Sydney lawyer Maurice Hawell, 31, his younger brother Marius, 24, and Andrew David, 31, were all found guilty of sexually assaulting three women in 2024 after a joint trial lasting almost four weeks.
They preyed on their teenage victims over two consecutive nights in February 2022 at an Airbnb in Newcastle they had rented for a bucks weekend before Maurice's wedding, the jury found.
But the jury was given incorrect legal directions on several key matters, the NSW Court of Criminal Appeal ruled on Monday.
The two 31-year-olds were ordered to face District Court retrials at the discretion of the Director of Public Prosecutions.
The youngest man, Marius, was acquitted of all charges after the appeal judges found the evidence did not prove he was present for the alleged assaults.
He had been jailed for nine years while his brother had been jailed for 14 years and David for 13 years.
After having consensual sex on a Friday night, two 18-year-old victims told the jury they went to retrieve their phones from a darkened bedroom where they were pushed onto the bed, stripped and "swarmed" by naked men.
Outlining who performed which sexual assault was impossible because the room was dark and the men were convicted as part of a joint criminal enterprise to rape and sexually touch the women.
On the following night, a 19-year-old told the jury she entered the apartment after being pressured to join for drinks, but she was raped by Maurice and David, who took turns swapping sexual positions.
Marius came into the room and watched, the jury was told.
During the appeal in August, the men's lawyers argued the jury had been led to misinterpret the trio's state of mind over the bucks weekend.
The jury was told any evidence they found showed the men had a state of mind to seek out sexual acts with women "with or without" their consent could support the prosecution case.
That was an erroneous direction, the appeal judges found, and the events of each night should have been the subject of a separate trial to avoid any danger of prejudice to the accused.
They ruled the trial judge's references to "with or without consent" may have also led the jurors to misunderstand the need for an agreement to engage in criminal conduct.
"An agreement to have sexual intercourse with a person is not an agreement to commit a crime," the panel of appeal judges wrote.
The flawed directions to the jury were likely to have affected their reasoning in "significant respects", the Court of Criminal Appeal ruled.
Arguments that the verdicts were unreasonable were dismissed for Maurice and David but upheld on all counts for Marius.
He can be immediately released from prison after clearing his name.
David and Maurice Hawell will return to the NSW District Court on December 12.
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National Sexual Abuse and Redress Support Service 1800 211 028
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