Fielden v The King; Kelly v The King
[2024] VSCA 284
•26 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCR 2024 0144 | |
| TIMOTHY FIELDEN | Applicant |
| v | |
| THE KING | Respondent |
| S EAPCR 2024 0145 | |
| MITCHELL KELLY | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, TAYLOR and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 October 2024 |
| DATE OF JUDGMENT: | 26 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 284 |
| JUDGMENT APPEALED FROM: | DPP v Kelly & Anor [2022] VCC 1060 (Judge Doyle) |
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CRIMINAL LAW – Appeal – Conviction – Applicants convicted of rape and sexual assault – Applicants and complainant engaged in drug taking and consensual sexual activity – Activity filmed by Fielden in a series of eight videos – Complaint alleged to have become incapable of giving consent due to intoxication by commencement of video nine – Applicants alleged to have no reasonable belief in consent by commencement of video nine – Rape and sexual assault said to have occurred at specific times during video nine – Whether verdicts unreasonable or incapable of being supported by evidence – Application for leave to appeal against conviction granted – Appeal of Fielden allowed – Verdicts of acquittal entered – Appeal of Kelly allowed in part – Verdict of acquittal entered on rape charge.
Criminal Procedure Act 2009, s 276(1)(a).
M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Dansie v The Queen (2022) 274 CLR 651, followed.
CRIMINAL LAW – Appeal – Conviction – Whether comments of prosecutor in closing address caused trial to miscarry – Whether judge erred in failing to discharge the jury – Prosecutor made serious misstatements of the evidence and otherwise unfortunate remarks – No miscarriage of justice – Appeal refused.
CRIMINAL LAW – Appeal – Sentence – Kelly sentenced to six months’ imprisonment for sexual assault – Whether sentence manifestly excessive – Leave to appeal against sentence refused.
R v Boaza [1999] VSCA 126; DPP v Karazisis (2010) 31 VR 634, applied.
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| Counsel | ||
| For the Applicant Fielden: | Mr J Lavery | |
| For the Applicant Kelly: | Mr G Chisholm with Ms E Byrt | |
| Respondent: | Mr B Kissane KC with Mr G Buchhorn | |
Solicitors | ||
| For the Applicant Fielden: | Stephen Peterson Lawyers | |
| For the Applicant Kelly: | Kurnai Legal Practice | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
PRIEST JA
TAYLOR JA
T FORREST JA:
Introduction and overview
On 30 April 2024 each applicant was convicted by a jury of one charge of rape (charge 1) and one charge of sexual assault (charge 3).[1] On 15 July 2024 the applicants were sentenced as follows:
Applicant Fielden
[1]The jury were discharged without verdict with respect to two further charges of rape, being charges 2 and 4.
Charge on Indictment Offence Maximum Sentence Cumulation 1. Rape
(contrary to s 38(2) of the Crimes Act 1958)
25 years’ imprisonment 4 years’ and 2 months’ imprisonment Base Sentence 3. Sexual assault
(contrary to s 40 of the Crimes Act 1958)
10 years’ imprisonment 6 months’ imprisonment Nil Related Summary Charge 10. Drive whilst disqualified
(contrary to s 30(1) of the Road Safety Act 1986)
2 years’ imprisonment 1 months’ imprisonment Nil Total effective sentence: 4 years’ and 2 months’ imprisonment Non-parole period: 2 years’ and 10 months’ imprisonment Pre-sentence detention declared: 786 days Other relevant orders: Forfeiture order. Driver licence cancelled and disqualified from driving for 12 months. Applicant Kelly
Charge on Indictment Offence Maximum Sentence Cumulation 1. Rape
(contrary to s 38(2) of the Crimes Act 1958)
25 years’ imprisonment 4 years’ and 2 months’ imprisonment Base sentence 3. Sexual assault
(contrary to s 40 of the Crimes Act 1958)
10 years’ imprisonment 6 months’ imprisonment Nil Total effective sentence: 4 years’ and 2 months’ imprisonment Non-parole period: 2 years’ and 8 months’ imprisonment Pre-sentence detention declared: 701 days
Each applicant now seeks leave to appeal against his conviction and sentence.
At the oral hearing of the application for leave each applicant abandoned one proposed ground of appeal against conviction, leaving two proposed grounds in each case. The first proposed ground of each applicant is identical, namely that the jury’s verdicts were unreasonable or incapable of being supported by the evidence. The second proposed ground of each applicant is phrased differently but directed towards the conduct of the prosecutor in the trial. As formulated by the applicant Fielden, the proposed ground is
The trial of the applicant miscarried as a result of the accumulation of difficulties faced by the prosecutor’s actions.
That of the applicant Kelly is
The trial of the applicant miscarried as a result of the learned Prosecutor’s closing address and the failure to discharge the jury after the Prosecutor’s closing address.
With respect to sentence, each applicant proposes a ground that the sentences imposed were manifestly excessive. The applicant Fielden proposes a second ground that the sentences imposed offend the principles of parity.
For the reasons that follow, we are of the view that in each case the application for leave to appeal against conviction should be granted. The appeal with respect to the applicant Fielden should be allowed and verdicts of acquittal entered on charges 1 and 3. The appeal with respect to the applicant Kelly should be allowed in part. A verdict of acquittal should be entered on charge 1. The applicant Kelly’s application for leave to appeal against sentence on charge 3 should be refused.
Factual background
Mr Fielden and the complainant – LD – met once in 2020. At about 7 pm on 3 January 2021 LD contacted Mr Fielden to ask whether he could provide gamma hydroxybutyrate (‘GHB’) for her use. He replied that he could and provided her with his address in Drouin. LD drove to the address, arriving at about 11:30 pm.
Upon arrival LD and Mr Fielden went to his bedroom. There they consumed some GHB. LD and Mr Fielden then left the address together in LD’s car, driving first to Pakenham and then Officer before returning to Mr Fielden’s home. Whilst in the car LD and Mr Fielden engaged in consensual sexual activity.
In the early hours of 4 January 2021 LD and Mr Fielden again left the Drouin address together in LD’s car. They drove to an industrial estate in Warragul where they had consensual sexual intercourse on the bonnet of the car and on the grass. Mr Fielden filmed the incident in five separate videos which commenced at 02:16:40 am and concluded at 02:30:51 am. At times during the recorded encounter each of LD and Mr Fielden held a torch and directed its beam towards their genitals.
LD and Mr Fielden then drove to Warragul. There they encountered Mr Kelly. He was a friend of Mr Fielden but unknown to LD. Mr Kelly entered the car and all three returned to Mr Fielden’s Drouin home.
From 07:04:33 am the two applicants and LD were in Mr Fielden’s bedroom where they engaged in sexual activity and illicit drug taking.[2] That activity was video recorded. Significantly, the first eight videos were recorded on Mr Fielden’s phone. The ninth video was recorded on LD’s phone. The prosecution case was that the offending took place exclusively during video nine, which commenced at 7:44:28 am. A tenth video, which depicted neither drug taking nor sexual activity, was recorded on Mr Fielden’s phone. That video commenced at 7:57:28 am.
[2]The judge gave directions pursuant to ss 47F and 47G of the Jury Directions Act 2015 (‘JDA’).
LD has no memory of the events after a certain point in video six (which commenced at 7:36:49 am and lasted for 3 minutes and 28 seconds). She awoke in Mr Fielden’s bed in clothes that were not her own at about midday on 4 January 2021. Mr Fielden was not at home. She looked at her phone and saw video nine. Upon his return LD confronted Mr Fielden about the footage, at that time believing it depicted sexual activity between her and him. It does not. Mr Fielden told LD that the male depicted was Mr Kelly and added ‘you should have heard yourself, you were going off’.
LD remained at Mr Fielden’s address until the morning of 5 January 2021.
Mr Fielden said in his record of interview that he and LD had engaged in further consensual sexual activity again on the afternoon of 4 January 2021. In evidence at the trial LD denied this sexual activity. Notes compiled by Dr Giles, a forensic medical officer, when she examined LD on 6 January 2021 record a statement by LD that she had sexual intercourse with Mr Fielden on the afternoon of 4 January 2021.[3]
[3]The judge gave a direction pursuant to s 54H of the JDA 2015.
The indictment
The indictment as filed contained five charges: four charges of rape against each applicant (charges 1 to 4) and a charge of sexual assault against Mr Fielden alone (charge 5). All offences were said to have occurred during the two minutes and 45 second duration of video nine. The prosecution assessment of that video was encapsulated by the trial prosecutor in his opening address when he said that video nine showed LD to be
… unconscious, unresponsive and incapable of consenting to the sexual conduct of the accused men from the very beginning of the recording.
The physical acts relevant to charge 1 (penile/vaginal penetration) and charges 2 and 3 (digital/vaginal penetration) were alleged to have been committed by Mr Kelly. Mr Fielden was alleged to have been complicit by being ‘present, filming, encouraging and directing’. The physical act relevant to charge 4 (penile/anal penetration) was alleged to have been committed by Mr Fielden. It was not alleged to be observable in video nine, but to be inferred from his recorded utterances and DNA evidence. Mr Kelly was alleged to have been complicit in the act of penetration.[4] Charge 5 was an allegation that Mr Fielden had hit the face of LD with his penis.
[4]Neither the Summary of Prosecution Opening filed in advance of trial pursuant to s 182 of the Criminal Procedure Act 2009 (‘CPA’), nor the prosecutor’s opening address articulated the basis of the complicity.
Each charge (except charge 5[5]) was particularised on the indictment by reference to a time range or exact time of ‘video titled IMG_0680’ – that is, video nine. Relevant to this application, charge 1 was particularised to be ‘from the start of video titled IMG_0680 to 27 seconds’. Charge 3 was particularised to have occurred ‘at 1 min 37 seconds of the video titled IMG_0680’.
[5]Nonetheless the Summary of Prosecution Opening and opening address of the prosecutor identified 0:00:47 seconds of video nine as being the observable act of sexual assault.
At the end of the evidence the judge entered a verdict of not guilty with respect to charge 5, on the basis that the act alleged to be observable at 0:00:47 of video nine (being the same time stamp that the digital penetration of charge 2 was particularised to have occurred) was not so observable. The judge also entered a verdict of not guilty with respect to charge 3, on the basis that the jury could not be satisfied beyond reasonable doubt from video nine at 0:01:37 that sexual penetration had occurred. The judge allowed sexual assault as an alternative to be left to the jury as against each applicant. Additionally, the judge entered a not guilty verdict with respect to charge 4 as against Mr Kelly, on the basis that there was insufficient evidence to allow a jury to reason his complicity in the offence alleged to the criminal standard.
The evidence
The central evidence relied upon by the prosecution were the ten videos recorded on the morning of 4 January 2021 and, in particular, videos eight and nine. The videos were played to the jury during the evidence of LD. The jury was provided with a table of the start time and duration of each video. Transcripts of what was said during each video were tendered. Stills extracted from video nine were also separately tendered, relevantly an image at 21 seconds (charge 1) and an image at 0:01:37 (charge 3).
Additionally the prosecution called Dr Giles, Dr Gerostamoulos (a forensic toxicologist), Ms Monica Van Wissen (a forensic scientist) and the informant, Detective Sergeant (‘DS’) Daniel Quine. The records of interview of each applicant were played during the evidence of DS Quine.
For the purposes of this application it is unnecessary to summarise the viva voce evidence. Some aspects of it, along with descriptions of what is visible in parts of the videos, will be referred to as necessary below.
The prosecution case
It is instructive to examine the manner in which the prosecution put its case with respect to charges 1 and 3. Of particular importance to this application is the prosecution case with respect to time – that is, when each offence was said to have occurred – and the basis upon which Mr Fielden was alleged to have been complicit in the offending of Mr Kelly.
Summary of prosecution opening
The relevant portions of the Summary of Prosecution were in the following terms:
CHARGE 1 RAPE Kelly penile penetration of vagina – both Accused start to 27 seconds [video 9]
19. During the first 30 seconds the complainant can be seen lying on her back on the mattress naked and with her head partly beyond the edge of the mattress. KELLY is depicted having penis-to-vagina sexual intercourse with her whilst FIELDEN films. (Charge 1).
20. The Prosecution alleged FIELDEN to be involved in the commission of the offence by his presence, in filming the actions on the phone, and his words of encouragement/direction.
21. At approximately 25 seconds FIELDEN is heard to say ‘fuck her cunt’ whilst KELLY is penetrating her vagina with his penis.
22. At 27 seconds FIELDEN is heard to say ‘here we go mate’.
23. At 28 seconds KELLY says ‘oi’ and ‘is she alright?’.
24. Other than a groaning noise being made between 0:06-0:13 the complainant does not respond or make any noises.
25. From 0:30-0:49 one of the Accused can be heard saying ‘oi’ followed by a slapping sound. There is no audible response by the complainant. One of the Accused says ‘Is she alright’. FIELDEN asks ‘Are you alright or what?’ … ‘Hey. Are you ok?’. Another slapping sound is heard followed by one of the Accused stating ‘Do you want us to stop? … yes or no’ whilst filming close up to the complainant’s face. There is no audible verbal response by the complainant. Furthermore, between 0:38-0:40 there is no verbal or eye or motor response by the complainant. Her mouth is open and she appear [sic] to have laboured mouth breathing. Her eye lids are partially open and her eyes are fixed and not moving.
CHARGE 3 RAPE – Kelly digital penetration of vagina at 1:37 [video 9 – alternative offence sexual assault]
34. At 1:37 KELLY is observed within the video digitally penetrating the complainant’s vagina with his fingers. (Charge 3).
35. At 1:42 one of the Accused stated ‘Here. You right’ as the complainant groans.
26. The prosecution allege FIELDEN to be involved in the commission of the offence by his presence, in filming the actions on the phone, and his words of encouragement/direction throughout the first 1:42 of the video.
Opening address
The prosecutor opened charges 1 and 3 to the jury in accordance with the Summary of Prosecution Opening. The prosecutor also identified the relevance of video eight to the interpretation of the offences said to have occurred during video nine in the following manner:
By the eighth video, which commences at 7.42 am, [LD] becomes so drug affected and fatigued that she is unable to answer the accused’s repeated requests for the PIN code to her mobile phone.
Closing address
In his closing address relevant to charge 1, the prosecutor addressed each of the elements of rape. The prosecutor said that the penetration occurred at ‘0 to 27 seconds’ in video nine and also referred to the still taken from ‘27 seconds’. The latter reference was an error. The still was taken from 21 seconds. It was not the only error the prosecutor made with respect to time. He twice said that the gap between the conclusion of video eight and the start of video nine was one minute and 18 seconds. It was not. The gap was 18 seconds.
The prosecutor argued that by video nine LD was so affected by a drug that she was incapable of consenting to sexual penetration. The evidence of incapacity was said to be the filmed ingestion of GHB and methylamphetamine which commenced in video four (coupled with the evidence of Dr Gerostamoulos about the likely effect of it and LD’s evidence of the actual effect of it), and the observable state of LD in videos eight and nine. The prosecutor was, however, less than precise about exactly when LD became incapable of giving (or withdrawing) consent. He variously said:
… by the end of video 8, you can infer from what you hear and what you see that [LD] was certainly so drug affected that she was incapable of consenting and that video 8 is at 7.42 am.
So by the end – certainly by Video 8, she’s incapable because of the effects of drugs, namely the GHB and the methylamphetamine, she’s incapable of consenting to any sexual act.[6]
[6]Emphasis added.
Turning to the lack of reasonable belief in consent, the prosecutor identified the relevant circumstances as being videos one to nine. Again there was imprecision in his language as to when the element was said to have been satisfied. The prosecutor variously said
·… you can infer that at least by the end of video 8, that they at the very least had no reasonable belief that the complainant LD was consenting to any sexual activity …
·… but the video 8 and 9 proves the contrary [to the claims made by each applicant in his record of interview] as to when they must’ve realised that she had blown out or was about to blow out.[7]
·… the prosecution says that by the end of that video [video eight having just been played] she’s well and truly incapable of giving her consent because she’s so affected by the drugs that she had taken … she says again ‘I’m fucking hot.’ Again, she’s about to blow out and you can hear now her moaning or it's more like groaning not because of any sexual activity going on and there was a bit of sexual activity at the beginning where Mr Kelly has his fingers inside her vagina but it’s because of the effect of the drugs. And you can infer that and also the accused’s reasonable belief in whether or not she was consenting or lacking or not consenting because of the effect of drugs on her by the number of time’s she’s asked ‘what’s your PIN code’.
·… they want to use her video to film the activities that are shown in video 9 … that’s why there’s a switch of phones so his father, Mr Fielden’s father, couldn’t hear the sexual activity especially with the woman who, by this stage, is so drug affected and was about, if she hadn’t already blown out, that her actions might be unpredictable in screaming or saying things.
·… So the prosecution says what you can infer from that video [video 8] is one, that [LD] is so drug affected that she’s incapable of giving her PIN code to enable the accused to use her phone. She’s unable to consent to the accused using that phone to film the sexual activity and most importantly, she’s incapable because of the drugs, the effect of drugs on her, to give any consent of a sexual activity that’s being or will be filmed in the next video and the accused at that stage, right at the end after they asked her 25 times, what’s your PIN code?’ They don’t get a response to that. At least by that time, they have no reasonable belief because of the effect of drugs on her that she was capable of consenting.
·… I reference to what LD is saying to the questions [heard in video 9] that it’s mainly Mr Fielden asking here. By that stage, she’s well and truly so drug affected that she’s incapable of giving consent.[8]
[7]‘Blow out’ is a colloquial term for the effects of ‘too much’ GHB in which a person passes out.
[8]Emphasis added.
In the absence of the jury counsel for Mr Fielden then made an application to the judge for a discharge of the jury on the basis that the prosecutor had significantly departed from his opening by effectively arguing that what occurred during video eight amounted to rape. Before the judge ruled on the application, the prosecutor indicated that he would correct the position.
Counsel for Mr Kelly (who did not at that stage join the application for discharge) raised the prosecutor’s emphasis on the fact of a one minute 18 second gap between videos eight and nine as a significant misstatement of evidence. Again the prosecutor indicated that he would correct the position.
Upon resuming his address the prosecutor then said
… Video 8, as I said to you at the beginning of the trial and also at the beginning of my closing address, the offences are committed during the course of video 9. That means that the lack of consent is at that time, from the beginning of video 9, that’s the way I opened it and also the lack of reasonable belief in consent occurs from the moment that video commences, which is video 9. If I have said anything to the contrary to indicate that an offence might’ve occurred during video 8, I withdraw it and correct myself, as I have done. But that evidence is used to show the rapid decline to a point when at the commencement of video 9, she has blown out and is incapable of consent because she’s so drug affected and the accused had no reasonable belief at the beginning of that video that she is consenting because of her drug affected state. So if I can make that abundantly clear.
The other thing is I think I got my arithmetic wrong in respect of the gap between video 8 and video 9 is not one minute and 18 seconds. It’s 18 seconds, all right. So I want to correct that.
Relevant to charge 3 the prosecutor said that the touching to LD’s vagina was ‘very short’, occurring at ‘47 to 48 seconds’ in the video. The prosecutor referred to the still taken from the video at ‘47 seconds’. Once again the prosecutor misstated the evidence. The correct time was 0:1:37. As to lack of consent and lack of a reasonable belief in consent, the prosecutor said ‘all the evidence and all the arguments’ he had referred to and made with respect to charge 1 applied. As to Mr Fielden’s complicity again the prosecutor referred to ‘the same evidence and the same arguments’.
Conviction
Ground 1 – unreasonable or insupportable verdict
(1)Applicants’ contentions
(a)Kelly
With respect to charge 1, the applicant Kelly argues that during the first 30 seconds of video nine he continued to engage in the sexual intercourse shown in video 8 which, on the Crown case, was both with consent and reasonable belief in consent. That being so, the presentation of LD during those 30 seconds could not allow the jury to conclude to the criminal standard that he was guilty of rape. In this regard, the applicant Kelly argues three particular matters. First, that in both videos four and seven – times at which the sexual activity was irrefutably consensual – LD can be seen rolling her eyes back. Second, that in the first 30 seconds of video nine LD continued to make noises and movements consistent with those of the consensual sexual intercourse in video eight. Third, that in the 18 seconds between videos eight and nine, LD must have communicated her PIN to Mr Fielden, being an indication that she was not in a state of intoxication and incapable of consent.
With respect to charge 3, the applicant Kelly argues that the prosecution specifically relied upon the still taken from video nine at 0:01:37. Not only was that still blurry, but in the absence of expert evidence as to the perspective and depth of the image visible in the video, a jury could not conclude beyond reasonable doubt that the applicant Kelly was touching LD’s vagina at the particularised time.
(b)Fielden
The applicant Fielden adopts the submissions made by Mr Kelly and makes a further argument as to his alleged complicity, namely that it was not open to a jury to conclude to the criminal standard that his filming was intended to encourage or direct Mr Kelly to commit either the rape or sexual assault alleged.
With respect to charge 1, the applicant argues that the filming was a mere continuation of the consensual filming that had occurred for nearly an hour prior to the commencement of video nine. With respect to charge 3, he argues that the jury could not be satisfied beyond reasonable doubt that he deliberately recorded the momentary touch of LD’s vagina by Mr Kelly and thereby intended to encourage or direct.
(2)Respondent’s contentions
The prosecution contends that based upon video nine it was open to the jury to find both applicants guilty of charges 1 and 3 because it is clear from that footage that each physical act occurred and LD was, by reason of intoxication, incapable of consent and neither applicant had a reasonable belief in consent.
The act of penetration relevant to charge 1 is said to be clearly visible in the first 27 seconds of video nine. With respect to charge 3, it was open to the jury from the footage and the still at 0:01:37 of the video to conclude that Mr Kelly had leaned forward with an outstretched hand and touched LD’s genitals.
As to the element of consent, the respondent argues in both cases that there was ‘ample evidence’ about the incapacitating effects of LD’s drug use on her at the relevant time, namely:
·The evidence of Dr Gerostamoulous that the effects of GHB can include drowsiness, lethargy, sedation and unconsciousness and ‘typically’ start 15 to 30 minutes after consumption.
·The evidence of LD about her personal experience of using GHB and ice generally and her memory of 4 January 2021 to a point in video six where she performed oral sex on Mr Kelly.
·The obvious fatigue of LD in video four when she had consumed two millilitres of GHB and her consumption of another two and a half in video five, coupled with her expressed concern about ‘blowing out’ if she consumed too much. In videos five to seven LD said that she was ‘hot’ or ‘boiling’. While her eyes can be seen rolling back, she remained physically active and could move independently.
·LD’s rapid decline in video eight. She again complained of feeling ‘hot’, rolled onto the mattress to lie down and was increasingly less responsive to the applicants’ repeated requests for her PIN. At the end of video eight her face was expressionless and her mouth open.
·Video nine, in contrast with the earlier videos, commences with LD in a severely impaired state of consciousness, described as ‘[h]er head is set back, her eyes were half-open and vacant, her mouth is agape, and her body is limp. She is also breathing laboriously. She remained in this state throughout the video, only making grunting noises with no apparent independent movements.’
·Each applicant in his record of interview accepted that LD ‘blew out’, only disputing when it occurred.
Similarly, the respondent argues the evidentiary basis for the jury to conclude that neither applicant had a reasonable belief in consent includes:
·Both knew that excessive GHB could cause a ‘blow out’.
·Both were present when LD consumed the GHB and expressed concern about blowing out.
·In video eight Mr Kelly, in the presence of Mr Fielden, asked LD ‘you alright’, indicating an awareness of her declining state of consciousness.
·Video nine was filmed by Mr Fielden and in the first 27 seconds captured Mr Kelly facing LD either upright or leaning forward on top of her. She was ‘lying on her back in a severely impaired state of consciousness’ and ‘had not moved since the end of video eight’.
·The jury was not required to accept the statement of Mr Kelly in his record of interview that he stopped having sex with LD when he saw that her eyes had rolled back or the statement by Mr Fielden in his record of interview that LD’s eyes went ‘a bit funny’ and then Mr Kelly ceased sexual penetration.
·Between 0:00:27 and 0:01:36 of video nine each applicant had asked a number of questions as to LD’s welfare and also whether she wanted them to stop. By 0:01:37 there could be no doubt in either of them that LD was incapacitated.
With respect to the complicity of Mr Fielden, the respondent argues that the assisting, encouraging or directing effect of the filming was ‘particularly noticeable’ during video nine. While the camera angle moves, the fact that it was directed and redirected towards LD and Mr Kelly indicates that Mr Fielden would have been looking at what he was recording. No part of the filming was ‘accidental’. Further, while the playing of music initially might not have been intended to assist or encourage Mr Kelly, that intention crystallised by the time it was in fact played, providing Mr Kelly with comfort that his acts would not be overheard.
(3)Discussion
The applicants’ arguments are founded in 276(1)(a) of the Criminal Procedure Act 2009 which requires this Court to allow an appeal against conviction if satisfied that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. In order to succeed each applicant must demonstrate that it was not open to the jury to be satisfied beyond reasonable doubt of his guilt on the charge under consideration. The question for this Court is whether it was open to the jury, acting rationally, to be satisfied to the criminal standard that the accused was guilty.[9] To determine that question the Court is required to undertake an independent assessment of the whole of the evidence.[10]
[9]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’); Pell v The Queen (2020) 268 CLR 123, 146–7 [42]–[45]; [2020] HCA 12 (‘Pell’); Dansie v The Queen (2022) 274 CLR 651, 657–8 [8]–[9] (Gageler, Keane, Gordon, Steward and Gleeson JJ); [2022] HCA 25 (‘Dansie’).
[10]Pell (2020) 268 CLR 123, 145 [39]; Dansie (2022) 274 CLR 651, 659 [12].
While the usual assumption that the complainant’s evidence was assessed by the jury to be credible and reliable applies, in this case the examination of the record to see whether ‘either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence’[11] the jury ought to have entertained a reasonable doubt as to proof of guilt is not influenced by LD’s credibility and reliability. While her extensive drug taking history, criminal history (including for dishonesty offences) and speedy application for, and receipt of, victim compensation for the offences alleged were before the jury, LD’s evidence was that she had no memory of the events of 4 January 2021 after a certain point in video six. The verdict open to the jury on each charge depended almost entirely upon its analysis of the videos.
[11]Pell (2020) 268 CLR 123, 145 [39].
Similarly, while the Court is also required to give full weight to the jury’s advantage in listening to and observing the witnesses,[12] that advantage is of little moment in the circumstances of this case.
[12]M (1994) 181 CLR 487, 493.
It is necessary then to describe what is observable in the videos. In light of the prosecution case that all sexual activity up to and including the last second of video eight was consensual, it is only necessary to do so with any particularity with respect to videos eight and nine. It is sufficient to note that videos one to seven depict sexual activity and drug taking. The sexual activity involves touching of LD’s vagina and breasts and penetration of her vagina and mouth. Most, but not all, of the sexual activity occurs between LD and Mr Fielden. LD was aware of and consented to the filming of the activity. The drug taking involved the use of a pipe to smoke methylamphetamine and a syringe to squirt GHB. In video four LD requests two millilitres. After taking the drug Mr Fielden tells her she was ‘hot’. LD replies ‘my eyes are rolling back and I look like I’m on smack’. In video five, in the midst of sexual activity, LD requests ‘a charge’. Mr Fielden said he would get her one. LD refuses a further two and a half millilitres of GHB, stating that she would blow out with that much, ‘then you’ll have to warm me up with a fuckin’ hair dryer … to fuck me …but at least it feels like I’m alive.’ LD then says that she only needs two millilitres. Mr Fielden replies ‘Alright. So here. Here.’ LD can then be seen taking the drug.
Video eight commenced at 7:42:26 am and lasted one minute and 44 seconds. As it begins, LD is visible on all fours as Mr Kelly digitally penetrated her vagina from behind. At eight seconds LD said ‘Fuck me yeah’ and rolled over onto her back. She then rolled away from Mr Kelly and complained of being hot. Mr Fielden started to ask about her PIN code. At 35 seconds the video goes black. No penile penetration of LD by Mr Kelly is visible at that time. Images reappear at 44 seconds. LD appears to be face down but moving. LD is making a noise like a whining sound. Mr Kelly is behind her. The video goes black again at 01:03 seconds. There is no imagery of penile penetration of LD by Mr Kelly to that time. While the screen remains black, LD continues to make noise and Mr Fielden continues to ask for the PIN. Images reappear at 0:01:17. LD is lying on her back and there is a clear image of Mr Kelly penetrating her vagina as he kneels and holds onto LD’s knees. At 0:01:22 there is an image of LD’s face. Her head is part way off the mattress. Her eyes are half open. The screen goes black again at 0:01:24. At 0:01:41 LD can be seen lying on her back with her head slightly off the mattress. At 0:01:42 Mr Kelly can be seen penetrating LD’s vagina with his penis as he moves her legs towards his shoulders. He asks ‘You right?’ The last images of the video at 0:01:43 and 0:01:44 are of LD’s face. She actively frowns and has her tongue poking out as Mr Kelly thrusts. Throughout the video LD did not respond to the 26 requests for her PIN.
Video nine – filmed using LD’s phone – commenced at 7:44:28 am and lasted 2 minutes and 45 seconds. The video commences with a clear image of Mr Kelly in a kneeling position penetrating LD’s vagina as she lies on her back. At one second there is an image of LD’s face. Her head is slightly off the mattress. Her eyes are half open. Although unclear, it appears that her tongue is no longer sticking out. LD begins to make moaning-like noises at about 4 seconds and audibly pants. At 15 seconds Mr Fielden says something largely inaudible including the words ‘her cunt’. At 23 seconds Mr Kelly can be seen thrusting. To the point where the music starts at about 26 or 27 seconds, most of the footage shows Mr Fielden’s feet. At 30 seconds Mr Kelly said ‘Oi’, Mr Fielden says ‘Hey, hey are you alright?’ and a slapping sound can be heard. The camera then jerks around, showing an image of the floor and wall. At 38 seconds Mr Fielden asks ‘Do you want us to stop’ and an image of LD’s face can be seen in which her eyes have rolled back and her mouth is open. Her breathing is very laboured. At 40 seconds the screen goes black. Mr Fielden continues to ask LD if she wanted them to stop. At 47 seconds Mr Fielden can be seen kneeling down next to LD’s head, his body turned away from Mr Kelly. He then appears to slap LD’s face a number of times. At 49 seconds the screen goes black. Images reappear at 0:01:04. The camera is swinging. LD’s face and her laboured breathing can be heard. Mr Fielden stands up and can be heard to say ‘This is the perfect chance to fuck – put one in her arse…I’m only gaming’. This is said in a jocular fashion. The camera continues to move backwards and forwards, capturing the thigh of Mr Fielden. Neither LD nor Mr Kelly are observable. At 0:1:36 Mr Fielden says, whilst his feet are visible, ‘I think she’s off her fucking head’. The camera moves – quite wildly – and captures a split second image of Mr Kelly and LD on the mattress before the screen goes black at 0:1:38. LD is lying on her back. Mr Kelly is kneeling between her legs. His arm is outstretched. The screen remains black until the penultimate second of the video. The last second is a blurred image as the recording is ended. In that time Mr Fielden asks ‘You alright?’ a number of further times. LD can be heard to moan occasionally and say ‘Yeah’ at 0:1:47.
Turning first to charge 1, the analysis must be undertaken within the architecture of the prosecution case. It was necessarily the prosecution position that the observable state of LD was declining in video eight but had not declined to the point of incapacity to give consent by reason of intoxication until the beginning of video nine. That is, that the penetrative activity observable at the last second of video eight – at 7:44:10 am – was consensual but the penetrative activity observable 18 seconds later at the first second of video nine was not.
At the hearing of the application the respondent accepted that it followed that there needed to be a material difference between the circumstances at 7:44:10 am and those at 7:44:28 am (and the following 26 seconds) for it to have been open to the jury to conclude beyond reasonable doubt that the rape subject of charge 1 occurred during the first 27 seconds of video nine. When asked to identify the observable indicia of that material difference the respondent could not. Rather, the respondent stated that from ‘looking at the video’ the jury could conclude that by video nine not only was LD not consenting to sexual penetration but that neither applicant had a reasonable belief in her consent. That response was in keeping with the manner in which the trial prosecutor described video nine to the jury in his opening address reproduced in paragraph [14] above and also the manner in which the judge charged the jury as to the prosecution case:
The prosecution submitted that it was so obvious by the commencement of video 9 and from what happened in video 8, that the complaint was not capable of consenting and that her incapacitated stated can be plainly seen on the video, that the accused men knew.
But the response fails to grapple with the evidential basis for the individual charges preferred against each accused said to have occurred at specific times during the two minutes and 45 second duration of video nine.
As is apparent from the above description of videos eight and nine, LD is lying on her back on the mattress at the opening point of video nine. She had been doing so since 0:01:17 in video eight, some 45 seconds before. Her head had been slightly off the mattress and her eyes had been half open since 0:01:22 in video eight, some 40 seconds before. There is nothing observably different in the appearance of LD’s face or her position on the mattress as between the last second of video eight and the first second of video nine. Nor do the noises made by LD during the first 27 seconds of video nine indicate distress. They are made in the same vocal register as similar noises made by LD in the earlier videos. Likewise the breathing pattern or panting observable in the first 27 seconds is a continuation of earlier observable behaviour by LD.
Further, these similarities in the visual and audible presentation of LD as between video eight and the first 27 seconds of video nine are in marked contrast to her presentation from 30 seconds into video nine. It is at that point – after the offence alleged in charge 1 is said to have concluded – that Mr Kelly says ‘Oi’ and a slapping sound can be heard. The face of LD is next seen at 00:38, when Mr Fielden asks ‘Do you want us to stop?’ Her eyes have rolled back into her head and her breathing is very laboured.
The general context is also relevant. Whilst consent to some sexual activity cannot be assumed to endure for all later sexual activity and a participant in sexual activity must have the capacity to consent or withdraw consent, the prior interactions between LD and the applicants are relevant to the issue of whether each held a reasonable belief in consent during the first 27 seconds of video nine.
LD had engaged in sexual activity in public with Mr Fielden in the early hours of 4 January 2021 and assisted in the filming of it, been an enthusiastic participant in the recorded sexual activity with both applicants since 7:04 am and had, one minute and 56 seconds before the commencement of video nine – and whilst being digitally penetrated by Mr Kelly – said ‘fuck me’ and seemingly altered the position of her body to allow that to occur. While LD did not respond to the repeated requests thereafter for her PIN code and, at the 0:01:20 point of video eight, Mr Kelly said ‘you right?’, the fact that Mr Fielden filmed video nine on LD’s phone indicates that LD provided the PIN in the 18 seconds between videos eight and nine. The probability of him guessing the correct PIN in the absence of information communicated to him by LD is so remote as to be fanciful. Mr Fielden’s desire to play music to cover the sound of sexual activity materialised only in video eight – that is, after he stopped being the major male participant in it. And, relevant to charge 1, the music began only at 26 or 27 seconds into video nine. That is at the end of the offence alleged.
Further, while LD gave evidence of her subjective experience that she felt hot before she ‘blew out’ from GHB and Mr Fielden in his record of interview said that ‘when you blow out you get pretty hot and sweaty’, at the various points in the videos when LD complained of being hot or boiling, she never linked it to a fear that she was about to blow out. And, in video five she had asked for two millilitres rather than two and a half so that she would not blow out. Given the confined space and the nature of the activity, there were a number of reasons why LD might complain of feeling hot.
Finally, that from 0:00:30 of video nine both applicants asked LD if she was alright and Mr Fielden thereafter specifically asked her if she wanted them to stop the sexual activity, is some evidence that it was only at that point that each applicant became aware of LD’s lack of capacity to consent because of her intoxication.
Having independently examined the record, we have concluded that it was not open to the jury acting rationally to find either applicant guilty of charge 1. There was no basis upon which the jury could be satisfied beyond reasonable doubt that during the first 27 seconds of video nine that LD did not consent to the sexual penetration by Mr Kelly (and the filming of that penetration by Mr Fielden) or that either applicant did not have a reasonable belief in consent.
It follows that the first proposed ground of each applicant in so far as it relates to charge 1 on the indictment must succeed.
Turning to charge 3, the sexual touching was said to have occurred at 0:01:37 in video nine. As is apparent from the above description, it occurred at a time after both Mr Fielden and Mr Kelly indicated through their behaviour and utterances that they realised that the state of LD was of concern. That is, Mr Kelly had said ‘oi’ and ‘is she alright?’ and Mr Fielden had asked ‘are you alright?’ and number of times as well as, specifically, ‘do you want us to stop?’. Further, it is to be reasonably inferred that the slapping sounds heard on the video were an attempt by at least one of the applicants to rouse LD. It follows that at 0:01:37 it can be concluded to the criminal standard that LD was incapable of consenting to sexual touching and neither applicant held a reasonable belief in consent.
That alone, however, is insufficient to found the conviction against each applicant. The jury needed to be satisfied beyond reasonable doubt that Mr Kelly had in fact intentionally touched LD’s vagina with his hand and that Mr Fielden had assisted, encouraged or directed that act.
Counsel for Mr Kelly in this Court emphasised that the trial prosecutor ‘specifically relied’ upon the still taken from video nine as opposed to the video itself. It was pressed that the still showed nothing at all and that if the jury looked at the video they must have had a doubt about whether the touching had occurred.
The still is so blurry as to make identification of body parts impossible. If the only evidence had been that image, the prosecution case on charge 3 would have failed on the first element. Having reviewed video nine however – including frame by frame (a technical capacity available to the jury) – we are satisfied that there is an image at 0:01:37 from which the jury could have been satisfied to the criminal standard that Mr Kelly intentionally touched the vagina of LD. The image on the screen is much clearer than the extracted still. It depicts the thighs of LD as she lies on her back with the arm of Mr Kelly outstretched towards her vagina as he kneels facing her. The inner aspect of his forearm and the palm of his hand are facing upwards. His fingers are extended. This touch appeared to be fleeting, occupying less than a second.
It follows that insofar as the applicant Kelly is concerned, ground 1 as it relates to charge 3 cannot succeed.
The position is different for the applicant Fielden. As is clear from the description of the whole of video nine above, there is a great deal of seemingly uncontrolled movement of the phone during video nine, particularly after the first 30 seconds when it became clear that LD’s physical state was of concern. The argument of the respondent that the encouraging or directing effect of his filming was particularly noticeable during video nine cannot be accepted. It is not possible to conclude generally from at least 0:00:30 that Mr Fielden was deliberately recording anything as he responded to the situation (including by making some less than admirable comments). It is reasonably possible that the remaining footage was captured simply because when he appreciated LD’s then state he did not immediately think to turn the recording function off. And, specifically with respect to the video at 0:01:37, the image captured of Mr Kelly and LD is a split second in an unfocused movement of the camera. It simply cannot be concluded that Mr Fielden, whose attention at that moment was not directed at Mr Kelly, assisted, encouraged or directed the momentary sexual assault by deliberately filming it, or encouraging that activity in any other way.
It follows that for the applicant Fielden, ground 1 must succeed in respect of charge 3.
Ground 2 – miscarriage
It is necessary to address ground 2 only with respect to the applicant Kelly.
(1)Applicant’s contentions
The applicant Kelly contends that the closing address of the prosecutor contained a number of improper remarks which were unfair to him and caused his trial to miscarry. These are detailed as follows.
First, the prosecutor added a second basis of Mr Fielden’s complicity, namely an agreement or understanding between Mr Fielden and the applicant, only in his closing address. An agreement ‘for a threesome’ was said to have arisen during the course of video four. It was said to have become unlawful at the start of video nine and was ‘an understanding or agreement that there would be a threesome in which Mr Kelly would have sexual intercourse and other sexual activities including rape and sexual assault’. The applicant argues that he was denied the opportunity to seek a separate trial or to cross-examine witnesses to the effect that he was not a party to any agreement. He further argues that the prosecutor never told the jury that the ‘agreement’ could not be used against him, only against Mr Fielden.
Second, the prosecutor suggested to the jury that the applicant’s conduct in video eight amounted to, in effect, uncharged acts. The correction later made was inadequate. Further, the suggestion that Mr Fielden’s request for LD’s PIN was a preparatory step to cover the future offending about to be committed was never corrected.
Third, the prosecutor reversed the onus of proof by referring to ‘the defence case against the prosecution’. He further suggested to the jury, by reference to Lady Justice, that its function was to protect the complainant.
Fourth, the prosecutor argued that the applicant could not have had a reasonable belief in consent because he had consumed illicit substances.
The applicant further contends that the judge erred in failing to discharge the jury as a result of prejudicial transgressions.
(2)Respondents contentions
The respondent contends that nothing said in the prosecutor’s closing address, either alone or in combination, resulted in a miscarriage of justice. Accordingly, the trial judge was correct to refuse the application to discharge the jury.
As to the second basis of complicity, the prosecutor told the judge of his intention to address on both bases prior to doing so. Neither the applicant nor Mr Fielden then raised any objection. In any event, the judge expressly removed the alternative basis from the jury and thereby remedied any issue that may have arisen. In his address, the prosecutor clearly distinguished between an earlier lawful agreement and the later alleged unlawful agreement. Any denial of the applicant’s opportunity to seek severance or pursue different cross-examination is speculative.
Any difficulty in the prosecutor’s remarks about video eight suggesting that the behaviour there depicted were uncharged acts was cured by the prosecutor’s correction. The prosecutor did not suggest that Mr Fielden’s multiple requests for the PIN were a preparatory step for future offending then contemplated.
Any risk in the comments of the prosecutor about Lady Justice was ameliorated by the judge’s clear direction. The prosecutor did not reverse the onus and, in any event, the judge directed the jury on multiple occasions as to the burden and standard of proof.
The prosecutor did not suggest that the jury could use the applicant’s intoxicated state alone to find his belief in consent to have been unreasonable.
(3)Discussion
It is convenient to address each of the particulars of the prosecutor’s closing address of which the applicant makes complaint.
(a)Complicity
As noted above, the summary of prosecution opening put Mr Fielden’s complicity on the basis of him assisting, encouraging or directing the actions of Mr Kelly by his presence and filming. In his closing address, however, the prosecutor identified a second basis upon which Mr Fielden was said to be complicit in charges 1 and 3. Namely, by an agreement or understanding with Mr Kelly that there would be a threesome with LD in which Mr Kelly would perform the relevant sexual act and Mr Fielden would film it. This second basis had been articulated by the prosecutor in discussion with the judge after the close of the evidence, but apparently not then appreciated by defence counsel as an argument the prosecutor intended to make.
As to the original basis the prosecutor said:
… in video 9, he says make sure that the complainant [LD] is well and truly out of it, ‘oi, oi, are you all right?’. This is all the time that the filming going on to make sure that she is not going to wake up all of a sudden and all the while he’s filming, he’s video recording. So by the filming and also it’s a combination of two things. There’s the filming, the words he utters and the fact that he also is playing music to drown out any noise from any activity, sexual activity, and it gives Mitchell Kelly comfort that he can do whatever he wants in relation to sexual activity with [LD] without Mr Fielden’s father hearing it.
As to the second basis, the prosecutor said the agreement, arrangement or understanding had occurred in video four from when Mr Fielden first mentions a threesome. The prosecutor continued
… there’s nothing wrong with having a consensual threesome involving sexual intercourse between Mitchell Kelly and the complainant and other sexual activity with the complainant. The agreement or understanding between them becomes unlawful at the beginning of video 9 because by that stage, they know or believe that [LD] is so drug affected that she’s incapable of consent. So that original arrangement or understanding that they were going to have a threesome with [LD], nothing wrong with that. At the beginning of that video 9, it crystallises into an unlawful agreement because they continue to pursue the object of that arrangement which now become unlawful because she’s incapable of consenting and by that stage, at the beginning of that video, they had no reasonable belief that she is consenting because of the effect of drugs on her.
Both defence counsel complained that the prosecutor closed on a basis of complicity different from how the case was opened. That complaint formed part of the basis upon which counsel for Mr Kelly sought a discharge of the jury. In rejecting that application the judge said that ‘it would have been better’ if the second basis of complicity had not been argued, but he would remedy the situation by instructing the jury that that pathway of reasoning was not open and that it was necessary to decide the case against Mr Fielden ‘on the basis of assisting or encouraging’. The judge did so prior to the commencement of the defence closing addresses.
This issue may be shortly addressed. The judge was correct in his observation that it would have been better if the prosecutor had not argued the second basis of complicity. The evidential landscape of the trial was known in advance: the videos were not going to change. If the prosecution intended to rely upon alternative bases of complicity, that could and should have been made plain in the summary of prosecution opening. It must also be observed that when the prosecutor raised the second basis after the close of the evidence, defence counsel should then have objected.
That said, the applicant was alleged to be the principal offender. Neither before the trial judge nor in this Court could the applicant identify the manner in which he would have run his case differently had the Crown alleged the second basis of Mr Fielden’s complicity. In any event, the sole issue for the jury’s determination in the applicant’s trial on charge 3 was whether it could be established beyond reasonable doubt that the sexual touching by him occurred. Issues concerning the basis of Mr Fielden’s alleged complicity in that act were entirely irrelevant to the jury’s task.
(b)Video eight as uncharged acts
Examples of the many misstatements by the prosecutor about the import of video eight, as to when LD became incapable of giving consent and the applicant no longer had a reasonable belief in consent, are extracted above. They were serious misstatements and should not have been said. The suggestion that the request for the PIN to LD’s phone from a then incapacitated LD was motivated by a desire to mask the potential sound of already contemplated future further offending was particularly serious. The applicant is correct that this suggestion was not specifically addressed in the correction. It should have been.
The prosecutor’s misstatements and later correction were not, however, productive of a miscarriage of justice. The jury would have understood that the Crown case was that LD lacked capacity to consent and the applicant had no reasonable belief in consent from the start of video nine. Ultimately the prosecutor said so, and both the defence arguments and the judge’s charge proceeded on that basis. Unlawful agreement was removed from the jury as a mode of Mr Fielden’s complicity in Mr Kelly’s acts. Consequently, the sting of the submission that the applicants wanted the PIN in order to play music to mask the sound of already agreed to future unlawful behaviour was much reduced. And, again, it must be remembered that the only issue in the applicant’s trial on charge 3 was whether the sexual touching had been established beyond reasonable doubt. That depended entirely upon what is observable in the footage at 0:01:37 of video nine.
(c)Reversal of onus and Lady Justice
At the very end of his address the prosecutor said the following
Now, I’ll make a few comments about the attacks that were made on [LD]. Now, on some court buildings, there are statues of Lady Justice. Some of those statues have Lady Justice blindfolded. This is a modern court building, I looked around but I couldn’t see a statue of Lady Justice but there is one, a relief statue outside of the County Court or at the front of the County Court building in Melbourne and Lady Justice is blindfolded. She doesn’t care who you are. She doesn’t care if you’re a senator of the Australian Parliament or merely a janitor working at the Australian Parliament building.
She doesn’t care if you’re the Premier of the State of Victoria or [LD]. Everyone is equal before the law. That’s why Lady Justice is blindfolded. Every man and every woman. Whether it’s your wife, your daughter, your sister, any woman and every woman, including LD with all her faults. You might think that the reason the law requires all these rules about consent and reasonable belief in consent, is because the underlying reason is the fundamental right of every person to make decisions about their sexual behaviour and to choose whether or not to engage in any sexual activity.
So in considering the evidence and in looking at those videos, which are central to the case against the two accused, put aside all the baggage and prejudices that you might have against [LD]. She’s equal before the law, she should be equally protected by the law.
Now, there were other distractions as well in the defence case against the prosecution and one of them is… [13]
[13]Emphasis added.
The judge immediately raised a concern that the statement that LD was entitled to be equally protected by the law risked suggesting to the jury that it was part of their function to protect her or protect victims of sexual assault generally. The prosecutor stated that the judge could make a direction about that. Counsel for the applicant then raised a potential reversal of the onus with the reference to the defence case against the prosecution.
When the jury entered the courtroom, the judge said
I just wanted to say this, in [the prosecutor’s] address, he talked about Lady Justice and how Lady Justice is blind to [LD] and she’s entitled to equal protection by the law and that was coupled with a sort of general statement about complaints in sexual assault cases. It’s not your role, it is not your role, here to give protection to people who make complaints. That’s not your role. Your role, as I think you well understand, is simply to decide whether the prosecution has proved the case against the two accused beyond reasonable doubt which means they have to prove each and every element of the charge that you are considering beyond reasonable doubt. That’s your job. That’s what you’re here to do. You’re here to determine the facts after I’ve instructed you about what the law is. You decide the facts and then decide whether on those facts the prosecution has proved the case beyond reasonable doubt.
You’re not here to protect anybody, you’re simply here to decide what the facts are and decide whether the prosecution has proved the case beyond reasonable doubt. So that’s got to be your focus in making the decision in this case’.
The manner in which the prosecutor expressed himself was unfortunate. In intending to convey that the jury should put aside any prejudicial feelings towards LD, he instead invoked sympathy for her. In referring to defence arguments, he described them as a defence case against the prosecution.
The potential risk to the fairness of the trial was immediately recognised by the judge. The jury were immediately and appropriately directed as to the nature of their task and as to the burden and standard of proof. Those directions were later repeated during the charge. There was no danger that the jury would have misunderstood its role.
(d)Applicant’s intoxication
The prosecutor said
Now, in this case, there’s evidence that the accused themselves were drug affected and the evidence from that is from what you can see from the video itself and from what they say in their interviews with police and one of the things that you can consider when you determine whether the accused in this case had a reasonable belief is whether they voluntarily took drugs and as a result of it, they were intoxicated. If you’re of that view, then the regard, how you look as to their reasonable belief is not from their point of view but from the standard of a reasonable person who is not intoxicated or affected but [sic] drugs in the circumstances as the accused were at the relevant time. So the relevant circumstances is the circumstances leading up to the video 9, all those videos, 1 to 8 and 9.
There is nothing objectionable in that passage. The prosecutor did not tell the jury that the applicant could not have had a reasonable belief in consent because he had consumed illicit substances. He was merely addressing the issue that the fact that the applicant’s intoxication was voluntary. This was necessary because where intoxication is self-induced, the reasonableness of belief as to consent is to be determined by the standard of a reasonable person who is not intoxicated and who is otherwise in the same circumstances.[14] In any event, the later directions of the judge on this issue were exemplary.
(e)Discharge
[14]Crimes Act 1958 s 36B(1)(a).
As none of the individual matters complained of were productive of a miscarriage of justice, it follows that the judge did not err in failing to discharge the jury.
Ground 2 cannot succeed.
Sentence
In light of the applicant Kelly’s partial success on the application for leave to appeal against conviction, it is only necessary to address the application for leave to appeal against sentence with respect to charge 3. As noted above, the sentence imposed was six months’ imprisonment.
For the reasons that follow, leave to appeal against sentence should be refused.
Applicant’s contentions
The applicant contends, without development of the argument, that the offending on charge 3 was a momentary touch of the applicant’s hand on LD’s vagina and, as such, the sentence imposed was manifestly excessive.
Respondent’s contentions
The respondent contends that sexual assault is an inherently serious offence and here was committed against an obviously vulnerable victim. Although it was brief, it occurred after a hiatus in which the applicant (and Mr Fielden) had ceased all sexual activity and sought to help LD. The act of charge 3, motivated by personal gratification, was a deliberate choice to resume sexual activity knowing that LD was then incapable of consent.
It is argued that the judge took into account all matters in mitigation open to the applicant, including his relative youth, his experience of custody during the COVID-19 pandemic and the delay. It is further argued that the judge gave appropriate weight to general deterrence, denunciation and just punishment as well as specific deterrence and community protection. As such the sentence imposed was well within the range open to the judge.
Analysis
Absent a demonstrated specific error on the part of the sentencing judge, an applicant who contends manifest excess must show that the sentence imposed was unreasonable or plainly unjust. The sentence must be demonstrated to be ‘wholly outside the range of sentencing options available to the sentencing judge’.[15] That is, the sentence was not reasonably open to the court to impose it.[16]
[15]R v Boaza [1999] VSCA 126, [42] (Winneke P).
[16]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350.
We are not persuaded that the applicant has done so in this case.
Recalling that the sentencing remarks were addressed to both applicants, the judge said the following about charge 3
The sexual assault offence was fleeting and is based on little more than a frame or two of the video. What is [sic] does show though is that even after the two of you definitely understood the victim was incapable of consenting, as evidenced by your discussion in video nine, sexual conduct towards the victim continued.[17]
[17]DPP v Kelly & Anor [2024] VCC 1060, [47].
The judge considered the applicant’s personal circumstances. He was 23 at the time of the offence and 26 at the time of sentence. He is the elder of two boys born to parents in good employment. At school he struggled academically and experienced bullying. The applicant commenced the use of cannabis at the age of 14. After school he moved to Queensland with his father and held a variety of jobs. At the age of 18 the applicant formed an intimate relationship which produced two children. When that relationship broke down the applicant began to use methylamphetamine. The applicant is on cordial terms with his previous partner and had formed a new relationship. He intends to live with that partner and her mother upon his release from custody. He is well supported by his family. The applicant had completed a number of programs in custody and holds a trusted position within the prison meatworks.
The judge described the applicant’s prior criminal history as ‘significant enough’, although without prior convictions for sexual offences. The ‘common thread’ of that history was the applicant’s drug use. The judge said that those convictions were relevant to the need for specific deterrence. The absence of remorse was noted. The judge said that the applicant’s offending conduct ‘demonstrated an entirely compromised understanding of free agreement or consent in sexual relations’ which could not be ignored in his assessment of the likelihood of future sexual offending.
The applicant was described as being ‘relatively young’, his youth being relevant to the assessment of his moral culpability and the emphasis to be placed on rehabilitation in the sentencing exercise. As against those factors, the judge noted that the applicant was not a first-time offender (and had previously served a term of imprisonment), was at the upper end of ‘youthful’ and the offending was serious. The judge assessed his prospects of rehabilitation with respect to sexual offending as ‘reasonably good’ but took a guarded view of his prospects overall.
Additionally the judge had regard to general deterrence, denunciation and just punishment. The impact on the victim was noted. The judge also considered the delay in bringing the matter to trial and the custodial conditions experienced by the applicant during the COVID-19 pandemic.
The sentencing reasons disclose that the judge considered all relevant matters. Sexual assault attracts a maximum penalty of 10 years’ imprisonment. In the circumstances of this offence, considered in combination with the factors personal to the applicant, six months’ imprisonment was well within the range available to the judge in the sound discharge of his sentencing discretion. Notwithstanding the fleeting nature of the offence, the offending was serious. It was an act committed at a time when LD was in a parlous state. The applicant made a callous decision to recommence sexual activity when LD’s incapacity to consent was conspicuous.
Leave to appeal against sentence must be refused.
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