Whether a man is found to have joined a gang rape of two teens or watched from the sidelines will depend on a judge believing one of the victims saw shadows of her attackers on the body of her naked friend.
Maurice Hawell, 30, Marius Hawell, 23, and Andrew David, 30, were all found guilty of the sexual assaults in July after a joint trial lasting almost four weeks.
The trio raped three teenage women, who cannot be identified, over two consecutive days in February 2022 during a buck's weekend at a rented Airbnb in Newcastle ahead of Maurice Hawell's wedding.
The prosecution and defence have argued on the degree of Marius Howell's participation in the sexual assaults, at a sentencing hearing for he and David in Sydney's Downing Centre District Court on Tuesday.
The men met the women at a nearby pub and separately invited them back to a unit.
After having consensual sex on a Friday, two 18-year-old victims went to retrieve their phones from a darkened bedroom where they were pushed onto the bed, stripped and "swarmed" by naked men.
While describing exactly who performed which sexual act was impossible because the room was dark, the three men were convicted as part of a joint criminal agreement to rape and sexually touch the women.
On the following night, a 19-year-old said she entered the apartment on the pretext of drinks but was raped by Maurice Hawell and David, who took turns swapping sexual positions.
Marius Hawell came into the room and watched.
Crown prosecutor Craig Evans said this was conduct that could not be described as opportunistic as it occurred over three occasions at the Airbnb.
As well as the two occasions when the women were molested by the men, there was also an alleged incident in the kitchen of the apartment that was not the subject of the charges, Mr Evans said.
He argued that Judge Gina O'Rourke could find beyond reasonable doubt that Marius Hawell also engaged in the sexual assault because one of the victims had seen the shadows of three males on her friend while she was herself being raped by another man.
“There is no evidence to suggest there was three and one looking, and one watching or doing nothing,” Mr Evans said.
Marius Hawell played a much lesser role on the Saturday night rape, the prosecutor said, although he was still part of the joint criminal agreement.
Defence barrister Sharyn Hall SC said David had been opportunistic in his actions on the Friday but conceded that this did not apply to the sexual assault the following night.
Maurice Hawell's barrister Scott Corish pointed to his client's youth and immaturity at the time as mitigating factors.
Judge O'Rourke will deliver her decision on October 31.
Maurice Hawell will face sentencing on Wednesday for his role in the two gang rapes.
The jury delivered guilty verdicts on a total of 10 charges including multiple counts of aggravated sexual assault in company relating to all three women and of aggravated sexual touching and the attempted aggravated sexual assault of one woman, and an attempt to sexually touch another.
1800 RESPECT (1800 737 732)
National Sexual Abuse and Redress Support Service 1800 211 028
