BCM v The Queen

[2013] HCATrans 231

[2013] HCATrans 231

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B31 of 2013

B e t w e e n -

BCM

Appellant

and

THE QUEEN

Respondent

HAYNE J
CRENNAN J
KIEFEL J
BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 OCTOBER 2013, AT 10.18 AM

Copyright in the High Court of Australia

MR D.C. SHEPHERD:   I appear with MR J. LODZIAK for the appellant.  (instructed by Legal Aid Queensland)

MR A.W. MOYNIHAN, QC:   If the Court pleases, I appear with MS C.M. KELLY for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Shepherd.

MR SHEPHERD:   Thank you, your Honour.  If it please the Court, the judgment of the Queensland Court of Appeal did not reveal sufficient reasons for the conclusions reached in this case.  When considering a ground of appeal that a verdict is unreasonable and not supported by the evidence, the Court of Appeal must determine whether on the whole of the evidence, it was open to the jury to convict.  In doing so, it must make its own independent assessment of the evidence.  That exercise, it is respectfully submitted, was not undertaken.  When faced with such a ground of appeal, the Court of Appeal in this instance should have publicly provided transparent reasons which adequately demonstrate that the court has undertaken the task required of it.

HAYNE J:   Let it be assumed for the purposes of argument, Mr Shepherd, that there were some weight in this criticism of what the Court of Appeal did, and no doubt we would have to hear Mr Moynihan in response to it, but assume for the purposes of debate that that were so, would we not then have to come to grips with, in this Court, the unsafe/unsatisfactory point?

MR SHEPHERD:   The Court has two options.  One is to remit the matter back to the Court of Appeal.  My submission was that in considering whether the reasons were sufficient, or that the court had undertaken its task, this Court would in any event have to assess the evidence and could for itself undertake the task which miscarried below.

HAYNE J:   Well, it is a two‑day trial or something under two days.  The record is relatively brief.

MR SHEPHERD:   Yes.

HAYNE J:   Again, subject to anything that may be said by your opponent, assume for the purposes of debate that we were to form a view that we for ourselves should consider whether the verdict was unsafe or unsatisfactory, is that not the nub of the point that ultimately we have to grapple with however you frame the appellant’s case - sufficiency of reasons, what should we do.  Do we not at some point have to come to grips with the allegation of unsafe/unsatisfactory?

MR SHEPHERD:   If the Court proposes to proceed in that way rather than remit the matter back, yes, your Honour.

HAYNE J:   I am asking, not telling, Mr Shepherd.  I am only one voice.  But at least for my own part it would seem to me that at some point, sooner rather than later, we are going to have to confront directly your side’s contention that the verdict was unsafe and unsatisfactory.

MR SHEPHERD:   Yes, your Honour.

HAYNE J:   I wonder whether we may not be assisted if we go directly to that point as soon as we conveniently may in development of your argument, but you must take the course that you think best for your client.

MR SHEPHERD:   Yes.  I can go to that, your Honour.  The submission concerning the question of whether the verdicts were unreasonable or not supported by the evidence is based upon primarily two reasons.  The first was the unreliability of the of the complainant’s evidence.  The complainant’s evidence had to be accepted beyond a reasonable doubt before a conviction could be entered.  The complainant’s evidence was unreliable because of a number of features, including the delay of reporting the facts concerning count 3, the differing explanations for that delay, including a matter which does not seem to have garnered much attention throughout, either in the trial or in the appeal, and that is the effect of that failure to disclose immediately.  The fact of that failure was referred to as an inconsistency.

HAYNE J:   Sorry, I am not following you.  What is the point?

MR SHEPHERD:   The point is that the fact of the failure to disclose was referred to on a number of occasions at the trial and during the course of the appeal, but the impact of that does not seem to have, on the assessment of her credibility, garnered much attention.  There were a number of explanations provided by her and have been referred to variously in the trial and in the Court of Appeal decision.  One which got much attention in the Court of Appeal was that the initial failure to disclose was because she was scared.  If that reasoning is accepted it reveals that, or suggests that there could have been a deliberate withholding of information by her, for whatever reason, but a deliberate withholding of information by her when she was first interviewed by police and when she first spoke to her mother.

KEANE J:   Was that ever suggested to her?

MR SHEPHERD:   No, your Honour, it was not.

HAYNE J:   To put it bluntly, it is a bit hard to raise it here, is it not?

MR SHEPHERD:   It raises itself, your Honour, in the sense that that was the explanation that was given by her.  The consequence of that perhaps is not something which the witness herself may have been able to comment on too much in the sense that she agreed that she did not disclose those things.  She gave various explanations, one of which she was scared.  Now, that of itself simply suggests that one of the reasons or the motives for that was for whatever reason, good or bad, that she was deliberately withholding information. 

An alternate explanation that was provided was that she forgot when she was talking to police.  Well, that in itself would have a significant impact on the assessment of her reliability overall given that, on one view at least, she made up a story or part of a story about what was happening when her grandmother, the appellant’s wife, came home from the shopping trip.  On one occasion she indicated that she was out watching a movie and was halfway through watching that movie and then by the time of the second police interview when she fully disclosed the events said to support count 3 she gave a different version.

Now, when considering her evidence it cannot be ignored that she has – if the second version is to be accepted, as was pushed by the Crown – made up something on the first occasion about what she was doing when her grandmother came home.  All of that must impact significantly and, in my submission, the statements around that are really fatal to her credibility, they are that significant. 

There were other inconsistencies in her evidence about whether her grandmother was actually in the bed when the events said to support count 1 occurred; there were some inconsistencies about whether she was told not to say anything; there was some uncertainty about when the offending occurred, that is, before or after the surprise birthday party; and there was an inconsistency between what she told her mother about whether it was daytime or night time when count 1 occurred and what she told the police. 

There were other matters of inconsistency, some minor, and some explicable perhaps by the fact that a young girl of tender age is being asked to recall events some years after the incident, but an overall assessment of her evidence would indicate that given the onus of proof which the Crown bears would suggest that the jury ought to have had a reasonable doubt.

As this Court said in Douglass, that does not mean that her evidence cannot be accept or there may be some probability about the events which she described, but given the standard of proof, it was unreasonable for the jury to be satisfied beyond a reasonable doubt in the circumstances.  Added to that, when the whole of the evidence is assessed, is the evidence of the appellant and his wife.  The appellant gave his evidence in a forthright manner, making concessions where necessary.  He frankly acknowledged that some of his recollection was assisted by reference to the diary made and kept by his wife and some other information – ticket stubs to an entertainment park – but attested to an independent recollection of the events.  He denied the offending. 

His wife gave evidence that, as did he, the child stayed over on a specific date and they nominated that date, still within the offence period.  Her evidence was consistent with that of her husband’s.  She also made appropriate concessions about the diary, but contrary to a matter asserted by my learned friend, she did not concede that an overnight stay might not have been recorded.  She did acknowledge that certain visits – and that word was used – and other events may not have been recorded but later on in her evidence, which is fairly set out again in my friend’s outline, when you look at it she did not concede that there were any other overnight stays and she also denied that there was any occasion during that time when the complainant’s younger brother stayed over.

In making the assessment about whether the verdicts were unreasonable or unsupported by the evidence, the court has to take into account the verdicts of the jury in their role as the primary fact finders.  There have been many statements in this Court about that particular aspect of this, including in MFA and M.  I will not take the Court to those paragraphs, but those cases and others have highlighted the seriousness of overturning a verdict and that is not lost, in my submission. 

Section 668E of the Criminal Code (Qld) dictates that the relevant court must be of the opinion that the verdict was unreasonable or unsupported, and again, it is to be recalled that the onus of proof is beyond a reasonable doubt. The lack of credibility which should have led to the doubt is not explained, however, in this case by the manner in which the evidence was given. The doubt arises, in my respectful submission, because of what was said. The inconsistencies, the inadequacies, and lack of probative force are not said to arise because of the manner in which the evidence was given, but because of its content. In that way, any doubt which might arise for this Court’s consideration cannot be explained by the advantage the jury had in seeing and hearing the evidence.

KEANE J:   Well, except that they plainly rejected the evidence of your client and his wife.  You say they gave their evidence – they were unshaken, their evidence was supported in some respects by the diary.  But it is pretty clear the jury, having been given a direction that they could not convict just on a preference for the complainant’s evidence, they had to be satisfied beyond reasonable doubt on the whole of the evidence that your client was guilty, it is pretty clear that they did reject that evidence.  Now, is that not the province of the jury, to come to that view?  Is that not something that they are allowed to do?

MR SHEPHERD:   Unless that view is unreasonable, your Honour, which is what this Court, if it undertakes the ‑ ‑ ‑

KEANE J:   Well, what about a case of an armed robber, someone who is charged with armed robbery and there is evidence by eyewitnesses who were present at the scene.  The jury is given the appropriate Domican warning.  The accused calls several witnesses who give alibi evidence that at the time in question the accused was with them playing cards on the other side of town.  Their evidence is unshaken in cross‑examination, they stick to their guns.  Would a verdict of the jury convicting be unreasonable?  Would that be something that an appellate court would have to correct?

MR SHEPHERD:   If that was the only issue for consideration, then no, your Honour.  What this Court must do is assess the whole of the evidence, and even if it is accepted that the jury rejected the evidence of the appellant and his wife, the remaining evidence must still satisfy them beyond reasonable doubt of the guilt of the accused, and it did so in two of three counts.

KEANE J:   So it is not the existence of a plausible denial sworn to by the accused that makes the verdict unreasonable, it is the insufficiency of the evidence of the complainant and her mother.

MR SHEPHERD:   In my respectful submission, it is not just one or the other, it is an assessment of the whole of the evidence.  For example, if the court came to the conclusion that the jury’s rejection of the appellant’s evidence was unreasonable, then that would lead to a conclusion that they must have had a reasonable doubt.  It cannot be the case, in my respectful submission, that any evidence rejected can simply be explained away by, well, that was the province of the jury in the sense that they were entitled to reject evidence if they saw fit.  Any rejection of evidence in those circumstances must be a reasonable conclusion and ‑ ‑ ‑

HAYNE J:   Well, it may be, then, that as the Court said in M, particularly at 181 CLR 494, that:

If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force –

captures at least some of the field with which we are concerned.  Now, it is not said here, is it, or is it, that the evidence of the complainant was tainted or is there still alive or was there alive at trial this suggestion of coaching?

MR SHEPHERD:   There was alive at trial the suggestion of coaching.  I am not suggesting that that was a significant basis upon which her evidence might be rejected.

KIEFEL J:   Significant basis was the fact of the entry in the diary of the dates when she was said to be present with the grandparents, according to the grandmother’s diary, which was subsequent to the date that the complaint identified as the date of the offence.

MR SHEPHERD:   The complainant did not identify any specific date of the offence other than ‑ ‑ ‑

KIEFEL J:   Except that it was before the surprise birthday.

MR SHEPHERD:   Yes.  That was – she used various expressions to pinpoint the time – it was near the time of the party was the one that was initially used, I think, when she spoke to her mother.  She most often indicated that it was before.  She at least on one occasion indicated or accepted a proposition that it was after, so there were varying statements about precise ‑ ‑ ‑

KEANE J:   Was it not the other way around, that most of the time she said it was after and on one occasion she accepted what was put to her that she had said it was before?

MR SHEPHERD:   My understanding of the evidence, your Honour, was that on most of the occasions she said it was before the party and on a number of occasions indicated a few days before.  Again, there were variations about that.

KIEFEL J:   But the point is that the defence did rely quite strongly upon the objective evidence of the diary, the entry in the diary of 14 November as being the date that she was present, is that correct?

MR SHEPHERD:   Yes.

KIEFEL J:   Was it the defence case, and you maintain, that the jury were obliged to have regard to that evidence because it was not suggested by the prosecution that the diary, as far as it went, was fabricated.  The prosecution case was that there may have been omissions in the diary but that it was not suggested that what was put in as dates here of the date that the complainant was present, was incorrect.

MR SHEPHERD:   There was – and I will try and dig it up, your Honour, there was one question by the prosecutor during the course of the cross‑examination of the appellant’s wife.

HAYNE J:   There may be, but let us look at the way the Crown went to the jury.  The Crown went to the jury, according to its closing address – see day 2, page 49 of the transcript at line 30 – on the footing that the complainant said that:

the offences happened before the birthday party.  

That, I think, is the way in which the Crown went to the jury. 

MR SHEPHERD:   Yes.

HAYNE J:   Whether the Crown might have gone to the jury on a different basis or not, on the evidence – maybe, maybe not – I do not know, but that was the case put to the jury.

MR SHEPHERD:   In the opening, yes.

HAYNE J:   No.  Is not that at closing?  Is not that at the final?  Am I mistaken?

MR SHEPHERD:   There was also a statement to the effect that she was uncertain about the date.

HAYNE J:   Where are you reading?

MR SHEPHERD:   This is in the Crown closing address.  The page number I have is 2‑49.

HAYNE J:   Yes.

MR SHEPHERD:   In effect, the last sentence about that when taken into account considering the whole of that submission.  What I understood the prosecutor to be saying was, there was some variation in her evidence about ‑ ‑ ‑

HAYNE J:   Sorry, I am not following you.  What line are you reading from, at what page?

MR SHEPHERD:   Page 2‑49, about line 36.

It’s not the case that she was adamant about them and has now been proven dead wrong.

HAYNE J:   I was looking at the second sentence in that paragraph.  The complainant said:

that she – the offences happened before the birthday party.

MR SHEPHERD:   Yes.

HAYNE J:   I had understood that – correct me if I am wrong – as representing the issue that was joined at trial because the accused’s counsel had gone to the jury, I thought, on the proposition that the diary demonstrated, and the oral evidence of the accused and his wife demonstrated, that there had been no sleepover before the birthday party and this was put forward as a significant reason for doubting the evidence given by the complainant.

MR SHEPHERD:   Yes, your Honour.

BELL J:   In her first interview with the police, the child said at – this is appeal book 120, line 10:

‘Cause a couple of days later we had poppy’s birthday –

Appreciating that there may have been occasions in her evidence where she departed from that, this seems to be the basis of the Crown’s assertion at 2‑49, line 30.  Is that so?

MR SHEPHERD:   Yes, and to be fair, the majority of her evidence on that point throughout was that the offences occurred before the party.  On the majority of occasions she was asked that is what she said.  There were variations of that – variations from that, but that was the majority of her evidence on that point.

KIEFEL J:   Given the diary entry and the fact that it does not appear to have been attacked as a fabrication what do you say is its importance in relation to the jury coming to a verdict beyond reasonable doubt?  How does it operate in relation to the prosecution case so that the jury were unable to reach that point, on your case?

MR SHEPHERD:   It is another feature and, in my submission, an important one, but not necessarily of itself a determinative one in the assessment of her credibility and her recollection and her reliability.  It has to be acknowledged that the offences occurred when she was six and she first reported them when she was nine and she was giving evidence when she was 10, so they had occurred some time before. 

Now, I cannot suggest that that one particular point in the evidence is fatal to the Crown case.  My submission is that it is part of an accumulation of matters which tend to her unreliability to the point where the jury ought not to have been satisfied beyond a reasonable doubt of the appellant’s guilt.  My submission is that a stronger point in that regard is the evidence around what happened concerning count 3 and the variations in her evidence suggesting that she either manufactured some evidence when asked about what was happening at a particular point in time or, if it is accepted that she just simply forgot about it, that also goes very directly to her reliability.

BELL J:   Was not a further explanation that she offered that she had giggled during the third episode and that she felt silly about having behaved in that way?

MR SHEPHERD:   Yes, she was embarrassed, but her evidence, in my submission, was clarified during the course of the first pre‑recording when it became – or it was accepted by her that when she did in fact remember that incident she reported it to her mother.  There was no specific delay between her recollection and her subsequent reporting it to her mother.

Again, if you accept that that is a question of forgetfulness which goes directly to her unreliability and which again hearkens back to if she forgot about it then she must have been making up a story about what was happening when the grandmother came home on the first occasion when she spoke about it.

HAYNE J:   But that proposition is an either/or proposition.  That proposition is one that either she is telling untruths or she is telling the truth.  That is not the issue at a criminal trial.  The issue at the criminal trial is has the prosecution proved the occurrence of the alleged offences beyond reasonable doubt?  Either/or reasoning, I suggest, invites us to go down a path that leads to error.

MR SHEPHERD:   I was putting it in this way, that there were two bases upon which the court might consider her evidence to be unreliable.  One is that she deliberately manufactured something or that she was forgetful and, as a consequence of that, manufactured something else.  It is not a question of accepting one or the other, it is saying that on either version her evidence is unreliable and must have left the jury with a doubt about the guilt of the appellant. 

The question of the appellant’s evidence being accepted or not accepted is part of the process, in my submission.  If the court concludes that the rejection of the appellant’s evidence was unreasonable then, in my submission, the court can be satisfied that the verdicts were unreasonable.  If the court concludes that the rejection of the appellant’s evidence was a province of the jury then that is not the end of the matter, that does not assume then the acceptability and reliability of the complainant’s evidence which must be considered and, in my submission, on that itself the jury must have had a doubt.  They are my submissions, your Honour.

HAYNE J:   Just before you sit down, Mr Shepherd, it may be of assistance if we can attempt to draw together the several threads which you say demonstrate discrepancy or the reason why the jury should have entertained a doubt.  Can I see if I properly understand the argument as containing at least these elements, but at the end of that the question for you will be (a) is it right and (b), what is omitted.  Do you understand?

MR SHEPHERD:   I do, your Honour.

HAYNE J:   First, all three alleged offences were alleged to have occurred on the one day, were they not?

MR SHEPHERD:   Yes.

HAYNE J:   The jury was not persuaded beyond reasonable doubt about the third allegation.

MR SHEPHERD:   Yes, your Honour.

HAYNE J:   The third allegation was more recently raised than the first two allegations.

MR SHEPHERD:   Yes.

HAYNE J:   I think none of those matters is controversial.  Their significance may be where the controversy lies.  A positive defence was mounted by the accused, the positive defence being denial of the occurrence of the conduct alleged coupled with he would have had at a trial demonstration at least the suggestion that contrary to the complainant’s account there had been no sleepover at the accused’s house before the accused’s birthday within the periods alleged in the counts. 

You then I think point to two principal bundles of additional factors as being matters relating to her evidence both as to its content and giving firstly the, you would have it, late addition of the third incident, and second, a series of matters said to reveal either uncertainty, you would say inconsistency, in her account of details.  Now, that is where I presently understand your argument to sit, but beware the judge bearing gifts, Mr Shepherd.  It is a very dangerous thing to accept the judicial gift.

MR SHEPHERD:   To the point about the difference between, or the contest in relation to when she stayed over, whether it was before the party or on the 14th, I would add the following.  There was a contest about

whether she stayed over at all with her brother, during the course of the offending period, or at all in the absence of the foster children.  So those two features are added to that proposition about the dispute about when she stayed over.

HAYNE J:   Yes.

MR SHEPHERD:   I have summarised the detail of where, in my submission, her evidence falls down in my outline.  I do not think I need to repeat that now, your Honour, and I will accept your Honour’s gift and sit down.  Thank you.

HAYNE J:   Thank you, Mr Shepherd.  Yes, Mr Moynihan.  Mr Moynihan, the fact that I abbreviated what Mr Shepherd said about the sufficiency of reasons should not be taken by you as indicating that it is a matter not to be dealt with, if you think it appropriate to deal with it.

MR MOYNIHAN:   Your Honour, I am very mindful of your opening remark and I think I can deal with both issues, both the sufficiency of the reasons and the sufficiency of the evidence, in a whole manner.

HAYNE J:   Yes.

MR MOYNIHAN:   To determine the issue of whether the Court of Appeal has failed to perform its function by failing to either assess the evidence, give proper reasons or come to the wrong conclusion, one must first identify what the court was required to do and what it was asked to do in terms of what arguments were raised, and I note that your Honour Justice Hayne a moment ago summarised some of those matters and I will deal with each of them in turn.

But the ground of appeal was that the verdict was unsafe and unsatisfactory. That of course engaged section 668E of the Code, which relevantly provided that the court:

shall allow the appeal if it is of opinion that the verdict . . . is unreasonable, or can not be supported having regard to the evidence –

There is no suggestion at any point that the court applied a wrong test in this case.  The court applied the test from M v The Queen 181 CLR 487 at 493 to 494, which required the court to make an independent assessment of the whole of the evidence to determine whether the verdicts could be supported. Secondly, the court was required to determine the ground, but the reasons need not be extensive because each case depends on the state of the authority and the cogency of the arguments raised.

In this case, the appellant claimed the verdicts were unreasonable for three reasons, and I think these three that I - also now pick up those which your Honour just mentioned a moment ago.  The first was that the circumstances of the disclosure of the acts constituting count 3 gave rise to doubts about the complainant’s credibility and reliability overall.  Added in there of course would be the complaints about how it must have changed the evidence concerning the grandmother’s return.

The verdicts were inconsistent and irreconcilable with the jury’s failure to reach a verdict on count 3 and the third argument was the defence evidence of when the complainant was at his house – and one can add to that the presence of the foster children during the relevant period which relied on the diary entries should have caused the jury to have a reasonable doubt.  They were the arguments that were raised for the court’s consideration.

The primary question though always remained whether the evidence as a whole proved the elements of the offence beyond a reasonable doubt, and particularly in this case, that is, the sufficiency of E’s evidence to support a finding of guilt beyond a reasonable doubt.  The court specifically dealt with each of those three distinct arguments or contentions separately, and gave reasons explaining why the complainant’s evidence could in light of them support the verdict.  The way the evidence was in this case summarised and assessed directly reflects the simplicity of the trial, the three arguments raised, and the cogency of each of those arguments.

If I can take your Honours now directly to the reasons – they start at page 260 of the book.  At paragraph [19], your Honours will there see where the Court of Appeal deals with the first of the three arguments, that is, that the late disclosure of the acts constituting count 3 affect the reliability and credibility of the complainant overall.  Joined with that was a submission that there was also an inconsistency or irreconcilability between the convictions on counts 1 and 2 and the failure to agree on count 3.

That was really the extent of the submissions.  In my outline there is something I should correctly immediately, actually.  In my submissions, I noted that that was the extent of the submission.  I also then went on to say that at paragraph [21] the Court of Appeal summarised another submission that was made orally at the appeal.  In fact, there was a supplementary outline with another paragraph that was submitted to the court.  I provided that to this Court this morning.  But it just makes clear what I had gleaned from the submissions in any event and from the court’s reasons.  So the court has set out both submissions in the reasons.

KIEFEL J:   The last – I am sorry, Mr Moynihan, the last sentence in paragraph [21] appears to be the Court of Appeal’s view of how the jury was entitled to approach the diary.

MR MOYNIHAN:   It was - it is, I am sorry.

KIEFEL J:   When it says “with circumspection” that would not include, would it, that the jury was entitled to disregard the entries in the diary as inaccurate because that was not the prosecution case, was it?

MR MOYNIHAN:   Not to disregard it but perhaps look at it in the light that there may have been material that was not included in that document.

KIEFEL J:   Exactly.  It was omissions.  So it would follow that the jury was obliged to accept the diary generally, at least in the relevant respect about the entry for 14 November on its face.  There was nothing put against it.

MR MOYNIHAN:   But the jury were obliged to give it some weight in the sense that the jury - was not in evidence.  The diary was used as an aid to the memory of the appellant and his wife.

KIEFEL J:   That is true, it was not tendered in evidence.  Secondary evidence was given of it.

MR MOYNIHAN:   It was used to – when they were asked how they could be so certain of the dates and events of which they spoke ‑ ‑ ‑

KIEFEL J:   Yes, you are quite correct.

MR MOYNIHAN:   ‑ ‑ ‑ they relied on the diary and there was little that could be put against it.

KIEFEL J:   Well, casting it more correctly, as you say, their evidence which relied upon the diary for the date of 14 November could not be ignored by the jury because the prosecution did not challenge it.

MR MOYNIHAN:   But it had to be weighed.  I cannot say it had to be ignored, could be ignored – it had to be weighed.  What weight the jury gave to the fact that it was ‑ ‑ ‑

KIEFEL J:   Well, what weighed against it as an accurate date?

MR MOYNIHAN:   Well, as the Court of Appeal said, it may not have been entirely accurate or ‑ ‑ ‑

KEANE J:   Comprehensive.

MR MOYNIHAN:   ‑ ‑ ‑ a comprehensive document.

KIEFEL J:   Yes, but that just means that there might have been, on the complainant’s case, another date earlier in the diary before the surprise birthday party.  That does not explain the 14th.

MR MOYNIHAN:   But it did not have to, on the Crown case.  That is where this goes a little bit off the rails as to how it is used.

KIEFEL J:   No, you are right.  It does not have to on the Crown case, but if it was part of the defence case that this was the correct date and it put the complainant’s evidence at odds with an objectively – a date which was the subject of objective indicia as a reminder ‑ ‑ ‑

MR MOYNIHAN:   That is right.  It was being used by the defence to demonstrate an inconsistency in circumstances where, as the evidence fell, it could not do that.

HAYNE J:   Well, is that right?  It was the defence case, was it not, that there was one sleepover?

MR MOYNIHAN:   Within the period, yes.

HAYNE J:   Within the period – only one.

MR MOYNIHAN:   There was some loose language in some things that were put to the complainant, but it seems to be their case.

HAYNE J:   But it was the defence assertion there was but one sleepover?

MR MOYNIHAN:   Yes.

HAYNE J:   It occurred on 14 November?

MR MOYNIHAN:   Yes.

HAYNE J:   It did not occur earlier because the foster children had been injected into the situation and the presence of the foster children early in their time was seen as a – was said to be a compelling reason for not having the grandchildren over to stay?

MR MOYNIHAN:   Not stay overnight.

HAYNE J:   That is right.

MR MOYNIHAN:   They were over there obviously.

HAYNE J:   Yes, yes.

MR MOYNIHAN:   There had been some integration, some of that.

HAYNE J:   Yes.

MR MOYNIHAN:   It was more specific in that there was the last trip before the foster children came.  They went to Sea World.  They stayed away from the house on that occasion.  So everything that your Honour has put to me is correct.  It is how it was to be used - the date of the 14th was to be used in the context of the case as a whole.

HAYNE J:   What is then the Crown case - that there may have been an earlier unrecorded sleepover?

MR MOYNIHAN:   No, the Crown case is there was a sleepover within the relevant period where the events occurred.  The evidence from the ‑ ‑ ‑

HAYNE J:   Different from the 14th - different from the 14 November event?

MR MOYNIHAN:   It was for the jury to determine on what date it occurred, but the evidence from the appellant at least was that there was a sleepover on that date allowing for the opportunity for the case as alleged against him to have occurred.

HAYNE J:   Because did not the Crown go to the jury on the footing that it was the Crown case that the events complained of had occurred before the surprise birthday party, because that was the complainant’s evidence?

MR MOYNIHAN:   That is not how the Court of Appeal dealt with it.  I am going to have to take your Honours obviously to the ‑ ‑ ‑

HAYNE J:   I understand that.  That is why I wanted to go back to trial, Mr Moynihan, and see what they said at trial.

MR MOYNIHAN:   Well, I am going to take - your Honour is very interested in that, I can see that.  I was going to take you to the opening and closing addresses and the basis on which it was run because on the judgment there is a finding that it was in fact run the way I contend it was run, so we will have to look at that issue if it is going to be doubted. 

Can I return, your Honours, to page 263 of the book where it is at that point there that the Court of Appeal is dealing with the first of the three arguments, and really the first two there combined.  One can see that the Court of Appeal had prior to there referred to the evidence of the complainant in respect to her age at paragraph [2] and at paragraphs [3], [4] and [6] as to the nature of the disclosures in relation to counts 1 and 2 and that the court found there was some consistency between the mother – between her disclosures to her and the police officer. 

At paragraph [7] the court deals with the disclosure of the acts concerning count 3.  At paragraph [8] the court specifically deals with the issue of the delay between the offending and the initial complaint in relation to the acts constituting counts 1 and 2 and then the later complaint of the third – I beg your pardon, the acts constituting the third count.

At both paragraphs [7] and [9] the Court refers to the evidence of the explanations for the late disclosure to - the complainant’s late disclosure to her mother and the failure to mention it to police.  In relation to the complainant’s mother, your Honours will find that reference at paragraph [7] of the reasons and it was alluded to earlier that the mother had given evidence at page 38 of the book, line 40 that the complainant had told her that she felt bad about the way she reacted to the conduct, the subject alleged in count 3 on the indictment.

Then the complainant did tell the police during the second interview that she forgot to mention the evidence to him on the first occasion.  Your Honours will find that reference at page 151, line 55 of the book.  But then the court goes on at paragraph [9] of the reasons to record that the complainant had said she was scared and that she forgot to tell the police.  Now, that is in fact accurate as what happened.  If I can take your Honours to page 12 of the book - sorry, page 11 it starts, about line 5.  It is put to the complainant that:

the question everyone’s wondering about is why did you leave it so long to –

complain.  The trouble starts, of course, because there are two questions asked of her and the complainant says:

I was scared.

The cross‑examiner immediately launches into why she was scared when she was with the police officer when the question was why she did not tell her mother.  So, the child is already at a disadvantage because the question is not responsive to her answer, then the child corrects the cross‑examiner at the top of page 12:

But you were just scared, you say, to not tell the whole story on the first time Brian interviewed you -

That is the police officer -

I’d forgotten that when I was telling Brian.

That is in fact what she had said to Brian and in the recorded statement.  So she makes it clear that when she is talking about “scared” that is in relation to her mother and that makes sense when it is read with the first part of the question:

why did you leave it so long to tell her . . . I was scared.

My friend wants to take this piece of evidence out of context.  So my point is the Court of Appeal looked at this evidence and inaccurately recorded it and then in the context of the separate consideration direction that the jury received at page 175 of book and the jury acting cautiously the Court of Appeal was correct at paragraph [20] to reason that the subsequent disclosure of the acts constituting count 3 was a rational explanation for the failure to agree on count 3.  In fact, the appellant’s submission almost conceded as much which your Honours will see in paragraph [19] of the judgment.

The court was also correct to reason that the circumstances of the later disclosure may have troubled one or more jurors as to the reliability on that count, particularly given that the complainant had admitted she forget to tell the police officer about it, but by reason of her age and the believable explanations which the court had set out it was not unreasonable for the jury to accept her as credible and reliable overall.  That is an example of the type of case that Chief Justice Gleeson, your Honour Justice Hayne and Callinan were talking about in MFA 213 CLR 606 at 617 in this paragraph:

A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant.  It may simply reflect a cautious approach to the discharge of a heavy responsibility.  In addition to want of supporting evidence –

that is not this case because there was no corroborative evidence –

other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relation to some aspects of a complainant’s evidence might be that the complainant has shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.

That, in my submission, is directly on a point of what the Court of Appeal reasoned in this case having taken into account the explanations that the complainant had offered.  The late disclosure of the acts constituting count 3 of itself cannot render the complainant’s entire evidence so unreliable as to be incapable of establishing or supporting the verdict, particularly within the period.  It is the explanation and the complainant’s circumstances that have to be assessed and that is what the Court of Appeal did.  They looked at her age, they looked at the consistency of her versions, they looked at the explanations and assessing that found they were believable and in the circumstances that it was reasonable for the jury to accept that.

There was no need, I should add, for the Court of Appeal to provide reasons on the misconceived submission that the verdicts were inconsistent, so it is not surprising that there is no reasons in relation to that.

BELL J:   The court was required to conduct its own review to determine whether the jury ought have entertained a doubt.  In circumstances where, accepting all the difficulties with a young child giving evidence about events that had occurred earlier and accepting that the jury may have entertained some caution because of the circumstances of the late complaint on count 3, when the Court of Appeal conducted its own review of the sufficiency of the evidence that depended entirely on the word of a young child, respecting events that had occurred more than two years earlier, and that it was necessary to establish beyond reasonable doubt occurred in the period particularised in the indictment having regard to the way the defence had been conducted, was it necessary for the court to explain its process of reasoning to a conclusion of that satisfaction?

MR MOYNIHAN:   It is always necessary for the ‑ ‑ ‑

BELL J:   Where does one find that?

MR MOYNIHAN:   It is always necessary for the court to explain its reasoning.  In my submission, one finds that in the paragraphs and the passages to which I have taken your Honour.  It is either in the judgment or it is not.

BELL J:   Can I take this up with you, Mr Moynihan?  Was there any challenge to the evidence that from 15 October until a period after that limited in the indictment, the three foster children were residing with the appellant and his wife?

MR MOYNIHAN:   No, no challenge to that.

BELL J:   So that another factor to be considered was that in the period between 15 October and the end of the period particularised in the indictment, a further difficulty in accepting reliability in the evidence of the complainant was that she was sleeping in a room occupied by two other children.

MR MOYNIHAN:   Yes, that was the evidence of the appellant.

BELL J:   So it is both the consideration of the significance of the diary lending such support as it did to the account that the sleepover had occurred after the surprise birthday party, but looking at the possibility that there might have been a sleepover before then, if the sleepover was reasonably proximate to the birthday party, it was at a time when the child was sleeping in a room on the trundle bed in which there were two other children, contrary to her recollection.

MR MOYNIHAN:   Contrary to her recollection, yes.  I was going to turn now to deal with this issue that is raised by the defence evidence.  Your Honours will find the Court of Appeal introducing this matter at paragraph [21].

The appellant’s evidence of when the complainant was at his house – I will start that again.  It is said that the verdicts are unreasonable because the evidence of the appellant of when the complainant was at his house and who else was present at that time – by that one adds in the foster children, which relied on the diary entry – should have caused the jury to have a reasonable doubt.  That was the argument and that is what is recognised by the court that they had to grapple with.

The court was correct though, contrary to what the appellant now submits or seems to suggest in any event, not to view the case as one of word against word or of preferring the view of one witness to that of another.  So much is made clear by this Court’s reasons in Douglass v The Queen 290 ALR 699 at 702, paragraph [12]. But unlike Douglass this case was not one where there was some doubt in the reasoning about whether the evidence in question had been accepted.  In Douglass’s Case there was some doubt about that, whereas here the jury, given the direction they were given at page 186 of this book at about line 25, have obviously rejected the denials of the appellant.  So the Court of Appeal was correct to say at paragraph [24] specifically:

the issue for the jury was whether, in the context of the defence evidence, they were nevertheless satisfied beyond reasonable doubt that the respective offences occurred as related by E, including within the nominated –

time period.  Now, that brings one directly to this issue of when it was the Crown alleged the matters to have happened.  The Crown alleged in the indictment that the matters occurred between 30 September 2008 and 1 December 2008.  That was recorded by the Court of Appeal in paragraph [1] of the judgment and, as I said earlier, there was also a finding that the matter was litigated that way at paragraphs [15] and [17] of the judgment.  The Crown put its case to the defence witnesses in that way at page 78 of the book at line 35 and at page 99, line 55.

KIEFEL J:   Are you saying that the prosecution case accepted that the sleepover may have been on the date ‑ ‑ ‑

MR MOYNIHAN:   Of the 14th.

KIEFEL J:   On the 14th?

MR MOYNIHAN:   That is right.

KIEFEL J:   That is, the fact the defence reliance upon that could not raise a reasonable doubt?

MR MOYNIHAN:   In fact to the contrary, it could support her evidence.  The trouble was, in my submission, defence counsel ignored the evidence of the complainant in cross‑examination which happened before the trial proper started that the child – and I am going to take your Honours to this evidence in a moment – had given evidence that it could have happened – did happen after, did happen after the birthday. 

In fact, it got worse for the defence because in cross‑examination she had said it could have been a week after in terms of the reference to the birthday.  The 14th is very close to that period if one takes the 6th as the birthday, but defence counsel pressed on with that course in the face of that evidence and called his client and wife in circumstances knowing that evidence.

Can I take your Honours to the openings, addresses and closings because this, your Honours, is important in relation to this aspect?  If I turn first to the Crown opening, the first reference of course is at page 1‑7, about line 45.  I am just trying to give your Honours all the references.  That is really not determinative but over the page your Honours will see there that is where the Crown Prosecutor gave to the jury a copy of each of the charges which had the dates in it, obviously. 

Then, as one goes down the page to about line 50, there it is made clear that what the prosecutor is then about to embark on is a summary of the complainant’s evidence to the police officer and that goes on.  It goes over the page to 1‑9 at about line 48 and to correctly record that she did tell the police officer it happened a couple of days before the birthday.  Then it is confirmed that that was a summary of what [E] told the police officer. 

Then there starts a summary of what the complainant told the police officer during the second interview.  One comes down importantly then to line 30 on the next page which is page 1‑10, about line 50 and the prosecutor - you will see that the dates of each of the charges are the same and around the end of 2008 – [E] said - one has to input in here - to Enright because this is still part of the summary of what is being told to Enright:

the offences happened shortly before the accused man’s surprise birthday party, and when her mother gives evidence her mother will say that in around November 2008, she organised a surprise birthday party for the accused man.

That is correct as far as it went.  That is what the evidence was in‑chief and then the prosecutor goes on -

So, that’s where the date in the charges has come from; that’s the reference point in [E’s] memory, the birthday party. 

The prosecutor then goes on to say that in addition to those two interviews with Enright - this is about line 44 - in addition to that you will get to see another two recordings and that is the cross‑examination.  The Crown Prosecutor does not set out there what the jury was going to hear in cross‑examination, probably waiting to deal with that in a final address and so that concludes.  So then one turns to the defence opening at page 2‑2.  It is made very clear that the defence case was that these things simply did not happen, at about line 15, and also you –

will say over the period, October/November 2008 over which these allegations are alleged to have happened, there’s never an occasion when these things could have taken place –

BELL J:   Could have taken place in the way that E has suggested.

MR MOYNIHAN:   That picks up the foster – one has to read that as the foster children otherwise it is already going a little bit off the rails.  That is probably clarified in the paragraph, starting at line 25:

There was no occasion over that relevant period when [E] stayed over at the house when the three foster children were not present and, in fact, there was only one night over that October and November 2008 period when [E] stayed over –

So there is a bit of focus there.  But the date of the 14th is not said to cast doubt at this point, in any event, on reliability.

Then one turns to the Crown’s closing address at page 2‑45.  About line 20 there is a reference there to the charges that were provided to the jury during the opening which had the period.  Then over the page, page 2‑46, about line 40 there is a further reference to the period of October/November.  Then the prosecutor deals with this issue of the date really at page 2‑48, line 39 and over the page to page 2‑49, starting at about line 28 which is the passage that your Honour Justice Hayne raised earlier with Mr Shepherd. 

There, of course, the point is being made by the Crown Prosecutor that there is no inconsistency in the sense of the evidence that was given in cross‑examination as to the date and also the concession that she could not remember whether the foster children were there or not.  That is the passage that was picked up by the Court of Appeal in paragraph [22] of its reasons because it is at that point that the court is focusing on this issue.

The fact in issue in the trial was whether the offending occurred at all within the relevant period and the Court of Appeal had already summarised the evidence around that issue.  The court had said that the complainant’s evidence was that the offending occurred near to the birthday and your Honours will find that at paragraphs [5] and [11] of the reasons.

Can I just take your Honours too to some references in relation to the complainant’s evidence on this issue?  At page 37 of the book, line 1 – this is the child’s mother’s evidence – and your Honours will see there that she gave evidence that the complainant told her that it occurred at a time near the surprise birthday party.  One then turns to page 120 of the book, this is when, probably the next day ‑ ‑ ‑

CRENNAN J:   Sorry, what page?

MR MOYNIHAN:   Page 120, probably the next day the complainant is talking to the police office.

KIEFEL J:   Sorry, was the mother’s evidence here given after the child had first been cross‑examined about the dates on an earlier occasion?

MR MOYNIHAN:   Yes.

KIEFEL J:   So the fact that it was being put that there was another date later would have been known to the mother?

MR MOYNIHAN:   It would have been, yes, that is correct.  At page 120, line 1, there the complainant says:

I think it was the year –

there was an unintelligible piece of evidence –

near poppy’s birthday.

Then the passage that your Honour Justice Bell referred to earlier about 10 lines further down the page.  Then down at line 50 is where ‑ ‑ ‑

HAYNE J:   Line 10:

’Cause a couple of days later we had –

MR MOYNIHAN:   We had the birthday, yes.  So it is still before the birthday at this point in time.  At line 50 is introduced a complication where the police officer, in effect, puts the birthday happening before the acts and that is agreed to, so the Crown had to deal with that.  Then at page 151 of the book, this is the occasion the complainant is talking to the police officer after the disclosure of the acts constituting count 3, and at page 151, line 40, again a reference is made to it occurring near the birthday, that is how ‑ ‑ ‑

KIEFEL J:   I am sorry, what was that reference?

MR MOYNIHAN:   About line 40, your Honour.

KIEFEL J:   On page?

MR MOYNIHAN:   Page 151.

KIEFEL J:   Thank you.

MR MOYNIHAN:   So then one goes back to the first cross‑examination at page 15 of the book, line 15.  Line 15 there is a reference to it being “near”.  Then the complainant was directly asked whether it was before or after, she says “After”.  That is repeated by the cross‑examiner to make sure it was correct, and that is at line 25.  Then over to page 23, about line 55, and it is there that the complainant said, in terms of how long:

It was a week a way, I think.

So that puts this evidence around the date of the 14th in its proper context.

BELL J:   Just to complete the references, at appeal book 29, lines 5 and 6, the witness is led to answering that these things happened “a few days before” the birthday party.

MR MOYNIHAN:   Yes, and again, down at about line 40 and 45 as well, your Honour, it was put to her again ‑ ‑ ‑

BELL J:   Again, leading questions.

MR MOYNIHAN:    ‑ ‑ ‑ in express terms which were not correct.  Yes, that does complete the references, thank you, your Honour.  But the Court of Appeal had recorded that there was uncertainty in her evidence around that issue at paragraph [13] of the reasons.  There, the court had also recorded uncertainty about the presence of the foster children.

At paragraphs [6] and [10], your Honours will find where the Court of Appeal dealt with the issue of the complainant saying that she had been at the house with her brother, staying overnight, and there were no foster children.  But when cross‑examined on the second occasion, she was not certain whether the foster children were there or not.  I have given your Honours also a reference to what was put to her at page 30 of the book at about line 35, where counsel for the appellant put to her, did she remember a sleepover near the birthday with the foster children, and she said she did.

I note also in the question above that, it was suggested that there were sleepovers in the plural to the child.  One must infer that is within the relevant period, so that is a very relevant consideration.  Then one goes to the appellant’s evidence denying the acts occurred at all, and relevantly the Court of Appeal records at paragraph [12] that, relying on the diary, there was only one overnight stay in the period, on 14 November, and the foster children were there from 15 October.

The evidence in the context of this contention or argument was specifically focused by the Chief Justice in paragraph [17], and his Honour did that, of course, so he could assess it and draw a reasoned conclusion about it.  His Honour did that by noting that the diary, which was the foundation of this argument, was not a complete and comprehensive record, at paragraph [21], and that the jury were entitled at least to view it with some circumspection.

Secondly, at paragraph [22], the court seized on the point that once the evidence was that the complainant was not adamant or certain that the date was before the birthday, the submission that the evidence of the appellant that had occurred on 14 November and had affected her reliability almost fell away.  As I said earlier, it could almost be seen as confirming her evidence that there was an occasion within the period where she slept over.  It really had the opposite effect because it ignored the evidence that had been given in cross-examination.

Of course, it did not have that effect in relation to the foster children.  That was still a live issue for the jury and for the Court of Appeal, of course.  But that issue was one that was obviously directly at the forefront of the submissions made in the trial and brought to the attention of the jury and it is one which would ordinarily be one where full regard is given to the advantages that the jury had in seeing the complainant and the appellant and his wife give evidence and their primary responsibility in resolving a question in relation to an issue such as that.  But importantly those matters ‑ ‑ ‑

HAYNE J:   But resolve it in what way?  Resolve it by concluding that the complainant, despite her absence of reference to the presence of foster children, should be accepted as demonstrating beyond reasonable doubt that the offences occurred as she described? 

MR MOYNIHAN:   Perhaps to put it a little differently, the quality of her evidence was such that, notwithstanding her uncertainty as to the presence of the foster children, her evidence was sufficient to sustain or establish and for these purposes here, support, the verdict.

HAYNE J:   That is to exclude reasonable doubt that there was an occasion for the occurrence of the events?

MR MOYNIHAN:   Yes, and it is plain that the Court of Appeal was grappling with these issues because the court refers in paragraph [24] that one of the considerations they took into account in determining whether the – in determining the quality of the evidence – to determine whether it was sufficient to support the conviction was the consistency of the complainant’s evidence which they had set out earlier in paragraphs [3], [4] and [6].

But in doing that and using the word “Especially” there, that indicates that they had taken into account those matters that had been said, the arguments raised by the appellant below as to why the verdicts were unreasonable.  Those matters were really the delay in the complaint and the uncertainty as to the date and the foster children and when one looks at the matters that my learned friend set out this morning that has not changed here today.

HAYNE J:   Why is consistency of account especially important?

MR MOYNIHAN:   That was only used to signify that it was not the only consideration that the court took into account.  The court had, just before that, been dealing with the issues or the arguments or contentions that were said to make the verdict unreasonable.  Having dealt with them and then taking into account the consistency of her evidence, the court reasoned to the conclusion, applying the correct test.

It was open for them to reason that the complainant’s evidence was sufficient to establish and support the finding of guilt beyond reasonable doubt, including within the nominated timeframe, particularly when one is really left with some uncertainty as to whether the foster children were present.

BELL J:   That uncertainty then works to support the prosecution case since by the very fact that the child’s account of events that have happened more than two years earlier varies such that she can no longer say with confidence whether this distressing event occurred before the surprise birthday party or after, whether she was in a room in a trundle bed with two other children when she woke frightened by the nightmare or not, that supports the prosecution case that one can be satisfied beyond reasonable doubt upon the review conducted by the appellate court of the sufficiency to justify a conclusion for that high standard.

MR MOYNIHAN:   It was a matter that the court took into account but the court also had to grapple with and explain why the other matters did not render – and they did - render the verdicts unreasonable.  No other argument was advanced below as to why the verdict was unreasonable so there was no need, in my submission, in the absence of any particular argument as to why it would be unreasonable for the court to have given reasons for that other than to observe that in any event the other matters relied on this morning, such as the inconsistency about whether the grandmother was present or not, the inconsistency about whether the grandmother was in the bed, interestingly, though, there was a piece of evidence that the jury may have found rather telling in relation to that because the child said that her grandmother wore earplugs to bed.  She would not have really known that if she was not in the bedroom on that occasion and that was admitted later on by the grandmother that she wore earplugs to bed. 

There was also an issue about an inconsistency that the complainant’s mother said that the child told her that one incident happened in the night and then the next happened the next day.  That was the other matter my learned friend relied on today that was not relied on below.  But all of those matters, in any event, are matters that did not go to the crux of why it was said the verdict was unreasonable and really, below, was

founded on the fact that there was the late disclosure of the acts constituting count 3. 

The Chief Justice though confirmed at the very end that notwithstanding those inconsistencies were not specifically relied on below that the court had undertaken the task of reviewing the whole of the evidence as they were required to do and they were satisfied that the convictions were not unsafe and that it was a case where the jury alive to the competing considerations were entitled reasonably to accept the evidence for the prosecution and convict.

It is there that, in my submission, the court is indicating that they have looked at the whole of the evidence which would have included these inconsistencies around areas that were not relied on below or said below to be a ground for unreasonableness but, in any event, the court looked at all of that and determined, applying the correct test, that it was open, in the circumstances.  Those are my submissions.

HAYNE J:   Mr Moynihan, what is the position with the appellant?  Is he still in custody?  He is still under sentence, I think, but the custodial period should have expired, should it not?

MR MOYNIHAN:   I understand it would have, your Honour.  It was a 12 month term, suspended after six months. 

HAYNE J:   Yes.

MR MOYNIHAN:   We are a long way down the track from there.

HAYNE J:   Yes.  Yes, thank you, Mr Moynihan.  Yes, Mr Shepherd.

MR SHEPHERD:   Just briefly, your Honour.  My friend’s submission that the reasons of the Court of Appeal will depend upon the cogency of the argument ought not be understood to mean that the Court’s function in determining a ground of appeal that a verdict was unreasonable, or unsupported, can be dictated by the manner in which an argument is presented, or the content of that argument.  The reference to Jones, Jones v The Queen 166 CLR 409 at page 411, that each case depends upon the state of the authorities and the cogency of the argument, has to be understood in the context of what was happening in that case which was a complaint about a Court of Appeal not addressing a number of grounds of appeal of which there were about 15.

It should not be understood, in my submission, that the function of the Court, as set out in M and MFA, can be dictated by the arguments that are put by counsel during the course of the submissions about that.  That is not to suggest that the Court of Appeal has to undertake some wide‑ranging wild task of its own volition without assistance from counsel.  That is not what I am submitting, but the cogency of the argument or the content of the argument does not dictate what the court has to do.

If I could take your Honour – address finally very briefly the question which seemed to have assumed some importance, and that is the timing issue in the Crown case in that regard.  During the course of the Crown Prosecutor’s closing address at page 2‑52, line 37, she said:

Now finally, I’m going to recap on what [the complainant] said because she is the most important witness in this trial.

The prosecutor then went through the evidence, and at page 2‑53, line 22, said:

[The complainant] said that the offences occurred a couple of days before the accused’s surprise birthday party.

That was the evidence that was relied upon during the course of the Crown submission.  At appeal book page 78, during the course of the evidence of the appellant - he was cross‑examined, the prosecutor said, at about line 35:

I suggest that at one night during October and November 2008, [the complainant] and her brother were sleeping over at your house?

The appellant asked that that be repeated, the question was then asked:

One night during October or November 2008, [the complainant] and he brother . . . were sleeping over at your house?—That’s not true.

And at some stage during the night, you were awoken by the [the complainant]?-- That’s not true either.

Then various other propositions were put.  It was clear that the Crown case was that this event occurred on an occasion when her brother was present.  To now suggest that the prosecution could have relied upon the 14th as the date on which the offending occurred, or at least the evidence in that regard was consistent with the Crown case, is, in my respectful submission, a completely selective approach to the way in which the complainant’s evidence has to be considered.

It is to select one small portion of her evidence which might be consistent as, in my respectful submission, did the Court of Appeal by simply saying that in relation to counts 1 and 2 she was consistent and can therefore be accepted, when the clear evidence from the appellant and his

wife was that at no stage did the brother stay over.  So, in my submission, those factors are not consistent with the Crown case if an overall approach is taken.  They are my submissions, thank you, your Honours.

HAYNE J:   Thank you.  The Court will consider its decision in this matter and adjourns to 10.15 tomorrow.

AT 11.52 AM THE MATTER WAS ADJOURNED