A Cairns judge has dismissed rape charges against three teenage boys.
A Cairns judge has dismissed rape charges against three teenage boys.

Judge rules on rape charges against boys at house party

A CAIRNS judge has thrown out a case against three teenage boys accused of raping a young girl, filming it and putting it on social media.

The trio, aged 16 and 17, were accused of sexually assaulting and filming the 13-year-old girl in the bathroom of a Cairns home during a small house party of one of her friends in 2017.

Cairns Judge Dean Morzone presided over a judge-only trial in the Cairns Children's Court last week after the boys' legal representatives elected to not have a jury.

In a published judgment Judge Morzone dismissed the rape and making child exploitation material against all three boys, while one of the boys pleaded guilty to distributing the material at the start of the trial.

He said he was left in doubt over several key issues in the case - whether a sexual act actually occurred, if the girl gave consent, whether they knew how old she was and the "culpability of the defendants". The court heard during the two-day trial the group, which also included a 15-year-old girl who lived at the house and another 15-year-old girl, were drinking throughout the evening.

The two older girls went to bed and the younger girl went into the bathroom with the three boys who asked her to take photographs, where prosecutors had alleged the sexual assault occurred.

In the judgment Judge Morzone said two videos played in court were taken of one of the 16-year-old boys naked in the bathtub with the girl and although appearing to show a sexual act, the quality of the videos were "poor, unfocused, moving, short and intermittent".

He said one of the other boys also stripped off his clothes in the video and was "dancing around the bathroom playing up to and engaging with the camera".

"(But) the powers of observation of video footage is fallible, and the risk of mistake, conjecture and speculation is especially great with fleeting and poor images," he said.

Judge Morzone said the girl's evidence over whether the boys were aware of her age was not reliable and changed several times during three police interviews, although one of her friends told police she "said she was 16" to the boys.

"This too leaves me in a state of considerable doubt," he said.

He also said "not satisfied beyond reasonable doubt she did not consent".

Originally published as Cairns judge rules on rape charges against boys at house party