Kelly v The Queen
[2017] ACTCA 42
•22 September 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Kelly v The Queen |
Citation: | [2017] ACTCA 42 |
Hearing Date: | 11 August 2015 |
DecisionDate: | 22 September 2017 |
Before: | Penfold ACJ, Refshauge and Gilmour JJ |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Supreme Court – trial by jury – appeal against convictions – particular offences – committing an act of indecency on or in the presence of a young person under the age of 16 years – judge should not have allowed images of child pornography to be put to the jury – convictions unsafe and unsound – appeal dismissed CRIMINAL LAW – EVDIENCE – Evidentiary matters relating to witness and accused persons – tendency evidence – sexual offences – attraction to young girls – relationship evidence – photographic evidence – probative value is outweighed by unfair prejudice CRIMINAL LAW – EVDIENCE – Evidentiary matters relating to witness and accused persons – witness interviews – transcripts and statements – phone recordings between the accused and his daughters CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Verdict – appeal against conviction – unsafe and unsatisfactory verdict – ground not made out – appeal dismissed |
Legislation Cited: | Evidence Act 2011 (ACT), s 97 Evidence (Miscellaneous Provisions) Act 1991 (ACT), Div 4.2A, 4.2B Supreme Court Act 1933 (ACT), ss 37O(3), 37E |
Cases Cited: | Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 Butera v Director of Public Prosecutions (1987) 164 CLR 180 Vojneski v The Queen [2016] ACTCA 57 |
Parties: | Stanley James Kelly (Appellant) The Queen (Respondent) |
Representation: | Counsel In person (Appellant) Mr J White SC (Respondent) |
| Solicitors Unrepresented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 18 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Murrell CJ Date of Decision: 15 April 2014 Case Title: R v Kelly Court File Number: SCC 64 of 2012 |
THE COURT:
Following the execution of a search warrant on 25 October 2011 at the home of the appellant, Stanley James Kelly, Mr Kelly was charged with a number of offences and later committed for trial to the ACT Supreme Court.
The indictment originally filed by the Crown contained nine counts. One count of possessing child pornography was later severed from the indictment and, on 31 March 2014, Mr Kelly was arraigned on the indictment containing eight counts, each of committing an act of indecency on or in the presence of a young person under the age of 16 years. He pleaded guilty to the sixth count on the indictment and not guilty to the other seven counts.
The trial proceeded before Murrell CJ and a jury of 12 citizens and, on 14 April 2014, the jury retired to consider its verdict. On 15 April 2014, the jury returned a verdict of guilty on five of the counts and of not guilty on the remaining two counts.
For the five counts of which he had been found guilty by the jury and the one count to which he had pleaded guilty, Mr Kelly was, on 28 April 2014, sentenced to an effective term of imprisonment of four years with a non parole period of two years and six months. See R v Kelly (Unreported, Supreme Court of the ACT, Murrell CJ, 28 April 2014).
Mr Kelly appealed against the convictions entered on the counts for which the jury had returned verdicts of guilty by lodging a Notice of Appeal on 6 May 2014. Although he had been represented by counsel at his trial, Mr Kelly lodged the Notice of Appeal himself.
Jurisdiction
This Court has jurisdiction under s 37E of the Supreme Court Act 1933 (ACT) to hear and determine appeals from orders of the Supreme Court, orders being defined to include a judgment, decree, direction or decision. There is no doubt that this includes an appeal against a conviction: R v Meyboom [2012] ACTCA 2; 256 FLR 450 at 453; [9].
In R v Hillier [2007] HCA 13; 228 CLR 618 at 632; [25], Gummow, Hayne and Crennan JJ described the powers given to this Court as no narrower than those described in Davies and Cody v The King (1937) 57 CLR 170 at 180, and, in particular, including the power to set aside a conviction:
whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.
The Notice of Appeal
The Notice of Appeal contained two grounds:
(a)the judge should not have allowed images of child pornography to be shown to the jury; and
(b)the evidence before the court makes the convictions unsafe and unsound.
The orders sought were that the appeal be allowed, the convictions be quashed and verdicts of acquittal be entered.
In his written submissions, Mr Kelly traversed a wide range of issues which he said made the convictions unsafe. These were described as follows:
1.Allowing the prosecution to lead tendency evidence from multiple complainants (three) in a single trial, caused a prejudicial effect on the jury – leading to unsafe and unsound verdicts.
2.Leading of photographic evidence was irrelevant, it had no bearing on the case, but it had a prejudicial effect on the jury; it should not have been allowed.
3.Transcripts and statements were provided to the jury, without appropriate editing; this should not have been allowed.
4.The jury’s verdict should be set aside on grounds that it is unreasonable or cannot be supported by the evidence.
5.The plea of not guilty put all material in dispute. The tendered evidence that was produced (leading of photographs) to the court was not proven and by the jury seeing it caused damage and the jury to believe that the charges of uncharged ACTs [sic] are ACTs [sic] that prove I committed an offence.
In the best traditions of the Bar, Ms T Warwick of counsel accepted a request from the ACT Bar Association to provide pro bono assistance to Mr Kelly on the appeal. She was not, however, instructed to appear for Mr Kelly on the appeal as he wished to put his own arguments to the Court, as he did.
Ms Warwick, however, provided some written submissions on the basis, as she described it, of being a “friend of the court”. She also made a short oral presentation to the Court, principally directed to the issue of tendency evidence.
Overview
There were three complainants, each of whom was between the ages of 12 and 14 years at the time of the alleged incidents. We shall refer to them as KG, DT and CB. They were friends of Mr Kelly’s youngest daughter, Yvette Kelly. At the time, Mr Kelly was divorced but living in the family home with two of his four daughters, whom we shall refer to as Belinda and Yvette, and the younger of his two sons, whom we shall refer to as Jimmy.
On most weekends, Yvette would have friends over to stay. These friends included the three complainants. It was alleged that, during these times when the complainants would stay over, and at other times, Mr Kelly made sexualised comments and committed sexual acts on or in the presence of the complainants.
The alleged acts of indecency involved Mr Kelly touching them on their buttocks, breasts and genital areas, making crude sexual comments about the breasts, genitals and buttocks of the complainants and making suggestions of him having sex with them.
The Crown case
There were six incidents of which Mr Kelly was convicted including that to which he pleaded guilty. These may be conveniently summarised as follows:
(a)First count on the indictment. Between 1 September 2011 and 23 October 2011, KG (13 years old) was at Mr Kelly’s house with her friend, Yvette (12 years old), DT and Braiden Day, who was Yvette’s boyfriend at the time. KG went to the bathroom alone to do her hair before they went to Tuggeranong Hyperdome. Mr Kelly walked into the bathroom and said “you’re so hot”. He touched her breasts and buttocks and said “you have nice boobs ... you have a nice arse”.
(b)Second count on the indictment. On 14 October 2011 or 15 October 2011, KG was again at Mr Kelly’s house with Yvette. KG was in the lounge room with the accused waiting for Yvette to get ready to go motorbike riding. Mr Kelly said to KG, “you have a nice tight vagina [KG] ... can I have sex with you [KG]? I want to have sex with you”.
(c)Fourth count on the indictment. Between 12 April 2011 and 24 July 2011, DT (12 years old) was in the kitchen of Mr Kelly’s house making noodles. Mr Kelly came into the kitchen and began preparing food. As DT went to the fridge the accused grabbed DT, put his hands down her leggings and touched her vagina. He said, “I like girls with shaved pussies”.
(d)Fifth count on the indictment
. Between 1 February 2011 and 23 October 2011, DT was in Mr Kelly’s bedroom playing Xbox. Mr Kelly came in and started to play wrestle with her. When Mr Kelly’s son Jimmy, came into the room, Mr Kelly told him to “pin her down”. Jimmy held DT by the shoulders while
Mr Kelly put his face between her legs and licked at her vagina over the leggings. Afterwards DT noticed there was a wet patch at the crotch of her leggings.
(e)Sixth count on the indictment. Between 1 February 2011 and 23 October 2011, CB (14 years old) and DT were in Mr Kelly’s bedroom using the computer. At the time, the girls were being filmed without their knowledge. At some stage, Mr Kelly walked into the bedroom and said to the girls, “Show me your boobs. What about me?” A short time later DT left the bedroom and Mr Kelly asked CB to “stay with him”. CB declined and Mr Kelly said, “I promise I won’t fuck you more than 10 times, and eat your pussy more than 20. I promise you’ll come”. Mr Kelly later said, “I’ve got to find somebody to fuck”. A short time later he left the bedroom and the filming stopped.
(f)Eighth count on the indictment. Between 1 August 2011 and 3 October 2011, CB was at Mr Kelly’s house watching an NRL match on television with Yvette, Mr Day and Mr Kelly. During the match the accused said to CB, “If my team wins you have to have sex with me ... and if my team scores you have to give me gobs [fellatio]”. Each time Mr Kelly’s team scored he went over to CB and grabbed her head and pulled her head backwards and forwards towards his genital area.
Tendency evidence
The Crown applied for leave to adduce evidence that it said would disclose a tendency by Mr Kelly to have a range of states of mind, and to act in particular ways, that were said to be significantly probative of the offences charged.
In R v JSK [2013] ACTSC 147, Burns J severed one count from the indictment, as noted above (at [2]), and permitted to be led as tendency evidence some but not all of the evidence sought to be adduced by the Crown for this purpose. His Honour also permitted the evidence of one particular incident to be admitted as relationship evidence but not as tendency evidence. Unfortunately, his Honour’s reasons are too brief to be of much assistance on the appeal, but the Appeal Book did contain the transcript of the hearing of the application and this was helpful in identifying the issues and their resolution.
There were three groups of items of tendency evidence: the evidence of each count on the indictment, evidence of two incidents that were not charged acts and, finally, the pornographic material that was the subject of the count severed from the indictment.
The tendencies alleged by the Crown were as follows:
that the accused had a tendency to have particular states of mind or to act in particular ways, being:
a)to have a sexual attraction to adolescent girls;
b)to act on his sexual attraction to adolescent girls;
c)to touch adolescent girls in sexual ways;
d)to perform explicit sexual actions with adolescent girls;
e)to talk with adolescent girls about engaging in sexual intercourse with him;
f)to ask adolescent girls to share sexual experiences with him;
g)to talk sexually towards adolescent girls about bottoms, breasts and genitals;
h)to talk to adolescent girls in sexually explicit ways; and
i)to take advantage of his daughter’s friendships with adolescent girls to gain access to those girls.
This list was unfortunate, for it was a mixture of the general and the specific, the former of which was likely to have less than significant probative value, the latter not perhaps being thought to be admissible in respect of each or all of the other counts on the indictment.
Thus, it was as complex as and, perhaps, as confusing as the tendency application recently considered and criticised by this Court in Vojneski v The Queen [2016] ACTCA 57. A problem with the asserted tendencies was, for example, that it was not clear whether each alleged incident said to be probative of a tendency was said to be probative of all tendencies or only some, and if so, of which tendencies.
In this case, the more general alleged tendencies, such as (a) and (b), suffer from the defect that such general tendencies are unlikely to have significant probative value. See Hughes v The Queen [2017] HCA 20 at [64]; R v Lam [2014] ACTSC 49 at [40] and CGL v Director of Public Prosecutions [2010] VSCA 26; 24 VR 486 at 496-7; [36]‑[40].
It was, therefore, regrettable that his Honour eschewed the more specific of the alleged tendencies, those showing a greater similarity to the alleged offences, instead concluding in R v JSK at [26]:
that evidence of some of the incidents should be admitted, as capable of establishing the following tendencies:
a)a tendency to have a sexual attraction to adolescent girls; and
b)a tendency to act on his sexual attraction to adolescent girls.
The more significantly probative tendencies were, however, the more specific asserted tendencies with greater similarity to the alleged offences.
Nevertheless, the appellant, at the hearing of the application and on appeal, did not challenge the approach taken, nor did the issue arise at trial. In particular, Mr Kelly did not address the admissibility of the tendency evidence at trial at all, other than to seek to have excluded some more of the images that Burns J held to be admissible.
Further, at the hearing of the application, counsel for Mr Kelly did not seek that the remaining eight counts be each heard separately and conceded the admissibility of the evidence on each count as tendency evidence on each other count. Following De Jesus v The Queen (1986) 68 ALR 1 at 5, the deliberate decision of counsel meant that the admission of the evidence of each count as tendency evidence for each other count did not constitute a miscarriage of justice.
Of the incidents which could have constituted an offence but which were not the subject of any charge, commonly referred to as “uncharged acts”, those to which objection was taken by Mr Kelly were, with three exceptions, ruled inadmissible as tendency evidence or on any other basis.
Relationship evidence
Of the three uncharged acts not ruled inadmissible, one was ruled inadmissible as tendency evidence but admissible as relationship evidence. Such evidence is, as McHugh J described it in KRM v The Queen [2001] HCA 11; 206 CLR 221 at 229; [23]:
evidence which explains the nature of the relationship between the accused and the complainant and which often tends to show that the accused is guilty of the offence charged.
(footnotes omitted)
The substance of this evidence was described as:
Between 1 February 2011 and 23 October 2011, the accused often made sexual comments to [KG, DT and CB (the complainants)] and touched them in sexual ways.
In the context of the trial, the evidence of Mr Kelly’s ongoing behaviour was clearly relevant to explain why the particular actions alleged may not have resulted in immediate complaint or why the complainants would have returned to Mr Kelly’s home, despite the alleged offending against them.
Uncharged act
One of the other challenged incidents was held to be admissible as tendency evidence, despite objection. This incident was described as follows:
Between 1 February 2011 and 23 October 2011, the accused picked up [DT] from her house so that she could sleep over at his house with his daughter, Yvette. During the car trip the accused asked [DT] what colour bra she was wearing. At the time [DT] was wearing one-piece pyjamas. While driving the accused reached over [and] partially unzipped the front of her pyjamas down to her chest.
It was submitted by Mr Kelly that this evidence was “ambiguous”. It appears that Mr Kelly did not unzip the front of DT’s pyjamas so as to expose her breasts.
It is difficult to see the ambiguity in the incident; the question and the action are clear enough, and cannot be described as innocent or without any relevant sexual overtone.
While reasonable minds may differ, we accept that it was fairly arguable that this showed the tendencies that Burns J had accepted as being provable from the evidence his Honour held admissible.
Severed count
Finally, some of the evidence in support of the severed count on the indictment was nevertheless held to be admissible as tendency evidence.
As noted above (at [2]), that count charged Mr Kelly with the possession of child pornography. The Crown sought to have admitted a number of images the subject of that count as evidence of one of the tendencies it sought leave to prove, namely Mr Kelly’s sexual attraction to adolescent girls. Most of the argument on the application centred around this issue. The images included a number that were not directly relevant and could well have had an unfairly prejudicial effect because of the emotion that they might have aroused in the minds of the jury, and so might have tended to “inflame the jury or divert the jurors from their task”: Festa v The Queen [2001] HCA 72; 208 CLR 593 at 609-10; [51]. Those images were ruled inadmissible.
It has been held that relevant computer images of child pornography can be admitted as tendency evidence to show a tendency of an accused person to have a sexual interest in children. See R v Johnston [2012] ACTSC 89; 6 ACTLR 297.
In this case, the images of adolescent girls were held admissible as evidence of the tendency to have a sexual interest in adolescent girls. Some of them, however, were further excluded by the trial judge.
Ms Warwick’s submissions on appeal suggested a challenge to the decision to admit that evidence related principally to images that had not been admitted. It is not necessary, therefore, to consider those submissions further.
The evidence of the images of adolescent girls in sexual poses, however, was highly probative of the asserted tendency and, without the other inherent and unfairly prejudicial images which were excluded, was properly admitted.
There is no basis for finding the convictions unsafe or unsound because of the admission of the tendency evidence.
The photographic evidence
Mr Kelly further challenged the photographic evidence on the basis that it was unfairly prejudicial and so should have been excluded, even if it proved a tendency alleged by the Crown and accepted by Burns J, and also that there was no proof that the photographs were his or linked to him. We can conveniently deal with each challenge in turn.
Risk of unfair prejudice
As noted above (at [39]), the images of child pornography that were admitted were admitted as evidence of one of the tendencies asserted by the Crown and accepted by Burns J in R v JSK. Furthermore, the precise photographs to be shown were reviewed and limited by the trial judge, who excluded a number of them.
Mr Kelly, in his submission, made the point that:
[t]he prosecution should not adduce evidence tendering [sic] to show that the accused has been guilty of criminal ACT(s) [sic] other that [sic] those with which he is charged. The court should not admit evidence where it creates a likelihood that a verdict may be inaccurate.
In general terms, evidence of other improper or criminal conduct of an accused person is inadmissible in criminal trials; even evidence amounting only to evidence of bad character is inadmissible unless the accused has put his or her character in issue: R v Butterwasser [1948] 1 KB 4 at 6.
There are, however, exceptions, and the admissibility of tendency evidence is such an exception.
Unlike the other incidents, however, which exhibited a specificity and similarity to the alleged offences that enhanced their probative value, the photographs by themselves were at best evidence of a general tendency to have a sexual interest in adolescent girls. As the majority pointed out in Hughes v The Queen at [64], such a tendency expressed at a high level of generality may provide significant support for the tendency, but it cannot establish anything more than relevance and is unlikely, in contrast to a tendency expressed with more particularity, to have significant probative value.
Under s 97 of the Evidence Act 2011 (ACT), the test of the significance of the probative value is not just in the identified evidence alone but also whether, “having regard to other evidence adduced or to be adduced”, it has significant probative value.
In this case, however, the other incidents alleged by the Crown do add to the significance of the photographs in showing a pattern of interest that underpins the alleged behaviour and infects it with the prurient interest in adolescent girls.
While the material was child pornography, that which was actually admitted was limited to the less serious versions of such pornography, and would have been unlikely to lead the jury to reason improperly, in the context of the trial, in which quite explicit discussions by Mr Kelly of genitals and sexual intercourse were described and alleged and, to some extent, admitted.
It is relevant, too, that neither at trial nor on appeal were any complaints made about the directions given to the jury by the trial judge about these issues.
Finally, we note that the evidence adduced at trial in relation to the third count, of which he was acquitted, included allegations, though denied, of Mr Kelly showing to KG a homemade video of himself and his wife having sexual intercourse. There was also evidence of a photo album of homemade pornography involving Mr Kelly and his former wife which was admitted was in the house, though Mr Kelly denied showing it to KG.
While none of this was child pornography, it was considerably more graphic than the photographs to which objection was taken. The adducing of this material as part of a count on the indictment would reduce to a considerable degree any prejudice from any improper reasoning by the jury on the basis of Mr Kelly’s possession of the child pornography photographs.
Thus, there is no substance in this submission.
Failure to prove appellant’s ownership of photographic evidence
Mr Kelly also asserted that “there was no evidence put before the court that any of [the photographic evidence] was in fact my material”. That, however, is not correct.
Federal Agent Ashley Laidler’s evidence was that the items in which the photographs were contained were located during the execution of the search warrant referred to above (at [1]). The material was on an external hard drive found on a desk near the CCTV monitor and on a DVD entitled “Pics Software Stuff” found in a cavity underneath a drawer in which some photo albums were also found. There was no relevant challenge to this evidence, though Federal Agent Laidler was asked about whether Mr Kelly’s former wife might have occupied the bedroom. He said that it was possible that he had overlooked items of female clothing in the room and, while he was unaware that Mrs Kelly visited the house during 2011, he had formed the opinion that there was only one occupant of the room.
A computer expert, Brian Currie, also gave evidence. He had attended Mr Kelly’s house when the search warrant was executed. His evidence was that the last written date for the DVD was 13 September 2008, though he was not able to be certain that that date was completely accurate.
As to the hard drive, a forensic examination showed that it contained a file entitled “1 James Stanley Kelly”. Mr Currie was not cross-examined.
This evidence, if accepted by the jury, was a reasonable basis from which the jury could properly infer that the electronic material which constituted, amongst other things, the photographs, belonged to or was created by Mr Kelly.
Application of proviso
Finally, were it to be found that the photographs did not have significant probative value that outweighed its prejudicial effect, then in this case there is a strong basis for the application of the proviso in s 37O(3) of the Supreme Court Act (which permits an appeal to be dismissed, even if a particular appeal point might be decided in favour of the appellant, if the Court of Appeal is satisfied that no substantial miscarriage of justice has actually occurred).
The evidence of sexualised behaviour in the household, even without any of the photographs, was very strong and not seriously challenged, though it was sought to be minimised. This included the pornographic material the subject of the third count, referred to above (at [53]). Thus, while the photographs supported the nature of the atmosphere in the house, they did not overwhelm the other evidence about this nor introduce inconsistent material to that otherwise admitted.
The evidence of the offences charged in the indictment was strong, cogent and, even without the photographs, sufficient to support the convictions.
Despite any error that the admission of the photographs could have constituted, Mr Kelly received a fair trial according to law and was not deprived of the chance of an acquittal that was fairly open to him: Filippou v The Queen [2015] HCA 29; 256 CLR 47 at 54-5.
Transcripts and statements
As is now required, the evidence of the child complainants was given by playing recordings of the interviews police conducted with each of them and of the evidence they gave at pre-trial hearings: Division 4.2A and 4.2B of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). The challenge concerning recorded pre-trial evidence related to two incidents in which the jury received material that it ought not to have received.
Pre-trial hearing - DT
The first item involved evidence given at the pre-trial hearing by DT. DT’s evidence in chief was given partly by playing the recording of her interview she had with police on 24 October 2011 and the further evidence-in-chief and cross-examination she gave at a pre-trial hearing on 12 and 13 March 2013.
At the hearing of the pre-trial application, the court directed that certain parts of DT’s evidence in that recorded interview with police, including questions 109 to 137 and the answers to those questions, be removed by editing the recording of her interview with police. That was done to what was recorded on the disc ultimately played to the jury.
The transcript of that recording had, however, already been prepared. The transcript was also edited by removing pages 12 and 13 which contained questions 109 to 137 and the answers to them. As is customary, the jury were provided with the transcript as an aid to their understanding of the recording: Butera v Director of Public Prosecutions (1987) 164 CLR 180 at 188.
During the pre-recorded cross-examination of DT, however, Mr M Hassall (counsel for Mr Kelly at the trial) made direct reference to questions 112 and 113, which were on page 12 of the transcript. What Mr Hassall and DT said was relevantly as follows:
Do you have a copy of the transcript of your interviews with you? --- Yes.
Is one of them dated 24 October 2011? I think that’s the first one? --- Yes.
Okay. Could I just ask you to turn to page 12 of the transcript. Actually, could you start at the bottom of page 11, please? --- Yes.
You see at question number 112, you are asked about the last time you went to Yvette’s house? --- Yes.
And you said that it was Friday? --- Yes.
Were you referring there to the Friday just before your interview, do you remember? --- I don’t remember, sorry.
There was – is it your memory that it was fairly shortly before your interview that you’d been to Yvette’s house fairly recently? --- Yes, it was the Friday before the interview. Sorry, I do remember now.
That’s okay. This is probably really testing your memory, but is it your recollection that you were interviewed on a Monday? --- I don’t remember, sorry.
That’s okay. It was a school day in any event? --- Yes.
Now, if you just turn to the next page, could you just read question 113 and answer 113 to yourself at this stage? So you don’t have to read it out loud, just read it to yourself, and then I’ll ask you some questions about it? --- Yes.
Do you agree that you made reference there to you not being allowed to stay at Yvette’s house? --- Yes.
And you mentioned that Mr Kelly at that time, being the Friday before you were interviewed, didn’t want you to stay at the house? --- Yes.
And initially when Yvette asked if you could stay, he ignored her request, is that right? --- Yes.
But then you say, “We kept on asking and he said, ‘Yes, fine’”, is that right? --- Yes.
So you and Yvette were asking if you could stay at Yvette’s house on that occasion? --- Yes.
It was unfortunate that neither counsel had considered the consequences of the editing of the evidence-in-chief on the cross-examination recorded at the pre-trial hearing, and considered whether, as a result, this exchange should also have been excised or dealt with in another way.
During the playing of that evidence from the pre-trial hearing at the trial, the jury sent a note to the trial judge pointing out that they did not have pages 12 and 13 of the transcript of DT’s evidence-in-chief to which reference had been made by Mr Hassall.
As a consequence, the trial judge discussed the matter with counsel. Although the direction had been to exclude the evidence containing those questions and the answers to them, it was clear that the reference to the excluded evidence had not also been removed in the editing. Both counsel agreed that, as put by Mr Hassall:
My friend is right in saying that the reference to question and answer 112 was to establish the timing of the last visit to the house. In relation to 113, there is some relevance to the content in that in the first sentence there there’s a reference to the accused not wanting her to stay there, and then I ask her some questions about that.
Her Honour suggested that there was “nothing of any great moment” in what was said, and Mr Hassall agreed.
Her Honour discussed a direction to the jury and, when outlined, Mr Kelly’s counsel expressed that he “would be content with” the proposed direction. Her Honour then recalled the jury and said:
Members of the jury, thanks very much for this note, you’re obviously paying close attention, that’s great. Now the material in MFI 9 [the transcript of the interview with police] from question 109 to 137 that was removed because it’s not relevant. There are other bits and pieces removed to try to focus the material on to more significant material, so that’s not before you but it has been agreed that this material on page 28 of MFI 15 [the transcript of the pre-trial hearing] concerning questions 112, 113, should go to you because for whatever reason that wasn’t removed, it’s there, you’ve seen it. It’s of no great moment, it’s not all that significant it would seem but nevertheless you’ve seen it, so it may as well stay there. So we’re going to press on but don’t – the counsellor [sic – probably “counsel”] agreed that you don’t need to see the other material, that’s not relevant and you can still hear about this material in MFI 15. So we’re just going to press on but you’re quite right, normally you would have the original questions in if questions are being asked about them but sometimes questions are asked about things for other reasons.
It is clear that there was no prejudice to Mr Kelly in what was said; indeed, the process that had taken place was similar to cross-examination on a document which is not tendered and admitted into evidence.
Evidence-in-Chief interview - CB
The second issue was a little more problematic. This involved the recording of the police interview with CB. Again, certain parts of the evidence were removed from the recording by editing before being played to the jury. On this occasion, however, the transcript distributed to the jury had not been edited to remove those parts of the evidence ruled inadmissible.
The initial portion involved CB telling police that Mr Kelly had showed her some pornographic photographs, not dissimilar to the evidence in support of the third count (of which Mr Kelly had been acquitted).
About four pages after the first page that should have been removed, there was a reference to a photograph “involving a dog”, by implication a pornographic photograph.
At the trial, the recording was played. There was, then, a slight problem with the audio system, currently a not uncommon event, and the jury were asked to retire while the problem was addressed. The Court then adjourned. It appears that the Crown only then realised that, while the recording had been edited, the transcript had not. As copies had been distributed to the jury, permission was sought from and granted by the trial judge in chambers to retrieve the transcripts from the jury and replace them with the appropriately edited copies. This was done within five minutes of the jury retiring.
When the Court resumed, but before the jury returned, the problem was discussed between the trial judge and counsel.
The judge reviewed the pages. This Court, however, was not favoured with copies of the pages inadvertently presented to the jury. Mr Hassall submitted, much as noted above (at [77]-[78]):
The subject matter of the pages is a discussion of Mr Kelly showing pornographic material to [CB] and it includes reference to one photo involving a dog. Your Honour may form the view that it certainly ought not to have gone to the jury.
The transcript then records the following exchanges:
HER HONOUR: They were told not to read ahead but if they did then that particular material wouldn’t be prejudicial. The material about the dog is quite unsavoury and hopefully something that they would not have read but that is four pages ahead so if they were, in general terms, complying with what I told them then they wouldn’t have read that. They wouldn’t have seen that. I don’t perceive that there is any difficulty. Are you applying for me to do something, Mr Hassall, I suppose?
MR HASSALL: Would your Honour pardon me?
HER HONOUR: Yes.
MR HASSALL: My instructions are to ask for a mistrial, your Honour.
HER HONOUR: On what basis?
MR HASSALL: Those are my instructions. I have heard what your Honour has said and I don’t disagree with it.
HER HONOUR: I presume that the basis of your instructions, Mr Hassall, is that the jury will be prejudiced in a manner that can’t be cured.
MR HASSALL: Yes. That’s the only basis on which I put it.
HER HONOUR: As I have indicated to you, and I think you accept, there would be no prejudice or at least nothing of any significance whatsoever attaching to the first couple of pages if they read ahead because it just covers the same type of material that is already before them but at a possible more general level.
In relation to the reference on page 32 to some sort of sexual interaction between a dog and the accused’s wife, that is very unsavoury and was excluded and it would be undesirable if the jury had read that, but even there in the context of the overall material presented to the jury it doesn’t stand out starkly and it wouldn’t be something that would cause me to think that a jury would be prejudiced because of that item so the application is refused.
After some further brief discussion, the jury were asked to return and her Honour gave the following directions:
HER HONOUR: Members of the jury, I think you are aware of the technical problems we’ve been having, and not only during this trial but in relation to the period when that evidence that you’ve been seeing was prerecorded. There are huge problems. What has occurred with that transcript you have got a copy of – that has now been uplifted and returned with four pages missing, which is the part we had just reached when playing the disc. The reason for it being uplifted and those passages removed is that that material has been decided to be not relevant and for that reason has been removed from the disc, from the actual evidence but through an oversight was not removed from the transcript. As soon as that was realised, the transcript was uplifted and that material was removed from this transcript, MFI 20.
I had asked you not to read ahead, just to watch the evidence and not read ahead in the transcript. Some of you might have been tempted to do that, I don’t know. If you did, anybody who did do that, please completely disregard anything that you may have read on pages 29 through 32 because that is not part of the evidence and shouldn’t have been put before you in any form, but I think we can all appreciate that the whole prerecording – it has had to be copied to various different things to try to get it in a format that we can play, and even now we’ve got problems. So in all that process confusion has arisen and that’s why we’ve had this problem with the transcript.
Of course that’s through no fault of the accused, and indeed it’s probably through not really any fault of the Crown. It’s just all the technology is incompatible and nothing goes with anything else, et cetera, so those four pages were lost in that process. In any event, as I say, that material has been rejected as irrelevant and you should not pay any regard to it if contrary to my request you have read ahead and read any of it. Thank you.
The reference to “not reading ahead” is a reference to a direction that the trial judge gave to the jury at the beginning of the trial. After her Honour’s initial directions and the opening statements by both the Crown prosecutor and Mr Hassall and just before the first recording of any complainant’s evidence was given, her Honour referred to copies of the transcript of that evidence being distributed to the jury and told them:
Members of the jury, the prosecutor is handing out these transcripts. This is to assist you to follow the evidence as it’s given, because sometimes what is said can be unclear. The document you are getting now is not evidence, that’s why I have marked it as an MFI, it’s only an aid to assist you. The evidence is what you are going to be seeing and hearing on the screen. For that reason, I would particularly ask you not to read ahead in that document. If you do that, you are likely to be distracted from actually absorbing the evidence itself that’s on the screen. Also, those documents will be collected from you in due course.
The question here is whether the error in the Crown providing a transcript that contained inadmissible material constituted such a breach of the right to a fair trial that there was a risk of a miscarriage of justice and that, had the unedited transcript not been provided to the jury, it may have acquitted the accused. See TKWJ v The Queen [2002] HCA 46; 212 CLR 124 at 146-7; [73].
While the admission of any inadmissible material into a criminal trial is quite inappropriate, the conclusion does not automatically follow that there has been a miscarriage of justice.
The applicable principles are set out in Crofts v The Queen (1996) 186 CLR 427 at 440-1, as follows:
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript.
Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? ...
Giving careful consideration to the issue here, we are confident that the error was not so fundamental nor the loss of a chance of an acquittal so likely that the trial miscarried and that the jury should have been discharged.
Our reasons are as follows. The trial judge had directed the jurors not to read the transcripts ahead and, while one cannot absolutely always make the assumption, it is appropriate to proceed on the basis that the jury will accept the directions of the trial judge: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at 425; [31].
The direction, in effect to disregard anything that members of the jury had read in the parts of the transcript that was not part of the admissible evidence, was given straight away and in the plainest of terms. Such a direction is not uncommonly given to juries; indeed, the failure to do so in an appropriate case can constitute a ground of appeal, as in PG v The Queen [2013] VSCA 9.
Furthermore, the evidence, if any, that was most likely to have been read by a member of the jury was, it appears, no different from evidence that was admitted in relation to the third count on the indictment. The reference to the dog was described by the trial judge as “very unsavoury”, but not such as to likely affect the jury in the circumstances of the whole case. It was, in any event, at a point in the transcript where, in the circumstances, it was unlikely to have been read by any member of the jury.
As is shown below, the Crown case was sufficiently strong to satisfy us that the test for a miscarriage of justice or the loss of a real chance of acquittal, and this challenge, are not made out.
Contradictions as to the facts of the fourth count
Mr Kelly submitted that the events constituting the fifth count could not have occurred as stated and that the conviction could not stand. He submitted that the evidence about the count was controverted by “about 10 witnesses” and could not “possibly support DT’s version of events, it is simply impossible”.
It seems from his description, however, that Mr Kelly was referring to the fourth count on the indictment, for that is the one which is alleged to have taken place in the kitchen where, he said, “10 witnesses” said he never cooked on Saturday night, not the fifth count which is alleged to have taken place in Mr Kelly’s room with his son who had been playing with his Xbox there.
On that assumption, the evidence of DT was as follows. She said that she was in the kitchen making noodles when Mr Kelly came in and, she commented, “I think he put something in the oven”. DT continued that, as she turned to walk to the refrigerator,
Mr Kelly grabbed her from behind and put his hands down her pants. DT was wearing leggings and she said that his hands went down through her underwear to her vagina but not inside it and he said, “I like girls with shaved pussies”. DT said that she just laughed and walked off, though she found it “really awkward”.
In cross-examination, she repeated, “I think he had just put some food in the oven”. She was asked about her suggestion that Mr Kelly could not cook and she answered, “I didn’t mean it like that, but I mean most of the time we were there, we just had McDonald’s or something” and, when asked about the routine on Fridays and Saturdays that Mr Kelly would bring takeaways, she answered, “most times, yes, not every single time”.
DT accepted that the incident happened in the late afternoon but did not know if it was a Saturday or a Sunday. When it was put to her that it did not happen, she said “I would never lie about something like that”.
Despite Mr Kelly’s assertion that 10 witnesses controverted this evidence, only two addressed it. One was Mr Day, the then boyfriend of Yvette. His evidence was as follows:
Did you ever observe Mr Kelly cook at the house? --- Yes.
And on Friday nights or on the weekends, was it his normal practice to cook meals? --- No, sometimes we used to get Macca’s and stuff like that, takeaway.
While the second answer would, arguably, raise some question about the evidence of DT, it did not directly negate it; indeed, it supported the suggestion that Mr Kelly did cook on occasion. It also referred to “normal practice”. Further, putting something in the oven may not be cooking in the usual sense but merely warming food up, a possibility with takeaway food.
Mr Kelly also referred on the appeal to some answers given by Mr Day in a statement to police, but that statement was not admitted into evidence and those answers were not before the jury.
Another complainant, KG, also gave brief evidence as follows:
You’ve said that the routine was that on Friday evenings, you would all go off to the Tuggeranong shops, is that right? --- Yes.
Mr Kelly didn’t cook on Saturdays – Fridays or Saturdays in your observation, is that right? --- I don’t think he ever cooked.
This was inconsistent with the evidence of Mr Day that Mr Kelly did cook. Again, however, it is not necessarily inconsistent with Mr Kelly warming takeaway food in the oven. This matter was simply not explored in the evidence.
The third complainant, CB, also gave evidence that Mr Kelly did not cook on Friday nights but was not asked about Saturday nights.
The only other evidence was from Yvette, whose evidence was:
In terms of the weekends, would your – where would you eat meals on the Friday? --- On Fridays, we’d go to Tuggeranong shopping centre for dinner.
All right. Did anyone cook meals at home on the weekends in your experience? --- No.
Well, what did you eat? --- We always ate takeaway.
Again, while this evidence would have raised a question about, and was a stronger inconsistency with, DT’s evidence, it was not directly inconsistent, for DT referred merely to “putting food in the oven”, not cooking. Warming up takeaway food would be consistent with that. That possibility was not explored in the evidence.
The assertion by Mr Kelly that the evidence of DT was directly contradicted by 10 witnesses is not correct. There were challenges and a degree of inconsistency from two witnesses, but not such that the jury would be required to reject the evidence of DT. The jury heard all the evidence, saw the witnesses and was able to accept or reject the evidence as it saw fit.
This challenge is not made out.
Phone recordings
Mr Kelly also complained about the Crown’s introduction of evidence of certain recordings of telephone conversations. The substance of the challenge was not clear. Mr Kelly said that they were introduced “late in the trial” and suggested he was denied “any ability to respond to them”.
It appears that recordings were made at the Alexander Maconochie Centre of conversations in phone calls made between Mr Kelly and two of his daughters, Belinda and Yvette, which were provided to the Crown. The daughters were called by the defence to give evidence and, in cross-examination, were asked about the contents of the phone calls.
No transcripts of the phone conversations were admitted into evidence.
Mr Kelly submitted that there was no “form of verification on who was supposedly speaking in the transcripts”, presumably of the phone recordings.
However, both Belinda and Yvette were challenged in cross-examination about the phone calls and given the opportunity to confirm or deny the accuracy of what they allegedly said in certain passages of the recorded conversations that were put to them.
When the relevant passages were put to Belinda, she agreed with the accuracy of what was stated and that she or her father had said what was put to her. That was adequate “verification” if required.
Yvette was less forthright. She agreed that she had spoken to her father by telephone when he was in the prison, but said that she did not recall the particular passages put to her. She did not deny that the alleged phone calls had been made by her.
The complaint by Mr Kelly has no substance.
Unsafe and unsound
This ground is more usually expressed as that the verdict is, or in this case, the verdicts are, unsafe or unsatisfactory, though there is no magic in these words and other phrases have been used from time-to-time, as in Davies and Cody v The King at 180; Ratten v The Queen (1974) 131 CLR 510 at 515. The task of the appellate court in considering this ground has been set out by the plurality in the High Court in M v The Queen (1994) 181 CLR 487 at 493, who said:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(footnotes omitted)
Their Honours continued at 494-5:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(footnotes omitted)
This task involves an assessment of the evidence and of discrepancies, inadequacies or contractions which cannot be ameliorated by the advantage that the jury enjoyed of seeing and hearing the witnesses give evidence. See R v Bragias [2016] NSWCCA 219 at [4]-[13].
Summary of the evidence – the Crown case
The evidence of all witnesses may be summarised as follows.
KG
KG gave evidence that, on one weekend, she was at Mr Kelly’s home when she had gone into the bathroom alone to do her hair before she and others went to the Tuggeranong Hyperdome. She said Mr Kelly approached her and said, “Oh, you’re so hot” and, “You have nice boobs” before touching her breasts. He then said, “Oh you have a nice arse” and touched her on the bottom. This, she said, happened about three to four weeks before her first interview with police.
In cross-examination, KG was only asked two questions about this evidence as follows:
Isn’t it true that there was no occasion where you and Mr Kelly were alone in the bathroom together? --- Pardon?
I’ll start again. You’ve said that there was an occasion where Mr Kelly made comments to you in the bathroom and felt your breasts and your bottom? --- Yes.
It was not put to KG that Yvette had been in the bathroom with her when the incident occurred with Mr Kelly.
KG also gave evidence that, on the weekend before her first interview with police, she had been at Mr Kelly’s house and, while she was standing in the lounge room, Mr Kelly had a conversation with her. She told the police:
Q240... Now, you said before as well that he said to you, “I want to have sex with you, [KG].” Is that right?
A239 Yeah.
Q241 Tell me everything about that?
A240Okay. So he’ll, um, he’ll be, like – he’ll just, like, talk about – he’ll say – he’ll ask us questions. He’ll be, like, “Oh, do you have a hairy vagina?” He’s like, “I like girls with, um, shaved vaginas.”
Q242Mm Hmm.
A241And then he’ll be, like, “Oh, um, you have a nice tight vagina, [KG].” And I’m, like, “No, I don’t.” And then, um, he’s, like, “Oh, can I have sex with you, [KG]?” And I’m, like, “No”. And then he’s, like, “I want to have sex with you.”
KG said that she did not know if Mr Kelly was joking or being serious and, after he asked her whether he could have sex with her, he laughed.
KG was cross-examined about this incident at some length. She agreed that Mr Kelly had not touched her on this occasion. She was asked why, if this had occurred, she agreed to stay at the household that night and she explained that she had told Yvette that she would, though she agreed that, if she had been upset, she could have gone home.
When put to her that the conversation had not occurred, she disagreed and affirmed that it had. She also said that she had told her friends at school and said that they had exchanged stories as they felt the same way as she did about Mr Kelly.
She said that she “[d]idn’t want it [the discussion of the incident] to, like, get bigger”.
She was also asked about an occasion when she had accessed an internet site which she used to talk to boys in the United States of America and during which she held up a vibrator, which she agreed to having done. She also agreed that she had accessed a photo album belonging to Mr Kelly which showed pornographic photos of Mr Kelly with his former wife.
She had earlier denied showing the vibrator but said that she had forgotten about the incident.
In addition to the specific counts, KG outlined a pattern of behaviour directed towards her by Mr Kelly including him touching her and her friends “all the time”, him saying that she had “a really nice body” and touching her buttocks and breasts as well as using “a lot of sexual words”. She agreed, in cross-examination, that this did not stop her from going to Mr Kelly’s house.
DT
The next complainant to give evidence was DT. Her evidence relating to the fourth count has already been set out above (at [95]-[97]).
She then gave evidence that, on another occasion, she was in Mr Kelly’s bedroom on the computer and his son Jimmy was playing with his Xbox. She and Jimmy ended up “wrestling”; Mr Kelly walked in and asked Jimmy to “pin her down”, which he did. She then said that Mr Kelly held her legs down, then put his head right on her vagina and licked her leggings there. He did it for about a second and then DT got Jimmy off her and just stood up and walked out, half laughing.
When challenged about the incident in cross-examination, she rejected the suggestion that it did not occur. She said, “I would never lie about something like that”.
She was asked, also in cross-examination, about telling Yvette about the incident and explained that she “tried to make it like a joke, so that she [Yvette] wasn’t angry”.
In cross-examination, she agreed that she had described Mr Kelly as funny and nice and that he did anything she wanted him to do, including buying her dinner and buying her makeup at times. She agreed, also in cross-examination, that he had made jokes about CB’s breasts, though DT denied that she had found them funny. She agreed, in cross-examination, that Mr Kelly would “joke to us sexually” and that she would laugh rather than say anything, but denied that she would participate in sexual-type conversations.
She denied that Mr Kelly purchased alcohol or cigarettes for her but said that he would allow her to smoke outside his house.
When asked about whether the relationship between her and Mr Kelly involved joking about sexual matters, she denied that she would “talk sexually to him” but said that, if he made a sexual remark, she would “kind of just laugh about it”.
DT also gave evidence of the incident involving an uncharged act referred to above (at [32]) when Mr Kelly had collected her from her house and was driving to his house. It made her feel awkward. She was not challenged about this incident in cross-examination.
She gave evidence about an occasion when she had received photos from Mr Kelly on her phone. One photo was of a penis, although she did not know whether it was his. She said that he told her to delete the photos straight away so that her parents did not see them.
On another occasion, she said that she was sitting in Belinda’s bedroom and was doing something on her phone, she could not remember what. She received a message and, when she opened it, she saw it was pictures of “penises and stuff – like, just porn and everything” and Mr Kelly, again, shouted out to her, “delete so nobody sees them”. She said that she deleted them and nothing more happened. She knew that the photos came from Mr Kelly because Yvette had used his phone to contact her and DT saved his number to her phone so that it would show the message from “[Yvette’s – dad]”.
DT was not cross-examined about these incidents, although counsel obliquely suggested that she had received similar images from someone other than Mr Kelly. She disagreed with the suggestion. The evidence she gave of her contact with
Mr Kelly disclosed a pattern of behaviour by him that was sexualised and persistent, although it was suggested in cross-examination that the complainants, including herself, were equally explicit in sexualised language and behaviour.
CB
The third complainant was CB. Mr Kelly pleaded guilty to one count which involved him walking into the bedroom where CB and DT were staying. The complainants were being filmed at the time without their knowledge and, at some stage when Mr Kelly walked in, he said to the girls, “Show me your boobs, what about me?” Mr Kelly then asked CB to “stay with him”, but she declined. Mr Kelly said, “I promise I won’t fuck you more than ten times and eat your pussy more than twenty. I promise you will come” and then later, “I’ve got to find someone to fuck”. He then left the bedroom a short time later. The filming of the incident clearly disclosed what had happened.
CB also gave evidence that she was at Mr Kelly’s house when they watched the NRL Grand Final in 2011. She was watching the game with Mr Kelly, Yvette and Mr Day. She did not mention whether Belinda was there.
She said that Mr Kelly told her, “If my team scores then you have to give me gobs. And if my team scores again, then you have to give me, like, something else, like that ... and then if my team wins, then you have to have sex with me or something”. She gave evidence that “gobs” meant “a blow job” or “fellatio”.
She also gave evidence that, whenever Mr Kelly’s team scored a try, he would approach her and move her head towards his groin.
It was not suggested in cross-examination to CB that these events did not occur. She was asked whether Mr Kelly’s brother, Brian Kelly, was there and she denied it, saying that she had never met anyone of his name and did not know that Mr Kelly had a brother.
She was asked whether, on occasions, Mr Kelly would jump up to give people “nookies”, namely “rubbing his knuckle on people’s skulls” and she said she did not recall that. It was not put to her that the event she described did not happen.
CB also gave evidence about the general conduct of Mr Kelly towards herself and the other two complainants. She said that he would say “sexual kind of stuff” to her and would always be touching her; the touching involved her arms, legs and buttocks. She recounted that, when she first met him, he said, “This is the girl with the big big boobs and, like, the nice body”. She said that he would usually make reference to that. Her evidence continued:
A319He used to call me the prick teaser. He said that I’d tease all the boys or something. Like, they like a good body but I wouldn’t go out with them and stuff.
Q320Mm Hmm.
A320And that if he was younger, then he’d have sex with me and stuff.
CB was not cross-examined about these statements.
Sheyenne Howath
Another friend of Yvette, Sheyenne Howath, also gave evidence although she was not a complainant. She described Mr Kelly as saying “lots of stuff that, like, he started getting more sexual – really sexual”. She said that Mr Kelly once touched her on the buttocks but he had suggested that he did not mean to do so.
She gave evidence of a complaint by KG, who told her that Mr Kelly had tried putting his hands down her pants and asked if they could have sex. She said that KG also said that Mr Kelly would always “rub her boobs and he showed her ... a video of his wife or girlfriend having sex and some photos”.
Ms Howath was not challenged in cross-examination about the sexualised behaviour of Mr Kelly but agreed that he may not have meant to touch her buttocks.
She also agreed that the incidents about which she spoke had been discussed between her and her friends.
Emily Rogers
Emily Rogers was a friend of KG and, off and on, with Sheyenne Howath. She was quite close to KG but never stayed over at Mr Kelly’s house. She had, however, been told some things by KG. She spoke of an incident where, in KG’s presence, a mutual girlfriend had told Ms Rogers that, when KG was at Yvette’s house, Mr Kelly had pulled KG into his bedroom alone and showed her homemade pornographic videos. When Ms Rogers was saying this, she said that KG nodded her head and said that it was all true and that she felt awkward at what was happening. Ms Rogers also said that she was told that Mr Kelly had touched KG’s breasts and KG again agreed with her that that had happened.
She said that KG had said that she kept attending Mr Kelly’s house because “it was fun there and she was really good friends with Yvette”.
The only cross-examination of Ms Rogers was to have her agree that she never visited Mr Kelly’s house and had never seen any of the matters that she had described.
Riannon Johnson
Another friend of Yvette, Riannon Johnson, also gave evidence. She did visit the Kelly household and occasionally stayed over at night, about five or six times.
During that time, she recalled that CB and DT had been there and thought that KG might have been there once or twice also.
She said that she saw Mr Kelly from time-to-time and described him as “pretty nice but sometimes the comments that he made [her] a little bit uncomfortable”. She described those as comments that they “could have been taken or referred to as, like, sexually”. She described them as “sexual jokes or inferring that he was going to do sexual things with you but they were just taken as a joke”.
She did say that “the worst thing that happened to me was, like, maybe just a slap on the arse or, yes, the comments”.
She also described an occasion when she was on a computer in the lounge room and, on going through it, she found photos of Mr Kelly’s ex-wife, which were “kind of pornography”. She thought that KG had found the video. She denied that Mr Kelly showed her, or the other girls while she was there, any pornography.
She denied in cross-examination that she was making the story up to help Yvette in some way and confirmed that the pornography was on the computer. She agreed that she always found Mr Kelly “really nice” and she was also asked whether he had done anything that made her feel uncomfortable and had told police that he had not. She said:
At the time I wasn’t really too sure if – like, because when it happened I always kind of thought that it was, like, sarcastic or jokes.
She agreed that she had described the jokes as “what you joke about with your friends and stuff” and stated that that was true.
Braiden Day
Yvette’s then boyfriend, Braiden Day, also gave evidence. Some of his evidence is set out above (at [98]). Some of the complainants had suggested that he was present at the house during some of the incidents.
He described Mr Kelly’s interaction with Yvette’s friends as “kind and friendly” but, when asked about whether there was any sexual talk towards the girls, he said “not as in offence and stuff. There was, like, discussion between everyone”. He was asked about whether Mr Kelly commented on girls’ appearances, for example CB’s appearance and he agreed that it was “as a joke”, but that Mr Kelly would talk about “her body”. Mr Day agreed that, on occasion, there was sexual talk in the house and reference to pornography but, again, asserted that it was “just a joke thing”.
He was asked about the occasion when he was watching football with Mr Kelly and said that Yvette, CB, Logan Rider, Yvette and Mr Kelly were there. He thought there was someone else as well. He said Mr Kelly was sitting on his computer chair and the game concerned a team that Mr Kelly followed. He said that Mr Kelly was really excited on the day of the match. He showed his excitement by “jumping up and down and yelling and screaming and stuff”. He did not recall anything said by Mr Kelly to himself, Yvette, or CB.
The Crown was given leave to question Mr Day as in cross-examination and he then agreed that Yvette had told him what was in the statements that were part of the prosecution brief received by Mr Kelly’s solicitor.
He said that he felt protective of Yvette as a result and protective of her father. As to the sexualised comments that Mr Kelly made towards the girls:
Well, everyone considered them to be funny. Everyone was always laughing. No one took nothing seriously, it was all within a joking conversation.
...
MR HICKEY: Do you remember Mr Kelly saying things about [CB’s] breasts? --- Yes.
Did he say things like she had nice boobs? --- Yes, I said before that it was – he talked about everything and it was her body as well.
He also agreed that “maybe one time” Mr Kelly talked about whether the girls had had sex. He said, however, that he did not see any of the incidents the subject of any of the charges.
In his evidence of watching the NRL Grand Final, he specifically said that he did not remember whether Mr Kelly said any of the things that CB had suggested and he denied that Mr Kelly came up to CB, held her head and motioned the back of her head towards his groin in a simulated sexual action. He did not agree that it could have happened even though he did not remember it.
In cross-examination, he said that he never saw Mr Kelly showing pornography to any of the complainants, but he did see them, or at least one of them, accessing pornography on Mr Kelly’s computer without his involvement. He recalled being present when pornography was being discussed with CB, DT and KG and when Mr Kelly was also present, but said that Mr Kelly did not start the conversation about it.
Although in his evidence-in-chief he said that he recalled that there was another older male present when they were watching the NRL Grand Final, and that it could have been Mr Kelly’s brother, he later said that he did not think Mr Kelly’s brother was there. He did not mention Mr Kelly’s daughter, Belinda, being there.
MG
MG, the mother of KG, gave evidence in relation to the complaint made by KG. She said that KG had told her that, when she went to Mr Kelly’s house, she “was very scared, that she watched – in her words – sexy videos, saw sexy videos”. She said also that KG had told her that Mr Kelly had wanted to have sex with KG, had shown her sexy photos and said to KG, “I know that you’re horny”. She also said that KG had told her that Mr Kelly would touch her breasts and her buttocks.
MG agreed in cross-examination that she was not present when any of the alleged incidents happened.
BT
DT’s mother, BT, gave evidence about the complaint that DT had made to her. Her first knowledge of it was when the police had visited her and advised her of the complaint that DT had made. She said that afterwards she had asked her daughter about the complaint and was told by DT that Mr Kelly had touched her and that she had seen him touch other girls, as well as touching CB’s breasts. She said that DT told her that Mr Kelly would “talk dirty to her a lot” and tried to “get her to talk dirty to him”. DT also told her that Mr Kelly used to watch porn and would show them photos and, she thought, videos of himself having sex with various people.
BT had also had a conversation with CB, who had been at her house when her daughter, DT, had an appointment with a counsellor and CB wanted to come along. Out of the blue, CB said, “I don’t understand why Yvette is so angry with [DT] because Yvette knows it’s true”. BT added that CB had said that Mr Kelly “was always grabbing [her] and asking [her] to give him a hug”, that he would grab her from behind and run his hands all over her and that Mr Kelly had said to her, “We should get you drunk more often, [CB]. I got to have a really good feel of your tits last night, and next time I’m going to fuck you”.
BT said that she had asked CB why she had not told police about that incident and was told that CB did not feel comfortable talking about it and was worried about getting into trouble with her mother for drinking alcohol.
BT said that she tried to dispel CB’s concerns and encouraged her to go and talk to the police.
In cross-examination, BT said that CB had told her she had been “very drunk” on the night; she had drunk a lot of alcohol and that she did not remember anything.
BT said that DT would usually stay at the Kelly household on a Friday night if she was staying over there, and occasionally on a Saturday, but that she did not recall her staying there on a Sunday.
BT agreed in cross examination that DT had relatively recently been to the Kelly household before police spoke to her, and DT had not said anything about not wanting to go back there or about raising any concerns.
BT was asked about whether CB was under pressure to speak to the police and she said that her impression was “that she thought she should probably speak to the police, but that she was scared to”.
Federal Agent Ashleigh Laidler
Federal Agent Laidler was involved in the execution of the search warrant on 25 October 2011. He gave evidence about where items of pornography had been found in Mr Kelly’s bedroom as referred to above (at [57]).
He also produced photographs of the house which were admitted into evidence.
Brian Currie
Digital Forensic Examiner Brian Currie gave evidence that the computers in the house were connected but was unsure whether they were operational, and indicated there was a connection between the computers and Mr Kelly as noted above (at [58]-[59]). He also explained that a user could decide whether to watch an image from a VCR in the room connected to the computer or images from other cameras about the house. He gave evidence about the downloading of the various videos that were shown in the proceedings.
He was not cross-examined.
Detective Senior Constable Kate Bamford
Detective Senior Constable (DSC) Kate Bamford was the informant for the investigation, and gave evidence of the investigation, including a video tape that showed the events which involved a conversation at the Kelly household of which evidence has been given above (at [128]) involving Yvette, KG, DT and CB and some unknown males.
During her evidence, the Crown also played a recording of an interview DSC Bamford conducted with Mr Kelly. She identified twelve images as the photographs of adolescent girls in sexual poses referred to earlier (at [37]).
She had obtained the relevant birth certificates for each of the complainants showing them all to be under the age of 16 years at the time of the alleged offences, and some albums containing photos of Mr Kelly having sex with his wife, which had been seized during the execution of the search warrant.
She also gave evidence of lawfully recorded phone conversations between Mr Kelly and his children while Mr Kelly was at the Alexander Maconochie Centre, being phone conversations on which the Crown relied to suggest that witnesses had been encouraged to give evidence of matters which they otherwise did not recall.
In cross-examination, she stated that she had seized Mr Kelly’s phone and had identified the subscriber of a text message received on that phone as being CB. Another message from a different mobile phone was also investigated and said to be from a boyfriend of CB, although DSC Bamford was not aware of that.
In cross-examination, DSC Bamford agreed that none of the pornography found was in plain view but was “away” in drawers and cupboard. She also said that she saw images of Mr Kelly involved in sexual activities with “more than just his wife”.
Mr Kelly’s interview
Mr Kelly was interviewed on 25 October 2011 by DSC Bamford and Constable Carla Peschel.
The three allegations made by KG and one of the allegations made by DT were put to Mr Kelly. He emphatically denied them. He appeared surprised by the allegations, particularly those by KG who, he pointed out, had been at his house when he had “gone off his head at them”.
He then accused the complainants of taking nude photos of themselves and putting them on the web and distributing them. He also accused them of looking through his belongings and looking at the pornographic photographs already mentioned.
He referred to a comment that DT had put on the internet about him buying her condoms and looking at pornographic websites and being involved in pornographic chat rooms. He denied buying DT any condoms.
He also said the allegations were a result of a falling out that DT and KG had had with Yvette and which resulted in threats from the two girls to “bash up” Yvette. He said that they had had to call the police after he “threatened to break the girls’ necks”. No such messages were produced in evidence at the trial.
He also pointed out that the complainants kept coming back to his place for over twelve months.
He frankly admitted that he had pornographic material relating to sex with his wife and other women and that he loved sex, but denied that he was interested in under-age girls.
In response to the specific allegations about talking to KG about her vagina, Mr Kelly’s response was:
Q360 Have you ever asked [KG] whether she has a hairy vagina?
A360 No, I haven’t.
Q361 Have you ever said to [KG] that you like girls with a shaved vagina?
A361 No, I haven’t.
Q362 Have you ever ---
A362 Yeah, I do like that, but no I haven’t.
Q363 Have you ever said, um, these words to anyone?
A363 Yeah, lots of girls.
Q364 Yep.
A364 But no one under age. (Chuckles)
Q365No one under age – all right. When is the last time you would have said something like that to someone?
A365Probably when I took my wife down to the laser clinic at, ah, Civic and got her lasered vagina
Later he continued:
Q371... So you’ve said that – and again please correct me if I’m wrong - that you would have said words like that, like, asking if she had a hairy vagina and saying that you like a shaved vagina, to your wife” she’s [sic].
A371No, I never said that. But I’m just – you just asked me have I ever said ---
Q372Anything like that ---
A372About a shaved pussy to anyone. And I said I’ve said that to many girls, you know ---
Q373Yeah.
A373But not to them.
Q374Not to underage ...
A374Not to kids that are under twelve years old.
Q375Yeah. Okay. So you, you can’t ever recall having said anything like that to anyone?
A375Oh, I never I don’t know, but yeah I have said – no, I’m confusing you ---
Q376I’m sorry ---
A376I have said it to persons that are over the age.
Q377Yeah.
A377I have not said it to anyone that you’re referring to – [KG] or [DT] or anyone like that. I have not said that to any of them, no.
He denied that he had touched KG’s breasts and denied ever seeing them. He was then asked to described KG’s buttocks and he said “small cute little arse ... she wears the tightest little shorts ... and likes the boys to look at her”. This is consistent with KG’s evidence mentioned above (at [120]). He denied he had any sexual interest.
He then described KG and DT as “the bad ones” and:
A460[DT] is the – how do I put this? [KG] is the sweet little innocent one that if you see her, is a sweet and innocent little girl.
Q461 Mm.
A461 Right? You’ve met her haven’t you?
Q462 Yep.
A462Sweet innocent. She’s not sweet and innocent. She’s the – likes the pornography on the internet and all the rest of it. [DT] is completely the opposite. [DT] chases boys seven days a week. She’s – they’re always on the phone ringing and texting different boys, ah, smoking marijuana.
He later said:
... just the questions you ask me, I get – I think that you’re trying to say that I’m a paedophile. If I was like that, I would touch my kids. I don’t touch my kids. I’m like any normal – hopefully normal man. I love sex, right. I’m getting older and it’s not working as good as it used to. But I’m not interested in kids under-age. Yeah, they all – you see them wandering around the Hyperdome and all that in their little shorts and tits hanging out and all the rest. And I’m not going to deny to you, any normal guy would probably say, “Yeah, she’s a hot little bitch but she’s a little slut. Doesn’t she know what she’s going to get herself into?” And that’s what I’ve told my kids – Yvette, by wearing these shorts and she ... (indistinct) ... “Yvette, you’ve got no idea.” But that’s what I’m saying, I just don’t want you to think that I’m a – a paedophile or anything like that, because I’ve got nothing to do with that shit. If I was, I’d touch my kids, you know. And I haven’t touched any of my kids or done anything like that to any kid at all.
He gave further descriptions of DT and KG, their behaviour and their looks. He also denied giving the girls any tablets. He said of DT “you need two hands to smack her arse. (Laughs)” and that KG “is the cute little one”.
Despite his assertions in the interview that he had confronted KG and DT, no evidence was given of this at the trial. The claim that there had been an argument between Yvette on the one hand, and KG and DT on the other hand, the week before his interview was also not raised in evidence by anyone else, including Yvette, who was called to give evidence in the defence case.
Summary of evidence – defence case
The accused
Mr Kelly did not give oral evidence. Of course, he was not obliged to do so and his silence was not evidence against him, did not constitute an admission by him and should not be used to fill gaps in the evidence or as a “make-weight” in assessing whether the Crown had proved its case beyond reasonable doubt: Azzopardi v The Queen [2001] HCA 25; 205 CLR 50 at [51].
Insofar as the jury heard from him, it was in the interview with police, a recording of which was played to the jury and which has been described above (at [194]-[205]).
Brian Kelly
Brian Kelly was Mr Kelly’s brother. He gave evidence that he was present on the evening of the NRL Grand Final. He said that Mr Kelly’s “daughters and a couple of other fellas and a couple of other girls” were also present, though he did not know who they were. He thought that Belinda, Yvette and Mr Kelly’s other daughter, Kimberley, were there. He said that he was able to see the interactions between Mr Kelly and CB.
He said that he did not hear Mr Kelly say to anyone, “If my team scores, you have to give me gobs”. He said that Mr Kelly remained seated throughout the game except when his team finally won and he stood up and gave Brian Kelly a rub on the head with his knuckles.
Julie Kelly
Mr Kelly’s former wife, Julie Kelly, gave evidence. They had commenced a relationship in 1999 and married in 2001. They separated “a few years” before she gave evidence in 2014.
She said that she had visited the former matrimonial home “a few times” because her daughter, Belinda, suffered from epileptic fits and she would return to see her, sometimes in hospital.
She said that from time to time when in Canberra, she would pick up DT who was coming over to visit Yvette. They would then go to the Tuggeranong Hyperdome with the other members of the family for dinner.
Mrs Kelly said that she did not see Mr Kelly behave in an inappropriate way towards DT nor say anything to her that she regarded as inappropriate. She said, however, that she was not in a position to observe any interaction between them and say whether it was hostile or unfriendly.
She had visited a few times in 2011 and, in particular, in September. When Belinda had had an epileptic fit and was hospitalised, she stayed for a week.
She said that she also stayed at Mr Kelly’s house on one occasion when another of Yvette’s friends came over and took her to netball.
A photograph of her son Jimmy was tendered through her so that the jury were in a position to see what he looked like at the relevant time, suggesting that he would not have been able to hold DT down as alleged in the fifth count. The photograph was not produced on appeal. She also gave evidence that he played soccer in 2011.
She was not cross-examined.
Belinda Kelly
Belinda Kelly was Mr Kelly’s second daughter; in 2011 she was approximately 14 years old.
She said that she lived with her father in Canberra along with her brother Jimmy and her sister Yvette. She said that her mother “was there most of the time”, which was different from her mother’s evidence.
She knew Yvette’s friends, including CB, DT, KG and some others.
She was asked about the incident which was alleged to comprise the seventh count. She said that she saw Mr Kelly pick up CB and carry her like a baby, but that he did not touch her breasts. She did not tell this to the police.
She was also asked about the incident which was alleged in the third count. She did not recall the incident, suggesting that it did not happen. She said she would not have forgotten it. She said that Yvette was always with her friends and that they “were never in dad’s room unless they were on the computer which was rarely”.
She was asked about watching the football match, being the incident alleged in the eighth count. She said that she was there as well as her boyfriend, Mr Rider, her uncle, Brian Kelly, CB, Mr Day and “members of [her] immediately family”. Curiously, no-one else other than Brian Kelly had mentioned that she was there, and Brian Kelly also suggested that Kimberley was there, which Yvette also, but no-one else, mentioned.
She gave evidence that she had been present during the televised broadcast but that she did not see Mr Kelly touch CB and that she did not hear him make any comments towards her in relation to sex.
She was asked about a telephone conversation she had had with Mr Kelly while he was on remand and she admitted that he said to her:
You know, I’ve got to see Uncle Brian or talk to Uncle Brian and turn around [sic] and – have you told Braiden and Logan about what they said about me when the grand final and that was on.
Well did you tell him that I need him to turn around - this is Braiden and say that he was there in the lounge room and we were just walking [sic] the football game and all the rest of it?
Her evidence continued:
He was encouraging you to talk to Braiden to get the story straight, wasn’t he? --- No, he was making sure that Braiden told him because youse kept going off at Braiden.
Do you remember saying this to him in response to that, “Yes, and then Braiden [sic] was like, ‘But youse weren’t there,’ and I was like, ‘We were’”? --- Because there was the AFL. The AFL was the day before it.
Just let me finish my question, ma’am. After he said that about Braiden you said this, “Yes, and then Braiden was like, ‘But youse weren’t there,’ and I was like, ‘We were, for like five minutes,’ and Braiden was like, ‘Yeah, well, I don’t know. I’m just going to say that it was me, Yvette and [CB],’ and I was like”. Do you remember saying that to your dad? --- Yes, and like I just said, Braiden thought we were talking about the AFL. The AFL was the day before the NRL.
Belinda said that Brian Kelly had spoken to her, as he left the court room, about the evidence he had given, in particular mentioning that Mr Kelly’s eldest daughter Kimberley was also watching the match, which Belinda told him was wrong. She tried to explain it by suggesting that Brian did not even know Kimberley’s name, though he had used it in his evidence. It was suggested to her that this conversation occurred because they had wanted to make sure they got their stories right, a suggestion she denied.
While denying that Mr Kelly regularly talked about the bodies of Yvette’s friends, Belinda did say that he might have commented upon their breasts or buttocks “once or twice”.
She denied that she had heard him say any of the more sexualised comments about which evidence had been given.
Yvette Kelly
The next witness was Yvette Kelly, the youngest daughter of Mr Kelly and the friend of KG, DT and CB.
She confirmed the names of her various friends who had given evidence and that they would stay over at her home regularly. She was asked about a number of the incidents and denied that they had happened. She did say that, when Mr Kelly was away and she was looking for money in his bedroom, she discovered the pornographic photos and videos. She also said that KG would visit pornographic websites on her computer.
She was asked about the NRL Grand Final in 2011 and gave a slightly different list of attendees, mentioning herself, Belinda, Mr Rider, Brian Kelly, CB, Mr Day and Jimmy as well as her father.
She identified photographs, taken of her, CB and Mr Day, which she said were taken on that occasion.
She also gave evidence that her friends called her father “Dad”, because they looked on him as a father.
It was put to her in cross-examination that she was trying to assist her father. It was put to her that, in a telephone conversation with her father while he was at the Alexander Maconochie Centre, she had said, “Braiden’s like ‘I’m just going to say the things that you told me’” and she agreed, but she indicated that this was because he was confusing the AFL Grand Final on the day before with the NRL Grand Final on the day of the alleged offence, and that she had explained this to him.
She also mentioned that, on the occasion when a number of them watched the NRL Grand Final, Kimberly was there. When it was put to her that she had not mentioned that before she said, “I didn’t figure it was important. She wasn’t there for long”.
It was also pointed out to her that, while she had taken photographs of three of the people watching the match, she had not taken any photographs of the others. It was put to her further that Belinda and Mr Rider were there for only about five minutes and she said, “They stayed there for a bit. I’m not sure how long they were there”. She did not acknowledge that they were there for the whole game but she was sure that Brian Kelly was there.
Yvette agreed that Mr Kelly had talked sexually in front of the complainants, but limited it to on “one occasion” when, she said, he had made “rude comments” to CB. She said that this occasion, which constituted count 6 on the indictment, was a “one off”.
Logan Rider
The final witness for the defence was Logan Rider who was, in 2011, Belinda’s boyfriend. His attention was drawn to the televised broadcast of the NRL Grand Final and he agreed that he had attended the house on that occasion. He recalled that, as well as himself, Belinda, Yvette, DT, CB, Mr Day and Brian Kelly were present. Again, this is a slightly different list from that given by the other witnesses.
He said that he watched the whole game except for some toilet breaks and he denied hearing Mr Kelly say, “If my team scores you have to give me gobs” and, “If my team wins you have to have sex with me”.
Although he was fairly certain about the people he had mentioned being present, he was uncertain about whether KG was there, and he thought that Kimberly was there but he could not tell whether her boyfriend was also there.
Consideration – unsafe and unsatisfactory
While it is appropriate to deal with each count separately, it is important first to make some general remarks.
The evidence of the complainants was subject to cross-examination but not seriously undermined to any extent.
The defence case was reasonably consistent, but marred by admitted discussions between the witnesses, including some admitted discussion which would have entitled the jury to accept that there had been a degree of concoction or, at the very least, that defence witnesses had been encouraged to make references to facts which those particular defence witnesses did not independently recall.
In his interview with police, Mr Kelly conceded that he regularly engaged in the specific kind of offensive behaviour alleged by the complainants, though he did stress that he would not have involved under-age girls in that behaviour. Some of this was corroborated by some of the witnesses called by the defence, although apparently grudgingly. The jury would have had the particular advantage of being able to assess the manner in which that evidence was given.
Further, Mr Kelly, on several occasions made what can only be interpreted as sexually charged statements to the two female police officers who were interviewing him.
Of course, Mr Kelly cannot be convicted because of his offensive language and behaviour; he can only be convicted of the offences as charged, but the attitude he expressed and the behaviour which he and other defence witnesses admitted had happened was relevant to the assessment of the credibility of the complainants and of the Crown case.
Indeed, Mr Kelly’s statements and behaviour in the interview he gave to police would justify the jury in inferring that he was a man:
(a)who did not recognise the gravity of the offences he was alleged to have committed;
(b)who did not, except in a very superficial and self-interested way, recognise the proper limits within which an adult male must confine himself when dealing with young girls, or, indeed, with women more generally;
(c)who did not even realise the need to restrain his use of sexual innuendo when dealing with female police officers investigating complaints of sexual misconduct against him; or
(d)who could, therefore, easily have behaved as alleged by the complainants without recognising the significance of his behaviour and, in particular, without believing that it had crossed the line into criminality.
The jury also had before it a good deal of evidence, including Mr Kelly’s own police interview, from which it could properly conclude that Mr Kelly had created a sexualised environment of the kind described by the complainants and that he held attitudes which, in that environment, might reasonably have made the complaints seem entirely plausible.
While this is not tendency evidence and could not be used directly to prove the commission of the offences, it could properly have been used by the jury in the performance of its task of assessing the credibility and reliability of the witnesses, and in determining what evidence to accept and what to reject as part of the process of determining whether it was satisfied beyond reasonable doubt by the evidence adducted by the Crown of the commission of the offences.
In addition, and significantly, Mr Kelly pleaded guilty to the sixth count on the indictment, presumably in large part because the incident was recorded on film. This incident, which was inconsistent with Mr Kelly’s denials of a sexual interest in young girls, is powerful evidence of such an interest.
In particular, he is shown asking DT to show him her breasts, evincing a tendency to have a sexual interest in her. He then asks CB to stay with him while saying, “I won’t fuck you more than ten times and eat your pussy more than twenty”.
This does not relieve the Crown of proving each of the counts to which Mr Kelly pleaded not guilty. His guilt of this count does not relieve the Crown of its obligation in relation to each other specific count.
The plea of guilty to this count was, however, both:
(a)powerful tendency evidence in the light of Mr Kelly’s general denials and those of his daughters about his general behaviour; and
(b)of assistance to the jury in assessing the credibility and reliability of CB and DT.
Count 1
The first count involved KG going into the bathroom alone to do her hair before she and Yvette went to the Tuggeranong Hyperdome when Mr Kelly walked into the bathroom and said “you’re so hot” and touched her breasts and buttocks, saying “you have nice boobs ... you have a nice arse”.
The evidence principally came from KG. Mr Kelly’s description of KG’s buttocks in the police interview supports KG’s evidence of his interest in her buttocks.
Yvette gave evidence that she was present in the bathroom with KG, but it was not clear how she could identify that occasion with the occasion of which KG was giving evidence.
In addition, the jury had before it the tendency evidence, as well as the contextual evidence of what even the defence witnesses agreed (albeit grudgingly) was a somewhat sexualised atmosphere in the household.
The jury was in a position to assess the credibility of KG, Mr Kelly and Yvette. There was no significant discrepancy in the evidence given by KG.
The verdict was open to the jury on the evidence and was not unsafe or unsatisfactory.
Count 2
The substance of this count was that KG was in the lounge room with Mr Kelly, waiting for Yvette to get ready to go motorbike riding, when he said to her “you have a nice tight vagina [KG] ... Can I have sex with you, [KG]. I wanna have sex with you”.
KG was not cross-examined in any significant way in relation to this allegation and it was not put to her that she was lying. The only other evidence was that of Mr Kelly who, in his interview with police, denied that he had said anything to KG about her vagina. His statements to police showed, however, that he had a particular interest in women’s shaved genitalia. The other relevant evidence was the tendency evidence and the general contextual evidence of the sexualised nature of the household.
There was no particular discrepancy, taint or lack of credibility in the evidence given in support of this count.
The verdict on this count was open to the jury on the evidence and is not unsafe or unsatisfactory.
Count 4
Count 4 is the incident in the kitchen with DT. The evidence about that has been described in some detail above at [95]-[104].
Mr Kelly’s comment to DT is similar to comments made in his statement to police. The main challenge to the evidence on this count was to suggest that it could not have happened because Mr Kelly did not cook on Saturdays. Again, that has been dealt with above at [99]-[105].
Otherwise the evidence came primarily from DT and was denied by Mr Kelly. DT’s evidence was capable of establishing all the elements of the offence.
The jury was able to assess DT’s evidence and the way she gave that evidence. They also had the tendency evidence available to them, and the inadequacy of Mr Kelly’s denial about the circumstances of the incident.
There was nothing unsafe or unsatisfactory about the verdict reached by the jury on this count, which was open to it on the evidence.
Count 5
This allegation is that, while held down by his son Jimmy, Mr Kelly licked DT’s leggings in her groin area.
The description by DT was capable of establishing all the elements of the offence.
In addition, the jury had before it the tendency evidence and the evidence of the sexualised atmosphere of the Kelly home, as well as Mr Kelly’s recorded interview with police from which to assess his credibility.
Mr Kelly denied the accusation. It was open to the jury to reject Mr Kelly’s denial.
There were no discrepancies or inadequacies in DT’s evidence such as to raise a doubt. There was nothing unsafe or unsatisfactory about the verdict reached by the jury on this count, which verdict was open to it on the evidence.
Count 8
This allegation related to the asserted activities during the televised broadcast of the NRL Grand Final in 2011. Mr Kelly is said to have told CB, “If my team wins you have to have sex with me ... and if my team scores you have to give me gobs [fellatio]” and that on each occasion when Mr Kelly’s team scored, he went to CB, grabbed her head and pulled it towards his genital area.
CB gave evidence of the event and said that the only people watching the game, apart from Mr Kelly and herself, were Yvette and Mr Day. Her evidence was capable of establishing the Crown case. A number of other witnesses gave evidence about this event, denying that they had heard any of what CB said Mr Kelly had said or had seen any of what she said he had done. There was a deal of confusion about who was present, and a real question about the credibility of some of the evidence, having regard to the telephone conversations between Mr Kelly and his daughters while he was in custody.
The Crown submitted to the jury that the witnesses were not witnesses of truth, and that they were attempting to give evidence in a way that would provide most assistance to Mr Kelly’s case.
The jury was in a position to assess the credibility of CB and the other witnesses. There was no particular discrepancy in her evidence and no obvious lack of credibility.
There was, in the discrepancies between the defence witnesses and the interaction between them following the telephone conversations, a rational basis for the jury rejecting their evidence, in addition to what they saw and heard when they gave evidence.
Further, the tendency evidence, particularly the admitted behaviour constituted by the sixth count, was available to the jury to strengthen the credibility and reliability of CB’s evidence.
The verdict reached by the jury, on this count, was open to it on the evidence and was not unsafe and unsatisfactory.
Conclusion
Accordingly, the “unsafe and unsatisfactory” appeal ground is not made out.
Disposition
None of the grounds relied on or arguments put by Mr Kelly have been sustained. Accordingly, the appeal must be dismissed.
| I certify that the preceding two hundred and eighty-four [284] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 22 September 2017 |
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