PROSECUTORS in the ongoing trial of eight men accused of being members of the vicious Westmoreland-based King Valley or Lawless gang yesterday successfully applied for a further amendment to the 11-count indictment to include rape among the various offences.

Despite the protests of defence attorneys, count nine of the indictment has been amended to state ‘rape’ instead of ‘indecent assault’, based on concerns raised during the trial following on the testimony of the star witness.

The defence on Thursday raised objections after the key prosecution witness, who has been testifying via live video link from a remote location since the trial began on Tuesday, detailed sex acts he said were committed by himself and other members of the gang.

According to the witness, on a night in question gang members ambushed a friend of one of their detractors who had a female on his motorbike and herded her behind an unfinished building where three of them took turns having sex with her.

This admission drew an objection from defence lawyers who stated that the Crown’s line of questioning was eliciting admissions of rape, which was not the offence stated on the indictment and was therefore irrelevant and prejudicial to the clients named.

The prosecution however argued that it had opted to err on the side of caution by classifying the offence as indecent assault on the indictment since it had no evidence or testimony from a claimant in relation to rape and had therefore chosen to document what was a lesser offence.

“The witness was asked and he said ‘rape’, but rape was not placed on the indictment because we feel we are in a better position to prove an act of indecency as against an act of rape,” a senior prosecutor within the Office of the Director of Public Prosecutions explained.

Justice Sykes, however, pointed out that the witness had detailed participating in what amounted to a rape irrespective of whether or not there was a complaint from a victim who testified to being raped. He further pointed out that it was clear from the details provided by the witness, who was a participant, that the act was not consensual and as such he was at a loss as to why the prosecution had chosen to say “indecent assault” on the indictment instead of rape. Prosecutors argued, to no avail, that while they had had no doubt as to whether the act was in fact rape, the concern had been whether it would have been able to sufficiently prove it and convince the court. They had, they explained, experienced similar cases wherein judges had not been in agreement that a rape had been committed based on second-hand testimonies.

Said Justice Sykes, “Based on the circumstances it cannot be questioned whether or not a rape had taken place; there is nothing that suggests this is a consensual act.”

Yesterday, in settling the matter, the prosecution called for an amendment to count nine of the indictment to change the offence of indecent assault to rape.

Defence lawyers, however, continued to argue that it was unfair, and charged that the prosecution had not taken the time to do a proper indictment because they were relying on the window allowed in law to seek amendments during the trial.

“I’m opposing it. It is quite unfair at this time to my client, Mr Powell, who would have already pleaded not guilty [to the initial charge of indecent assault]. The Crown had more than sufficient time to prepare themselves in drafting the indictment; this is not a perfunctory exercise,” defence attorney Russell Stewart argued stating that the defence “is literally being ambushed to be placed in a position to now respond to even more serious offences that the defence was not prepared to respond to”.

“It should not stand; it is prejudicial,” he contended.

However, Justice Sykes, after hearing both arguments, said the trial is expected to last a number of weeks and since it was early days yet, the defence could recoup.

“We are still at the first witness; cross-examination has not commenced,” he said in allowing the amendment.

The accused, Lindell Powell and Carlington Godfrey, were re-pleaded under the amended indictment. Both men entered a plea of not guilty.

The prosecution earlier Thursday morning had also made an application to have counts seven, eight and nine of the indictment amended to specifically reflect the locations the offences were alleged to have occurred by the stated defendants. Three of the men as a consequence were re-pleaded; all maintained their ‘not guilty’ plea as originally entered on Tuesday morning.

The eight men are charged in an indictment containing 11 counts and are accused of facilitating serious offences – conspiring to commit murder, rape and robberies with aggravation from as early as 2013.

The trial is expected to resume at 10:00 am on Monday.

— Alicia Dunkley-Willis