AK v State of WA

[2007] HCATrans 620

[2007] HCATrans 620

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P27 of 2007

B e t w e e n -

AK

Appellant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

GLEESON CJ
GUMMOW J
HAYNE J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 23 OCTOBER 2007, AT 10.00 AM

Copyright in the High Court of Australia

MR R.W. RICHARDSON:   May it please the Court, I appear on behalf of the appellant.  (instructed by Aboriginal Legal Service of WA (Inc))

MR B. FIANNACA, SC:   May it please the Court, with my learned friend, MR D.A. LIMA, I appear for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

GLEESON CJ:   Yes, Mr Richardson.

MR RICHARDSON:   Your Honours, this appeal raises three issues.  The first is whether the nature of the error or irregularity found by the Court of Appeal was of such a character in the circumstances of the case to conclude the operation of the proviso, that is, whether or not the error was fundamental in accordance with the decision of this Court in Wilde.  The second issue raised is whether the Court of Appeal erred in applying the proviso in the sense that the majority held that they were satisfied beyond reasonable doubt as to the guilt of the appellant and, thirdly, the third issue being whether or not the Court of Appeal should have entertained reasonable doubt based on the evidence before it and an examination of the record as to the guilt of the appellant.

The first issue relies on propositions from two cases from this Court.  The first being Wilde, the second being Fleming.  It is submitted that in combination those two cases establish that the error in the circumstances of this case was of a fundamental nature to the extent that it was a departure from the essential requirements of a trial according to law and that the error went to the root of the proceedings.  That combined with the findings in Fleming where similar statutory provisions were considered and the proposition being where there is a statutory imperative that reasons be given, that warnings be acted on, then a failure to comply, not in a trivial sense, but a failure to comply in a substantial sense constitutes an error that goes to the root of the proceedings, constitutes an error or irregularity where there has not been a proper trial according to law and, accordingly, the proviso has no application.

It is conceded on behalf of the appellant that it is insufficient simply to rely on a defect in the reasoning of the trial judge as founding an argument for fundamental defect.  The defect must be in the circumstances of the case one that is of some significance.

GLEESON CJ:   Mr Richardson, can I interrupt you to ask you a question about a matter?  I do not understand this to be a matter of dispute between you and your opponent but I just want to check up on the statutory background of the jurisdiction that was being exercised here.  The proceedings were in the Children’s Court?

MR RICHARDSON:   That is correct, your Honour.

GLEESON CJ:   That is a separate court, is it?

MR RICHARDSON:   It is a court constituted under the Children’s Court Act, yes.

GLEESON CJ:   Had there been any committal proceedings?

MR RICHARDSON:   All the charges were indictable.  The “indecent dealing” was a crime as designated.  The appearance before the Children’s Court would have enabled the child to make an election between being heard by a judge of the Children’s Court or to elect to be tried by a jury.  I have not looked into this, as your Honour has indicated, because the issue has not been raised at any stage.  That is my understanding of the position and because there has been a trial by judge alone in the circumstances of this case, there must have been an election for that to occur.

GLEESON CJ:   There are some jurisdictions in Australia where the Children’s Court jurisdiction is exercised by a magistrate, but here it is a judge, is it?

MR RICHARDSON:   It is both.  It depends on the charge.  If it is indictable it will be dealt with usually by the President of the Children’s Court who is a district court judge.  Summary offences are dealt with by a Children’s Court magistrate, so designated.

GLEESON CJ:   These were indictable offences?

MR RICHARDSON:   They were indictable offences.

GLEESON CJ:   They were being dealt with by a judge without a jury at somebody’s election?

MR RICHARDSON:   Yes, because there is the opportunity, even for a child, not to go before the Children’s Court and to proceed before a jury.

GLEESON CJ:   The jurisdiction that was being exercised by the Court of Appeal was what?

MR RICHARDSON:   Appeal against a decision of a judge exercising jurisdiction in the Children’s Court.

GLEESON CJ:   At some stage that is convenient to you would you just give us a reference to the statutory provisions touching the matters that I have mentioned?

MR RICHARDSON:   Yes, certainly, your Honour.  Your Honour, the starting point based on the submissions that I have outlined must be the judge’s reasons because it is from there that one examines the statutory context and what in fact his obligations were and what is submitted on behalf of the appellant that we say he did not do.

The reasons commence at page 186 of the appeal book at about 38.  His Honour having heard the closing submissions, firstly by the prosecutor and then by defence counsel, proceeded immediately to proceed to judgment.  His Honour identified that there were three separate incidents, the subject of charges.  The first incident he identified correctly as being in February of 2002.  They were the three counts of indecent dealing, the subject of this appeal.  He identified incident two, 30 March 2003.  That was sexual penetration without consent, some 13 months after the initial indecent dealings and, thirdly, an indecent assault on 25 April 2003.

He then at the top of page 187 identifies what was obvious, that the evidence in respect of each charge the State relied on was that of the complainant.  His Honour then identifies that the defendant elected not to give evidence, as is his right.  There was no challenge that his Honour has not failed in any manner there.  It is implicit, in my submission, that he understood that he was not to draw any adverse inference from that fact.

He then goes on to say that he must be satisfied beyond reasonable doubt, firstly, that the offender was the defendant, secondly, that he dealt with the complainant in the manner alleged, thirdly, that the complainant was under 16 and, fourth, that the dealings were indecent.  He correctly identified the elements of the offence, as he was required to, in terms of any obligation under section 120(2) of the Criminal Procedure Act.

His Honour then made some general observations which were clearly pertinent and applicable in respect of each of the three incidents and he made these statements, that he thought in substance that the complainant was generally a thoughtful and truthful witness.  His next comment is that he recognises that there was an extraordinary admission made by her in cross‑examination that there had been another incident following the third incident which she had not disclosed to any person, the police or even the prosecutor prior to the hearing.  He classified that as somewhat extraordinary.

He also noted that there had been a delay in making the complaint and in fact the complaint was not made until the complainant determined that she was in fact pregnant.  He also identified that, as a principle, the lack of complaint must be taken into account in accessing her credibility generally.  He then concluded by a statement that it appeared, by way of impression, that the complainant was embarrassed about the circumstances and relating the circumstances to people.

GUMMOW J:   How old was your client at this stage?

MR RICHARDSON:   My client at this stage, at the time, was 13, your Honour, and the complainant was 15.

GUMMOW J:   So section 321 of the Criminal Code was engaged, is that right?

MR RICHARDSON: Section 321, your Honour?

GUMMOW J:   Yes.

MR RICHARDSON:   In relation to age?

GUMMOW J:   The offence?

MR RICHARDSON:   Yes.

GUMMOW J:   The person who is indecently dealing was himself a child?

MR RICHARDSON:   That is correct, slightly younger.

GLEESON CJ:   It is not an uncommon situation, I imagine?

MR RICHARDSON:   No.  That constitutes, in my submission, the extent that his Honour dealt with the issues that arose in this case.

GLEESON CJ:   What were the issues that arose in relation to the events of March 2003 and April 2003?  The issue on which he decided the case was reasonable belief in consent, or not negatived, but what was the defence case in relation to the events of March 2003 and April 2003, that they did not happen or that there was consent?

MR RICHARDSON:   It was conceded in closing by defence counsel that an incident occurred in relation to second incident as described, but it was consensual or, alternatively, honest and reasonable mistake.  In relation to the third incident that it did not occur at that time, but there was another identical incident on another occasion at a different location.

GLEESON CJ:   So when the judge came to deal with the events of February 2002 he did that in the light of the knowledge that it was common ground that there had been a sexual association between your client and the complainant later?

MR RICHARDSON:   Yes, he did, your Honour.

GUMMOW J:   This defence of reasonable grounds is section 321(9), is it:

the accused person –

(a)believed on reasonable grounds ‑ ‑ ‑

MR RICHARDSON:   No, I am sorry, I hope I did not mislead you.  That was not an ‑ ‑ ‑

GUMMOW J:   We need to know what the statutory defence is.

MR RICHARDSON:   Yes, that was not an issue in the case in relation to the first incident.  There was no suggestion of belief on reasonable grounds.  It was not raised or argued.  I am sorry if I misled you.

GUMMOW J:   What was the issue?

MR RICHARDSON:   The issue in relation to the first incident?

GUMMOW J:   Yes.

MR RICHARDSON:   The issue in relation to the first incident is, one, that it did not happen and, secondly, if it did, it was not the appellant.

GUMMOW J:   It was not?

MR RICHARDSON:   The appellant who did the touching.

GLEESON CJ:   There was only one other person it could have been.

MR RICHARDSON:   One other person it could have been?

GLEESON CJ:   There is only one other male in the bed.

MR RICHARDSON:   That is correct, and that was the brother, R, who was 14 years of age and described as not remarkably different by the complainant.  What his Honour did following those general observations was simply to conclude at 188 that he was satisfied beyond reasonable doubt in relation to each of the elements and, relevantly, that he was satisfied that the events happened, that is, the touchings happened as alleged, and that it was the appellant who was the person who did the touching.  As his Honour said at 188 point 20:

I am satisfied beyond reasonable doubt on the evidence that the defendant indecently dealt with the complainant in the three ways alleged.

Then he identifies what they were.  That is the extent of his Honour’s reasonings.  The Court of Appeal held that these reasons failed to adequately identify, as was the ground of appeal, the critical issue that arose in relation to the issue of identification and also the critical issue in relation to the reliability of the evidence.  “Reliability”, in fact, was a word not used by his Honour in his reasons and for the reasons set out in Fleming it cannot be assumed that that was a matter that exercised his mind and that he acted on.

What the majority said in relation to the reasons, which is in the judgment of Justice Pullin, commencing at 210 through to 211, his Honour referring to Fleming, correctly identifying that the statutory provisions applicable in Western Australia were similar to the statutory provisions in New South Wales; that:

the requirements of the law are not satisfied merely by a bare statement of the principles of law –

In this case it is submitted that no principles of law are identified by his Honour relevantly in relation to this issue.  In the findings of fact that the judges made there are no, in my submission, relevant findings of fact in relation to each of the touchings in respect of these three counts.  His Honour then continued:

There must be exposed the reasoning process –

No reasoning process is disclosed at all save for the general observations as to truthfulness –

linking them and justifying the latter and ultimately the verdict that is reached.

His Honour then relied on that proposition from Domican.  Continuing:

the respective cases for the prosecution and the accused must be accurately and fairly put to the jury.

The arguments that were advanced by the prosecution, the arguments that were advanced by the defence were not identified by his Honour nor did he attempt in any way to resolve or deal with those particular submissions.  His Honour then referred to the fact that it was necessary because of the circumstances of this case for his Honour to identify separately the issue of identification, although no authority is cited there.  In my submission, what his Honour is really saying is that it is a legal obligation imposed on all judges, based on what was said in Alford v Magee for a trial judge to identify the real issues in the case and where there is a jury to explain how those real issues relate to the facts, and this is clearly what his Honour did not do in respect of this particular judgment.  His Honour then goes on to say that it was necessary:

to refer to the case that the prosecution put to establish the identity . . . that she perceived –

and I will come back to that word “perceived” –

the appellant as being the person who touched her, the circumstantial evidence arising from the later sexual interest the appellant showed in the complainant –

and, of course, we do not know how his Honour the trial judge treated that particular evidence, if he did at all –

the lack of any interest shown by the other boy, the position of the people on the mattress) and then to refer to the case being put forward by the appellant (that the complainant’s evidence was unreliable, that her sense of touch did not enable her to identify the appellant and that she could not by visual or aural means identify the appellant).

So that is how his Honour encapsulates what was missing from the trial judge’s reasoning.  In my submission, more was missing than what his Honour identified.  Justice Buss’s reasons went a little bit further.  They are at 227 at point 10, paragraph 69 of the judgment.  He starts by saying the reasons were inadequate, did not refer to any of the complainant’s evidence and it is in fact that which, in my submission, clearly demonstrates the problems that the appellate court had, and I will come back to that later.  He did not mention any of the uncertainties or inconsistencies in her evidence relating to identification.  His Honour did not explain why he found that it was the appellant and not his brother who indecently dealt with her, and these are all matters that arose in cross‑examination.  He goes on to say:

But the critical point, in relation to identification, was whether the complainant’s evidence . . . was reliable.

The proposition put which was also not identified and, in my submission, is a principle that should have been specifically identified:

A witness who is, generally, thoughtful and truthful, may nevertheless be unreliable in his or her account of some material events; alternatively, the account may not be sufficiently reliable to support the conviction of an accused.  It was necessary for his Honour to evaluate the complainant’s evidence, which implicated the appellant, in the context of the circumstances of the alleged offences and the complainant’s evidence as a whole, and make findings as to its reliability.

GLEESON CJ:   About a year after these events occurred she became pregnant?

MR RICHARDSON:   That is correct.

GLEESON CJ:   And she said in her evidence that she knew that the appellant was the father because he was the only person she had ever had any sexual activity with.  Is that challenged?

MR RICHARDSON:   No, it was not, but my recollection of the context of that piece of evidence was that it was relating to the incident in 2003.

GLEESON CJ:   Quite.

HEYDON J:   The Court of Appeal made something of that and relied on a New South Wales case called R v EJ Smith.  Do you have any complaint about that strand in the Court of Appeal’s reasoning?

MR RICHARDSON:   I do to this extent, your Honour.  In relation to the point I make in ground 1, it demonstrates the fundamental nature of the error because here we have the Court of Appeal speculating about principles and findings and conclusions that were not discussed, not mentioned by the trial judge.  Secondly, if the retrospectant evidence, as I think it is referred to by his Honour, is in some way meant to be used or is suggested can be used in this manner, then it is erroneous and that is, if the evidence is purported to be used for the purpose of suggesting the complainant became familiar with touch in a later event, like in the voice, in the circumstances of that case and therefore because of that familiarity was therefore able to go back in time, if you like, and say, well, that is the same touch as what occurred in 2002.

HAYNE J:   But is that the use that was made of this evidence at trial?  At 177 at about line 25 we have the argument or the final address of counsel and the trial judge’s engagement with some of the propositions.  His Honour the trial judge puts at line 25 on 177 the importance of this evidence as demonstrated “sexual interest”.

MR RICHARDSON:   As going to motive as opposed to familiarity, that was raised.

HEYDON J:   There seems to have been no attention given to section 31A of the Evidence Act. 

MR RICHARDSON:   Section 31A?

HEYDON J:   Is this not arguably propensity evidence or relationship evidence?

MR RICHARDSON:   Yes.  Certainly his Honour raised it as being something that adds support to her evidence, if you like.  It was being considered as circumstantial evidence.  Is that the point your Honour raises?

HAYNE J:   It was not being discussed there in the fashion of evidence concerning or directly identifying or directly concerned with the identification of who had touched her.  It was concerned with the nature of the relationship between them.

MR RICHARDSON:   Yes.  That is one indication that he may have been thinking of.  How he dealt with it ultimately is unknown.  Certainly there seemed to be some suggestion from Justice Pullin that he may well have used it in that manner.  The second matter that arises in relation to this assessment is whether there was a requirement based on the evidence for the trial judge to give a warning, that is, a warning in terms of Domican.  When one looks at the reasoning of Justice Pullin in relation to ground 2 and following, it is difficult to comprehend how that could not have exercised his mind as being a matter that needed to be addressed, because his Honour deals with Fleming which is a warning case. 

In the previous ground, he specifically sets out section 119(3) at page 209 of the Criminal Procedure Act which is the mandatory requirement in relation to a warning, a judge alone, says that is relevant to grounds 1 and 2, that is, the content of the reasons, refers at page 216 to a recognition of the problems involved with identification evidence, recognises the law, poses problems or sees problems with visual identification in relation to reliability.  Notwithstanding all these references, he simply makes no mention of the warning.  The answer comes as to why he did not by looking at page 210 of his reasons in relation to ground 1, in relation to ground 2 at 20 where his Honour says:

The circumstances of this case were that the identification of the appellant was an issue, but it was not a case where the complainant had to identify a person previously unknown to the complainant out of a large category of unknown persons.

So his Honour seems to have pushed aside any requirement for a warning as a principle of law based on the fact that it was not the typical identification case of identifying unknown people.  His Honour goes on to say:

There were only two males present.  The offences were committed either by the appellant or his brother.  The complainant knew both of them.  She had known the appellant all his life.  The matter of significance which had to be isolated and considered was the issue about the reliability of the complainant’s identification by touch in the absence of the other usual senses used in identification.

So his Honour has formed a view, in my submission, erroneously, that the circumstances of this case did not require a warning and has proceeded on that basis.

GUMMOW J:   There is a reference to Domican at the top of page 216, line 6 or so.  That is dealing with ground 3.

MR RICHARDSON:   That is what I am saying why it is surprising that his Honour made no reference to the warning because he has identified the right cases where those propositions are clearly stated.  The only explanation is for the point that he concluded on 210 that no warning was necessary.

HAYNE J:   What exactly is the warning that should have been heeded?

MR RICHARDSON:   That ultimately depends on the evidence.

HAYNE J:   Just so, and it depends on what the issue is.  So what exactly in this case was the warning that the judge should have articulated and heeded?

MR RICHARDSON:   Before I answer that, I will need to briefly take you to the evidence.  The initial evidence given by the complainant was that she was woken, and she actually said at appeal book 13:

Now, how were you woken up at that stage?---By [A] touching me . . . 

Did you say anything?---No.  I just looked at him.

HAYNE J:   There is a lot of evidence from her about her keeping her eyes closed and counsel for the appellant in the closing address laid much emphasis on the fact that complainant gave evidence of keeping her eyes closed.  But the point that provokes the question is identified at 174, again in final address where the debate is conducted in terms of, one, there is an issue, did it happen at all?  Did anything happen?  I understand that issue.  Then, if it did happen, who did it and there are only two candidates.

MR RICHARDSON:   Yes.

HAYNE J:   What exactly is the Domican warning that has to be articulated in these particular circumstances?  She is in bed with two boys, she knows who the boys are, there is no dispute about who the boys are who are in the bed.  She says it is A who did it.  What does the judge record as the warning?

MR RICHARDSON:   The starting point is if there any evidence of positive identification, then a warning must be given.  What was the form of identification, which is something, of course, that was never identified by the learned trial judge?  What was the form of identification?  If his Honour took the evidence I have just taken you to, because he found that she was truthful, he may well have said, “Well, you know, it might have been dark and so forth, but I am prepared to accept that she knew it was [A] because she looked at him.”  That is positive visual identification.  If that was the basis, and we do not know what he did, but if that was the basis upon which his Honour ultimately concluded, plus the fact that he believed she was being truthful and she knew it was him and she might have had difficulty in articulating it and it might have been dark but, “I am prepared to accept, in the circumstances, that she did look at him.”

HAYNE J:   The point that the judge keeps returning to in the course of argument is, it is admitted that he had intercourse with her later, he had then demonstrated interest in her.  Does that not make it more likely that it was he who did this thing?

MR RICHARDSON:   That is irrelevant with respect to a warning.

HAYNE J:   Exactly so and that is why I want to know exactly what warning you say should have been given.

MR RICHARDSON:   I have to go this way because the form of identification has never been determined.  What are the possibilities?  That is the question that has to be asked.  It could have been visual.  If it is visual, in my submission, the standard Domican warning needs to be given.  Firstly, that mistakes can be made and that the experience of judges and so forth and so forth and it is not enough to say, well, he is an experienced judge, he knows that, that is something because Fleming says these principles have to be stated and they have to be shown to be acted on.

HAYNE J:   More importantly, the statute says it.  Yes.

MR RICHARDSON:   People identifying people, even if known to others, make mistakes, therefore one needs to look very carefully at the circumstances in which the identification or recognition was made.

GLEESON CJ:   One of those circumstances was that the only other possibility was sleeping down the other end of the bed.

MR RICHARDSON:   Not down the other end, up the same end.  No, you might be right.  There was some ambiguity.

GLEESON CJ:   I thought that she said ‑ ‑ ‑

MR RICHARDSON:   The top to tailing, there was some ambiguity about that.

GLEESON CJ:   Yes, there was some to‑ing and fro‑ing in her evidence but I thought her basic line was that he was lying down the other end of the bed.  All I am trying to suggest to you is that he would have needed pretty long arms.

MR RICHARDSON:   That evidence related, in my submission, firstly to the location where people got into bed in the first instance, secondly, the reference to where he was sleeping at the end.  In my submission, when one looks at the answers that she gave it was purely an assumption about where the people where when she first got into bed.

GLEESON CJ:   Mr Richardson, just coming back for a moment to this theme that the judge kept returning to in argument that Justice Hayne has raised with you, if there had been a jury here, one of the things they would have been told was not to leave their common sense behind them.

MR RICHARDSON:   True.

GLEESON CJ:   We know, do we not, that this was not a complaint in the sense of somebody going off to the police and making an accusation.  What happened was that a young woman found herself pregnant.  That is how this, as it were, came to light.

MR RICHARDSON:   Yes.

GLEESON CJ:   And it was common ground that the father was your client?

MR RICHARDSON:   No, that was not common ground.

GLEESON CJ:   I see.  It was common ground that your client had had sexual relations with her and she said she had never had sexual relations with anybody else and that was unchallenged.

MR RICHARDSON:   It is a bit difficult to challenge things like that these days.

GLEESON CJ:   Yes.  Then it seems as though she was being asked, as people usually are when that sort of thing comes to light, to say when anything like this first happened and this was her account, was it not, of the first occasion on which she had had any kind of sexual encounter with the person she said, a year or so later, had impregnated her?

MR RICHARDSON:   I do not know whether it was the first occasion.

GLEESON CJ:   I see.  Is that not part of the context in which her evidence was being evaluated?

MR RICHARDSON:   Yes, but, in my submission, that does not in any way derogate from the trial judge’s obligations to direct himself in accordance with the principles of Domican.

GLEESON CJ:   I think it is common ground that the trial judge was in error – I do not understand that to be in dispute – in failing to give adequate reasons.

MR RICHARDSON:   But in terms of the warning I do not hear common ground from the State on that.  If I can just take up what your Honour is saying.  The evidence‑in‑chief was, as I have said, “[A] was touching me.  I looked at him”.  That is the evidence‑in‑chief.  Nothing surprising about it.  When we get into cross‑examination there is an attack, if you like, on that form of identification.  The issue is alive that it was visual identification.  His Honour would be entitled to act on that, even though the veracity or the reliability of that may have been subject to attack in cross‑examination.  His Honour does not say whether he accepted that, one, she looked at him.  His Honour does not say, she, the complainant, recognised the appellant because he was familiar with his touch.  His Honour does not say that.  He does not say that it is because of the voice.  He says nothing.  His Honour says nothing about the manner.  He does not say as suggested by Justice Roberts‑Smith that it was some sort of presence, whatever that might be, that was the process of recognition.  So there was just nothing there.

When one looks at the evidence, there is a possibility that it was visual.  As Justice Buss observed, no possibility that it was by touch because the complainant at no stage said in her evidence that she identified him by any sense of touch.  She did not say his hand was familiar or it felt familiar.  Where this identification from touch comes from is beyond me, from the majority in the Court of Appeal, because it just was not there.  His Honour Justice Buss is correct when he says that the evidence just cannot support identification by touch.  How then did his Honour conclude that this element of the offence was made out?

The other possibility is this, and probably the most likely possibility if one has regard to the exchanges that took place between counsel and his Honour, the most likely reason is he just believed her.  That is the most likely reason.  He just believed her.  “I believe that she knows it was him.”  In my respectful submission, that just cannot be an appropriate basis for identification.  Her belief had to be examined.  In terms of truthfulness there is no doubt she probably did believe it was him but that is not the issue that is before his Honour.

During discussion with counsel his Honour made one observation which in fact was purely repetitive of what the State submission was that she was absolutely certain at one stage, that is when she was being touched, that he was next to her.  That was a proposition put by the State in closing.  She was absolutely certain.

GLEESON CJ:   You may be pushing at an open door here.  All three members of the Court of Appeal agreed that the trial judge erred in law by failing to give adequate reasons for his decision.

MR RICHARDSON:   Yes.

GLEESON CJ:   As I understand it, you are here to persuade us that it was not open to or, alternatively, was not in the circumstances of the case appropriate for the Court of Appeal to apply the proviso.  That is what we are here to decide, is it not?

MR RICHARDSON:   Yes, in the first instance that it is a fundamental error and your Honour the Chief Justice ‑ ‑ ‑

GUMMOW J:   You want to bolster the degree of error by the primary judge to set the broader stage for the proviso?

MR RICHARDSON:   No, the majority ‑ ‑ ‑

HEYDON J:   You want a big error so that it will not really be a trial at all, therefore you will be ‑ ‑ ‑

MR RICHARDSON:   No.  I can understand and I anticipated your Honours might say that I had put the hurdle too high but when one looks at the reasons given by Justice Pullin, that is a hurdle that the appellant must jump unless the appellant is brave enough to say, well, we’re going to get up on ground 2 because the majority found that there was not a fundamental error.  They in fact went what I would call the Weiss way by looking at the guilt part first and then looking at fundamental defect.  The majority found there was no fundamental defect.  If this Court came to the view that there were grounds and valid grounds to support the finding of guilt, and the only success that the appellant could achieve would be if he succeeds on ground 1 in relation to this issue.  It is not a hurdle that is there hypothetically.  It is a hurdle there of necessity. 

In relation to the warning, in my submission, it is necessary because there has been no finding by the Court of Appeal in relation to warning.  They just totally ignored it.  They say the issues were not there but, in my submission – and this is why it is a fundamental failure not simply just a failure to give adequate reasons, but we are assisted, in my submission, by the argument in Fleming as to the fundamental character of the error because in Fleming what the Court found was that the failure of the warning in those circumstances was fundamental because – and then one looks at the effect that that breach has because it affected the entirety of the proceedings.  The way I read it, the way Fleming came to that view was the trial judge had to look at all the evidence through a filter to come to his decision and that filter was the warning and that warning was that the trial judge when assessing the evidence must exercise particular care and scrutinise the evidence of the complainant with great care before being satisfied beyond reasonable doubt.

So, it was for that reason that in Fleming the Court came to the view, in my submission, apart from the other reasons, that is because it was statutorily imperative, but in combination with the actual effect of the failure.  Here, in my submission, the failure is in the same manner.  If his Honour had have focused on this issue he would have recognised the different types of evidence that on the face of it appeared very simple, “I looked at him.  I saw it was him.”  After cross‑examination had finished the ballpark had completely changed, had she looked at him?  If she did look at him, could she him?  It is in stark contrast, of course, to what the second incident was where she described his hair as he stood in the doorway, “I could see him through the light”.   None of that in this case.

So, how did she know it was him?  Her reasoning was circular on one view of it.  “I was certain it was him that was next to me and he was touching me.”  “Why are you certain?”  “He had to be next to me to be touching me.”  They were her answers.  If these questions were looked at, is it direct evidence, is it circumstantial evidence, is there any direct evidence of identification in this case, that would have been something that he would have been obliged to ask himself and did not ask himself.  My submission is on one view if one asks that question you cannot find any direct evidence of identification other than a belief that it was the person and that belief, when tested, is not based on any of the five senses.  It is not based on taste, touch, smell, whatever they are.  So what was it based on?

GLEESON CJ:   On page 60 she was asked how she knew it was your client.  She was asked that on page 60 at line 40 and she said, “he was laying next to me and I knew it was him.”  Her evidence was, was it not, that there were two males in the bed and only one of them was lying next to her, the other one having his head down the other end of the bed?

MR RICHARDSON:   With respect , it was not, your Honour.  That was the position.  What the complainant said was that when she got into bed the appellant was next to her, then followed by her sister then followed by R.  At one stage she gave that evidence.  In cross‑examination that was challenged and she was taken to a police station where she admitted that she told the police that she was not next to the appellant, she was next to her sister.  There was nothing there relating to top and tailing.  That was a subsequent explanation, but the fact remained that there was an inconsistency there.  It was accepted to be an inconsistency by the prosecution but one of no significance because, as the prosecutor put it, it does not matter about where he was and where she was when they got into bed.  The important thing is where they were when the touching occurred.  But that evidence, in my submission, once again does not purport to actually identify the appellant by any form of normal identification process.  It is just not there.

If the complainant – and we can assume she did believe it – but if the basis of her belief is as is suggested in some of the evidence, is because when they got into bed he was next to her and later on she thought at the time, even though she did not look, that R was somewhere else in the bed and asleep, is that identification?  No identification involved in that.  We do not know how his Honour regarded that evidence, whether he regarded it as identification evidence or whether it is evidence that may be considered, not as identification evidence but circumstantial evidence.  We do not know.  We do not know how the trial judge dealt with any of those issues as direct evidence or circumstantial evidence.

It is a bit like what this Court looked at and the difficulties in Festa’s Case in relation to direct evidence, circumstantial evidence and so forth.  None of these issues were canvassed.  Your Honour might say, well, there was only two possibilities.  That is conceded.  There were only two possibilities and the appellant does not resile from that in his submissions.  But the position was that on one view of the evidence she did not identify who that person was.

KIEFEL J:   It seemed to have carried some weight with Justice Pullin in the Court of Appeal that she was certain that it was not the appellant’s brother who was lying next to her and touched her.

MR RICHARDSON:   That is correct.

KIEFEL J:   So when you exclude the only other young boy present, where does that leave you?

MR RICHARDSON:   But, once again, her belief and her certainty, in my submission, is not the test.  You always have the position, and it is the reason and the rationale for her Domican warning, that it is the seductive nature, if you like, of honest but mistaken identification of witnesses that must be guarded against.  Clearly Justice Pullin, in my submission, really came to the view that she should be believed because she had this hard, fast, immovable belief that the defence counsel tried to knock out of her and failed.  That is the way I read the way Justice Pullin came to the view, that defence counsel failed because she would not be moved.

KIEFEL J:   When did the offence involving sexual penetration take place?

MR RICHARDSON:   Thirteen months after the first incidence, your Honour.

KIEFEL J:   So when she was giving the written statement which Justice Buss pointed out was somewhat inconsistent about where people were lying, she had the experience of that occasion with the appellant in her mind when she was talking about her certainty and who it was.

MR RICHARDSON:   Yes.  It certainly would have been after that time.

KIEFEL J:   So it is not just the trial judge approaching identification by reference to those later events, it is all of the inferences about a person that she has then had close sexual involvement with that she is bringing to bear when she is expressing certainty about him being the person?

MR RICHARDSON:   That is right, rather than the identification part and that, in my submission, of course, is impermissible in relation to what she is entitled to give evidence about because that is not the acceptable exception to opinion evidence given by a lay person.  The rationale for accepting opinion evidence from a lay person in relation to the issue of identification is that when a person looks at another person for the purpose of identification, you have this cognitive process that is going on which may be difficult to describe and the same for voice identification.

GLEESON CJ:   That was what was regarded as the relevance of Smith, was it not, as I understand it?

MR RICHARDSON:   Yes.

GLEESON CJ:   The Chief Justice at common law in Smith said voice identification is a good example of processes of identification that people go through but if you asked them to explain why they were doing it, they would have a lot of difficulty articulating it.  So, if you can say, “I recognise that that is my wife on the telephone” but if you were asked to describe her voice, you might have a lot of difficulty doing it.

MR RICHARDSON:   Yes, absolutely.  I accept all that as being relevant to the five sense forms of identification but, one, we do not know whether that was the form of identification his Honour used, two, we know that the majority came to the view that it was touch but there does not seem to be any evidence of it.  I am not sure where this goes other than to demonstrate the confusion that a failure to give reasons gives when appellate courts are trying to ascertain without having the benefit of seeing and hearing the witness is working out what was going on and what happened, which is one of the reasons why it is submitted that this is a fundamental error because of this problem that the Court of Appeal had, even amongst themselves, about what was the form of identification. 

It demonstrates the fundamental nature of it.  It demonstrates that the result really is, because of these failings, that the appellate court was really sitting as a substitute jury where there had been no trial because those fundamental matters had not been addressed and this where you have the situation where Justice Pullin is saying, “I believed her because she was completely unmoved in the attacks on her reliability and she was absolutely certain it was him.”

KIEFEL J:   Or her certainty could be explained by the extent of exposure she had had by the time she came to give her evidence, even if not clearly articulated.

MR RICHARDSON:   Do you mean exposure by knowledge of touch?  Is that what your Honour means?

KIEFEL J:   Exposure by everything involved in the sexual intercourse which took place later.  A combination of that and the events of which she has spoken so that if the trial judge found her to be a perfectly credible witness with this level of certainty about what occurred, there is a strong basis for saying that she is able to discern who it was.

MR RICHARDSON:   In my submission, that is mixing up circumstantial evidence with evidence of identification and adding, if you like, weight to the identification process by extraneous evidence.  Also in relation to whether it did happen in terms of whether his Honour found it, we do not - no one knows.  The Court of Appeal does not know.  This Court does not know what his Honour’s processes were.

GUMMOW J:   With regard to the warning, do you rely upon what is said in Fleming at paragraphs 32 and 33 in 197 CLR 250 at pages 263 and 264?

MR RICHARDSON:  

The obligation imposed by s 33(3) “to take the warning into account” is not only to be discharged but also to be seen to be discharged.

I do, your Honour.

GUMMOW J:   And paragraph 33?

MR RICHARDSON:   Clearly, that has not been done.  In 33:

The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it –

certainly, your Honour.  Those features are clearly absent from his Honour’s reasons but, of course, it is necessary that the Court accept that the warning was required in the circumstances of the case.  If the State concedes that the warning was required, I do not persist but the State does not concede that a warning was required.

In relation to the warning, in answer to your Honour Justice Hayne’s question that I did not complete, it would also be necessary in conformity with that warning to identify the particular weaknesses of the identification process.  If his Honour concluded that it was possible that it was a visual identification because of the evidence given in‑chief, then his Honour would have to point to all the weaknesses in relation to that and that would be pointing out all the evidence in cross‑examination where she had conceded that she did not look at any stage at the person’s face, she did not look at the person’s face at the end of the hand that was touching her at any stage and, in any event, it was too dark to see anything at all.  She could not see where other people were at the time because it was too dark.  At page 17:

Did you notice - - whilst [A] was touching you did you notice whether anyone else had woken up apart from [Ge]?---No, I was just ‑ ‑ it was too dark to see.

So while all this touching is going on she has conceded that it was just too dark to see.  That of course was in-chief, not in cross‑examination.  What one might take from that is it was too dark to see what anyone else was doing, but maybe it was not too dark to see that it was [A] when she looked at him, but it was not explored.  It was not explored like it was in relation to the second incident where the prosecutor actually said “Well, how did you know it was [A]?---Because I could see his face.” 

``These matters would have to be specifically identified in relation to visual identification.  It would be dangerous to convict on that basis and if that warning was acted upon, then the trial judge was obliged to say, “Having heeded that warning I am not prepared to find, because of the weaknesses, the inconsistencies, the circumstances of the observation, that I am satisfied that this was an effective, if you like, identification”, or his Honour might have said, “I have heeded the warning, but in all circumstances I believe her.  She might have forgotten about this, or she did look at him and find that ‑ ‑ ‑

GUMMOW J:   That is paragraph 33 of Fleming, “notwithstanding the warning” this is what I have decided.

MR RICHARDSON:   Then you would look further in the cross‑examination about the weaknesses.  Page 59:

I didn’t even look at him.

HAYNE J:   I think the point, Mr Richardson, I am struggling with at the moment is that much of your submission seems to be directed to the ultimate proposition there was no identification and the submission seems to come to these steps:  one, the complainant gave evidence plainly revealing that she believed it was the appellant who had touched her.  That is quite plain, I think, but second, much of your submission seems to be directed to the proposition the view of the complainant that it was he who had touched her was not founded on her seeing him or recognising his touch or otherwise identifying him.  Rather, it was her conclusion based on essentially three elements:  (a) there were two males in the bed; (b) who was the male who was closest to her in the bed when they went to sleep; (c) that male later demonstrated the sexual interest in her that he did.  Now, if that is so, where does a warning sit?

MR RICHARDSON:   Well, the warning still must be given.  I am sorry, if it is all based on those factors that there is no positive identification.

HAYNE J:   That is inference, circumstantial case.

MR RICHARDSON:   Then the belief becomes irrelevant in relation to the circumstantial evidence.  Her belief that it was him because highly relevant and you are left with those circumstances.  If it is based purely on circumstantial evidence, then there is no need for warning, but my first submission in relation to that is that there was evidence of visual identification in-chief, therefore it had to be given.

If the Court of Appeal is correct in relation to identification by touch, then the warning has to be given, but if it was purely all based on circumstantial evidence without belief, then there is no identification.  That is the circumstance of a witness driving past someone’s house and saying the person John was home.  Why do you say he was home?  His car was in the driveway and the lights were on.  They are simply facts that may or may not ultimately satisfy a court that that evidence is sufficient to establish the point.

GLEESON CJ:   I am not suggesting for a moment that the law is as mad as it would be if this were to happen, but there does seem a suggestion that what technically should have happened was that her evidence‑in‑chief should have been objected to and there should then have been a voir dire examination.

MR RICHARDSON:   It could not have been objected to, your Honour, because it was ‑ ‑ ‑

GLEESON CJ:   She said it was the appellant.

MR RICHARDSON:   It could not have been objected to because she explained why.  “I looked at him”. 

HEYDON J:   What page is that?

MR RICHARDSON:  

Now, how were you woken up at that stage?---By [A] touching me. 

GLEESON CJ:   Just a moment.  Take that answer, “By [A] touching me”.  You are saying that there should have then been a voir dire examination.  How do you know it was [A] who touched you, et cetera.

HEYDON J:   It would not be a voir dire, would it?  Would it not be an objection on the basis that it was a conclusion unfounded on any primary facts and the witness should give the primary ‑ ‑ ‑

MR RICHARDSON:   It could have been primary as a conclusion.  Then it would have been, “Well, how did you know?”  “Because I looked at him”, suggesting a voir dire.  As your Honour Justice Heydon notes you object to this conclusion but you do not have to and there was no objection and “I looked at him”.  The next part of the evidence, which was at 17, was directed not to [A] but it was directed to the other people:

Did you notice - - - whilst [A] was touching you did you notice whether anyone else had woken up apart from [Ge]?---No, I was just - it was too dark to see. 

So there was something there and his Honour needed to deal with it.

GLEESON CJ:   Now, all members of the Court of Appeal found that his Honour made an error in not giving adequate reasons?

MR RICHARDSON:   Yes, and confined that to the issue of reliability because that is all that was attacked.

GLEESON CJ:   But is your proposition that the error that he made left them in a position, that is, the members of the Court of Appeal in the position, where they could not apply the proviso?

MR RICHARDSON:   Yes.

GLEESON CJ:   Why is that, because that is the question we have to deal with, is it not?

MR RICHARDSON:   They could not apply the proviso because – if I am answering your Honour’s question.  I hope I am – of the statutory obligation.  The second reason is that the failure in this case, which I think your Honour the Chief Justice has identified in Nudd as a form of miscarriage, was where the defect irregularity was such that it in effect frustrated the appellate rights, which are now encompassed in the rights of an accused person, not simply the conduct of the trial itself.  In this case it is submitted for the reasons spelt out by Chief Justice Doyle in Keyte, which I hope your Honours have a copy of.  I believe you do, Court of Criminal Appeal in South Australia.

GLEESON CJ:   Yes, we have that.  It is No 6 in your bundle.

MR RICHARDSON:   Thank you.  If I can take your Honours to page 470, paragraph 38, his Honour there says, relevantly I hope to your Honours question:

If a judge sitting without a jury is not required to give any reasons, the CCA will have no ability to determine whether the judge has correctly applied the relevant rules of law.  Absent reasons from the trial judge, the ability to correct a verdict affected by “a wrong decision on any question of law” will be confined to errors made in the course of the trial itself . . . The absence of reasons will also mean that in those cases in which the correct use of the evidence is affected by rules of law, there will be no means of determining whether the judge identified and correctly applied the relevant rules.  The absence of reasons would also mean that in cases in which the circumstances call for particular care, such as cases involving identification evidence, there will be no means of knowing whether and how the judge dealt with the matter requiring particular care.  To a considerable extent, the CCA would be deprived of the ability to decide whether there has been a miscarriage of justice as a result of the manner in which the conclusion of guilt were reached. 

GUMMOW J:   You have to read the next paragraph, do you not?

MR RICHARDSON:  

I do not suggest this is a comprehensive survey of the matter, but the points that I have made are sufficient to indicate that if reasons are not required, the scrutiny of a trial by the CCA will be substantially contracted.

Is that the ‑ ‑ ‑

GUMMOW J:   No.  Paragraph 39, “On the other hand”.

MR RICHARDSON:   Sorry:

the absence of reasons would not inhibit the CCA in deciding whether or not it was open to the trial judge ‑ ‑ ‑

GUMMOW J:   Now, do you challenge that paragraph 39?

MR RICHARDSON:   My first submission is that it is irrelevant to ground 1, but if I could just have one moment to look at that.  I would, your Honour, because it is demonstrated by this case that the absence of reasons clearly in this case because there has been no determination of whether it was direct or circumstantial evidence or a combination of both or how that that conclusion was reached that an appellate court would be unable to make those decisions because they are based on two aspects of assessment which includes credibility and reliability and the court in those circumstances would not be in a position to make that judgment.

GLEESON CJ:   That is a little surprising because the appellate court ought to be able to decide whether on the evidence it is open to the trial judge to be satisfied of guilt beyond reasonable doubt by looking at the evidence without knowing what the trial judge decided.  That is a decision that ought to be capable of being made at the end of the prosecution case.  The question whether it is open to a judge or a jury to be satisfied of something is a question of law.

MR RICHARDSON:   Yes.  It must be the case.  That is correct, in fact, because the court would be able to determine whether or not, as your Honour says, as a matter of law whether there was sufficient evidence to determine guilt or not.

GLEESON CJ:   Yes, and when you apply that test you apply the test on the hypothesis that the evidence is taken at its highest in favour of the prosecution. 

MR RICHARDSON:   Highest, yes.  So that is ‑ ‑ ‑

GLEESON CJ:   But your argument in this case, right or wrong, as I understand it, is that the nature of the error that was made by Judge Wisbey prevented the Court of Criminal Appeal from applying the proviso.  The error he made was an error of such a kind that it was not open to the Court of Appeal to apply the proviso.

MR RICHARDSON:   Yes, that is correct, and for a number of reasons.

HEYDON J:   We have to be precise about this.  I mean, it cannot be the case that in every trial by judge alone where there is an inadequacy in giving reasons that it is therefore impossible ever to provide the proviso because, for example, if in the argument there had been a lot of ventilation of the points and it was plain the judge’s mind was directed to them, it was merely an oversight that that judge had failed to deal with it.

MR RICHARDSON:   Yes.

HEYDON J:   Your point is in a case where if it was an identification case warnings had to be given and where the evidence was deceptively simply and where in truth there was really a vacuum at the heart of the complainant’s evidence, the discipline of working out precisely the reasoning which would lead to a conclusion of guilt and the discipline of considering the warnings was vital in the reasoning processes and an accused is entitled to a judge who turns his or her mind to the reasoning processes with care in a case like this.  That did not happen here.  That in a nutshell is your ground 1 point?

MR RICHARDSON:   That is it in a nutshell and it is certainly not contended that every failure will constitute a fundamental irregularity.  That was clearly stated in Fleming where they used the words in determining that it was serious that it was not trivial, a trivial error.  That, of course, is consistent with the philosophy of the proviso anyway that it is not to apply in circumstances where there are minor inconsistencies or errors. 

Just going back to focus on what your Honour Justice Heydon said, it is obviously important to determine whether it is fundamental of the particular circumstances.  We say here obviously that this was the critical issue that was not dealt with and that points together with the other submissions that it was required by statute essential to a proper trial in these circumstances.  It was certainly considered by the majority in Wilde to be a relevant factor to look at the particular circumstances and in Wilde the majority pinned counsel down who was appearing for Wilde to explain what the prejudice was to Wilde by the admission of this evidence in relation to the first count, first sexual offence and stealing count. 

Counsel having been pinned down conceded that the prejudice was that the jury may have used the evidence in relation to the first count to identify in relation to the second and the court dealt with that, having confined the prejudice aspect or the significance aspect of it to that point, then went on to look at how that fitted in with the other evidence. 

So the majority is saying, “It is an identity point here.  How does that sit with the other evidence in relation to counts 2 and 3, which was the stealing of the car the day before and then the next offence of breaking into the house?” not for determining the question of guilt but for determining the question of the fundamental nature of the defect.  The majority concluded, because the evidence in that case consisted of a handwritten confession in Wilde’s hand, that he had been at the house, that he had taken the child out of the car and put it in the house after the sexual offence because he did not want the child to be injured.  The court concluded that it was not fundamental.

Now, of course the minority in that case, in particular Justice Deane, said it was a fundamental issue.  But in relation to this case, this was, in effect, the only evidence.  So it is distinguishable from Wilde.  This was the only evidence that implicated – the critical evidence, if you like.  It was what the State’s case was, that he had been identified as the offender and had been identified by the complainant.

GLEESON CJ:   The evidence-in-chief is given, is it not, at page 13, commencing at line 30:

Okay.  Don’t guess.

You see that, page 13, line 30.

MR RICHARDSON:   Yes, your Honour.

GLEESON CJ:   She says:

I had [A] next to me, then my sister and then [R].

Question, passing over one:

Were you all facing the same way in the bed?---No.  [R] and [G] were at the foot end.

Now, how were you woken up at that stage?---By [A] touching me.

What was he doing –

et cetera.  That is the evidence that she gave in-chief and part of that evidence was that as she said again in cross‑examination when asked how she knew it was [A] on page 60:

Because he was - - well, when I went to sleep he was the one laying next to me.

Now, reliable or unreliable, and that is an issue, the substance of her evidence in that respect is that she was woken up by the male person lying next to her touching her and her evidence was that there was only one male person lying next to her and her evidence was that that was your client.  Now, that may be, as I say, reliable or unreliable, but that is the substance of what it was.

MR RICHARDSON:   And it is conclusionary, or is it identification by some process?  That is the difficulty, in my submission.  There is no doubt that she was certain in her mind that she was woken up by [A] touching her.  That is what she said and his Honour accepted that she believed that.  That is not the issue.  It really moves to ground 2 in the sense that the Court of Appeal, in my submission, made a fundamental error when they came to consider whether to apply the proviso or not.

GLEESON CJ:   I thought you said, and I am trying to pick it up, that in her evidence‑in‑chief she said that it was [A] because she saw him?  What page is that?

MR RICHARDSON:   It is page 14 at 42.

GLEESON CJ:   Thank you.

MR RICHARDSON: 

Okay.  Did you say anything?---No.  I just looked at him.

GLEESON CJ:   That is after he had been doing whatever he was doing for about five minutes?

MR RICHARDSON:   Yes.  In relation to your Honour’s statement that she was certain that the brother was at the foot end of the bed, at 28 in cross‑examination starting:

Do you – was everyone sleeping with their heads on the pillow or ‑ ?---[G] and [R] I think had their heads down at the foot end ‑ ‑

All right?--- ‑ ‑ or could have been just [R] and [G], but I’m pretty ‑ ‑ like, one of us had ‑ ‑ like, was down the foot end of the bed.

You’re not sure are you?---No, I’m not, sorry -

in relation to that point.  At the police statements at 49 then that was put to her in cross‑examination:

do you agree with me then it says that you were lying next to [G]?---Yep.

And then next to [G] was [A]?---Mm hm.

And next to [A] was [R]?---Yes . . . 

I cannot remember.  All I remembered was that [A] was next to me.

Your Honour, if I can turn to ground 2, the Court of Appeal in the majority judgment with Justice Pullin, having upheld ground 2, turned to the issue of the proviso.  That commences at 218 and at 218 at about 12 the judgment accords that:

The conclusion, therefore, is that there were irregularities in the trial, but that these did not affect the evidence which was led.

Of course at 219 at about 18 his Honour, in effect, repeated that to this extent in dealing with the Wilde question - I am sort of really going back a little bit now, but:

The irregularities which occurred were not in the conduct of the trial itself.  The irregularities were in the articulation of the trial Judge’s reason for decision.

That, of course, in my submission, is also an error because it is not the situation that Wilde is only applicable to errors concerning the internal conduct of trial in relation to the admissibility of evidence.

GUMMOW J:   You fix upon paragraph 56, do you not, page 219?  You complain about that?

MR RICHARDSON:   Yes.

GUMMOW J:   The second sentence and the third sentence.

MR RICHARDSON:   Yes.

GUMMOW J:   Whether you are right or wrong, that seems to be the joinder of issue.

MR RICHARDSON:   Yes.  It does not really appear to be a matter of great dispute that there can clearly be situations where irregularities or error that do not touch the evidence can be significant irregularities and this is such a case for the reasons I have already advanced.  The complaint that is made in the sentence above relates to the manner in which the majority have simply dealt with this matter, firstly by saying that because:

there has been an independent assessment of the evidence, which leads me to the conclusion that there was no doubt about the appellant’s guilt –

this is an appropriate case for the application of the proviso.  That is:

there was no substantial miscarriage of justice and I would therefore dismiss the appeal.

The submissions contained in the written submissions are to the effect that it would appear that his Honour Justice Pullin has simply adopted the reasoning process in relation to the ground that he identified at page 212, namely that:

The verdict of guilty is unreasonable or cannot be supported having regard to the evidence ‑

In my submission, the error that is manifested by his Honour there is firstly the tests are not the same and certainly the approach is completely different in that when one is dealing with the unreasonable ground there is a persuasive burden on the appellant to demonstrate that the evidence is insufficient and of course there are limitations imposed in that particular process by what was said in M v The Queen about the natural limitations.  Of course the natural limitations work against an appellant succeeding on that ground where the burden of proof falls on him.  For example, at 213, when dealing with the issues and the law in relation to ground 3 his Honour states:

The “natural limitations” mean that on all but “rare occasions” it will be impossible to conclude that a verdict of guilt by the jury is unreasonable and cannot be supported having regard to the evidence.

It is more likely, when one reads Weiss that applying the guilt tests under those circumstances that the opposite applies – in fact that the natural limitations may work against, in many cases, the court being able to be satisfied beyond reasonable doubt as to the guilt of the accused.  So when his Honour says that he has undertaken the assessment and therefore that provides the answer, it is my submission that it is clear that that is erroneous, that it has reversed the burden of proof and, accordingly, the assessment is invalid.

The second reason it is submitted that the Court of Appeal erred in concluding that guilt had been established beyond reasonable doubt is because of the conclusion repeated on a number of occasions by his Honour Justice Pullin that the identification was by way of touch.  That was the premise upon which he concluded that there was evidence to justify that finding.  His Honour at page 217 refers to the New South Wales case of Smith and states there the proposition that a person may become familiar with a person’s touch.  It is a factor that his Honour has taken into account in reaching the conclusion he did.  He goes on to say:

She steadfastly held to her evidence that . . . she was touched by the appellant.  In my opinion, the uncertainties . . . do not diminish the certainty of her evidence about who touched her and her certainty that the appellant’s brother was not lying next to her and did not touch her.  The uncertainties or inconsistencies do not lead me to conclude that there was any reasonable doubt about the guilt of the appellant.

The fundamental defect in my submission here is the premise that the identification was by touch.  In my submission that conclusion is not open on the evidence.  It is also not open on the evidence that the complaint in any way suggested or could it be reasonably inferred that the latter incidents satisfied her in relation to familiarity with touch.  She did not say, “I recognised him because of the touch”.  In fact, the most consistent answer she gave was, “Well, it was him because when I got into bed he was next to me”.  So the submission is that that is unsustainable that it was touch, and that is the foundation of the reasoning for guilt.  If the Court accepts that is in error, as it is submitted it clearly is, then their Honours’ reasoning, or the reasoning of the majority, falls away.

GUMMOW J:   What was the sentence imposed ‑ ‑ ‑

MR RICHARDSON:   There was a six‑month intensive supervision order.

GUMMOW J:   That is long since gone.

MR RICHARDSON:   Your Honour can see that, if you wish, at page 190.

GUMMOW J:  What order do you seek from us?

MR RICHARDSON:   It would depend on whether the third ground is successful.

HEYDON J:   If the third ground were successful, you would ask for an acquittal.  If grounds 1 or 2 were successful, you would ask for a new trial.

MR RICHARDSON:   I would prefer that there not be but, of course, this Court has made it clear that ‑ ‑ ‑

HEYDON J:   Yes, but order 3(e) of your orders says:

there be no re‑trial or alternatively the matter be remitted back to the Perth Children’s Court –

That is 1 and 2.  Is there some long‑term consequence independently of the six‑month order that affects the appellant?

MR RICHARDSON:   There is, your Honour.  The appellant, regrettably, is caught by the Community Protection (Offender Reporting) Act 2004. That requires reporting conditions. I am instructed by my instructors that he has already breached that reporting condition and has been charged. That is an ongoing obligation for seven and a half years as to ‑ ‑ ‑

GUMMOW:   What is that statute again?

MR RICHARDSON:   The Community Protection (Offender Reporting) Act 2004.

HEYDON J:That is retrospective, is it, as to your client, in a sense?

MR RICHARDSON:   2004.

HEYDON J:   The offences took place in 2002 and 2003.

MR RICHARDSON:   The date of conviction or sentence attracts the operation, I am instructed.

GUMMOW J:   It comes in the definition from the treatment in section 6 of “reportable offender”, I think.

MR RICHARDSON:   Yes.

Subject to subsections (4) and (5), a reportable offender is a person whom a court, on or after the commencement day, sentences for a reportable offence.

Section 6(1) came into operation on 1 February 2005.  AK was sentenced on 22 August 2005.  I can make that available if you wish.

HEYDON J:   I think we have copies – I have, anyway.  That is all that matters.

MR RICHARDSON:   The other matter in relation to ground 2 is it is submitted that – and this is something not mentioned by Justice Buss – that you have a warning problem in relation to the Court of Appeal as well in making that assessment.  How does the Court of Appeal give itself a warning in relation to the identification evidence?  We know it did not, in my submission, from the reasons.  In any event, how could it because in my submission that would necessitate the court placing itself in the position of the primary judge to assess issues of credibility and reliability and particular issues of reliability are not only based on objective circumstances but as Justice Roberts‑Smith pointed out, also depend on issues of demeanour.  For example, there was a part of the evidence where the complainant was being cross‑examined in relation to who was the person who was touching her.  This question was put at page 63 at about line 42.

So during that whole 30 minutes if I said you did not look over at the person touching you, that would be right, isn’t it?‑‑‑Yes.

So could it have been, say, [R] that was touching you?

The way in which this evidence that follows was given is not something that can be detected other than by speculation by a Court of Appeal.

I don’t think it could have been.  I’m ‑ ‑ I’m pretty sure it was [A].

I recall I read this at the special leave application with Justice Hayne.  The next question is important – and answer:

You don’t think?‑‑‑No.  I’m ‑ ‑ I’m definitely ‑ ‑ I knew ‑ ‑ I know it wasn’t [R].

All those questions there are really matters that go to both credibility and reliability.  They cannot really be accurately assessed from a review of the transcript.  The Court of Appeal:  one, did not give itself a warning, yet the Court of Appeal specifically held that there was a recognisable form of positive identification – that is identification by touch.  The Court of Appeal, through Justice Pullin, admitted there were problems with visual identification evidence.  He referred to Alexander; he referred to Domican he then referred to the difficulties associated with voice identification.

He then said the principles in relation – and then he accused the defence of seeming to suggest that the only form of identification evidence was visual and there were no problems with – but then he said there were problems with that and there were problems with all sorts of identification.  He then said that the principles that apply to visual, voice and touch should all be the same.  Logically, it must follow that he then had to go on and say that the court had to give itself a warning before it could make a conclusion in relation to a positive finding of guilt; it did not do so.  In those circumstances the process adopted by the Court of Appeal was wrong, erroneous and, accordingly, the result is invalid.

It also points, in my submission, to the proposition that the natural limitations imposed – this was not raised specifically by Justice Buss but the natural limitations imposed by the necessity of a warning precluded the real application of a warning in the circumstances of this case.  The Court of Appeal could not do it.  It could not filter the evidence prior to making that decision because that filtering process required the court to see and hear the witness giving the evidence.

Justice Buss, although not raising that point, concluded, in my respectful submission correctly, firstly that there was no form of identification on the evidence identified in terms of touch.  His Honour says at page 232 at about line 45:

In my opinion, that evidence does not constitute a satisfactory basis for concluding that the complainant identified the appellant as the offender from the manner in which she was touched.  The basis for her assertion that it was the appellant who touched her was not explained or explored at the trial.

Then over the page at line 11:

None of the complainant’s other evidence established that she identified the appellant as the offender “via her sense of touch” . . . 

The complainant did not say that her evidence ‑ ‑ ‑

GUMMOW J:   Where are we going, Mr Richardson, that we have not been before?

MR RICHARDSON:   This is just going to the error.  My submission is that Justice Buss got it right.  He identified the correct reasons why the proviso in the sense that proof of guilt could not be utilised and, critically, he said – which is the last point I make on this issue – at line 38:

The identification of the appellant as the offender depended upon an assessment of the complainant’s credit and reliability.

No findings were made as to reliability – could not be satisfied.

GUMMOW J:   We can read all this for ourselves.

MR RICHARDSON:   I respectfully adopt those reasons in addition to the reasons of the warning.  In relation to the third ground, your Honours, if, as is submitted – and I should say something that I did not note.  In the respondent’s submissions they say that there is –in opposition to ground 1, they say the evidence of the identification was just circumstantial.  In relation to this ground, the respondent’s submissions say that there was direct evidence of identification and circumstantial evidence.

In my submission, if the direct evidence is removed – and in my submission there was none in relation to this ground – then we are left with evidence which could not, other than give rise to a feeling of doubt about the guilt due to the quality of the evidence in its entirety in the circumstances of this case.  We are left with the evidence that I have already mentioned:  location in bed, bad lighting inclusions – not being able to see and not looking.  For all those reasons, in my submission, the Court should

conclude that the Court of Appeal erred in failing to find that there could be no doubt about the conviction of the appellant.

GLEESON CJ:   Thank you, Mr Richardson.  Yes, Mr Fiannaca.

MR FIANNACA:   May it please the Court.  Your Honours, can I first of all say that in relation to the last point my learned friend made about the respondent’s submission about the weight of the evidence, of course it had to be both direct and circumstantial evidence because the direct part of the evidence is that when she went to bed the person who was lying next to her was the appellant.  So that aspect of it is direct evidence in terms of the identification then of who was next to her.

It seems to us that, although she at that point said that she did look and see the appellant, essentially her evidence was that he was the person next to her; the brother was at all times the furthest person from her.  Whether at the other end of the bed or on the same end, he was always the furthest person from her.  I will come to some parts of the evidence later but your Honours have already identified, I think, in discussion with my learned friend, most of the evidence that we have referred to in our submissions and I do not need to go into it in detail.

Can I go back to what the grounds were before the Court of Appeal and if I could take your Honours to page 192 of the appeal book.  The second ground is the failure to give reasons; the third ground is the unsafe, unsatisfactory or unreasonable verdict.  The first ground seems to be the basis upon which my learned friend has made submissions that there was an error in not giving a Domican‑type direction and there was then an error in the Court of Appeal in not finding that he had erred in that regard so it seems to be based on this ground.  The complaint that was made before the Court of Appeal was not that the trial judge had failed to direct himself in relation to identification – that is in terms of the sorts of warning that Domican might require – it was that he failed to direct himself as to whether the prosecution had negatived beyond reasonable doubt the possibility that the complainant had mistakenly identified the appellant as the offender.

In relation to that ground, all three judges dismissed the ground because they understood it to mean that the judge had failed to identify the issue of identification as the critical issue – in other words that he needed to be satisfied that it was the appellant.  All three of the judges dismissed that particular ground – Justice Roberts‑Smith by agreement with Justice Pullin – on the basis that his Honour, at the very outset of his reasons, says that he has to be satisfied that the offender was the appellant.

It does seem to us that it is not appropriate now to be suggesting that the error was one of a failure on the part of the trial judge to direct himself in terms of Domican.  Our submission in respect of that is that the direction in any event was not an appropriate one and was not required because this was not the classic sort of identification case.  When one goes to Domican and the facts in that case that were seen to justify a direction, which are the sort of classic‑type cases, the person was a stranger; it was a fairly short‑lived exposure on the part of the witness in terms of the opportunity to identify and she identified subsequently by, I think it was in terms of photo boards.

The point is that it was the classic sort of case where we are dealing with a stranger, someone who, from among the whole of the population, the witness is purporting to identify for the first time.  This was not that sort of case and it is not the sort of case that would have required an identification warning.  If anything, it may have been a case where issues concerning recognition might have been thought to be relevant but, even there, it is not a question of the witness seeking to recognise a person as someone that is familiar to them, someone they know, when this person is identified or recognised in circumstances where they are there and then they are not there.

This is a situation where there could only have been two people.  Your Honours have really gone over this and I do not intend to labour the point.  There could only have been two people, the appellant or his brother.  Because of the touching of the penis, it could only have been one of those.  So it really came down to a matter of the circumstances that the complainant was describing and whether, in those circumstances, there was any reasonable possibility that it was the appellant’s brother who could have committed the offence.

The subsequent relationship of the appellant with the complainant was clearly a matter relevant to that issue and was regarded as such by the trial judge, in the passages that I think Justice Hayne referred to during the course of argument, where he clearly identifies that as a matter relevant.  In fact, there was one other passage where his Honour the trial judge referred to that in the course of discussion with defence counsel.  That is at page 174, line 40, where his Honour said:

If the defendant ‑ ‑ the defendant later sexually penetrated her, as indeed it’s accepted by the defence, would that not add weight to the fact that the likelihood is it was him on this occasion?

That is another reference to the one that was referred to by his Honour Justice Hayne at page 177.

HEYDON J:   Was there any attention given at the trial to whether section 31A of the Evidence Act applied?

MR FIANNACA:   No.  Having read the transcript – and I can only go from the transcript, your Honour – it does seem that that was not a matter that was agitated in that way, that is by reference to the legislation.  But clearly the way in which the learned trial judge was referring to it appears to have been in terms of relationship or propensity specific to this complainant, which is exactly what section 31A would have enabled, or allowed him to do in the exercise of discretion.

The case is one, of course, where the evidence was in anyway because of the charges in relation to the subsequent incident.  So whilst 31A essentially is concerned with the admissibility of evidence, the evidence was already there, but the reason that the judge would be entitled to embark upon by reference to that evidence was available to him.

Your Honours, dealing then with ground 1, it seems to us that the question that squarely arises is whether the case is one that is disqualified from the application of the proviso.  My learned friend says it is because the error that was made in the failure to give adequate reasons was so fundamental that it has precluded any appellate court from being able to look at the record for itself and make a judgment about whether the appellant was guilty of the offences.  In our submission, that simply is not the case.

We, in our submissions, have referred to the relevant passages in Fleming that my learned friend went to earlier.  Can I say, your Honours, within our written submissions we have dealt with the fact that the learned trial judge, in discussion with defence counsel during the course of her closing address, indicated, revealed, what his reasoning process was.  We do not make those submissions to suggest that he did not err in failing to give adequate reasons, clearly he did, and we accept the Court of Appeal’s decision in that regard, but it goes to the question of whether the error could be said to be so significant or so fundamental in terms of the process that it precludes the appellate court from applying the proviso.

In Keyte’s Case, which is at tab 6, the Court said that the “absence of reasons” – this is at paragraph 38 and your Honours have already been taken to it, but I will just repeat it:

If a judge sitting without a jury is not required to give any reasons, the CCA will have no ability to determine whether the judge has correctly applied the relevant rules of law.

The same can be said about the reasoning process as far as the facts are concerned and that is really the nub of the purpose of this sort of provision in legislation, allowing for judges to sit alone -

Absent reasons from the trial judge, the ability to correct a verdict by “a wrong decision on any question of law” will be confined to errors made in the course of the trial itself, and to situations in which it can be said that, as a matter of law, it was not open to the judge to convict.  Cases in the latter category would be relatively rare.  The absence of reasons will also mean that in those cases in which the correct use of the evidence is affected by rules of law, there will be no means of determining whether the judge identified and correctly applied the relevant rules.

Now, none of any of those matters that were clearly of importance in Fleming’s Case because of the failure on the part of the judge there to have regard to the requirements of Longman’s Case apply in this case if your Honours accept, as we submit, that there was no need for an identification warning. 

Can I say in relation to Keyte’s Case, your Honours, that I was going to come to the point of dealing with the fact that the absence of reasons would not inhibit the Court of Criminal Appeal in deciding whether or not it was open to the trial judge on the available evidence to be satisfied of guilt beyond reasonable doubt.  That aspect of the Court of Criminal Appeal’s function does not require that reasons be available.

Now, in our submission, the same applies in the instance of applying the proviso because if the reasons are not necessary for the court to be able to decide whether it was open to the trial judge to come to the conclusion beyond reasonable doubt that the appellant was guilty the same must apply when applying the proviso in deciding whether, on the record, the court can be satisfied beyond reasonable doubt.

Your Honours, if I can just go back to Fleming’s Case, the relevant passage is at paragraph 39 where the Court having said – and this is at page 265, first of all:

that not every wrong decision on a question of law will lead to the quashing of the conviction or a new trial –

We accept that the failure to give adequate reasons is a wrong decision in law.  Their Honours said:

There may be cases where the failure to satisfy the requirements of s 33 –

the equivalent of our section 120 –

involves errors that are so trivial that the Court of Criminal Appeal may conclude that there has been a trial according to law, notwithstanding that failure.

Our submission, your Honours, as set out in our written submissions, is that the Court there cannot be taken to have been seeking to delimit the class of cases where there has been a failure to give adequate reasons in which the proviso can be applied to those cases where the failure can be said to be trivial.

In our respectful submission, the Court should be taken to have been identifying the need to assess the quality of the failure to give reasons, or adequate reasons, in the circumstances of a particular case, to determine whether in fact it is so fundamental as to go to the root of the proceedings.  I use that term because in Weiss’ Case by reference to Wilde’s Case this Court held that circumstances whilst it was making it clear that it was not that there cannot be any fixed criteria by which it can be determined whether the proviso is applicable in a particular case, the sorts of circumstances that had been identified previously and which may be a guide as to whether there has been an error in a particular case include the significant denial of procedural fairness.

We accept on the authorities that a failure to give adequate reasons can amount to a denial of procedural fairness.  The question is whether it is of such significance as to preclude the application of the proviso.  The other category was where there has been a serious breach of presuppositions of the trial.  There were two categories within that.  First of all, where the trial has so far miscarried as to hardly be a trial at all, that could not be said about the proceedings in this case, in our respectful submission.  Secondly, whether an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings, and that is ‑ ‑ ‑

GUMMOW J:   Now, all of this is propounded in a circumstance where section 33 of the New South Wales statute did not exist, in other words, where there were juries and you have to throw into the cases dealing with the proviso what is said at paragraph 37 in Fleming, namely, the public interest in enforcing observance of these requirements when it is trial by judge alone.

MR FIANNACA:   Yes.  That is clearly the case, your Honour, and that is what leads to error, but there still remains the question of whether the error is so fundamental ‑ ‑ ‑

GUMMOW J:   The requirement of form will not always necessarily be overcome by substance.

MR FIANNACA:   No, but can we put our submission in this way, that when one considers then what is the purpose of these provisions, it is to determine to enable an appellate court – first of all it is to enable an appellant to know why he has been convicted, and that includes not only the legal principles the judge has relied upon but the factual basis for it.

GUMMOW J:   The reason for it all being that the legislatures in their wisdom have replaced jury trial by judge trial in indictable offences, and this is a new role for judges.

MR FIANNACA:   It is indeed, your Honour, and we had considered the question of whether in fact all that ‑ ‑ ‑

GUMMOW J:   The policy of the law is to encourage them to keep up to the mark, the new mark.

MR FIANNACA:   Well, that is the point, your Honour, is it not, because it is a new mark, and that is a mark that goes beyond what is required of a jury ‑ ‑ ‑

GUMMOW J:   That is right.

MR FIANNACA:   - - - because a jury does not have to give reasons for its decision.

GUMMOW J:   But there are 12 of them.

MR FIANNACA:   Yes, but why do we have ‑ ‑ ‑

GUMMOW J:   Or sometimes less.

MR FIANNACA:   Why do we have these provisions as a safeguard?  Is it to enable us to know that the court has in fact applied the rules that would ordinarily be evident in a direction to the jury that would deal with the legal aspect of it?  Why is there a need for the judge to identify the facts upon which he has relied?  It is not something that would ordinarily be required of a jury.  It does seem to us that it does graft onto the judge alone type trial an additional requirement, and it may be that a reason for that is that often a reason for opting for judge alone trials is because there is a concern that perhaps a jury may not be capable of understanding the evidence and that sort of thing so there is a need to identify the factual basis upon which the court has come to its decision, but it is there and we accept that.

GLEESON CJ:   Take a case that I know you say is not this case, but suppose you did have what you called a classic identification case where somebody was honestly convinced that a person who was a complete stranger to her had done something and she identified the accused as the person who had done something, and suppose there was a trial by judge alone and the judge failed in his reasons to give himself the classic warning.  What I am interested in is where that leaves an appellate court in terms of the proviso.

An expression that was sometimes used in cases about the proviso concerned the possibility that somebody had been deprived of a chance of acquittal.  Does the appellate court look at what happened and say, “How do we know what the trial judge would have done if he had reminded himself of Domican in relation to that identification evidence?  Might the appellant have been acquitted?”  Or, if this is different, and it may not be, does the Court of Criminal Appeal say, “We think that the evidence in support of conviction, perhaps quite apart from that dubious identification evidence, is so powerful that the appellant did not lose a chance of acquittal”?

MR FIANNACA:   In our respectful submission, the latter approach would be the correct approach if it was possible to make that determination on the evidence, on the ‑ ‑ ‑

HAYNE J:   Well, that would begin, would it not, with a close examination of 119 and 120 of the Criminal Procedure Act?

MR FIANNACA:   Yes.

HAYNE J:   Because the obligation to warn is that in 119(3), is it not?

MR FIANNACA:   Yes.

HAYNE J:   The obligation to warn, that is, “written or other law”, requires amongst other things a warning to be given “in certain circumstances”, the judge “must . . . if those circumstances arise”.

MR FIANNACA:   Yes.

HAYNE J:   Now, the meaning of “if those circumstances arise” is perhaps informed by 120, and in particular by the requirement to give a statement of the principles of law applied and findings of fact relied on.  So if identification is a necessary step in reasoning towards guilt, the combination requires the giving of the warning and the recording of the giving of the warning, does it not?

MR FIANNACA:   Yes, well, the recording of the giving of the warning, your Honour, will be the evidence that the warning was given.

HAYNE J:   Yes.  If, however, the Court of Appeal thought there was an alternative path towards reasoning to guilt, what then is the consequence of the combination of 119, 120 and is it 30, the common form appeal provision?

MR FIANNACA:   Well, that goes directly to the question of the proviso, in our respectful submission, because all that 120 can do is provide a basis upon which it can be said that the trial has miscarried because the judge has failed to comply, but when one then comes to consider the proviso one needs to examine the whole of the record, as this Court has made very clear in Weiss’ Case.

In doing so, if it is apparent that there is powerful evidence and it is possible to make an assessment of that evidence because of its cogency otherwise than would be dependent upon seeing the witness, then it seems to us that the Court can apply the proviso to say that there was overwhelming evidence in any event proving the guilt of the accused.  So, our respectful submission is that the appellate court can apply the proviso in those circumstances although there has been ‑ ‑ ‑

GUMMOW J:   A weakening of the operation of the new system.

MR FIANNACA:   Yes.

GUMMOW J:   In other words, you can get away with it provided you can be strapped up in the Court of Appeal.

MR FIANNACA:   Yes.  But that then goes to the question – I mean, in a sense one is then saying by that that the error that has been identified is not fundamental in the circumstances in terms of one that goes to the very root of the proceedings.

GLEESON CJ:   I think your opponent pointed out correctly that in Festa this Court mentioned that the phrase identification evidence in fact can cover a rather wide range of circumstances or of claims of evidence.  In the present case the question which was asked directly of the witness was how did you know it was the appellant?  A possible point of view is that there is no difference in substance between that question and the question, how did you know it was not the appellant’s brother and, indeed, the complainant answered that question by explaining why it, as she believed, could not have been the appellant’s brother, and her explanation was that because of where he was located he would not have had the opportunity to do what was being done to her.

MR FIANNACA:   Yes, that was part of her explanation.  There was one aspect of her explanation as well ‑ ‑ ‑

GLEESON CJ:   Now, is that identification or is it ‑ ‑ ‑

MR FIANNACA:   Circumstantial evidence?

GLEESON CJ:   ‑ ‑ ‑ a process of deductive reasoning on her part?

MR FIANNACA:   Well, look, your Honour, I think we have to accept that there were occasions where her answers were effectively expressions of conclusions that she had reached about who it was who was next to her by virtue of the fact that he was the person who was next to her when they went to sleep, the brother was at the other end, there was nothing to indicate that the brother had ever shifted in the bed.

Indeed, when she was cross‑examined about the movement – and I will just need to find the reference my learned friend made earlier, and this is at page 47, your Honours, of the appeal book where my learned friend took your Honours to the passage where she started to express some uncertainty about whether it was both [R] and [G] who were at the other end of the bed, but she goes on to say:

but I remember that I was sleeping with - - next to [A].

This is just above 40, and this is a question in cross‑examination:

But that you remember definitely?---Yeah, because I got up and moved away.

That appears to be a reference back to when she says that her aunt, I think it was, [Ge], had come in, made a noise, and had come into the caravan and they had then got out of the bed.

GLEESON CJ:   Well, I think it is right to say that quite a number of questions ask of her both in-chief and in cross-examination, all being questions asked without objection, invited her to engage in deductive reasoning.

MR FIANNACA:   Yes.

GLEESON CJ:   In other words, the trial was not conducted on the basis that she was limited to giving evidence of what she saw or heard or smelt or touched.

MR FIANNACA:   No, I think I have already indicated, your Honour, that we would accept that a number of her answers were effectively conclusions ‑ ‑ ‑

GLEESON CJ:   Because of the form of the questions that she was asked.

MR FIANNACA:   Quite, and largely ‑ ‑ ‑

GLEESON CJ:   Like that one, “How did you know it was the appellant?”

MR FIANNACA:   Yes, and largely in cross-examination where her evidence was being tested about all these matters.  Now, your Honour, I am not suggesting that it was not open to the trial judge to say that a number of her answers in fact indicated that she had not identified but recognised the person who was touching her as the appellant.  We say that did not require an identification and a direction because the circumstances were not such that there was a need to consider the sorts of factors that the Court identified in Domican and Alexander before that and in other cases.

Those sorts of factors are not applicable here.  The question was whether she was reliable in her evidence about where they were in the bed, about the various steps that she said occurred in terms of the touching, whether the brother was ever at her end of the bed, when she got up who was the person next to her and so on.  All of that pointed consistently in her evidence to have been the appellant who was next to her, so the only person who could have been touching her in those circumstances was the appellant.

GLEESON CJ:   Well, if somebody were asked to formulate the warning that the trial judge should have given himself, bearing in mind the presence on the record of all this reasoning process elicited from her by the form of questions that were asked in-chief and in cross-examination, at least one warning – at the moment I cannot think of what more – would have been people can be honestly but mistakenly convinced of identity.

MR FIANNACA:   Yes.

GLEESON CJ:   But I am not sure anybody in the Court of Appeal in this case formulated at least beyond that any particular kind of identification warning that was appropriate to the evidence in this case, did they?

MR FIANNACA:   Well, it seems to us that they have effectively because they have said that the only other person it could have been was the brother.  Was there anything in her evidence that might have suggested that she was mistaken as between the appellant and her brother as to who it was?

GLEESON CJ:   But I think as you mentioned earlier, that is a process of circumstantial reasoning.

MR FIANNACA:   Yes.

GLEESON CJ:   It was a question of eliminating the brother.  Once you eliminated the brother, that is it.

MR FIANNACA:   Yes.

GLEESON CJ:   There is no other possibility.

MR FIANNACA:   Yes, but because her evidence, your Honour, it seems to us involved a combination of identifying or saying that she knew that it was him next to her, had seen him as the person who went to sleep next to her, had seen the brother had been furthest from her, effectively suggesting that this is where the use of the term “presence” I think was made by his Honour Justice Roberts-Smith that the person who was present next to her at all times was the appellant.  She has not at any time said, “Look, I looked at his face, his facial features were those of the appellant”.

GLEESON CJ:   This at least as it appears to me at the moment is relevant to the question we have to decide, which was where did the inadequacy of the primary judge’s reasons leave the Court of Appeal?  To answer that question you have to identify with some precision as it seems to me at the moment the inadequacy in the primary judge’s reasons.

MR FIANNACA:   Well, the inadequacy that the Court of Appeal identified was the failure to give the factual basis upon which he was satisfied that it was the appellant, and I think my learned friend already took your Honours to the particular passages in the judgment of Justice Pullin at page 217 of the appeal book.

GLEESON CJ:   Well, presumably, nobody could have criticised the primary judge if what he had said in his reasons was, “The question I intend to ask myself is, is there a possibility that it was the brother?”

MR FIANNACA:   Yes.  No one could criticise the primary judge if he took that matter into account, it seems to us, and he did because he was directly asked to during the course of the defence counsel’s closing address, and he dealt with that essentially by saying, “But she puts him at a different part of the bed, and yes, she is being inconsistent on one interpretation of her statement in what she said in her statement compared to what she said in court, but that may be reconcilable”.  I mean, this is all to be inferred in what his Honour is saying but it is reconcilable in the sense that she said in court that they were head to toe, so that was his way of identifying a way over the inconsistency that had been identified by the defence between the statement and what the witness said in court.

So his Honour was effectively saying that is one reason why it would not be the brother, and another reason is the reason that I went to earlier about the sexual interest on the part of the appellant, whereas there was no evidence that the brother had ever expressed any sexual interest in her.  Although I do not think the primary judge actually says that, he does not say there is no evidence that the brother ever did.  His reference to the fact that the appellant did, it seems to us, implies that he was considering that to be a significant factor, and it must be in contradistinction to the absence of any evidence of the brother having any such interest.  So, in our submission, his Honour has in the course of argument considered those matters.

Now, it would have been perhaps a lot more difficult for the argument to be put on behalf of the appellant that there had not been an adequacy of reasons, and I am talking now going back to the Court of Appeal, if his Honour had said, “For the reasons that I have just stated during the course of discussion with defence counsel, I come to the conclusion that it was the appellant” because those were reasons that were clearly in his mind at a time very shortly before he gave his reasons.

This was a trial, your Honours, that was conducted within one and a half days.  A large part of the first day seems to have been taken up with the evidence of the complainant, particularly the cross‑examination.  The addresses occurred on the second day, and immediately after defence counsel made her closing submissions in the course of which his Honour engaged her in discussion about the particular issues she was raising and giving his views about those matters he gave his reasons.  There is no question that the formal giving of his judgment, as the Act refers to it, was inadequate.  He did not state his reasons but he had indicated in the course of the discussion what they were.

So to answer your Honour the Chief Justice’s question about the – if his Honour had effectively referred to the brother in terms of the possibility of mistake and excluded him, in our submission he has effectively done that.

GLEESON CJ:   But if he had said, “My main reason for concluding that it was the appellant is that I am satisfied beyond reasonable doubt that it was not the appellant’s brother, and I am satisfied beyond reasonable doubt that it was not the appellant’s brother because I accept the complainant’s evidence that he was at the other end of the bed and would not have had arms long enough to do some of the things that she said was done to her”, what warning would he have had to give himself before applying that process of reasoning?

MR FIANNACA:   Well, in our respectful submission, in those circumstances there would not be a need for a warning because it is not a question then of relying on the complainant’s evidence in terms of identifying or recognising by facial features or anything of that nature, voice, because she did not say he spoke at any time during the incident, so there is nothing to attach a warning to it seems to us.

HAYNE J:   Well, that identifies what is at least a difference, perhaps the difference, between the majority and the minority in the Court of Appeal.  At 211 Justice Pullin at line 20 in part of paragraph 31:

It was necessary for his Honour to identify the fact that there was an issue about identification –

which he then explains in the succeeding lines, and compare that to page 233 paragraph 85 Justice Buss where in line 3 of paragraph 85 his Honour identifies the issue as:

The identification of the appellant as the offender depended upon an assessment of the complainant’s credit and reliability.

A reading of the two sets of reasons is that Justice Buss saw the evidence at the trial as depending upon the accuracy of what the complainant said.  Justice Pullin saw the issues as joined as commencing with the fact that the complainant made a confident assertion but then articulating the competing points of view in rather more elaborated detail.

MR FIANNACA:   Yes, I accept that, your Honour.  It must be said, however, that it was always going to be necessary for the trial judge to be satisfied about the complainant’s credibility and reliability in terms of ‑ ‑ ‑

HAYNE J:   Yes, for example about who was in the bed, where, at the start of the night.

MR FIANNACA:   Yes, yes.  Our submission is that the way in which this matter has been approached by the majority in the judgment of Justice Pullin is not erroneous.  That essentially is our submission in respect of the identification of where the inadequacy in the reasons were and why it is not of the kind that has been identified in the authorities Weiss and Wilde as to preclude the application of the proviso.  This is a case where the court could go to the record and make its own assessment, and that record included then the statements made by the trial judge during the course of discussion with ‑ ‑ ‑

GUMMOW J:   Make its own assessment of what?

MR FIANNACA:   Of the strength of the evidence as to whether it satisfied the appellate court, the Court of Appeal, beyond reasonable doubt of the guilt of the appellant.

GUMMOW J:   Is not the root of the proceedings the compliance of the statutory structure?

MR FIANNACA:   Well, that is our point though, your Honour, that ‑ ‑ ‑

GUMMOW J:   It is a different root, is it not, now?

MR FIANNACA:   Yes, it is a different root ‑ ‑ ‑

GUMMOW J:   You keep referring to the earlier root as if that is enough.

MR FIANNACA:   No, we maintain that the failure to give reasons cannot always be said to amount to a root of proceedings type irregularity, and once that is acknowledged and once it is acknowledged that Fleming was not ‑ ‑ ‑

GUMMOW J:   The question then is by what criterion do you sit?

MR FIANNACA:   Yes, and we say that in this ‑ ‑ ‑

GUMMOW J:   What criterion do you say?

MR FIANNACA:   Well, we say in this particular case if there was no indication whatsoever of ‑ ‑ ‑

GUMMOW J:   I can see you can well say there is a criterion, you look at that transcript and you can see that the judge really was paying close attention to all of this and was following what was going on, and articulated certain concerns and so on and so forth, they were not reproduced in the reasons but you could be sure that the judge was conscientiously performing the statutory tasks.

MR FIANNACA:   Yes.

GUMMOW J:   I can understand that, but you get beyond that, do you not?

MR FIANNACA:   We say once you get to that point you say that it is no longer such a fundamental, such a significant failure in the process as to preclude the application of the proviso.  That is all we are concerned with here, not whether he erred – we accept he erred – but whether it precludes the application of the proviso.  We say it is not of such a fundamental nature as to preclude the court here from being able to look at the record and making its own judgment about whether the appellant was proved guilty beyond reasonable doubt.

GLEESON CJ:   There are two possibly different reasons why in a given case, I am not saying this case, the application of the proviso may not be possible.  They may overlap, but one is that there was an error of procedure that went to the root of the proceedings, was fundamental, whatever formula you use and another is that because of the error the Court of Appeal is left in the situation where it does not know whether there has been a miscarriage of justice.

MR FIANNACA:   Yes, I agree that there can be those kinds of errors, your Honour, and we say this is not the case.

GLEESON CJ:   Your opponent relies on both of those in this case.

MR FIANNACA:   Yes, he does.  We say that the Court of Appeal here could make a decision as to whether there has been a substantial miscarriage of justice by looking at the record for itself.  One of the things that it would be entitled to do then, consistently with what this Court has said in Weiss and elsewhere, is to look at the actual verdict, the decision of the trial judge, and what he has said about the impression he had of the witness in terms of truthfulness and thoughtfulness which are the terms that he used.  During the course of discussion with defence counsel, once again the learned trial judge made particular point of the fact that at times the complainant appeared to take a time to think about things and seemed to be closing her eyes and that sort of thing.

So his Honour was clearly mindful of particular things that the complainant did which impressed him as indicating she was a truthful and thoughtful witness and there was no evidence to suggest to the contrary other than any inconsistency that may have been discerned during the course of cross‑examination.  Those matters were things that were discussed with defence counsel, particularly by reference to the statement in the passage that I referred to earlier. Your Honours, I think that really is all we would want to say in relation to ground 1 unless there are any further questions in respect of that.  We otherwise rely on our written submissions so far as that is concerned. 

In relation to ground 2, the argument in the first place I think is that even if it is accepted that the error was not one that went to the root of the proceedings, this was one of those cases where it was not possible for the Court of Appeal to actually make its own judgment as to whether the evidence proved the guilt of the appellant beyond reasonable doubt.  One of the points that my learned friend suggests indicates error on the part of the court in this regard is the suggestion that the majority conflated the test for the application of the proviso with the test when considering whether a verdict is unreasonable, and, in our respectful submission, that is simply not apparent.

GLEESON CJ:   They had two separate grounds of appeal to deal with.

MR FIANNACA:   That is right.

GLEESON CJ:   The grounds of appeal forced them to deal with the question whether the verdict was unreasonable.

MR FIANNACA:   That is right and that is the essence of our argument in relation to that point that the court, in any event, had to look at the whole of the record in respect of ground 3 and therefore when his Honour, Justice Pullin says at page 219, paragraph 56:

In this case, because of the Court’s consideration of ground 3, there has been an independent assessment of the evidence, which leads me to the conclusion that there was no doubt about the appellant’s guilt -

his Honour is not there shifting the onus to the appellant in relation to the proviso.  All he is saying is, “We’ve had to look at all the evidence because of ground 3, I’m satisfied beyond reasonable doubt about the appellant’s guilt”. 

We acknowledge, in our submissions, that his Honour, Justice Roberts‑Smith, concludes his remarks at page 197 in paragraph 7 by saying:

on a consideration of all the evidence, and having due regard to the advantage enjoyed in that respect by the trial Judge who clearly formed a particular impression of her as a witness and what she was saying, I am not persuaded there is any reasonable doubt about the appellant’s guilt.

That is clearly the right way in which to approach the unreasonable verdict ground.  The appellant suggests that this indicates on the part of Justice Roberts‑Smith a shift of the onus.  In our respectful submission, that is not the interpretation that ought to be put on that.  His Honour generally agreed with the reasons of Justice Pullin, the very first paragraph of his additional reasons at 196 and, in our submission, all that can be said in respect of that last passage in Justice Roberts‑Smith’s reasons was that his Honour made the remark in a context of articulating further reasons for rejecting the argument that the verdict was unreasonable and unsupported by the evidence because your Honours will see that he is dealing with the arguments that were being put, and this is really in the previous page going over to the top of 197, arguments that were being put as to why her evidence was not reliable and he was dealing with reasons why he thought her evidence could be regarded as reliable and what it was that she was actually saying because he saw it as being partly an issue to do with language and the ability of the complainant to articulate herself.

It is in that context, we submit, that he says that in giving further reasons for the verdict being reasonable.  Alternatively, having regard to his agreement with Justice Pullin, it seems to us that all that can be said is that he is there indicating that he is not left with a reasonable doubt as to the appellant’s guilt.  So it is a matter of interpretation, it seems to us, that it does not follow from what Justice Roberts‑Smith said there that he has applied the test incorrectly in terms of shifting the onus.

Your Honours, in our written submissions, we set out particular paragraphs in the judgment of the Court of Appeal that we say justify the conclusion that it reached and, in relation to the application of the proviso and in particular the references to the use of the English language and so on. 

This was not a case where there were any natural limitations, it seems to us, that precluded the court from being satisfied beyond reasonable doubt of the appellant’s guilt.  The sorts of natural limitations one might have thought relevant were ones for instance where there was no comment at all about the complainant’s credibility or the way in which she gave her evidence expressed by the trial judge but where it is apparent to the Court of Appeal how the complainant has given her evidence because the trial judge makes reference to these things during the course of discussion with defence counsel.  It seems to us that it cannot be said that there were those natural limitations that would ordinarily apply.  Your Honours, I think that is all I need to say in relation to ground 2.

In relation to ground 3, really it follows that if it was open to the court to be satisfied beyond reasonable doubt, as it was, then can I say in respect of that just finally, it should not be a matter of one appellate court substituting its own views about a matter of course for that of another appellate court.  The question is simply, was it open to the court below?  The fact that Justices Pullin and Roberts‑Smith may have expressed their reasons for coming to the conclusion that they were satisfied beyond reasonable doubt slightly differently ought not to be a basis for suggesting that the court below was in error in applying the proviso or that there is some fundamental problem in them being able to apply the proviso because there is nothing to prevent juries from coming to a decision beyond reasonable doubt on a different basis.  That does conclude our submissions.

GLEESON CJ:   Thank you, Mr Fiannaca.  We will hear you in reply at 2.15 pm, Mr Richardson.  We will adjourn now until 2.15 pm.

AT 12.40 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.24 PM:

GLEESON CJ:   Yes, Mr Richardson.

MR RICHARDSON:   Thank you, your Honours.  The necessity and the content of any warning on identification depends on findings by the trial judge that were never made.  There has never been any resolution in relation to those issues.  Without them it is impossible, other than to speculate, as to what, if any, warnings are required.  If, as was found by the Court of Appeal, there was a positive identification by touch or otherwise then, in accordance with Domican, in my submission, full warning was required.  It was not given and that demonstrates, in my submission, the fundamental nature of the error.

I also submit that the reasons given in Fleming also demonstrate clearly, which include public policy reasons, the reasons why this Court should classify the error is fundamental.  However, even if this Court comes to the view that no warning was required, it is still submitted that the defect, as found by the Court of Appeal as itemised by them, constitutes fundamental error for the reasons once again of Fleming so the appellant’s case does not stand and fall on whether or not a warning was required in the circumstances.  That is simply, if you like, an additional factor which points to the fundamental nature of the error. 

The State appears to assert that this Court, when considering this issue and in fact the second ground, should take into account matters of exchange between counsel and the trial judge somehow going to whether or not the defect is fundamental.  In relation to that submission the following propositions are advanced.  Firstly, questions or comments do not form part of the judgment.  That goes without saying.  However, it is clear from section 120(2) that it is the judgment that “must include the principles of law” and the findings of fact.  That does not incorporate statements, comments or observations made by the judge during the course of the proceedings.  If it did, this comment by the judge at page 180, at 18:

HIS HONOUR:        It’s difficult ‑ ‑ it’s difficult to conclude she wasn’t touched, isn’t it?  I mean, someone touched her.  It would be an extraordinary thing for her ‑ ‑ ‑

which his Honour did not finish, but if that was something that could be relied on by the appellant there would probably be a Palmer ground of appeal.  It is simply not something that either party can rely on.

Furthermore, questions do not indicate reliance and, secondly, questions or comments are not expressed and are not intended to be in the course of exchange to expose the reasoning process.  Fleming says the reasoning process must be explained, that is the reasoning process from the findings to the ultimate conclusion of guilt.  That simply cannot be speculated upon from observations made during the course of the proceedings.

The authority that the appellant relies on in relation to that is the decision of this Court in Subramaniam at paragraph [48] - your Honours have a copy – the Court there, Chief Justice Mason, Justices McHugh, Kirby, Hayne and Callinan said:

A material departure from any of the elements described in s 21(2)‑(4) of the Act is a departure from an essential requirement going to the root of the special hearing.  Where such a departure occurs, it is unnecessary to consider further whether the miscarriage of justice that has occurred has affected the verdict of the jury.  There is no need to weigh up the evidence and consider whether the jury’s finding was inevitable.

That is pre-Weiss so that test is referred to.

The failure to comply with s 21(4) in this appellant’s special hearing is, of itself, a substantial miscarriage of justice with the result that the appeal should be allowed and the verdict quashed.

GUMMOW J:   Where are you reading from?

MR RICHARDSON:   It should be paragraph [48].  I apologise for that, your Honour, that is wrong.

HAYNE J: It is page 15, paragraph [48] you were reading from, 211 ALR 1 at 15.

MR RICHARDSON:   The other matter that this case dealt with squarely in relation to this issue appears at paragraph [43] on page 13 of the ALR report which I have:

The respondent argued that even if this ground were to be made out it does not automatically follow that the verdict should be quashed.  It was a corollary of that argument that there had been no miscarriage of justice because the remarks made by the trial judge from time to time during the trial, the summing‑up, the judge’s answer to the jury’s question about the mental unfitness of the appellant, and the submissions of counsel in total informed the jury of all that the Act required them to know.

[44]     The respondent’s argument must be rejected.  The mandatory requirements of s 21(4) cannot be and were not met by the explanations offered piecemeal over the course of the hearing or in statements by counsel.  The explanations required are both limited and specific.  They must be given at the commencement of the trial.  That requirement and the content of the explanations indicate that the explanations that the judge must give are essential to the special hearing.

In my submission, those remarks apply to the requirements of law specified in sections 119 and 120 of the Criminal Procedure Act as interpreted by this Court in Fleming.  Even if one has some reliance upon those matters they might indicate what his Honour was considering, they cannot be in any way categorised as constituting findings and, importantly, cannot indicate, in my respectful submission, by way of inference any finding in respect of reliability.  Unless your Honours have anything further, they are my submissions.

GLEESON CJ:   Thank you, Mr Richardson.  We will reserve our decision in this matter and we will adjourn for a short time to reconstitute.

AT 2.33 PM THE MATTER WAS ADJOURNED