another friend said she asked the woman if she was “okay” after the alleged rapes, and the woman replied that she was.

Jenson said it was a tense, loud, chaotic and alcohol-filled night and it was easy for people to make mistakes about what was said in conversations.

Major lapses in memory.

However, the defense focused on the woman’s credibility and reliability, pointing out obvious inconsistencies and large gaps in her memory.

She couldn’t piece together much of the night and seemed to have difficulty remembering how she got out of the bedroom where she said she was kept.

She said she started with Lumu in one room and then when she left after the first alleged rape, she was pushed into another, at which point Tankon raped her.

During the police interview, she described meeting Tancon, although at that time she did not yet know who the man was.

“I kept saying… leave me alone,” she said.

She claims the man said: “You want me to continue, you like it.”

She said she climbed out of the window after that, but doesn’t remember how. She just remembered trying to climb out of the window and then finding herself on the street.

The Crown also pointed out her friends’ differing opinions on the matter, with one saying she took the woman out of the bedroom upset. Another said they saw her outside, behind the house. Another said the woman came out into the living room of the home upset.

But Jenson said the problem was not how the woman left the room, but the state she was in afterward.

She was “frustrated, lost and just wanted to go home.”

“These are unlikely to be the actions of a woman who had two passionate, consensual sexual encounters,” Jenson said.

He said the jury could not have expected her to be able to give a crystal clear and detailed account of that night.

All of the Crown’s witnesses recalled seeing her upset during the latter half of the night, although no one knew at the time the extent of the allegations that emerged later.

But Tancon’s lawyer, John Wayne Howell, spent time discussing the mechanics of how she could have gotten out of a window that opened just a foot, and the implausibility of it.

He said she would not have approached unless she had gone headfirst, and if she had done so it would have been reasonable to expect her to have suffered injuries to her face or head.

According to Howell, her insistence that she escaped through the window indicates that her entire story is unreliable.

But Jenson said that the woman was sure of important things. She didn’t want anything sexual, said no, cried and called for help during both rapes, but was ignored.

Howell said it was unlikely that her cries for help would not have been heard, and that even when a friend answered the door while the woman was allegedly being raped by Luma, she did not hear the pleas for help.

“The reason no one helped her was because she didn’t scream for help,” he said.

Jenson said it was a loud night with a lot going on and people drinking. Perhaps this is why she was not heard and why there were such differences in the testimony of witnesses.

There was also an apparent fight after Tancon’s rape. Witnesses, including Lumu himself, said Lumu returned to the room to find Tankon inside with a woman, and started fighting with him over it.

But Howell pointed to evidence of how Tancon behaved earlier in the night when he was rejected by another woman.

One of the witnesses entered the room with him, they lay down and kissed.

He asked her to have sex, and when she said no, they both left the room.

Howell said jurors could have inferred from how Tancon responded to the “no” that he accepted it.

On this occasion, the Crown said that the woman could have expected the same thing, but when she came into contact with Tankon, she was not listened to.

Tancon was remanded in custody pending sentencing in February.

SEXUAL HARM

Where to get help:

If there is an emergency and you feel you or someone else is in danger, call 111.
If you have ever been sexually assaulted or abused and need someone to talk to, contact Safe to Talk confidentially anytime, 24/7:
• Call 0800 044 334.
• Send message: 4334.
• Email [email protected].
• For more information or to web chat, visit Safetotalk.nz.
Alternatively, contact your local police station – click here for a list.

If you have been sexually assaulted, remember that it is not your fault.