Police officers at the helm of a “negligent” gang rape investigation breached a defendant’s rights and essentially ignored what could have been crucial evidence, a barrister says.
Steven Whybrow is representing Josefa Navunisinu Masivesi in an ACT Supreme Court trial about the alleged assault.
Prosecutors say the 45-year-old Canberra father is among four men who met a young woman at Mooseheads in the early hours of November 3 last year, and later raped her at Mr Masivesi’s Downer unit as Fijian music drowned out her cries and screams.
Mr Macanawai also says he didn’t have sex with the young woman, while Mr Vatanitawake says he had consensual sex with her. Mr Vunilagi says she voluntarily gave him oral sex but they didn’t have intercourse.
In closing remarks on Wednesday, Mr Whybrow said Mr Masivesi had denied he raped the young woman since the outset of a police investigation, despite officers having subjected him to unfair treatment.
Mr Whybrow said police executed a search warrant at Mr Masivesi’s unit at 2am the day after the alleged incident.
Chief Justice Helen Murrell said: “It may well be that it was inappropriate to utilise a search warrant in the middle of the night, but the fact is the evidence is not in.”
Mr Whybrow said that when Mr Masivesi was at a police station to undergo a forensic procedure, an investigator asked if he wanted to take part in a recorded interview.
Mr Whybrow said Mr Masivesi answered “no, thanks”, but police went ahead anyway and asked him questions pertaining to the investigation.
“He made statements consistent with innocence in the context of an inappropriate, deliberate breach of his rights,” he said.
Mr Whybrow said police were argumentative and cut off Mr Masivesi in interviews, and turned “the Australian moral police” when they questioned him about what he considered to be “impropriety”.
The barrister said while prosecutor Skye Jerome had framed Mr Masivesi’s version of events as “littered with lies”, the judge should consider his evidence in the context of “unfair, circular and moralistic” questioning by police.
In her closing remarks, Ms Jerome urged Chief Justice Murrell to put aside the “inherently discreditable” versions of the accused men in favour of the alleged victim’s version.
Mr Whybrow said that when police executed the search warrant at Mr Masivesi’s unit, they neglected to investigate a mattress slung over a fence because it didn’t match a description by the alleged victim.
He said Mr Masivesi had put the mattress outside because he’d thought some of the group had sex with the woman on it. He said if police tested it, the DNA of some of the accused could have been ruled out, and it could have gone to their credibility.
“This could have been the crime scene sitting on that fence,” Mr Whybrow said.
“All the police had to do was take the sheet off and put it in a garbage bag.
“[Investigators were] only looking at corroborating the complainant’s version of events.”
In her closing remarks, Ms Jerome said it was obvious to the accused men that the young woman did not consent to the sexual acts she alleged.
She described the woman as an open, frank, and “inherently credible” witness whose version of events was corroborated at least in part by some of the men’s accounts.
The trial continues.