Noel Ninibil and Zebedee Luwi found guilty of specific charges

Two Papua New Guinea nationals have been found guilty on two charges by a Townsville District Court jury.

Read more from the trial Trial day one Jump to review

Trial day two Jump to review

Trial day threeJump to review

Trial day fourJump to review

Two Papua New Guinea nationals have been found guilty of deprivation of liberty and a single count of rape by a Townsville District Court jury.

Noel Ninibil, 31, and Zebedee Luwi, 34, had originally pleaded not guilty to deprivation of liberty, indecent assault, one count of rape/attempted rape, and two seperate counts of rape.

The jury found them not guilty of one count of rape, indecent assault and rape/attempted rape.

A third man, Micah Umm, earlier pleaded guilty to deprivation of liberty, indecent assault, one count of rape/attempted rape, one count of rape and another count of rape and will be sentenced at the conclusion of this trial.

But the 10 women and two men that made up the jury in this five-day trial decided that Ninibil and Luwi were guilty of the deprivation of liberty of Miss B, despite her own admission that she willingly got in the car with the three men outside the White Horse Tavern in Charters Towers on December 5, 2021.

The pair were also found guilty of a charge of rape that related to the charge against Umm, to which he had pleaded guilty.

Section 7 of the Queensland Criminal Code says in part:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say — (a) every person who actually does the act or makes the omission which constitutes the offence; (b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; (c) every person who aids another person in committing the offence.’’

Criminal lawyers told The Bulletin that under this section of the code it means that Ninibil and Luwi have been found guilty because they remained present in the area where Umm committed the offence of rape that he has pleaded guilty to.

“They are guilty because they were party to the offence by their presence, despite their barristers arguing that their mere presence should not make them guilty,” said a criminal lawyer.

Evidence led during the trial showed that Luwi was probably sitting in the hire vehicle used by the men while Ninibil was standing at the rear of the car smoking while the rape involving Umm took place.

All three men will be sentenced by Judge Gregory Lynham in the District Court next Wednesday.

Ninibil and Luwi could be freed immediately if they receive light sentences as they have already spent more than two years on remand in custody.

They would then be deported to Papua New Guinea.

‘...then you have no evidence’: Defence barrister tests claims in court

In his final address, Ninibil’s barrister, Darin Honchin, said it was a trial about credibility.

He said the jury needed to consider how accurate Miss B was with her evidence.

“She was definite that the driver, Micah Umm, did not have sex with her and yet the DNA expert found that the DNA evidence showed he was the only one of the three that did have sex with her,” he said.

“That he never had sex with her is clearly wrong and will raise significant concerns about the quality of her evidence.”

Mr Honchin said on the issue of the charge of deprivation of liberty, Miss B had said she willingly got in the car with the three men.

“She had her phone with her the entire time of the journey and she did not attempt to call or text anybody to help,” he said.

He said Ninibil had admitted he lied to police but it needed to be remembered that he was from Papua New Guinea and the police there ‘are not very nice’.

Mr Honchin said when Miss B got into the white hire car the CCTV footage showed two hotel security guards standing nearby.

“They came over to the car and one stuck his head in the window and then they both walked away, obviously not fussed or concerned about anything,” he said.

He said another area of concern with Miss B’s story was her description of lying naked on gravel on her back while three men climbed on top of her, one after the other, and had sex.

“She said she struggled as well, while this was happening, but the doctor did not find any abrasions on her back, the back of her legs or anywhere else. So again, how likely is her version?”

Crown Prosecutor Monique Sheppard admitted Miss B did not have a perfect memory.

“She deeply regrets getting into that car and acknowledges she put herself in danger,” she said.

She said Miss B was ‘grossly intoxicated’ with a reading of more than 0.2.

“But it doesn’t mean she is wrong for what she does remember,” said Ms Sheppard.

Ms Sheppard said in regards to the DNA evidence, condoms could have been used and Umm having sex last could have meant his DNA ‘swamped’ that of the other two men.

In his final address, Zebedee Luwi’s barrister, Ross Malcomson, said Miss B’s evidence was the most critical of the case and it often came down to a matter of ‘don’t remember, don’t recall’,” he said.

“With my client, she said: ‘I don’t know if he managed to have sex with me’.

“Basically if you have a situation with someone who doesn’t remember and doesn’t recall things, then you have no evidence.”

He said there was no evidence as to where Luwi was on the bridge but it appeared likely that he remained in the car.

Mr Malcomson said his mere presence sitting in the front seat was not enough to convict him.

Judge Gregory Lynham will address the jury on Friday morning and they will then retire to consider their verdict.

The accused men have taken the stand in the trial.

’I wasn’t feeling good’: Accused take the stand in trial

A Papua New Guinea national charged with rape denied that he had touched the victim, let alone raped her, during almost three hours in the District Court witness box on Thursday.

Facing the jury trial are Noel Ninibil, 31, and Zebedee Luwi, who both pleaded not guilty to charges of deprivation of liberty, indecent assault, two counts of rape and one count of rape/attempted rape.

A third man, Micah Umm, earlier pleaded guilty to those charges and will be sentenced at the conclusion of this trial.

Dressed neatly in a long-sleeved, collared shirt and jeans, Ninibil told the jury on the fourth day of the trial, that he came to Australia in 2019 to work on a produce farm near Charters Towers.

But under questioning from his barrister, Darin Honchin, he went on to give an extremely different version of events on December 5, 2021, from what the victim, Miss B, had told the court.

He said he had been sitting on a stool in the White Horse Tavern, drinking beer and watching people dance until nearly closing time, when he and his two friends Luwi and Umm left the bar.

He said he was standing by the car hired on the Saturday by Umm when Miss B walked past.

“She said, ‘Can I come with you’, I said OK,” he said.

He told the jury of 10 women and two men that she sat on the right hand side of the back seat, he sat on the left side, with Luwi in the front passenger seat and Umm driving.

He said that she then asked him if he had a big d--k and he didn’t say anything.

“She moved towards me and kissed me with her tongue,” he said.

“I didn’t do anything except pushed her back in the seat. She put her hand on my private parts and I pushed her away, I felt like it wasn’t right. I wasn’t feeling good.”

Ninibil said Umm drove to the Macrossan Bridge on the Flinders Highway, but he had thought he was being driven home.

He said at the bridge, Miss B was the first out of the car, followed by Umm.

“They both went in the same direction, I just sat in the car a bit longer, then I went outside and stood behind the car and started smoking,” he said.

He said he couldn’t see them but he heard them chatting and giggling and making a noise ‘like sex’.

Crown Prosecutor Monique Sheppard asked Ninibil if he was embarrassed by her actions towards him in the car and why he didn’t ask Umm to stop the car and let her out.

“I didn’t say anything, I was just embarrassed,” he replied.

Ms Sheppard said that he had said to Miss B, ‘You are now my girlfriend’, and Ninibil replied: “I never mentioned that.”

The prosecutor asked him how Miss B became naked and Ninibil replied that he had no idea how her clothes came off.

He said he did not see her naked until she reappeared after being with Umm beside the bridge.

Ms Sheppard questioned him closely about his interview with police at the farm on December 10, when he denied being in the car and going to the White Horse Tavern with the other two farm workers.

He admitted that he had lied several times during that police interview and said he was concerned because police had arrested his friend and fellow farm worker Lawrence Tikale, who was not involved in the case at all.

“He was innocent and I was scared, and I lied,” said Ninibil.

He agreed with Ms Sheppard that he had allowed police to arrest Tikale when he knew he was really the person they were looking for at that stage.

The case is continuing.

DAY 3: ‘We took the girl out and did stuff’: Witnesses take the stand in trial

There is no DNA evidence linking two men charged with rape to the victim, a Queensland DNA expert told Townsville District Court on Wednesday.

Facing the jury trial are Noel Ninibil and Zebedee Luwi, who both pleaded not guilty to charges of deprivation of liberty, indecent assault, two counts of rape and one count of rape/attempted rape.

A third man, Micah Umm, had earlier pleaded guilty to those charges and will be sentenced at the conclusion of this trial.

Forensic Science Qld reporting scientist Adrian Antonio Pippia told the court he had been with the state’s DNA laboratory for 22 years.

He said he tested samples from five vaginal swabs taken from Miss B, as well as other samples from her, as well as from Ninibil, Luwi and Umm.

Mr Pippia told the jury of 10 women and two men that four of the vaginal swabs were identical in their results.

“They all had the same single source DNA profile that matched the DNA profile of Micah Umm,” he said.

He said the likelihood of Umm being a big contributor ‘was greater than 100-million times that he had contributed than that he had not’.

Under questioning from Crown Prosecutor Monique Sheppard, Mr Pippia said it was possible that the use of a condom could mask DNA, and there was also a situation known as ‘swamping’ where, for example, the DNA of a third person having sex with someone could overwhelm the DNA of the first two.

But he said there was no evidence whatsoever that Ninibil and Luwi had any DNA involvement in this case.

Under cross examination from Ninibil’s barrister, Darin Honchin, Mr Pippia said there could even be DNA found in a rape case with penile penetration but without ejaculation.

A farm worker earlier told the jury that one of the farm workers charged with rape had told him ‘we took the girl out and did stuff’.

Kevin Bulus Mgnas said he had worked at the produce farm 15km east of Charters Towers with eight other PNG nationals at the time of the rape in December 2021.

The court heard that Mgnas had seen Umm, Ninibil and Luwi leave the farm in a white car on Saturday, December 4, 2021.

He said they returned about 4am on December 5, and at that stage he had a conversation with Luwi.

He said Luwi told him that the trio went to Charters Towers and at some stage said: “We took the girl out and did stuff”.

Mgnas said he took the meaning of the word ‘stuff’ to relate to sex.

Luwi’s barrister, Ross Malcomson, said to Mgnas that he had made up the reference to taking the girl.

He denied he had made it up, and Mr Malcomson asked him if it were true that he and Luwi were not friends.

Speaking through an interpreter, Mgnas just said: “Work colleagues”.

Under further cross examination, he said Luwi was drunk and that the pair did not speak about the matter again.

Mr Honchin indicated to the jury that his client, Ninibil, will give evidence in his defence on Thursday, when the case continues.

Macrossan Bridge on the Flinders Highway.

Day 2: ‘I was literally naked’: Towers plumber finds alleged rape victim on side of the highway

An alleged rape victim can be seen and heard continually berating herself for ‘being so dumb’ as to get in a car with three men on police body-word camera footage shown to a Townsville District Court jury.

“I’m so stupid, jumping in the car in the first place… it’s all my fault… they all f--ked me,” she says on camera as she is weeping in the Charters Towers Police Station.

Facing the jury trial are Noel Ninibil and Zebedee Luwi, who both pleaded not guilty to charges of deprivation of liberty, indecent assault, two counts of rape and one count of rape/attempted rape.

A third man, Micah Umm, had earlier pleaded guilty to those charges and will be sentenced at the conclusion of this trial.

Former police constable Carla Jane Barrett told the court that she activated her body-word camera when a distraught ‘Miss B’ arrived at the police station at about 3.25am on December 5, 2021.

On camera Miss B kept repeating that she was ‘stupid’ and ‘dumb’.

“I should have run away but they all grabbed me,” she said.

“I literally tried to stop them and when I saw a headlight coming I kicked them – I was literally naked, but he reversed the car and he really saved my life.

“I hate myself now.”

The man she described as ‘he’ is Charters Towers plumber Desmond Phillips, who gave evidence that he was driving towards Townsville at around 3am on December 5, 2021, when he noticed a car parked on the right side of the road at Macrossan Bridge, on the Flinders Highway.

He said he then saw a girl on the side of the road waving her arm and when he got close he saw she was naked.

“She didn’t look like she was in a good way at all, and she said, ‘these people are trying to rape me’,” he said.

Mr Phillips told the court Miss B was tearful and definitely upset as she stood beside his driver’s door.

He said he saw two people approaching about 10 metres behind her, of Islander descent, and they were not threatening towards him.

“One of them said something like, ‘Everything’s fine, this is my girlfriend, this is my brother, she’s drunk and everything’s fine’.”

He said the woman was very shaken and scared and he asked them three or four times where her clothes were.

Mr Phillips said the two men finally gave him Miss B’s clothes and her mobile phone after he had told her to get in his vehicle, and he drove her to Charters Towers Police Station.

He told the court he only saw two men and at no stage saw a third person.

Dr Kiran Bujar of Charters Towers Hospital gave evidence that he examined Miss B at the hospital, both visually and internally, and did not find any injuries to her genitalia.

Hayley Marie Scanlon, a former Detective Sergeant at Charters Towers CIB told the court she had been the investigating officer in the rape case.

She said that she organised a search warrant for a North Queensland farm where she believed that the three Papua New Guinean men involved in the case were working.

She said they had identified Umm because he had rented the vehicle that Miss B had climbed into on the Saturday night outside the White Horse Tavern, but at the time of the search warrant, police did not know the identity of the other two men.

Luwi was arrested after the search warrant was executed on December 10.

Ms Scanlon said police returned to the farmhouse on December 14 and questioned Ninibil, who told them he had not left the farm on the Saturday night of the rape.

He flatly denied any knowledge of the Nissan car hired by Umm and further denied he had ever been in it.

But police allegedly found images of the hire car on his phone and he was also arrested.

The case will continue on Wednesday.

The case is continuing.

The White Horse Tavern.

Day 1: ‘You are my girlfriend now’: Alleged rapists offered victim lift to Maccas

A young woman made a ‘decision she would live to regret’ when she got into a car with three men outside a Charters Towers hotel a prosecutor told a Townsville District Court jury on Monday.

Before the court were Noel Ninibil and Zebedee Luwi, who both pleaded not guilty to charges of deprivation of liberty, indecent assault, two counts of rape and one count of rape/attempted rape.

A third man, Micah Umm, had earlier pleaded guilty to those charges and will be sentenced at the conclusion of the trial.

Crown Prosecutor Monique Sheppard said the woman decided to get into the vehicle at 2.08am on Sunday, December 5, 2021, outside the White Horse Tavern in Charters Towers.

She said the woman, ‘Miss B’, did not know any of the men before getting into their vehicle.

“She had not been in conversation with the men in the hotel, had not been dancing with them or flirting with them, before deciding to get into the vehicle,” Ms Sheppard said.

She said the three men, who are Papua New Guinean nationals, had arrived at the pub together just after midnight in a white Nissan vehicle hired earlier by Umm.

She said they were working on a North Queensland farm and had been working in Australia for some years.

The jury watched CCTV footage from inside the White Horse Tavern taken on that December night and Ms Sheppard identified ‘Miss B’ and the three men in a crowded bar.

She also produced CCTV footage of Miss B in Gill Street, Charters Towers, outside the tavern as she climbed into the hired Nissan with the three men.

Ms Sheppard said that one of the men said to Miss B, ‘Do you want a lift to McDonalds?’

“She was drunk and had intended to go there anyway and made the decision to get in that vehicle,” she said.

She said the vehicle, driven by Umm, left town and as it headed further and further away, Miss B became more fearful.

“She repeatedly asked them to take her back and they were speaking in another language and she asked them to speak in English, and now she was getting more fearful,” she said.

Ms Sheppard said at one stage Ninibil, who was in the back seat with Miss B, told her, ‘You are my girlfriend now’.

“She did not want to be there and she told him she was gay,” she said.

She said the trio took Miss B to the Macrossan Bridge over the Burdekin River on the Flinders Highway and drove down to a dirt track under the bridge.

Ms Sheppard said they ordered Miss B to ‘strip and go and lay down’.

“She was terrified that she was going to be killed by these men, so she complied out of fear,” she said.

The jury of 10 women and two men then heard that Miss B was raped by Ninibil and Luwi, but was vague about the actions of Umm.

Ms Sheppard said DNA evidence identified Umm as a definite rapist but not the other two men.

Miss B then gave evidence in a closed court, with a screen erected to shield her from the two defendants.

The case is continuing.

Originally published as Noel Ninibil and Zebedee Luwi found guilty of specific charges