1. An indictment filed in the County Court charges 'MK' and 'TRF' with rape[1] (four charges - charges 1 to 4), and TRF with sexual assault[2] (one charge - charge 5), of 'LD', at a house in a Gippsland town on 4 January 2021. MK was then aged 31 years; TRF was 23; and LD was 26.
2. MK and TRF both made application to the trial judge for a permanent stay of the charges. They submitted: first, the charges are foredoomed to fail; secondly, the playing of certain video footage necessary to support the defence cases will be unfairly prejudicial to them, so that to continue with the trial will be an abuse of process; and, thirdly, in circumstances where there is a risk that the jury will be harmed by watching the footage, public policy militates against the continuation of the trial.
3. On 17 February 2023, the judge granted the application and ordered a permanent stay of the indictment ('the ruling' or 'the interlocutory decision').
4. Pursuant to certification of the judge under s 295(3)(b) of the Criminal Procedure Act 2009 ('CPA'), granted on 20 February 2023, the Director of Public Prosecutions ('DPP') seeks leave to appeal against the interlocutory decision on the following ground:

The learned trial judge erred in his decision to permanently stay the trial.

Particulars:

The learned trial judge erred in finding that:

(a) The evidence would invoke real prejudice against the accused;

(b) The proceeding was foredoomed to fail; and

(c) The jury system would be brought into disrepute if the case proceeded;

and that on these grounds the trial should be permanently stayed.

1. In our view, the judge's ruling is attended by error and cannot be permitted to stand. Leave to appeal must be granted; the appeal allowed; and the order granting a permanent stay set aside. Our reasons follow.

1. The factual background to the charges was summarised by the judge in the ruling as follows:

[3] The alleged victim was a 26-year-old woman at the time. She had previously met [TRF] but not [MK]. On the evening of 3 January 2021, she contacted [TRF], seeking to obtain the drug GHB - gamma hydroxybutyrate. She drove to his place in [the Gippsland town] to obtain that drug. She and [TRF] consumed GHB before driving to [another town] and then back to [the Gippsland town]. They engaged in sexual contact in the car, and they had consensual sexual intercourse on the bonnet of the car.

[4] They then drove to [another town] and picked up [MK] and returned to [TRF's] house. The complainant went to [TRF's] bedroom and got into bed. After a short time, the accused men entered the room, and [TRF] began touching the complainant in a sexual way. More GHB was consumed. The complainant says that she was happy to have sex with [TRF] but not with [MK] in a threesome.

[5] She says in her police statement that she recalls holding and sucking [MK's] penis whilst [TRF] was having sex with her. She then claims to remember nothing until waking in that bedroom at about midday on 4 January. At some stage later that day, she scrolled through her phone and located a video of someone having sex with her in the bed. She states that she had no memory of having done so.

[6] In the mid-afternoon, she states that she asked [TRF] why he had sex with her while she was unconscious. [TRF] looked at the video and said it was not him, it was [MK], and he told her that she was 'going off more than, when you were with me'.

1. The five charges on the indictment are based on what can be seen and heard on two minutes and 45 seconds of video and audio footage recorded on LD's telephone ('the LD video' or 'Exhibit C').
2. Significantly, after TRF was arrested, an examination of his telephone revealed a number of other pieces of video that had been recorded in his bedroom prior to the footage captured on LD's phone ('the TRF videos' or 'Exhibit D'). The TRF videos, about 45 minutes' duration, record sexual activity between the two men and LD leading up to the point when the two minutes and 45 seconds of video and audio footage on her phone was made.

1. The prosecution case is that the activity founding the charges is all depicted in the video (and audio) footage on LD's phone, the charges in the indictment being particularised as being at various times from the start 'of the video titled IMG_0680'. On the prosecution case, the LD video - which was apparently recorded by TRF - shows LD to be unconscious, unresponsive, and incapable of consenting to the sexual acts of the respondents. The prosecution asserts that the conduct founding charge 1, penile-vaginal rape (MK penetrating LD with his penis), is depicted at a point 27 seconds from the start of the video; charge 2, digital-vaginal rape (MK penetrating LD with his fingers), at 47 seconds; charge 5, sexual assault (TRF hitting LD in the face with his penis), also at 47 seconds; charge 3, digital-vaginal rape (MK penetrating LD with his fingers), at one minute and 37 seconds; and charge 4, penile-anal rape (TRF penetrating LD with his penis), at one minute and 47 seconds.
2. MK's and TRF's 'defence' is that LD consented to all of the relevant sexual acts in TRF's bedroom - she was capable of doing so - and they reasonably believed that she was consenting to those acts. They rely in their defence on the footage in Exhibit D.
3. According to the Summary of Prosecution Opening, TRF recorded the video footage, Exhibit D, in the following circumstances:

When they arrived back [at TRF's] bedroom the complainant got into bed. The Accused men left the bedroom or house for some time before returning looking 'all over the place'. [TRF] began to touch the complainant on her breasts with his lips and hands. He touched her vagina. The complainant then asked for some more GHB in an attempt to becoming [sic] more alert. She asked [TRF] to make up 2ml in a plunger. [TRF] squirted it into her mouth. [TRF] then set his phone up on the chest of drawers balancing it so it could record the mattress on the floor. [MK] remained in the room.

1. The prosecution having indicated that it sought to rely only on the LD video in proof of the charges, MK and TRF made application under s 342 of the CPA for the TRF videos - recorded prior to the LD video - to be admitted into evidence. On 2 February 2023, the judge acceded. He ruled that, since the jury 'could use the earlier footage to assist them to determine whether the prosecution case established that the complainant was not consenting and whether the prosecution can establish that either or both accused knew she was not consenting and might not be consenting', he would permit the introduction of the TRF videos into evidence ('the s 342 ruling'). There has been no challenge to the s 342 ruling, which plainly was correct.
2. We pause to note that, following the s 342 ruling, the DPP made application - based at least partly on observations that the judge had made about the 'grim' prospects of the prosecution case - that the trial judge disqualify himself for ostensible bias. The judge refused that application on 16 February 2023.
3. On 17 February 2023, MK and TRF made application for a permanent stay. Broadly, their counsel submitted that: the charges on the indictment are foredoomed to fail; the playing of the video footage to the jury - necessary to support the respondents' defences - will have a prejudicial effect on the jury, whose passions will be excited in a manner adverse to both men; and the playing of the footage will cause harm to the jury.
4. Resisting a permanent stay, the prosecutor rejected the proposition that the prosecution case was foredoomed to fail. He submitted that a properly instructed jury could convict on the basis of the LD video alone.
5. As we have said, the judge granted a permanent stay. In the course of his ruling, the judge aptly described the footage in the following terms:

[9] The video footage taken before the two minutes and 45 second video relied on by the prosecution defies description. It is gross, gritty, obscene, and extremely pornographic. The footage's accompanying sound is also extremely explicit and pornographic. In my view, the lead up footage demonstrates that the complainant and both the accused men took part in a prolonged and drug-fuelled orgy. The accused men and the complainant regularly used drugs; smoking ice and squirting GHB.

[10] The complainant appears to vocally and enthusiastically engage in anal sex despite her statement that she told the accused men that she does not like it. She regularly makes noises of a sexual nature. She says at times 'oh yeah, fuck me'. She talks about having a threesome. She has consensual sex with both men. When at the end of the activity, she appears to pass out, the accused ask her repeatedly, 'are you all right?', and ask, 'Do you want us to stop?' They then cease any sexual activity. There's no evidence of what happens after that point. The filming ceases.

1. Having cited Walton[3] and Hermanus,[4] the judge then said that he had concluded that 'it would be an abuse of process to allow this trial to continue'. He said:

[22] I have considered three factors.

[23] Firstly, there is a real probability that the playing of this material to a jury would invoke real prejudice against the accused men; as submitted by [counsel for the respondents]. The subject matter of the [LD video and TRF videos] is so base, immoral, and perverted, that despite any warnings that a court may give the jury, a jury would conclude that the accused men are drug-using perverts who deserve punishment.

[24] I would not, however, stay the trial on this basis alone. Indeed, because I have concluded that the trial is foredoomed to failure, that issue of prejudice falls away.

[25] Secondly, I am firmly of the view, that the prosecution case is foredoomed to fail. Having viewed the footage, all of it, on a number of occasions, I am of the view that a jury properly instructed could not convict the accused men.

[26] The law in relation to a trial judges' power and obligations in relation to no case submissions is clear. The High Court in Doney[5] set out the relevant principles. It is the application of those principles that can be difficult. A trial judge must make an assessment of the evidence and determine whether it is open for a jury to convict the accused.[6]

[27] [The prosecutor's] proposition that the jury could focus only on the last few minutes of the videos and ignore the lead up evidence is, in my view, incorrect at law. The jury would be instructed to look at all the evidence and determine whether the prosecution can prove beyond reasonable doubt (1), that the complainant was not consenting and (2), that the accused men knew or reasonably ought to have known that she was not consenting. The video evidence demonstrates that it is simply not open for a jury to come to either of these conclusions.

[28] This is an unusual case. The only evidence that can be relied upon by the prosecution is the two minutes and 45 second section of the film, [the LD video]. The complainant gives no evidence about the alleged offences. Again, in my view, even on [the LD video] alone, a jury could not convict the accused. The accused asked the complainant if she is okay and if she wants them to stop. And then they do stop. When the additional film of earlier activity is viewed, however, it becomes clear that the complainant was consenting, and both accused reasonably believed her to be so, consenting throughout the sexual escapade.

[29] The Crown case is set in stone, it cannot be changed. It is on the video. The complainant gives no evidence in relation to the alleged offences. The evidence is now known and certain. There is no risk that the prosecution case can improve in any way, insofar as these charges are concerned.

[30] Thirdly, there is, in my view, a strong public policy to maintain public confidence in the jury system and to prevent the jury system being brought into disrepute unnecessarily. Clearly, juries are required to view unsavoury, distressing, and challenging evidence on a daily basis. But when it is clear, as it is here, that the case is foredoomed to fail, the jury would be entitled to ask, 'why were we made to sit through that highly disturbing material when clearly, the accused cannot be convicted?'.

[31] The categories of abuse of process are not closed. Were it not for the foreseeable trauma that a jury would suffer from being exposed to this pornography, a trial judge could possibly allow the case to run to the conclusion of the Crown case and then direct a verdict of not guilty on these charges. This significant jury trauma dictates that the inevitable acquittal should be recognised now, and not later. Continuation of this trial would bring the administration of justice into disrepute.

[32] The combination of these factors leads me to the inevitable conclusion that this is one of the rare and exceptional cases where a permanent stay should be ordered, and I do so order that this indictment be permanently stayed.

1. The power to order a stay is discretionary. Hence, this Court's intervention will be warranted only if the applicant demonstrates that the judge's grant of a permanent stay in this case was not reasonably open to the judge in the sound exercise of that discretion. Leave to appeal could only be granted, therefore, if the judge acted upon a wrong principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or if his decision is unreasonable or plainly unjust.[7]
2. Walton is one of a number of cases in which the High Court has considered the basis on which a stay of proceedings for abuse of process might be granted. Mason CJ, Deane and Dawson JJ observed:[8]

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.[9]

1. In the wake of Walton, the Full Court in Smith[10] laid down the principles that are applicable in cases such as the present. Those principles are not in doubt. [11] They have been applied in a number of cases across several jurisdictions.[12] A permanent stay of a charge on an indictment may only be granted if the charge is foredoomed to fail. Brooking J described the appropriate test as follows:[13]

The decision of the High Court in Walton v Gardiner (1993) 177 CLR 378 shows that whether the proceedings are civil or criminal the test is the same when one is considering whether the proceedings are an abuse of process by reason of the fact that they cannot succeed. Civil or criminal proceedings are an abuse of process, not if it can be said of them only that they will very likely fail, but if it can be said of them that it is quite clear that they must inevitably fail. So it was laid down in Walton v Gardiner by Mason CJ, Deane and Dawson JJ at 393 that proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. This formulation does not differ in substance from that of Brennan J at 411 ('proceedings which will inevitably and manifestly fail').

With regard to civil proceedings, there has been some difference of approach on the sense in which a point must be unarguable so as to enable the view to be reached that the proceeding is doomed to failure_. I entertain no doubt, however, that, putting the matter at its lowest from the point of view of the prosecution, criminal proceedings are not shown to be an abuse of process as brought without reasonable grounds merely because a judge concludes that the better view is that a case to answer has not been, or will not be, made out._ At the very least it would have to be laid down, in favour of the prosecution, that if it was fairly arguable that a case to answer had been, or would be, made out, the criminal proceedings were not 'manifestly groundless' or 'brought without reasonable cause' or 'clearly foredoomed to fail'.

It is one thing to suggest that criminal proceedings are clearly doomed to failure because on the undisputed facts it is plain that some affirmative defence exists or even because it is plain that the Crown has no evidence whatever which might be said to go towards proving some essential element of the offence. It is another thing where the contention is only that the Crown will probably fail on the facts because the foundation of its case on the facts is 'slender' ...

To my mind, however, the no case test simpliciter is not the appropriate one for a case such as the present. It is evident from the expressions used in the passages quoted above from Walton v Gardiner that, for a successful stay application of the kind before us, the case must be not merely incapable of success but 'clearly foredoomed to fail'; or in the words of Brennan J the vice is the institution of proceedings 'which will inevitably and manifestly fail'.

In my view, in a case such as the present, the power to order a permanent stay of a criminal proceeding before the court should be limited to the case where it is plain beyond argument that the prosecution case suffers from some incurable vice. Such a vice must be readily apparent and clearly fatal to the prospect of success of the prosecution. I cannot readily imagine that such a vice could arise out of some insufficiency of evidence relied on by the Crown unless a matter such as an incurable absence of admissible evidence on some essential element. ... In a case such as the present, where the prosecution depends upon inferences which the jury will be asked to draw from constituent facts, the test which I posit would, as a minimum, prevent the judge from ordering a stay on the ground that the given inference was not open so long as there was evidence which has been treated as admitted as tending to support that inference.

1. The cases make plain that the test for a stay of proceedings is a stringent one. Thus, Doyle CJ observed in McGee:[16]

The reason why the test for a stay of proceedings on this basis must be a stringent one is apparent. If it were not, the Court would be interfering with the decision of the DPP to institute proceedings, and would begin to assume the role of a supervisory authority in relation to those decisions. It is for the DPP to decide whether a charge should be laid, and what charge should be laid. It is the function of the trial judge to preside over that trial, the jury returning its verdict on the charges (unless it is a trial by judge alone). The trial of a charge is not to be precluded because, in the opinion of the presiding judge, the case is a weak one, or even because in the opinion of the trial judge the case is likely to fail. As I said, the function of the Court is to hear the charge, unless there are truly exceptional circumstances that warrant the Court staying the proceedings at the outset.

1. And in Little, the majority observed:[17]

In a case where the basis for the application is that the prosecution is foredoomed to fail, the test is more onerous than would apply on the resolution of a submission of no case to answer at the conclusion of a prosecution case at trial. The failure of some essential aspect of the case must be inevitable. A stay application on the basis that the prosecution is 'foredoomed to failure' is not an anticipatory no-case submission. It is much more than that - to be successful the applicant must demonstrate positively that the prosecution case is hopeless, plainly so and condemned to remain that way. We consider that it involves much more than establishing a good arguable no-case submission.

1. Moreover, insofar as the judge considered that the playing of the LD video and TRF videos to the jury would create such prejudice to the respondents that the jury might convict 'despite any warnings' (so that, in effect, an unfair trial would result), this Court recently made the following observations in Hines:[18]

Although the courts exercise no control over the decision to commence criminal proceedings,[19] superior courts retain control over such proceedings so as to ensure that the accused receives a fair trial.[20] Hence, superior courts have inherent jurisdiction to stay criminal proceedings which are an abuse of process, the jurisdiction to grant a stay having the dual purpose of preventing an abuse of process, or the prosecution of a criminal proceeding which will result in an unfair trial.[21] As was observed in Williams:[22]

If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.[23]

If, however, a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped. There are some policy considerations which support the view that the court should so satisfy itself. It is of fundamental importance that, unless the interests of justice demand it, courts should exercise, rather than refrain from exercising, their jurisdiction, especially their jurisdiction to try persons charged with criminal offences, and that persons charged with such offences should not obtain an immunity from prosecution. It is equally important that freedom of access to the courts should be preserved and that litigation of the principal proceeding, whether it be criminal or civil, should not become a vehicle for abuse of process issues on an application for a stay, unless once again the interests of justice demand it. ...

1. The grant of a permanent stay is an extreme remedy. It would only be in the very rare case - in our view, the present is not such a case - that a stay would be granted upon the basis that the evidence proposed to be led by the prosecution leads to the conclusion that the prosecution case must inevitably fail. The Court must take the prosecution case at its highest. To adapt the language of the High Court uttered in a different context, if there is evidence - 'even if tenuous or inherently weak or vague' - capable of supporting inferences that at the relevant time LD was not consenting to the applicable sexual acts,[24] and that MK and TRF did not reasonably believe that LD consented, the charges would not be foredoomed to fail.
2. With respect to the other matters adverted to in the judge's ruling - the prejudice to the respondents and risk of harm to jurors - the authorities establish that a court should stay an indictment if, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[25] A permanent stay will only be granted in circumstances which are rare or exceptional.[26] The exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction, in circumstances where the primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the court.[27]

1. Counsel for the applicant submitted in writing that where there is evidence capable of supporting a guilty verdict, even if the evidence is tenuous or inherently weak or vague, the matter must be left to the jury. It is not part of the court's function to determine whether a prosecution is appropriate. That decision rests with the Executive. Counsel submitted that the judge's conclusion that the charges were foredoomed to fail 'rested on a factually inaccurate characterisation of what the alleged rape footage [Exhibit C] depicts'. Correctly assessed, it remains reasonably open to a jury to be satisfied beyond reasonable doubt of both elements of lack of consent and the absence of a reasonable belief in consent. The judge was wrong, counsel submitted, when he said that the footage shows the respondents ask the complainant if she was 'okay' after she appears to pass out, at which point they 'stopped all sexual activity'. LD was clearly in a severely impaired state of consciousness, and despite the respondents asking whether LD wanted them to stop, sexual activity continued. Based on all the footage, counsel submitted, a jury could rationally conclude that, from the time the footage in Exhibit C commences, LD was not consenting to sexual acts, and was incapable of consenting or withdrawing consent, due to her drug impaired state.
2. Counsel for the applicant also submitted in writing that the footage on the TRF videos is not of such a nature that it would incurably overwhelm a jury by reason of any emotional reaction it might provoke. Further, any prejudice caused by an emotional reaction to the evidence is capable of remediation by other means. The trial judge was also wrong to conclude that the 'jury system' would be brought into disrepute if the earlier footage was played.
3. Senior counsel for the applicant put at the vanguard of his oral submissions the contention that the ruling was infected by material factual errors. First, the trial judge was wrong when he said that LD 'appears to vocally and enthusiastically engage in anal sex despite her statement that she told the accused men that she does not like it'.[28] On a careful and close viewing of the footage, slowing it down and halting it at the correct point - 54 to 56 seconds from the start - one is able to see that penetration of the anus did not occur. The judge's suggestion that the respondents ceased all sexual activity after they asked LD 'if she is okay and if she wants them to stop', is also simply wrong. Senior counsel also spoke to submissions contained in the applicant's written contentions. Counsel submitted that directions will be capable of ameliorating any prejudice. There were no decided cases which had contemplated the grant of a stay based on potential harm to a jury.

1. MK's counsel submitted in writing that the applicant's submissions focused on the two minutes and 45 seconds of the video of the alleged rape, whereas the trial judge watched the whole of the footage, including the 45 minutes or so which preceded it. Watching all of the footage informed the judge's conclusions. Counsel submitted that the introduction of the TRF videos - necessary to the respondents' defence - would invoke incurable prejudice. Moreover, counsel submitted, the applicant's submissions overstate the effect of the evidence, including as to LD's allegedly impaired state of consciousness. Counsel assayed an analysis of excerpts from the two videos, Exhibits C and D, and submitted that the evidence relied upon by the prosecution is not capable of excluding all other conclusions than one of guilt. Finally, counsel submitted that the playing of all the video footage would bring the jury system into disrepute.
2. The oral submissions of senior counsel for MK involved a detailed analysis of what the relevant footage allegedly depicts, supported by a document summarising the videos and the times that certain activities occur. In broad terms, counsel argued that close analysis of the footage - none of which we need to recapitulate - leads to the conclusion that the judge was correct to determine that the charges were foredoomed to fail. Senior counsel summarised MK's case as follows: 'It's an extraordinary case this, in the sense that our submission comes down to this: this is a continuous, drug-fuelled sexual orgy, in which the judge was completely correct to form the view that this prosecution was doomed to fail, and he did so - albeit that, as effectively has been pointed out, because he took the view that he would have to take the case away from the jury [on] the evidence because no jury could convict these men. And one of the reasons why that conclusion was absolutely correct is because of video 236 [part of Exhibit D] ... Because video 236 happens just before [the LD video] ... and it's a continuous drug-fuelled orgy with our client [MK]'. Senior counsel then took the Court through the video (and other footage) in minute detail. He submitted that the respondents were 'bound to be acquitted' based on the 'second limb' of rape, reasonable belief in consent.

1. TRF's counsel submitted in writing that 'the prosecution case depended upon constructing an inference of non-consent, and of the absence of reasonable belief, from the imperfect audio and visual materials, both before and during the alleged incidents'. They submitted that the evidence 'was overwhelming that the complainant enthusiastically consented to various sexual acts, and manifested pleasure and consent in various ways, including by a presentation of exhaustion, moaning and other signs'.
2. In endeavouring to analyse the footage, as to charge 1 counsel submitted that LD's presentation in a particular 'phase' 'is capable of bearing a number of interpretations, including the effects of sexual congress'. Counsel argued that a jury (properly instructed about inferences) could never infer beyond reasonable doubt that LD was not in fact consenting, or that neither respondent did not reasonably believe that she was. As to charge 2, counsel submitted, it is not clear whether or to what extent LD was in fact non-responsive, and her presentation at that stage (limp, heavy breathing, mouth and eyes partly open) likewise may bear a number of interpretations. It is not self-evident, counsel contended, that these states always or usually bespeak an impairment undoing consent. In many cases they may be indicia of ongoing sexual satisfaction. Given the previous activities and words, this is one such case.
3. Concerning charge 3, counsel submitted that the image relied upon by the prosecution does not necessarily establish penetration, and is 'shorn of context'. It is not shown that TRF was aware of this manoeuvre, whatever it was. As to charge 4, counsel submitted, there is no evidence whatsoever that anal penetration actually occurred at this point.
4. In oral argument, counsel submitted that in assessing the alleged error in the judge's ruling, it was necessary for this Court 'to go to each charge'. The principal focus of the submissions made by senior counsel for TRF was that the prosecution case was foredoomed to fail because the prosecution would be incapable at trial of eliminating an hypothesis consistent with innocence, viz. that TRF had a reasonable belief that LD was consenting to the acts that were the subject of the five charges on the indictment. According to counsel for TRF, the prosecution will simply be unable to prove a lack of reasonable belief in consent. A subsidiary, but connected, submission is that on no charge could a jury 'set aside the reasonable possibility that [LD] was consenting'. When 'one looks on the evidence bearing on a particular charge ... there is just no evidence to rebut the reasonable possibility that she was consenting'. The judge was therefore entitled to conclude that no jury could set aside the reasonable hypotheses consistent with innocence. Counsel went through the evidence on various charges, making the point that the TRF videos 'create the context'. When one viewed Exhibit C, everything that LD did in the course of that video she had done before, as exemplified by the footage in Exhibit D. That there was an orgy was 'a contextual matter'. LD was 'happily and enthusiastically participating' in sexual activity.

1. We have viewed the LD video (Exhibit C) and the TRF videos (Exhibit D). It was necessary to do so in order to determine whether the judge was correct to hold that 'a jury properly instructed could not convict the accused men' - so that the charges on the indictment were foredoomed to fail - and that the 'combination' of factors could lead 'to the inevitable conclusion that this is one of the rare and exceptional cases where a permanent stay should be ordered'.
2. Having viewed all of the video footage, we have concluded that it simply was not open to the judge to find that the charges against the respondents are foredoomed to fail, or that a combination of factors dictates that any trial of the respondents will be unacceptably unfair.
3. It cannot be gainsaid that the TRF videos demonstrate that LD appears for the most part to have been a consenting party to a range of sexual activity. Indeed, that the footage largely depicts LD enthusiastically taking part in what the judge described as a 'prolonged and drug-fuelled orgy' cannot be much doubted. Quite clearly, a jury would be entitled to take that earlier footage into account in relation to the issues of consent,[29] and reasonable belief in consent,[30] when considering the two minutes and 45 seconds of sexual activity shown in the LD video. That footage is, however, but part of the available evidence. It could not, in our view, indisputably foreclose the respondents' conviction based principally on the LD video.
4. Whether LD was or was not capable of consenting at the relevant time, and whether the respondents did or did not have a reasonable belief in consent, depends almost exclusively on the inferences capable of being drawn from the evidence disclosed in the video footage, Exhibit C and Exhibit D; in particular, the inferences that may be drawn from LD's appearance and the noises that she is heard to make, and the actions of the respondents (including the things that they are heard to say to LD and to each other in her presence). Sometimes whether a particular inference is open to a jury is a matter about which opinions will differ. Putting the matter at its lowest, however, we consider it to be impossible to say that the prosecution does not have, in the case of each charge, a fair argument that the LD video is capable of establishing a case to answer against the respondent to whom the charge relates.[31] In other words, based on the video evidence, a jury is not bound to find as a reasonable possibility that LD was consenting to the sexual acts in the LD video or that the respondents reasonably believed that she was consenting. It is open to a jury to find no such reasonable possibility.
5. A person does not consent to a sexual act if 'asleep or unconscious', 'so affected by alcohol or another drug as to be incapable of consenting to the act' or 'so affected by alcohol or another drug as to be incapable of withdrawing consent to the act'.[32] Determination of whether an accused person reasonably believed that another consented to a sexual act depends on all the circumstances.[33] On our assessment of the video footage, there is evidence capable of founding inferences that LD was incapable of consenting to sexual acts (or withdrawing consent) due to her drug-affected state, and that so much must have been obvious to the respondents at the time that the acts founding the charges took place (thereby obviating any reasonable belief in consent). Indeed, the judge was wrong to state that the sexual acts ceased when the respondents asked whether LD wanted them to stop. She did not reply, and they continued to sexually penetrate her regardless.
6. Even if one regards the prosecution case as weak - and given the footage that precedes the LD video, the prosecution will face formidable difficulties in establishing lack of consent, and a lack of reasonable belief in consent, to the criminal standard - there is sufficient evidence upon which a properly instructed jury could find the two crucial elements of the charges established. As the authorities make clear, a prosecution case cannot be permanently stayed simply because it is weak.
7. As to the subordinate factual matters adverted to - whether the video footage actually shows anal penetration, and whether the respondents actually did stop when requested - it is enough to say that, on our assessment of the footage, it is difficult to determine those matters conclusively. We would not be prepared to conclude, however, that these matters must incontrovertibly be decided in the manner suggested either by the applicant or by the respondents. But bearing in mind the unique nature of jury decision-making, a properly instructed jury will be capable of determining those contested facts.
8. For the foregoing reasons, the judge was wrong to conclude that the prosecution case was foredoomed to fail. His ruling cannot stand.
9. As to the other matters that informed the judge's ruling, it seems obvious enough that any prejudice engendered by the video footage is a double-edged sword. Not only may the jury take a dim view of the respondents' conduct, but they may well form an adverse view about LD's drug excesses. In our opinion, however, any prejudice to the respondents will be well-capable of amelioration by appropriate directions.
10. Moreover, we consider that the potential for possible harm to the jury was overstated by the respondents. Part of their duties often requires jurors to contemplate unsavoury or distressing material. During the empanelment process, the judge will adequately be able to alert potential jurors to the nature of the evidence they will have to view and assess if empanelled, and to excuse those who believe that they will be unable to cope with such evidence.

1. Leave to appeal against the interlocutory decision must be granted, the appeal allowed and the order for a permanent stay set aside.

[1] Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 38.

[2] Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, s 40_._

[3] Walton v Gardiner (1993) 177 CLR 378 ('Walton').

[4] Hermanus (a pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335 ('Hermanus').

[5] [Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207].

[6] [R v Smith] (1993) 117 A Crim R 298.

[7] House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ). See also KJM v The Queen (No 2) [2011] VSCA 268; (2011) 33 VR 11, 12-13 [9]-[14]; Singh v The Queen [2011] VSCA 263; (2011) 33 VR 1, 6-7 [26]; DPP v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, 444-5 [13]-[16].

[9] See, e.g., Metropolitan Bank v Pooley (1885), 10 App Cas 210, at pp 220-221; General Steel Industries Inc v Commissioner for Railway (NSW) [1964] HCA 69; (1964), 112 CLR 125, at pp 128-130.

1. [10] R v Smith & Ors [1995] VicRp 2; [1995] 1 VR 10 ('Smith').
2. [11] Although the decision was later overturned by the High Court in Smith & Ors v R (1994) 181 CLR 338, that was because it was held that the Full Court had held no power to entertain an appeal by the Crown against the trial judge's decision to grant a stay. The principles upon which the Full Court purported to decide the case were not, however, put in doubt.
3. [12] See, e.g., R v Leece (1996) 65 FCR 544 (Gallop, Burchett and Hill JJ); R v Petroulias (No 1) [2006] NSWSC 788; (2006) 217 FLR 242 (Johnson J); R v McGee [2008] SASC 328; (2008) 102 SASR 318 (Doyle CJ, Gray and White JJ); R v Azad [2007] VSC 115 (Curtain J); DPP (Cth) v County Court of Victoria [2010] VSC 157; (2010) 239 FLR 139 (J Forrest J); Nelson (a pseudonym) v DPP (Cth) [2014] VSCA 217 (Maxwell P, Redlich and Priest JJA); R v Blackett [2018] NSWCCA 114, [32]-[34] (Leeming JA, Button and Fagan JJ agreeing).

[16] R v McGee [2008] SASC 328; (2008) 102 SASR 318, 343 [87] (emphasis added).

[17] Little (a pseudonym) v The Queen (2015) 45 VR 816, 839 [74] (emphasis added; citations omitted) (Lasry and T Forrest AJJA).

[18] Hines (a pseudonym) v The King [2023] VSCA 168, [28] (Priest and Kennedy JJA).

[20] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 96.

[21] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 518 (Mason CJ, Dawson, Toohey and McHugh JJ) ('Williams').

[23] [Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23] 34, 48-49, 54, 56-58, 72-73, 75.

[24] Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 214-5.

[25] Walton, 392; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 ('Jago'); R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237; R v Edwards [2009] HCA 20; (2009) 255 ALR 399; Hermanus, 341-2 [39].

[26] Williams, 529; Jago, 31 (Mason CJ), 60 (Deane J), 76 (Gaudron J); Hermanus, 341-2 [39].

[28] See [16] above.

[29] See Jury Directions Act 2015, s 46.

[30] See Jury Directions Act 2015, s 47.

[32] Crimes Act 1958, s 36(2)(d), (e) and (f).

[33] Crimes Act 1958, s 36A(1).