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4 months ago
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An 18-year-old woman sent a text to her friend describing their alleged gang rape at the hands of three men at a bucks party as 'funny' before later calling it 'dangerous'.
Andrew David, 30, and brothers Maurice Hawell, 30, and Marius Hawell, 22, have pleaded not guilty to counts of aggravated sexual assault in company, attempting to commit aggravated sexual assault in company and aggravated sexual touching.
The trio had been enjoying a bucks party for groom-to-be Maurice over a weekend in February 2022 when they allegedly gang raped three teenagers at an Airbnb.
Prosecutors claim the three men sexually assaulted two 18-year-old women in a dark room on the Friday night before attacking a 19-year-old woman on the following night.
Maurice and Mr David maintain that all sexual activity was consensual, while Marius claims he did not participate in any of the sexual incidents during the bucks weekend.
The three men have faced a weeks-long trial in the NSW District Court over the allegations they were involved in a joint criminal enterprise that was reckless to the women's consent.
In his closing address to the jury on Tuesday, Maurice's lawyer Richard Pontello SC said texts between the 18-year-old alleged victims showed one of them found their alleged rape 'amusing and humorous'.
On March 8, 2022 the first teen messaged her friend saying she 'had a lot of emotions going through her' after speaking to police, and had experienced 'a massive breakdown for half an hour'.
Maurice Hawell has denied gang raping three teens during his bucks party in Newcastle in 2022.
'I feel scared, embarrassed, sad, angry, and so down,' the 18-year-old said.
'I don't think the situation (is) funny anymore. It's quite serious.'
The second teen, who was allegedly gang raped in the next bed, replied that the interview with police had 'scared' her and she was struggling with her own emotions.
'Like I thought it was funny and all that until now, realising how dangerous and serious it is,' the first teen replied.
Mr Pontello argued the first teen had described the events of the Friday night as 'funny because nothing criminal occurred' in the Airbnb.
He suggested she may have changed her mind because 'she was embarrassed about the group sex', especially after being contacted by police.
The texts undermined the 18-year-old's credibility because she denied finding the events amusing when she took the stand during the trial, Mr Pontello asserted.
Marius Hawell has denied he was involved in sexual activity that weekend
In a conversation with a friend not long after the alleged gang rapes, the court heard the second teen characterised the alleged gang rapes as 'an orgy'.
The description was 'hardly consistent with an allegation of sexual intercourse without consent', Mr Pontello argued.
'That conversation alone would cause you to have a reasonable doubt about the guilt of Maurice,' he told the jury.
The two 18-year-olds told the court they were pushed onto beds in a dark room and were unable to see the three men who allegedly took turns sexually assaulting them.
Crown prosecutor Craig Evans said it was evident the women were not consenting because they were allegedly pinned to the beds and unable to move, and they 'couldn't see' the men.
Yet Mr Pontello said the second teen hadn't done anything to show her lack of consent, and pointed to her evidence that she had pretended to enjoy herself during the alleged gang rape.
'In those circumstances, how on earth is Maurice to know (the 18-year-old) was not consenting?' he asked.
The second teen initially declared she had consented to all sexual activities that night when she made a sworn statement to police, the court heard.
Mr Pontello argued her subsequent backflip on her statement 'destroys (her) credibility' in regards to consent.
'If she was lying to police, as she claimed in court ... then she's a liar on the critical topic of consent,' he told the jury.
'How can you be satisfied she is now telling the truth?'
Mr Pontello suggested the jurors would be satisfied the second teen had consented to all sexual activities at the Airbnb rented by the bucks party.
As for the 19-year-old woman who was allegedly gang raped by Maurice and Mr David on the Saturday night, Mr Pontello said there were inconsistencies in her account.
Her claim she had been grabbed on the arm by Maurice at the entrance to the Airbnb was 'demonstrably false' and had been contradicted by CCTV footage, he said.
Andrew David has also denied the charges of gang raping three women
Mr Pontello submitted the 19-year-old may have been motivated to make a sexual assault complaint to police out of fear someone had filmed her during the alleged incident.
He noted the teen had told a triple-0 operator about the alleged filming - which does not form part of the case against the men - before divulging the details of the alleged rape.
In the final remarks of her closing address on Wednesday, Mr David's lawyer Sharyn Hall SC said the jury would have to determine the crucial issue of whether the crown have proved the three men knew their alleged victims were not consenting.
All three men deny there was any agreement to engage in sexual activity with the three teenage victims without their consent or recklessly as to their consent.
Judge Gina O'Rourke will sum up the elements of the trial on Thursday before the jury retires to deliberate.
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