Ayles v The Queen

[2007] HCATrans 421

[2007] HCATrans 421

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A11 of 2007

B e t w e e n -

RAYMOND FREDERICK AYLES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 8 AUGUST 2007, AT 3.43 PM

Copyright in the High Court of Australia

MR K. BORICK, QC:   If the Court pleases, I appear with MR A.L. TOKLEY for the applicant.  (instructed by Townsends)

MR C.J. KOURAKIS, QC:   If the Court pleases, I appear with my learned friend, MS S.A. McDONALD for the respondent.  (instructed by Director of Public Prosecutions (SA))

GUMMOW J:   Yes, Mr Borick.

MR BORICK:   In our submission, what I will call the conviction question, or the first question, should be answered, no, that the trial judge in this case had no power to amend the information because what in fact happened was not an amendment but a substitution of a new charge in the course of her judgment ‑ ‑ ‑

KIRBY J:   Mr Borick, I have read this material, including the supplementary materials filed by you, rather carefully, and I hope I have it clearly, but the question in my mind, it is still unclear as to whether or not the prosecutor sought leave to amend.  You on your side indicated you did not raise any objection to that, and then in the course of her reasons the judge who was sitting alone without a jury proceeded to grant the amendment that had been sought in the course of the trial.  Now, is that a proper interpretation of what happened, or not?

MR BORICK:   No, I do not think it is a proper interpretation.  If your Honours go to the supplementary book that we filed we have the passages from the transcript which set out what happened.  Now, it is against that background that there was a previous amendment to both counts one and two.  Then at page 5 of the additional material her Honour said:

Before I call on Mr Apps to begin his case, Ms Telfer, it would be helpful if you could tell me on what sections of the legislation the prosecution is relying in each case now that you have made an amendment and we have had all the evidence, because I think Mr Apps and Mr Ayles are entitled to know on what sections the prosecution is proceeding -

Ms Telfer said that she would in effect consider that position, and later she said:

In relation to counts 1, 2 and 4, it is the same situation; that the legislation changed, so the prosecution would have to proceed on s. 70(1)(c) or s. 69B(3).  Does that answer your Honour’s question?

HER HONOUR:   That answers my question.  Mr Apps, the defence is not in any difficulty in respect of under which section the offence might have been committed?

MR APPS:   I must say I haven’t got to that stage yet because of the variation in the ages given by Mr [T].

So there was discussion about it and there was a query from the judge.  There was no application to amend to substitute the new charge, and in the result the substitution occurred in the judgment, and of course, Mr Ayles was never arraigned and he has not pleaded to that charge to which he has been convicted.  In our submission, that is a significant denial of ‑ ‑ ‑

KIRBY J:   I understand your point about denial of the normal procedures.  I understand what is in a sense a constitutional point, that it is for the prosecutor to formulate and secure before the court the charges and not for the judge.  That has been a very important constitutional differentiation in our system.  But what do you say about the point that is made in response, that, well, this is all very well but if you were successful on this point, had that conviction quashed, then all that would happen in practicality is that you would be re‑charged, or you could be re‑charged on that offence, to which re-charged offence you would have to plead guilty, and then you really are not in any practical way better advanced.

MR BORICK:   Could I take you to page 66 of the book to paragraph 55 of the judgment of the court below?  Here the Chief Justice is dealing with a proposition that this section – there could be a charge laid under the gross indecency element of it.  In other words, there were two alternatives available.  His Honour said:

I doubt whether a charge of committing an act of gross indecency is a common law alternative to a charge of indecent assault.

Now, he is not deciding that issue, he has a doubt about it:

Proof of an act of gross indecency might require proof of something more than is required for the proof of an indecent assault.  But in any event, while the Court cannot speculate about what would have happened if Mr Ayles had been re-arraigned –

and then he goes into theoretical possibilities.  So, our answer to the proposition being put to us, which is the case that my friend is going to put, that it does not matter, and your Honour Justice Kirby has put it to me, it does matter because it is going to depend upon speculation as to what Mr Ayles would have done if he had been arraigned on that offence and had been given advice as to what his plea should be ‑ ‑ ‑

KIRBY J:   But what about the point that you read to us earlier where his then counsel said, “We do not have any difficulty with that”?

MR BORICK:   With respect, your Honour, I am not sure he said, “I do not have difficulty with it”.  What he was saying is “I have not turned my mind to that yet”.  The words were, “I must say, I haven’t got to that stage yet because of the variation in the ages given by Mr T.”  So if – and as the Chief Justice has pointed out, if the application had been made in court it may well be Mr Apps would have taken the view that there would be no prejudice to his client, but that is not necessarily the view taken by lawyers now advising Mr Ayles.  So therefore the clear denial of procedural fairness does have a sting to it.  It is not just in a vacuum and there will be no purpose served by the Court granting special leave to consider whether her Honour had the power to do what she did.  There is a practical consequence ‑ ‑ ‑

KIRBY J:   But what would be the practical outcome?  You would quash the conviction and the sentence on that crime and then you would be put up on that residual crime.  Is that what would happen?

MR BORICK:   Not necessarily.  That would be a decision for the Director of Public Prosecutions to make.

KIRBY J:   How does that really advance the cause of your client?

MR BORICK:   Well, he would ‑ ‑ ‑

KIRBY J:   I understand you raise a point of principle, and I understand that point of principle, but I am just wondering where it leads so far as individual miscarriage of justice to your client.

MR BORICK:   It leads to the fact – and I am talking of the practicalities now, accepting what your Honour has put to me – it leads to the fact that he could be charged with that offence in the normal way, he could be arraigned, he could take advice.  Before taking advice there would be negotiations take place between he and the Director of Public Prosecutions, all the sorts of things that happen when a criminal charge is laid.

KIRBY J:   When does he – he has a two year non-parole period, does he not?

MR BORICK:   Yes.

KIRBY J:   When does that expire?

MR BORICK:   About a year’s time.  He is still serving a significant part of his sentence.

KIRBY J:   These are events that happened 30 years ago?

MR BORICK:   Yes.

KIRBY J:   By the way, you used the name of the complainant and I do not think you should have done that and I think that should be removed from the record.

MR BORICK:   I think I – I do not think I did.

KIRBY J:   Well, anyway, if it ‑ ‑ ‑

MR BORICK:   I used the name Telfer, which is ‑ ‑ ‑

KIRBY J:   If it is there it should be removed.

MR BORICK:   Well, if I did, yes, I entirely agree, but I to not think I did.

KIRBY J:   Yes, well, it is just you wonder – I mean, you raise a Ryan point and I am sympathetic to the view that when a person comes for sentence they are entitled to have the good and the bad before the judge, but when you actually look at what the judge said in her reasons for sentence, they are very extensive and they do deal at some length with the good that your client did in his life.  She went on to say it is difficult to place a good deal of emphasis on his achievements, but the fact of the matter is that she took those achievements at some length into account.  It is not like Ryan where the trial judge, sentencing judge, said, “I do not give any attention at all.  You are not entitled to any merit whatever”.  That was the objection or character of the Ryan sentence.

MR BORICK:   Her Honour referred to his achievements, for example, the fact that he was granted an Order of Australia ‑ ‑ ‑

KIRBY J:   Which was removed from him.

MR BORICK:   ‑ ‑ ‑ and his achievements were quite remarkable.  So when she then came around to deal with those achievements she said, “I cannot place a great deal of emphasis on it”.  The Chief Justice said, “I am not quite certain of what she meant by that”, and then put his interpretation on it.  But the clear interpretation is that she did not put any weight on it because if she had she would have had to make it clear what impact that had on the overall sentence.

The mere reference to those facts the judge felt she had to do anyway, it was what effect they had.  The point I really want to raise with the Court in relation to the application for special leave on the sentencing issue is the relationship between good works, in this case it is simply good character, and the impact of the judge’s assessment of community values upon how she should approach the sentence.

There has been a great deal of talk in the community that sentencing principles have not kept up with – sentencing positions have not kept up with community values.  In my respectful submission, this has gone back the other way and community values have now overridden what should have been ordinary sentencing principles.  The reason why I say that is because the good works that this man did in his life over a very long period of time since these offences occurred were significant and should have been given emphasis, and that her Honour was wrong not to give them emphasis – I will use her words – because of her perception of community values.

KIRBY J:   Yes, but you put up an argument for a suspended sentence, it was fully considered, and that argument was rejected.  That is not the sort of thing that the High Court of Australia is going to get involved in.

MR BORICK:   I fully appreciate that, but the proposition that I am putting to the Court is that the special leave point here is the interaction between a judge’s personal assessment of community values without any understanding of how the judge makes that assessment and the impact upon that assessment on sentencing principles, and that is – without having to go into further background because the Court is aware of what happened here, that is the special leave question.

KIRBY J:   I took you off anything that you wanted to say about the appeal against conviction to tell you what was concerning me, that it may not be doing your client any advantage, because the sentence looked at as a whole is not, especially had it been imposed, say, five years after the events, a manifestly appealable sentence it seems to me, two year non-parole period.  But would one be doing your client a favour by getting involved in another trial on a matter of this kind, assuming that the Director decided to put him up on trial on the matter that you say miscarried because of the judges interfering in the prosecutor’s discretion?

MR BORICK:   I think it would be extremely difficult to speculate about that practical point of view.  The Director might say enough is enough.  You just do not know how those negotiations would go.  But very certainly he has the right to take advice on whether he should, for example, offer a plea to gross indecency which has a three year maximum which would then impact upon the overall sentence.  So there is a practical side to this, your Honour, and I appreciate that you took me into the other argument ‑ ‑ ‑

KIRBY J:   Just tell me what the practical ‑ ‑ ‑

MR BORICK:   ‑ ‑ ‑ but in a way – the way you are putting it to me now is that they run together, that does not really matter much to Mr Ayles.

KIRBY J:   What is the practical side to it?  If you were to succeed - on the point you raise an objection to the judges, in effect, as you say, assuming the role of the prosecutor and you were to succeed on that and the conviction on that was quashed, what immediate consequence does that have on your client’s (a) sentence and (b) liberty given the non-parole period?

MR BORICK:   He would immediately have to be resentenced.  The overall sentence would have to be set aside and he would have to be resentenced.  There the link comes back to the sentencing submission, or the sentencing point then, whether this Court has anything to say about the effect that should have been given, or the impact that should have been given, to this man’s good works over all those years.

GUMMOW J:   Now, do you want to say anything about the construction of section 281(2)?

MR BORICK:   Only that it refers to an amendment and this is not an amendment.  This was the substitution of a new charge, and section 281(2) has no application.

GUMMOW J:   Which passage in the judgment of Chief Justice Doyle do you criticise as having not observed what you say is a clear construction of 281(2)?  It is paragraph 64, is it?

MR BORICK:   Well, it starts at paragraph 57 of the judgment when he is dealing with – or 56 – and proceeds through to 56 and again 57, but paragraph 64 is where his Honour really deals with it.  There his Honour concludes that:

Her Honour had the power to make the order for the amendment –

we say it is not an amendment –

even though the result of that was to substitute for the charge –

and his Honour is correct when he said the result was to substitute a charge. 

She had that power because the Information as it stood was defective –

That is correct –

because the substitution of the new charge was an amendment –

Again we take issue –

and because, in the circumstances, the making of that amendment gave rise to no injustice -

Now, his Honour speculates there.  It did give rise to injustice because he has been convicted of an offence to which he has not pleaded – not been arraigned or pleaded guilty, and he is entitled to that and what goes with and what precedes an arraignment.  Those are my submissions.

GUMMOW J:   Yes, thank you, Mr Borick.  Mr Solicitor.

MR KOURAKIS:   If the Court pleases, on the construction of section 281, subsection (2) allows an amendment of the information.  The information is a process that can contain a number of counts, and an amendment to an information accordingly can result in the insertion of a count and that is an amendment of the information.  In my submission, there is no reason to doubt the reasoning of his Honour the Chief Justice between paragraphs 60 and 64 to the effect that an amendment can extend to the addition of a count.  The Chief Justice recognised that there may be limits, other limits, as to when that power can be exercised but none that were relevantly engaged in this particular case.

KIRBY J:   Is not this gliding over the public, formal and serious nature of the criminal process?  First, that the amendment really belongs to the prosecutor.  Second, that it has to be done formally and ought to be done in open court.  Thirdly, that the accused ought then have the obligation to answer to the charge in open court before the public, normally on a process like arraignment.  Now, none of that was observed in this case and we have to be careful that we do not gloss over these things, especially in trial by judge alone, and we forget this is something of a serious matter between the community and the individual, it is an accusatorial process.

MR KOURAKIS:   If the Court pleases, the Chief Justice himself made it plain that that is the procedure that should have been adopted, that is, formally making the amendment and precisely identifying the terms and scope of it, but he held that in this case the way in which it occurred was nonetheless within the authority of the judge under section 281.  Insofar as procedural fairness was concerned there was ultimately no unfairness and no miscarriage.

KIRBY J:   So effectively was it dealt with under the proviso, was it?

MR KOURAKIS:   Well, your Honour, the Court found that there was in fact no error of law because of the terms of section 281.

KIRBY J:   But that is an amendment.  It does not seem to me to extend to re‑charging and I would have thought that you as the Solicitor would be here to defend the right of the State, the executive branch to formulate the charges which they are then obliged to bring as quickly as possible to the judicial branch and the judicial branch deals with whether they are proved or not proved.

MR KOURAKIS:   Your Honour, the Director of Public Prosecutions in this case certainly had the power and the responsibility for formulating the indictment in the first place.  As his Honour the Chief Justice observed, the judge presiding over the trial in which the information was presented and being heard also had a responsibility with respect to the pleadings, as it were, to ensure that they were kept in the state that ensured the regularity of the proceedings.

Now, your Honours, in this case the prosecutor in fact foreshadowed an application for an amendment of the very type that was made by the judge.  His Honour the Chief Justice, in my submission, carefully used the word “foreshadow” and that accurately states the effect of the transcript to which Mr Borick took your Honours a moment ago.

KIRBY J:   But did not counsel in that passage in the transcript indicate that he would want to consider what advice he gave to his client in the event of a recharge and the matter was not pressed before the end of the trial but was decided by the judge in her reasons after the trial had finished?

MR KOURAKIS:   Your Honour, specifically Mr Apps at the foot of page 164 in the additional materials ‑ ‑ ‑

KIRBY J:   Page 161, is it?

MR KOURAKIS:   No, transcript 164 and over to page 165, said that he had not really got to the stage of considering the question, but on page 165 the trial judge made it clear that Mr Apps could come back and give his position at any later time and he never did, that is, no objection to the foreshadowed amendment was ever made.

KIRBY J:   Yes, but he says:

I must say I haven’t got to that stage yet because of the variation in the ages given by [the complainant].

MR KOURAKIS:   Yes.  Your Honours, perhaps I should ‑ ‑ ‑

KIRBY J:   If he has not got to that really – there is just a bit of a breakdown here in the course that should be followed, and Chief Justice Doyle agrees with it.  The question is whether depriving a person of the very important formalities of a criminal trial, formulation by the prosecution, not by the judge, of the charge, public accusation, public plea of guilty or not guilty, then the case can then proceed in the normal way.

MR KOURAKIS:   Your Honours, I think it is important that I say something about the course of the trial, given the matters that your Honour has raised.

KIRBY J:   Yes.

MR KOURAKIS:   The accused was presented on some eight counts, pleaded guilty to the seventh and eighth count.  With respect to the first and second count, they arose out of the one incident, and quite apart from the particularisation as to period in counts 1 and 2, that count was identified in practical terms as the first ever occasion on which there had been any sexual contact between T and the accused.  It was identified as the first time, and indeed an occasion that had occurred when T was cleaning the accused’s house and in the course of that an advance was made that led to the indecent assault.

The prosecutor opened on that.  The accused’s counsel well understood how therefore the case was particularised.  The only issue taken in the course of cross-examination of T was that that occasion, which the accused through cross-examination and later in evidence-in-chief accepted had occurred, did not occur when T was 13 but when he was 14 in October 1973.  That was the only matter that was put to T in his evidence, and the fact of the occasion, the way in which it occurred, that it was the occasion that had been opened on, was never an issue.

At the conclusion of the cross-examination of T as a result of the matters as to timing and when the house cleaning occurred and the like, the prosecutor applied to amend the particulars to count one so that it extended to May 1973 instead of November 1972, and that amendment was made without objection by consent.  Now, your Honours, as soon as that amendment was made a difficulty arose because the statutory section number for indecent assault changed in November 1972.  So as soon as the amendment was made by consent as to the period of time after T’s evidence, the timing matters having been put to him in cross-examination, in a ‑ ‑ ‑

GUMMOW J:   This appears at page 7, does it, of the supplementary materials, about line 29, given the range of dates?

MR KOURAKIS:   Yes, if your Honour pleases.  That was before the judge’s amendment in the court delivered – made when she delivered her reasons, but the problem was therefore manifest, and that is the foreshadowed application.  It was a necessary application because the time given the amendment that had been made by consent straddled two sections.  The effect of what the prosecutor says is that we rely on and prosecute him for an offence against the section that was law at the time that it is found that this house‑cleaning incident occurred.  Counsel for T was on notice as to ‑ ‑ ‑

KIRBY J:   Yes, he might have been on notice but the prosecutor has his or her obligations then to follow that up in open court, and the judge has in this case her obligations.  I am not being too critical of the judge because on the whole I think she obviously paid a great deal of attention to this case and did it very carefully, but these are very important rules for the manifest public appearance at criminal trials and criminal accusations.  I suppose it depends on how much importance you attach to preserving, upholding and affirming those rules.

MR KOURAKIS:   Well, your Honour, as to the practice that ought to have been observed and what would have been better practice his Honour the Chief Justice has made observations in the judgment very similar to your Honours.  As to whether any of those mean that the power exercised by the judge went beyond 281, his Honour, again the Chief Justice, in my submission, correctly found that it did not.  On the question simply of the arraignment, for example, can I take your Honours to section 281(3), a provision that was again expressly considered by his Honour the Chief Justice.

KIRBY J:   Where do we find that?  What page?

MR KOURAKIS:   Conveniently, at page 60 of the application book, if the Court pleases.  Now, your Honours, effectively subsection (3) provides that if an information is amended, assuming it is properly amended, then the trial proceeds as if the accused had been presented on the information as presented, that is, not requiring any further arraignment.  That is a view that has been consistently taken of similar provisions in other States and, for example, is a view confirmed by this Court in Maher which considered an appeal from an amendment made in accordance with the Queensland provision.

Now, your Honours, as to actual unfairness or prejudice, not only did counsel for T at trial not make any submission against the amendment or the foreshadowed amendment, but even before the Court of Criminal Appeal and before your Honours there is not the slightest suggestion that the amendment would or could be contested on any and what basis.  Now, giving an opportunity to a party to properly make submissions on a matter that is contested, or has any basis for being contested, is plainly important and would be a matter that would need to be considered.  But in this ‑ ‑ ‑

HEYDON J:   Mr Solicitor, can I just raise this with you?  Page 7 of the supplementary book ‑ ‑ ‑

MR KOURAKIS:   Yes.

HEYDON J:   ‑ ‑ ‑ Ms Telfer and her Honour reach a consensus on the change in the section and so on.

MR KOURAKIS:   Yes.

HEYDON J:   Mr Apps is asked whether he is in any difficulty.  He says he has not got to that stage yet, and her Honour says, “Perhaps we will wait then until the end of the day”.  The end of the day actually happened about 90 seconds later because an adjournment was granted until the following day.

MR KOURAKIS:   Yes.

HEYDON J:   The Chief Justice in paragraph 44 on page 64 records this, I think, incorrectly.  He says:

The Judge then asked defence counsel if that caused any “difficulty” for the defence.  Counsel was given the opportunity to raise any difficulty later that day, but did not do so.

MR KOURAKIS:   Yes.

HEYDON J:   That is not an entirely accurate account of what happened.  If there had been a clear consent, knowing consent, by counsel to this course, although other people disagree with one’s point of view on that, it might be a complete answer to the problem, but it is not at all clear that counsel ever did return to the problem and consent, and the first – at the least the record is compatible with the conclusion that the first counsel knew about it was when he read the judgment.

MR KOURAKIS:   First knew about ‑ ‑ ‑

HEYDON J:   First knew about the amendment being made was when he read the judgment.

MR KOURAKIS:   Well, your Honour, he only would have known that the amendment was in fact made then, that is so.  But what his Honour the Chief Justice was saying in paragraph 44 was that the trial judge in effect said to counsel for the accused that he could raise the difficulty later, not that in fact the court reconvened and he was given the opportunity on the reconvening of the court.  In my submission, all the Chief Justice ‑ ‑ ‑

HEYDON J:   The trouble is people can forget.  A lot of things are going through one’s head if one is appearing for a defendant in a criminal trial.

MR KOURAKIS:   Your Honour, this was a fundamental matter that had been left to experienced trial counsel.  He came back later, called the accused, the accused gave evidence that this incident occurred, denied the other incidents that were charged in counts 3 through to 6, but gave evidence that this incident occurred in the same way in which T had described it, but simply said that it had occurred in October 1973, and not at any earlier time.

Yours Honours, it is just inconceivable that a defence counsel would proceed to call the accused, knowing of course that the accused would give evidence on this very topic, in the light of the foreshadowed application without turning their mind to it, and in the absence of any evidence to say ‑ ‑ ‑

KIRBY J:   Well, that really addresses attention to whether or not the actual evidence on which the accused gave testimony to the court addressed itself to the matter which was the subject of the incomplete resolution of the charge that is now being complained of.  Now, if that is the case then I think you make good your contention that no substantial injustice has occurred, but if the accused did not give evidence on that matter, and if there is any possibility that the accused did not know that the change in the charges being faced by the accused were before the court, then I will not be content.

MR KOURAKIS:   Your Honour, the accused expressly gave evidence about this incident.  There is no doubt that the accused did not know how the charge was going to be precisely formulated.  That only happened with the reasons.

GUMMOW J:   On what day was that evidence given?

MR KOURAKIS:   It was after the – I do not know the precise day, your Honour – it was after 8 June when the Court adjourned, but the record of the evidence that he gave appears at page 18 of the application book from about paragraph 37 down, but certainly in paragraph 38, the accused’s admission to the conduct which formed the basis of that count is set out and her Honour says:

While there is some discrepancy in the details of the account given by the accused and the account given by T, there is no dispute that the offence of indecent assault, the first count on the Information, took place, broadly as described by T.

Now, your Honours, even assuming for a moment that the accused’s counsel had simply forgotten somehow about this matter and postulated, well, what was he likely to say if it was expressly raised before the accused gave evidence, or even if the judge had simply delivered findings and then sought submissions after her findings about whether or not the amendment could be made, what could be said as to why the amendment should not be made, and with the greatest respect the answer is ‑ ‑ ‑

HEYDON J:   Well, one thing that might be said is it is not an amendment.  Counsel could have said, “I am sorry to be technical about it, it is just not an amendment.  You lack statutory power, your Honour.”

MR KOURAKIS:   But, if your Honour pleases, if that is the only answer then we come back purely to 281, we do not need to worry about the procedural fairness question.  If there is no power then there is no power and that can be agitated under 281, and in my submission the Chief Justice’s reasons as to why there was power can be accepted.  One, in my respectful submission, would not allow an appeal because the accused had not been able to make submissions on a point that is plainly wrong if the Chief Justice is right about his construction of section 281.

The only actual unfairness is that if he had – that has ever been alleged either before the Court of Criminal Appeal in the written submissions or now is this, that he had been rearraigned on the amended count, not that they would have opposed the amendment, but that if he had been rearraigned on the amended count he would have offered a plea to gross indecency instead of indecent assault and hoped that the DPP would accept it.  With the greatest respect, on his own evidence, the DPP would have no real proper choice other than to pursue, even now should it be sent back, a charge of indecent assault, and if it was not pleaded to, reject any plea to gross indecency and proceed on his admissions given below.  If the Court pleases.

KIRBY J:   What do you say in answer to Mr Borick’s submission that this is not an amendment, this is a reconstruction of the charge and a formulation of a new charge, which is not an amendment because the charge belongs to the prosecutor, amendments belong to judges, but formulating charges do not belong to judges under our constitutional system.

MR KOURAKIS:   Your Honour, there are two points and with respect I think two answers.  The first is that there are a long line of cases, some of which are referred to by the Chief Justice, stretching back from the very first time English courts were given the power to amend indictments that are authority for the provision that extra charges and different charges can be added under a power of this sort.  The second is that in circumstances where the indecent assault has been charged by the Director, the Director has made it plain that the conduct on which he seeks a conviction is the conduct particularised the first time, cleaning the house and the like.  The trial judge has not transgressed on that separation in any way by simply performing the housekeeping procedure of ensuring that the indictment matches the conduct on which the Director seeks a conviction.  If the Court pleases.

GUMMOW:   Yes, Mr Borick, anything in reply?

MR BORICK:   I will just refer your Honours to paragraph 25 dealing with the – page 60 of the book dealing with the reference to the case of Martin.

GUMMOW J:   Yes, that is right.

MR BORICK:   I will just refer your Honours to that.

KIRBY J:   But, Mr Borick, what do you say about the convention that Mr Solicitor has put to us that in what actually then unfolded you or your predecessor acted on the hypothesis that the amendment had been formally granted and that you proceeded to give evidence in relation to the offence which was the subject of that amendment?

MR BORICK:   Your Honour, there is no evidence of that at all, and things happen very quickly in trials and events change, and whether counsel at trial ‑ ‑ ‑

KIRBY J:   I am not being critical of ‑ ‑ ‑

MR BORICK:   ‑ ‑ ‑ forgot about this or ‑ ‑ ‑

KIRBY J:   But the fact is that we do not waste our time in the High Court on a matter which is a pure formality, and you are raising in a sense an

important or arguably important point of law, but if in the way that the trial was conducted your predecessor accepted that in effect he was going to be charged on a different count and that the judge had this application before her and he is on notice of it and said he did not have any problem with the sections, and he had the chance to say what he had to say and did not say anything about it, and then called the accused and gave evidence in relation to the substance of the crime that is the subject of the foreshadowed amendment, then it is pretty hard to say that you have suffered any injustice in what has occurred.

MR BORICK:   Well, the injustice is as I have already set it out to be, the failure to arraign and the failure for him to have an informed plea to his guilt.

KIRBY J:   Well, I understand that and I understand the formalities, but it does not lead anywhere to a miscarriage of justice in this particular case, does it?

MR BORICK:   Well, with respect, he may give different advice, that is, he may give Mr Ayles different advice as to the elements of indecent assault and the elements of gross indecency, and he is entitled to be now arraigned on that count and decide whether he will plead guilty or not guilty to it, depending upon the advice he gets as to the elements of the charge compared to gross indecency.  He has not had that opportunity.  There has been prejudice to him.

GUMMOW J:   Yes, thank you, Mr Borick.

MR BORICK:   I am sorry, your Honours, my junior has just pointed out to me that the next day, Thursday, 9 June, they resumed at 10.30 and all that happened was that her Honour said, “Just before we begin with your case, Mr Apps, there is a correction to be made” and she talks about that, and then goes onto some other matter about corrections to the transcript.  That is all that happened the next day.  Then from then on it was forgotten about, the day of reckoning never came.

KIRBY J:   Also your predecessor had forgotten about it.

MR BORICK:   He may have.

KIRBY J:   Yes.

GUMMOW J:   Thank you.We will take a short adjournment.

AT 4.22 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.28 PM:

GUMMOW J:   We are of the view that no ground is made out for a grant of special leave in the terms set out in paragraph 2.4 in the draft notice of appeal on page 75.  Paragraph 2.4 is concerned with sentence.  However, there will be a grant in respect of 2.1 to 2.3.  Mr Borick, the orders sought look a bit peculiar at the moment, if you go to page 75.  Paragraph 3(iii) cannot be right, can it - costs?  That should not be there.

MR BORICK:   No, no, we delete that, thank you.

GUMMOW J:   And 3(ii) has to be supplemented, does it not?  The appeal to the Full Court, the Court of Criminal Appeal, be allowed, and what?  Conviction set aside and a new trial ordered or words to that effect have to go in, I think?

MR BORICK:   Yes, conviction set aside, but perhaps leave open the question of whether a new trial should be ordered.

GUMMOW J:   Yes.  All right, well, so you will have to amend the notice of appeal in accordance with what we have just been saying.

MR BORICK:   Thank you.

AT 4.30 PM THE MATTER WAS CONCLUDED