BDO v The Queen

[2023] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B52 of 2022

B e t w e e n -
BDO
Appellant

and
THE QUEEN
Respondent

KIEFEL CJ
GORDON J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 20 APRIL 2023, AT 9.45 AM

MR S.C. HOLT, KC: May it please the Court, I appear with my learned friend MS Z.G. BRERETON for the appellant. (instructed by Legal Aid Queensland)

MR C.W. HEATON, KC: May it please the Court, I appear with my learned junior MR C. COOK for the respondent. (instructed by Office of the Director of Public Prosecution (Qld))

KIEFEL CJ: Thank you. Mr Holt, in relation to ground 1, the parties appear to be agreed that so far as concerns the appellant’s capacity, that is relevant to counts 4 and 8.

MR HOLT: No, the parties are not agreed to that effect, your Honour.

KIEFEL CJ: I see. I find it extraordinary that the parties cannot agree with this. We really should not be resolving facts.

MR HOLT: No, we agree – I think that perhaps the more profound difference between the parties in that regard that our respectful submission is that the problem with the directions in relation to capacity, in fact, affected all of the charges in the sense that the charges were laid with a nine‑year time period which extended back to the appellant’s 10th birthday. So, to that extent, the difficulties which arose in respect of directions on capacity affect, in terms of remedy, all of the charges, not simply ‑ ‑ ‑

KIEFEL CJ: That is a submission in relation to how the prosecution ran their case, but objectively, in relation to the age of the appellant, it is clear that he was not 14 in relation to count 4, and arguable, and therefore to be taken in his favour, that he was under 14 in relation to count 8.

MR HOLT: Regrettably, I am going to have to indicate that there remains a dispute about those matters in terms of what the evidence says, as we have indicated in our reply submissions, though, I suspect, not as clearly as we should have. It might be convenient – I was not intending to – but if I deal with that issue at the outset.

KIEFEL CJ: I think we should resolve it before we proceed.

MR HOLT: Yes, thank you.

KIEFEL CJ: Justice Gordon?

GORDON J: Can I just ask this question just to put it into context? If you took the complainant’s evidence as to timing which, on its face – then it is right, is it not, that counts 4 and 8 on the evidence occurred at a time period in which capacity was an issue and the others were not?

MR HOLT: No, we do not accept that, your Honour.

GORDON J: I see. I understand.

MR HOLT: It is slightly more complicated than that, and I apologise that it is slightly more complicated. But can I explain why – I can probably do it relatively briefly. The convenient way to do it may be if I could invite the Court to take up our reply submissions and the table that sits on page 1 of the reply submissions.

KIEFEL CJ: That was what I was working from.

MR HOLT: Now, the purpose of the way in which we put the table which may have been helpful at one level, but on the basis of the exchange so far, may also have been unhelpful, but another – at least from at least my perspective – was to identify what, in tabular form, the Crown’s submission as to age and the complainant’s evidence as to age and timing would have meant in terms of the way in which the charges – the appellant’s age at the time of various charges. But I hope that I can deal with it relatively straightforwardly, because the differences are relatively narrow.

If I can have a look at this, firstly, of course, count 4, as we have noted, plainly capacity is in issue. The other more general submission that we should make, and is made briefly in the reply submission, is that the taxonomy of early primary school, mid‑primary school, late primary school and the like was not a particularly forensic exercise at the trial; that is, as it was being gone through it was heavily qualified, it was put in a relatively vague way. So, it is not a particularly sound taxonomy to start with.

GLEESON J: Is there a distinction in Queensland between primary school and infant school?

MR HOLT: No, not for these purposes. So primary school – and I had to learn this because – and I suspect it is not a matter of controversy – now, in Queensland, primary school starts at – sorry, ends in grade six and high school starts in grade seven. At this time, because grade one is now called prep, grade seven was part of primary school, but no distinction on the evidence – and I think I can confidently say in terms of the way things are approached in Queensland – is drawn between infant school and primary school for these purposes.

GLEESON J: So primary school could start at five and six?

MR HOLT: Exactly so.

JAGOT J: There was no challenge, though, on the evidence – sorry. There was challenge to the evidence that late primary school meant grades five, six and seven, which took place when the complainant was between – it was 2006 to 2008.

MR HOLT: No, and to that extent – as I take the Court through that, that is the strongest set of charges, to say that, are those which refer to late primary school and I will struggle to make a submission to the contrary in respect of it.

GORDON J: So, can I just pick up on that. Does that mean, though, that “late” primary school affects counts 2, 3, 6, 9 ‑ ‑ ‑

GLEESON J: And 13 and 14.

GORDON J: ‑ ‑ ‑ 13 and 14, with the exception being count 11, which had its own specific period?

MR HOLT: Yes. The difficulty, though, relates particularly to counts 2 and 3 in that regard. And so, as I say, I think the difference is a relatively minor one, in the sense, but counts 2 and 3 are important. They are what is described in the evidence as the loft incident. So, they were said to have taken place then, and the difficulty with that is that while the complainant initially said:

I believe it was later primary school.

was the language that was used – and I will give the Court the reference. It is in the appellant’s book of further material, page 25, line 24 and following. She was then shown a photograph, which it was agreed – indeed, it was marked to that effect – of the loft bedroom in 2004, which showed that bedroom. That is in the appellant’s book of further materials at page 25. But, at page 26 of that same book, at line 9, she said she did not know if the incidents had occurred before or after of that photograph. So, counts 2 and 3 then logically extend back to 2004. And so, well and truly captured by a period of the operation of the presumption.

I cannot make a similar submission in respect of counts 6, 9, and 12. There, the “late” primary school taxonomy was used. What it does say _ and the best submission I can make about that – is what that exchange that I have identified about the loft incident, if I can put it that way, and the photograph is how imperfect the taxonomy of mid‑ and late primary school was, because having said it was late primary school and then being shown a photograph from 2004, the complainant then said she could not say whether it was before or after that. So, that is the weakness, effectively, in the taxonomy.

GORDON J: That weakness applies to 2 and 3. You do not make the same submission in relation to 6, 9, 12, 13 and 14, do you?

MR HOLT: So, what we say is this. Counts 2 and 3 are plainly within the period that the presumption should have operated on the basis of the complainant’s concession. Certainly, at the very least, the Crown cannot exclude that. Counts 6, 9, 12 and the other counts that rely on late primary school, particularly 13 and 14, but 6, 9 and 12 in particular, which relied simply on the complainant saying it was late primary school and identifying that as grades five to seven, the strength of that evidence is weakened by what occurred in relation to the loft incident in count 2 and 3 in the evidence where the complainant, having initially described that as late primary school, then conceded, having been shown a photograph, that, in fact, she could not say if it was before or after 2004, which was a much earlier date. But that is the only weakness I can identify with that taxonomy.

GLEESON J: Are you saying that in relation to every single verdict, it is possible that the jury may have reasoned on the basis that the offending occurred when the appellant was under the age of 14?

MR HOLT: I am not putting it quite like that, your Honour, but the way in which we put it is this. The prosecution, having chosen a nine‑year timeframe for the purposes of this trial, and one which for every charge included what was an allegation – bar one – of a specific incident said to have occurred within a nine‑year time period where the Crown chose in its own, essentially, non‑justiciable exercise of its discretion to start that time at the age of 10, that the question of capacity was live as a matter of law and as a matter of fairness in respect of all of the charges, and a de facto narrowing, which is now, effectively, what the Crown relies upon, is not something which should be countenanced, given that the Crown chose the architecture of the trial in that way.

GLEESON J: So, you are saying that the directions have to reflect the indictment regardless of the capacity of the jury to reason from the only available evidence?

MR HOLT: I do not think I could put that as a general proposition, your Honour. I think that would be wrong, to say that that was so as a general principle. But, in the context of this case – that is, in the context of what is, respectfully, an extraordinary time period for a specific act to be charged, a nine‑year time period when a person is aged between 10 and 19, when a family dynamic is changing, when everything is shifting – the difficulties with that on the evidence.

Given that the way in which the evidence came out and that regard was, in our submission – notwithstanding the fact that it was not challenged in terms of that recognition of grades five to seven – they again qualify that in the context of this case, yes, it infected all the charges. The error, if the Court were to find there was an error, would have affected all the charges.

KIEFEL CJ: So, what about count 7? I do not think that you have – did you accept that count 8 falls within the ‑ ‑ ‑

MR HOLT: So, count 8 was mid‑primary school, which obviously includes the period of the presumption applying ‑ ‑ ‑

KIEFEL CJ: And he was 13 to 14.

MR HOLT: Yes, 13 to 14. So he is under ‑ ‑ ‑

KIEFEL CJ: So, 4 and 8 are clear. What about count 7?

MR HOLT: So, counts 2, 3, 4, and 8. Count 7 is also clear. The Crown had additionally said that was one of those late primary school examples. We have noted, by the reference in footnote 7 there, that, in fact, the only reference she makes there is to:

in, like, primary school –

rather than ‑ ‑ ‑

JAGOT J: What primary school, sorry?

MR HOLT: “Like, primary school”. It is just the use ‑ ‑ ‑

JAGOT J: You say it was not late. I think the trial judge said late, but ‑ ‑ ‑

MR HOLT: His Honour did, but it is in fact clear on the evidence – so, the “like” comes at the appellant’s book of further materials, page 38, line 38 ‑ ‑ ‑

JAGOT J: Page 38, line 38?

MR HOLT: Page 38, line 38. But it is absolutely clear at page 92 of the same book, lines 1 to 7, that she is not confining that to ‑ ‑ ‑

KIEFEL CJ: Sorry, page 98?

MR HOLT: I am sorry.

GORDON J: Page 92, I think.

MR HOLT: Page 92, lines 1 to 7. That that is a whole primary school allegation, not a late primary school allegation.

JAGOT J: Okay. Then, what about – there was charge 12, I had a note saying.

GORDON J: Sorry, can I just ask one more question about count while we are on count 7. This is one in which she said it was before count 11, which happened in July 2008, is that right?

MR HOLT: I am sorry, your Honour?

GORDON J: Is this the count where she said it was before count 11, which happened in July 2008?

MR HOLT: 2008, yes.

GORDON J: That is the evidence of 7 to time it in terms of – tie it down in terms of timing.

MR HOLT: Yes, to some extent, but again, the evidence that I have taken the Court already makes clear that she was not, effectively, when asked to put it within the taxonomy of primary school, to put it in anything other then “in primary school” – in that sense.

GORDON J: But before count 11.

MR HOLT: Before count 11.

GORDON J: Thank you. Sorry.

MR HOLT: Again, as one starts unpacking this – and I am acutely conscious of your Honour the Chief Justice’s comment that this Court should not be determining questions of fact – but what even these exchanges demonstrate is the extent of the lack of clarity in the evidence about these questions of timing, which flowed from, in large measure, this remarkable time period which the Crown chose to charge against a – when one is assessing the evidence – in a circumstance that made that a particularly problematic thing for the way in which the evidence was to be given and assessed, because – just a matter of common human experience and borne out on the evidence of this case, this family dynamic is changing and shifting over that period of time. This is a very dynamic period of a young family ‑ ‑ ‑

GLEESON J: The accused could have complained about unfairness in relation to that timeframe, but he did not.

MR HOLT: He did not. I think there is a quite prescient comment from the trial judge to the prosecutor, saying words to the effect of:

I can’t imagine that you were particularly happy to be left with this indictment.

And the prosecutor said:

It’s very broad.

your Honour, and that was a euphemism, in large measure. But no ‑ ‑ ‑

GORDON J: But you did not challenge it. You did not seek better particulars.

MR HOLT: No, that was not done below.

GORDON J: You did not complain after the evidence was given by the complainant.

MR HOLT: No, that was not done below, and it was done in the Court of Appeal, and that is why we make that complaint only as part of the architecture of the trial against which matters are to be realistically assessed by recognising that it was not challenged.

KIEFEL CJ: So, just to be clear, from the appellant’s perspective, the issue of his capacity was in play with respect to counts 2, 3, 4, 7 and 8?

MR HOLT: Yes. That is in terms of how one would read it and, of course, I might repeat the submission that I have made more generality about the way in which the Crown have run the case but, in terms of the way the evidence falls on that taxonomy, those are the counts, in our submission, on the evidence where it is plainly in play.

GLEESON J: Plainly in play, but you want to put an argument that it was in play in respect of every ‑ ‑ ‑

MR HOLT: I do. I suspect I have already put that argument as well as I can, but I will come back to it, perhaps when I talk about remedy, and that will give me an opportunity to reflect on the exchanges that have occurred today. I hope that is of some assistance.

GORDON J: I think I interrupted Justice Jagot about one of the counts.

JAGOT J: I was just noting two things. One, in respect of the evidence at page 92, 1 to 7, that seems to relate generally to incidents not specifically to count 7, which related to the hitting the head on the fan – but that is, in one sense, by the by. But count 12, I also had late primary school, but you did not mention count 12.

MR HOLT: No, count 12 – excuse me a moment, your Honour. Can I come back to your Honour on count 12?

JAGOT J: Yes, sure.

MR HOLT: I can say this. I am confident that those counts that I identified to the Chief Justice a moment ago are those where we would say, on the evidence, confidently, that the presumption arose, on the evidence, putting to one ‑ ‑ ‑

JAGOT J: Counts 2, 4, 7, 8?

MR HOLT: Counts 2, 3 ‑ ‑ ‑

KIEFEL CJ: Counts 2, 3, 4, 7, and 8.

MR HOLT: Exactly.

JAGOT J: Sorry, I missed out count 3. Yes. And the rest, the general proposition.

MR HOLT: Exactly so. So, if the Court please, what I might do is park that issue and come back to it when I deal with the question of remedy. I suppose, foreshadowing that, if the Court were to accept our submission in respect of the misapplication or non‑application of RP in respect of ground 1, then the question of that factual conclusion will become live as to which counts it affects in terms of remedy for the ‑ ‑ ‑

GLEESON J: I suppose I do have another question, which is the way that the trial judge directed the jury was to say, first consider whether any of the – consider the appellant’s age at the time of the conduct, then, if you come to the conclusion that the conduct occurred when he was younger than 14, you have to consider capacity. Are you saying that there was something wrong with the direction in saying, first work out whether he was over 14?

MR HOLT: No. There was nothing wrong with that direction. That direction was correct in the context of a case where the charge/the evidence – and spans a point of legal change of that kind. It was appropriate for that essential precondition to be determined first by the jury, in our respectful submission, so I take no issue with the approach the trial judge took in that regard.

I suppose, the submission I should make in that sense is that it is not just about – the question of which charges this affected on the evidence is not just, in our submission, a question of remedy, it was in large measure a response to the Crown’s submission, to the effect that the only counts upon which the appellant was convicted were those – other than count 4 – where it appeared that the jury would have concluded he was over the age of 14, and that just is not so on the basis of the analysis that we have done. So, that was the primary reason for doing it, but we understand that that has a flow‑on effect in terms of the question of remedy, in the event that we were otherwise successful.

I might then turn to the substance of ground 1, putting the question of precisely which counts it applies to to one side for these purposes. Our respectful submission in respect of ground 1, ultimately, is that the Court of Appeal, reflective of the directions that the learned trial judge gave, effectively failed to direct the jury in a way which reflected the principles that this Court set down in RP v The Queen because it is true that section 19 was in issue as a matter of law on the face of every charge, subject to that initial decision being made by the jury as to whether it did or not.

It was also, of course – though it need not have been – raised squarely by the appellant in the pretext call, which the Court will have seen. So, there was no need for an evidential burden to be met by the appellant, but, in fact, there was powerful evidence in the context of the pretext call where he repeatedly said things like – I do not need to take the Court to the detail of it, it is at the further materials 201 to 205:

I don’t understand why we did what we did. I was young as well.

So, this was when the complainant telephoned him. It was a spontaneous, in effect, reference back to what we know to be the doli incapax presumption at common law in section 29 under the Criminal Code. If I can put it in a nutshell in this way. Our submission is that what RP v The Queen did in the context of doli incapax at common law but in a way, as we will come to, ought apply with equal force and measure by virtue of its reasoning to the presumption in section 29 of the Queensland Code was a turning point in terms of the way in which this presumption of capacity, however described, is dealt with. That is, it was ‑ ‑ ‑

KIEFEL CJ: That is so for the common law, but you have a series of cases considered by leading judges in Queensland where the Criminal Code provision has not been read in the same way.

MR HOLT: Yes, and our respectful submission – which I will come to, if I may, in order – is that there is, in fact, in truth, on a textual basis, no difference between doli incapax at common law, particularly as this Court approached it in RP v The Queen – with respect, correctly – and the provision in section 29, which was intended at the time to reflect the ‑ ‑ ‑

KIEFEL CJ: Well, to put that in perspective, RP v The Queen, in relation to the common law, did not say anything new when it said, the common law has regard – the presumption is rebutted by proof of knowledge. What RP added to the jurisprudence on the matter was to what extent, what that means, what that requires.

MR HOLT: Absolutely.

KIEFEL CJ: The Court of Appeal, and before that, the Full Court in Queensland, has always been aware that the common law has required knowledge to rebut the presumption, but it has consistently held that the words “capacity” – that the presumption in section 29 requires the presumption to be rebutted, only by reference to the “capacity to know”.

MR HOLT: Our submission, ultimately, is that when one understands RP in its terms, and the way in which it is developed, in fact, it is focused on the question of capacity – indeed, the starting point is capacity. The Latin is doli incapax. And so, the presumption takes one from incapax to capax. So, one is talking about capacity.

KIEFEL CJ: That is true. But the real issue here is what is necessary to rebut the presumption. That is not capacity equals capacity, it is – RP says, it is knowledge.

MR HOLT: Yes.

KIEFEL CJ: But that is not the language used in section 29 of the Criminal Code.

MR HOLT: Our submission – which I will seek to develop shortly, if I may – in relation to that is that while RP uses the word “knowledge” and, indeed, it is something which the common law has done for a very long time, as to use the words “actual knowledge” – in fact, in truth, what RP focuses on is the question of whether the person is sufficiently – whether the child is sufficiently developed morally and intellectually in order to be able to have that knowledge. In other words, the essential ‑ ‑ ‑

KIEFEL CJ: To understand that it is morally wrong is essentially what RP is saying.

MR HOLT: Exactly so, but that is – and that, fundamentally, is a question of capacity, which is what section 29 is also directed to. In its terms, it is directed to capacity.

KIEFEL CJ: It is something a bit deeper than the ability to know, is it not? It is actual knowledge of the moral wrongness.

MR HOLT: Well, our other respectful submission is that there is no ‑ ‑ ‑

KIEFEL CJ: You are reading down RP again.

MR HOLT: I am sorry, your Honour?

KIEFEL CJ: You are reading down RP.

MR HOLT: I am really trying not to read down RP, because our respectful submission is ‑ ‑ ‑

KIEFEL CJ: With all the protection that it gives, according to your submission.

MR HOLT: I am sorry, your Honour?

KIEFEL CJ: With all the protection that it gives.

MR HOLT: Yes. No, I am – we are not trying to read down RP at all. RP ought apply, and does apply on the terms, in our submission, of section 29 with its full force. It does so effectively because the reasoning that was adopted in RP is reasoning which has, at its core, the idea of the capacity of the child at the particular point in time. The question of actual knowledge becomes, in our respectful submission, a semantic difference, not a real difference between the two. To take up your Honour the Chief Justice’s language, there is no deeper meaning to the question of knowledge, or to the question of capacity. The difference between them, in this context, is, really, in our submission, no more than theoretical.

I can turn directly to that point now. The critical things in RP, in our respectful submission, which are not reflected in the directions that were given in this case, nor in the sweep of the history of the Queensland cases, to which your Honour the Chief Justice has referred, were a number of things that went well beyond a simple statement that what is required is proof of knowledge. The critical first one was the Court’s – and it must only be taken as to be a reminder, but it was a firm reminder, in our submission, that what is being rebutted here is a presumption of incapacity. That is, that the law actually presumes that all children under the age of 14 years are not sufficiently intellectually and morally developed to appreciate the difference between right and wrong, and thus lack the capacity for mens rea.

In our submission, it is critically important to understand that that is, (a), a presumed position in law that must be undone by the evidence required; and (b), that it is a presumption about capacity, which is then to be undone by evidence which demonstrates that the child, in fact, had capacity. And, in our submission, the Court in RP, particularly when one looks at the language from paragraph 9 of RP:

The prosecution must point to evidence from which an inference can be drawn beyond reasonable doubt that the child’s development is such that he or she knew –

So, the focus again, properly, in our submission, is on “the child’s development is such that he or she knew”, because once one has – and this is the practical point, if I can put it that way – once one has a child who has the capacity to know that the particular act in question is morally wrong, or seriously morally wrong by whatever standard ends up being applied, has the capacity to do so. It would be a very strange case in which there was an absence of actual knowledge of that wrongness in context. And so too the other way around. If one has not – the child is shown to have had actual knowledge of the serious moral wrongness of an act that that child is undertaking, then it would be, one would think, logically impossible to say that that child did not have capacity to know that that act was right or wrong.

So, the distinction, in our submission, becomes meaningless, and less than that when one reads RP, in my submission. It is not a reading down, or it certainly not intended to be. While the Court uses the language of actual knowledge, as we say from paragraph 9, the evidence it asks the prosecution to lead is evidence that demonstrates the child’s development is such that he or she knew that it was morally wrong to engage in the conduct. “The child’s development is such that”. And that is, in effect, the key part of the enquiry which must then be undertaken.

KIEFEL CJ: That is a pretty high standard. What RP is really – the essence of RP is that to rebut the presumption, the evidence – and that was its focus: what needs to be shown by way of evidence, which had not really been really very much discussed in the cases. And it is said that the evidence must be such as to show actual knowledge, that the child’s development and their ability to understand was such that they knew – that it could be said that they knew it was morally wrong. That is very different from a capacity to know that something is wrong.

MR HOLT: In our respectful submission, that ‑ ‑ ‑

KIEFEL CJ: Capacity is only the ability; it is not actual.

MR HOLT: Yes, but for the reasons that we have identified, the difference between having a capacity to know that ‑ ‑ ‑

KIEFEL CJ: Well, the inference might follow. Once you have shown that someone has the ability to know, the inference might follow. It will depend upon the evidence in the particular case.

MR HOLT: In our respectful submission the difference – because the focus in RP, and, indeed, respectfully, precisely as your Honour just put it to me, is on whether the child’s development is such that he or she knew, is effectively saying that that inference is an almost inevitable one, and one would think it is an almost inevitable one. One can take it, of course, because we are dealing here with a question of distinction ‑ ‑ ‑

KIEFEL CJ: But the court is there saying that the child’s development is such that they knew. It is not talking about capacity.

MR HOLT: Yes, but ‑ ‑ ‑

KIEFEL CJ: You overcome the presumption about capacity by saying this child has developed in such a way that you can be comfortable and confident that they know about the moral wrongness according to the test of what reasonable people would understand to be morally wrong. That is how high the evidence has to go.

MR HOLT: But, in our submission, the evidence – it is essentially precisely the same question when one is dealing with the question of capacity under section 29, and for two reasons.

KIEFEL CJ: Well, a large number of leading judges in Queensland faced with the same question did not seem to think that knowledge and capacity were the same thing. They drew a distinct difference between them.

MR HOLT: There is no doubt, as we have acknowledged in the submissions, that there is a sweep of decisions going back in Queensland which say, effectively, there is an obvious difference between them.

KIEFEL CJ: And they were not just talking – they were obviously talking about the language of the Code. But their Honours were cognisant of the fact that they were talking about what evidence is necessary to rebut the presumption.

MR HOLT: Yes. The difficulty, in our respectful submission – I will deal with it in these two ways, if I may. Firstly, just focusing on the question of – on RP for a moment in terms of what the test at common law is. In our respectful submission – and we do not accept that it is a watering‑down to say this – when the question of evidence is directed to the development of the particular child, there is no meaningful distinction between the state one gets to in that regard – that is, the question of whether the child had actual knowledge in a particular case – and the question of whether the child had capacity in the context of that case. In our submission, that is borne out in large measure by, again, the simple proposition that I think was – I apologise if I have this wrong – that Justice Gageler commenced with in his Honour’s concurring judgment in RP, which is that one is going from incapax to capax. That is the nature of the presumption.

But the second point, of course, is to focus on the words of section 29, because that is where the difference – if we are talking about a distinction, we have to identify the thing we are distinguishing it from or to. Section 29, of course, in its terms, although it talks about capacity, it links that capacity very, very closely to the act in question. So, the subsection that we are concerned about here, subsection (2):

A person under the age of 14 years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act . . . the person had capacity to know that the person ought not to do the act –

Now, it is very difficult, in our submission – one tends to focus – and the authorities, respectfully, in Queensland historically have tended to focus on the word “capacity” without putting them in that context. That is why we say the distinction in large measure is an illusory one, because it is difficult to conceive of a person having a child being proved at the time of doing the act to have the capacity to know the person ought not do the act and then not also have actual knowledge of the serious wrongness of the act.

KIEFEL CJ: But it is quite possible to think of cases where the evidence might show the capacity to know but fall short of proving actual knowledge. It is just a case of sufficiency. This whole area in terms of the rebuttal of the presumption is about sufficiency of evidence.

MR HOLT: We respectfully submit that that proposition would have greater force but for the words that I have taken the Court to in section 29. That is, one could say as a matter of – perfectly correctly in the abstract that capacity to know something and actual knowledge are two different things, but when that capacity is linked to the specific time and the very act the distinction becomes one which is so fine as to be illusory.

KIEFEL CJ: And it is not just capacity that the courts have been concerned with in Queensland, then. I think they have also construed the words “ought not to do the act” and what that requires.

MR HOLT: Yes, they have. And, of course, the Western Australian Court of Appeal in Rye did the same thing.

KIEFEL CJ: Yes.

MR HOLT: Went through that process, but in a way which picked up on and had no difficulty in, correctly, in our submission, applying the principles that had emerged out of RP ‑ ‑ ‑

GORDON J: Is not that, in a sense, the issue? Even if you are wrong about equating “ought” capacity to know with knowledge, what is apparent from the decision in Rye is that at least there is some contention about what is the sufficiency of evidence to which the Chief Justice has referred to. And so, one can see from RP, and also the analysis in Rye that that directs attention to, distinctions between morally, seriously wrong ‑ ‑ ‑

MR HOLT: Naughtiness.

GORDON J: ‑ ‑ ‑ as distinct from naughtiness, rudeness, being mischievous ‑ ‑ ‑

MR HOLT: Yes.

GORDON J: ‑ ‑ ‑ or at one hand. On the other hand, whether one looks at, on its own, the elements or the acts constituting the offence of the surrounding circumstances, what is taken into account. Whether one looks and adopts the approach, which seems to be, in some of the Queensland cases, where if you can adduce elements of normality then you have rebutted the presumption. By that I mean, normal mental capacity of his or her age is sufficient of itself to give rise to some sort of suggestion that the presumption is rebutted. Are they not the better ‑ ‑ ‑

MR HOLT: Well, I ‑ ‑ ‑

GORDON J: Are they not the things which are live and in issue here?

MR HOLT: ‑ ‑ ‑ had hoped that I was not excluding those in the way that we were putting the argument.

GORDON J: I see, I apologise.

MR HOLT: No, not at all. It is my clumsiness. I think at special leave I described, in answer to a question from the Chief Justice, I described Rye as properly adopting the principles of RP but perhaps holding on too much to some of the baggage of the Code. We may need to revise that submission, ultimately, in the sense that what Rye does is it picks up on ‑ ‑ ‑

KIEFEL CJ: It really appears to apply the Queensland approach.

MR HOLT: But what it does, in the way that has just been put to me, is that what it does, though, is that it picks up those critical features of the way in which the presumption should be rebutted, or should be rebutted in a proper way, that come out of RP.

STEWARD J: That is what I was going to suggest, too. That, leaving aside the differences between capacity and knowledge, what you want to get from RP are those observations about the type of evidence ‑ ‑ ‑

MR HOLT: Exactly so.

STEWARD J: ‑ ‑ ‑ that is required to rebut the presumption. And that would include evidence of the child’s education, their upbringing, and it would also mean that you could not infer from the seriousness of the offence, in and of it itself, that there was capacity.

MR HOLT: Exactly so, and ‑ ‑ ‑

KIEFEL CJ: Well, that is just logical. It does not even need to follow from RP, does it? And that is just logical. What RP says there about requiring evidence for something other than the offence itself runs true for criminal responsibility understood generally.

MR HOLT: Look, it does, the difficult is not ‑ ‑ ‑

KIEFEL CJ: As does the question of a person’s age getting closer, insofar as any Queensland case says, getting closer to 14 means that, you know, you do not have so much evidence to rebut a presumption. In terms of RP, that must be wrong, too, because, logically, it just does not follow that every child develops in the same way. So, that sort of falls within the area for discussion that Justice Steward is pointing to, in RP, about evidence which will and will not be relevant.

MR HOLT: We think the difficulty here is, and it has been averted to in the discussion in the last couple of minutes in a couple of ways, is that some of those Queensland authorities, on those questions – on those very questions – come to conclusions or suggest approaches to the evidence which are contrary to those matters which we respectfully agree are a matter of logic ‑ ‑ ‑

KIEFEL CJ: Yes. That may be accepted, but I think the authorities such as R v F do actually construe words other than “capacity”. We have mentioned – there was a reference, I think Justice Gordon referred to an understanding or “capacity to understand”:

that what he did was seriously wrong and not merely naughty or mischievous.

That comes from B v R, Lord Parker, and that was rejected by R v F. But in relation to the phrase:

ought not to do the act –

that accords with what was said in RP, namely, that if it is to be “paraphrased”, it should be:

“that the act was wrong according to the ordinary principles of reasonable man”–

So that aligns with RP.

MR HOLT: Yes. And the way in which Rye construed that also, by bringing the two fields of law together, effectively, we saw the decision of RP and the Queensland cases together.

KIEFEL CJ: But what one needs, I think, Mr Holt, what one needs to be careful of here is to distinguish questions of construction – which are truly relevant, having regard to the authorities in Queensland – and how the court has come to apply it in a particular case, whether or not at an evidentiary level it is logical or correct to take into account factors which were taken into account.

MR HOLT: Yes, and can I propose, respectfully, almost a midground between those two things – or perhaps it is just a slightly different way of putting the second point that your Honour has made. That is, it is notable here that both RP and Rye were, because of the circumstances at the time, judge‑alone trials. So, they were not concerned with the question of how a jury might be directed, which of course is what occurs in this case ‑ ‑ ‑

KIEFEL CJ: Yes.

MR HOLT: ‑ ‑ ‑ is the jury was directed in a particular way. The jury is directed, as the Crown puts it here – a quote in accordance with the bench book quote, which effectively meant they were directed only in terms of the language of the section, initially, with a slight extension a bit later on. What that meant in the context of this case was that none of those logical matters which flow out of RP but which are essential to the question of whether this important presumption even can be rebutted or has been rebutted, were not made, in this context, known to the jury – in large measure because the way in which that suite of Queensland authorities has gone has left the point essentially where the jury just need to be told what the words of the section are and almost nothing further.

It played out practically in this case in a really significant way because the very factors that were and continue to be pointed to by the Crown as the reasons why the presumption were – I think amply is the word that is used – rebutted, are the very kinds of things which the reasoning in RP would suggest could not be used for that purpose, or certainly would not in any event be sufficient for those purposes.

So, the content of the question of how one rebuts the presumption is difficult to unpack from an understanding of what the presumption is itself. So, a distinction between that – the idea of what one needs to rebut the presumption tells us something, and what is said in RP, in our respectful submission, tells us a lot about what the presumption actually is and what it means to rebut it. Those core features of RP, which I think in general terms we have now been through and identified – there are sort of five or six of them – are matters which ought be at the forefront of any consideration of section 29 of the Code, and if that is how I should better have put our submission, then that is how I put it.

GLEESON J: Mr Holt, in the Court of Appeal’s reasons they seem to have shifted from the way that the trial judge put the direction, and the trial judge used the language of “serious wrongdoing”, and the Court of Appeal used the language of “wrongdoing”. Is there any real suggestion that there is a different standard of capacity in Queensland from the common law standard?

MR HOLT: Well, I think the short answer is we do not know, and can I roll back a touch in that regard to refer back to the directions that were given at the trial, because they picked this issue up also. The initial directions that were given by the learned trial judge were purely in terms of section 29, that is, “ought not to do the act”.

Then they were asked – the jury asked about the distinction between, effectively, just wrongness generally and criminal knowledge, knowledge that it was criminally wrong, and that is where the learned judge then came back and gave a direction that it had to be seriously wrong by the standards of ordinary – by the principles of ordinary people, and serious wrongness, therefore, was incorporated, which is certainly part of the discussion that the Western Australian Court of Appeal had in Rye about the idea that there was a moral component to this.

It does seem that the use of seriousness, or something like it, is essential to do what the Court in RP suggested needs to be done, which is to be able to distinguish between mischievous and naughtiness, on the one hand ‑ ‑ ‑

GLEESON J: That was how I had understood it.

MR HOLT: That must be so. That was not a feature of the initial direction that was given by the trial judge but it was certainly a feature of the further direction that was given in response to the jury’s question.

GLEESON J: Is there any reason to think that the Court of Appeal in taking out the language of – or not including seriousness was intending to suggest that the capacity is some lesser concept?

MR HOLT: I think part of the difficulty in answering that question straightforwardly is that the Court of Appeal’s discussion on this was, respectfully, so brief, and without any reference to authority at all it is very difficult to discern, respectfully, what was meant by the way in which it was construed. What one can say from the way in which the Court of Appeal dealt with the matter is that when his Honour Justice Boddice came to discuss the consideration of the ground itself at paragraphs [133], [134] and following, what his Honour focused on only and solely in that regard was evidence of matters – of circumstances that might be said to have surrounded the acts, so indications of the need for secrecy, threats being made, those sorts of things, without any reference at all to any of the requirement that a focus must be on the moral and intellectual development of the child, which is, in our submission, one of the critical things that is at least made plain by this Court’s decision in RP.

So, when it then follows down to [137], which I think is the point that your Honour is referring to, a reference in the evidence – they have proved that:

he had the capacity to know the act was wrong according to the ordinary principles of reasonable people.

One is always generous, of course, in the reading of judicial reasons. It is difficult to positively confirm that that – to positively conclude that that was a paraphrase of a correct statement of law, because nothing has come before it which would indicate that those matters have been properly considered. That is part of the difficulty here, is when one looks at what is actually said by Justice Boddice and the analysis of the evidence it is only focusing on those very matters which were identified in RP as being insufficient to rebut capacity with no indication or aversion at all.

KIEFEL CJ: Well, his Honour was focused on the words of the direction rather than a practical direction as to what evidence was necessary.

MR HOLT: Exactly, and those directions that were given, in our respectful submission, were deeply unhelpful to a jury. They certainly did not assist a jury in a way that it would need to be helped with what is a really difficult task – trying to assess a question of capacity to knowledge and act at a point in time when the evidence is spanning a decade, when one is dealing with the reality that all children, as we know – it underpins the idea of the presumption – have an increasing maturation of intellectual and moral development, but also recognising – as RP said and as her Honour the Chief Justice says is true as a matter of logic – that particular children might develop in different ways, and it is a non‑linear development.

Even siblings in the same family might – common experience – develop these capacities in different ways and at different times. There are some true complexities around that, none of which were adequately met by the direction that was given – and in truth, not met by the evidence of the case, which was ultimately the fundamental problem – a fundamental problem here.

GORDON J: Can we take those in two stages? At paragraph 45 of your submissions, on page 14, you set out what the directions should have been.

MR HOLT: Yes.

GORDON J: And, if one looks at there, there is nothing there about actual knowledge. There is no reference to knowledge in those directions. I am not being critical, I am explaining it is tied back to the language of section 29 in the way in which we have been talking about it.

MR HOLT: Yes it is, and I should say, at the risk of sounding like I am just being overly defensive, this was not intended to be a draft of a charge book – it was intended to identify what at least needed to be told to the jury in this context.

GORDON J: Picking up the points that have been raised by the Chief Justice, Justice Steward, and attempted by me earlier on, these are the things that you have said by reference to RP – putting aside the question of capacity equals knowledge or not should have been addressed.

MR HOLT: Exactly so. And had they been, either at trial or in the Court of Appeal, it would have become apparent that the evidence that had been led in the case was inadequate.

GORDON J: Do you propose to come to that?

MR HOLT: I do, in terms of the evidence at the trial – yes, I do. In fact, it might be appropriate for me to come to it now. The other aspect of the direction – while we are talking about the directions, per se – is of course, entirely unsurprisingly, the phraseology of ordinary principles of reasonable men was made gender‑neutral by reference to the ordinary principles of reasonable people, though, in doing that – and it is really more a question less of the semantics of this phrase but more generally that the need for a much more fulsome set of directions for a jury – ordinary principles of reasonable people in this context, without explaining whether those ordinary people were adults or children, what age those people might have been, perhaps creates more questions in fact than it answers.

Can I go, then, and take the Court to the question of the evidence in the case. Helpfully, the Crown Prosecutor at trial provided the Court, and it went to the Jury as “marked for identification” – it is MFI 16; there was a table at page 206 of the appellant’s book of further materials. It just becomes a helpful reference for the evidence, perhaps, in the context of the discussion we have had quite, ironically, headed doli incapax, but clearly intended to be about the rebuttal of the presumption under section 29. What seems clear, then, is that the evidence came from two sources, which the Crown sought to rely on at trial and does so here – if I just make some brief submissions about those.

One of the key aspects that the Crown relied upon in demonstrating “capacity” in the section 29 sense were what might be called matters that surrounded the commission of the offence itself. Obviously enough, as we have discussed – and I will not take it further in light of the exchanges – the actual offence itself is not a matter that could ever be sufficient to rebut the presumption, that is, the act which constitutes the offence, and, of course, that that does stand in contrast to some of the things that are said in those Queensland authorities, which suggest, for example, that certain types of conduct might be so obviously wrong that presumption can be rebutted on that basis alone. So, these are contextual matters, and there is no doubt that contextual matters can be taken into account on the authorities, but there are a couple of difficulties with them in this case.

The first, which was the one that the Crown Prosecutor at trial placed most weight on, that is, the first occasion involving a claim of a little secret and a threat to hurt. Quite apart from the fact, of course, that, as the court noted as a matter of, respectfully, common sense and logic, children talking about secrets and secrecy is not an indication of significant moral development or “capacity”. Children of a much younger age than this, as a matter of common experience, will talk about secrets – will understand that things are naughty or wrong, and that secrets need to be kept, particularly from parents.

KIEFEL CJ: What about the threat that accompanied it?

MR HOLT: Yes, so, can I come to that. Part of the difficulty with the threat that accompanied it, and, again, there were similar issues, your Honour will recall in RP also, which were equally held to be insufficient – particularly, when one was talking, as was explained by the Court in RP, about sibling relationships, that it cannot be assumed that the hurting of a sibling or the threatening to hurt a sibling, in context, is something which says anything about the ability for reasoning to serious moral wrongness. But the other thing about that first dot point, which is really important, of course, is that it occurs before the appellant is 10. So, it occurs at a time when he was conclusively presumed to not have that relevant capacity.

KIEFEL CJ: Mr Holt, forgive me for interrupting – but this first dot point, is that count 4?

MR HOLT: No, it is uncharged.

KIEFEL CJ: It is uncharged.

MR HOLT: Because it occurs ‑ ‑ ‑

KIEFEL CJ: It is the first recollection.

MR HOLT: It is the first recollection.

KIEFEL CJ: Thank you.

MR HOLT: It is uncharged because it occurs before he is 10. So, at a time when he was conclusively ‑ ‑ ‑

KIEFEL CJ: Yes.

MR HOLT: Conclusively. So, it is a really difficult proposition to suggest ‑ ‑ ‑

KIEFEL CJ: Yes, I see.

MR HOLT: ‑ ‑ ‑ that that can – in fact, one might think it goes the other way, in the sense that if that conduct is being undertaken by him at a time when he is conclusively presumed not to have the capacity to know, then it rather tends to pull in the other direction.

We then go to the remaining dot points, and can I identify a significant difficulty with, essentially, all of them. It is where I seek to deploy, to my favour, the double-edged sword with which this hearing started, that is, the fact that, on her evidence, many events occur at a time, which, on the taxonomy of the school – years and so on, and various other things after he turns 14. So, the fundamental difficulty is that most – if not most, I will say, of these matters – it was, at least, unclear, and on many cases on the evidence, absolutely clear, that they were said by the complainant to have occurred well after the appellant turned 14.

An example of that is that the second one, for example, when she was resisting him and then she held him down, that is relevant, it would seem, to count 12. That is where that is said to have occurred specifically, which was a late primary school count, and that is where I can answer your Honour’s question from earlier. That was a late primary school count, count 12:

I remember I was resisting him again, and I – I remember screaming.

Then otherwise it was put – and I will give the reference, at the book of further materials, page 56, lines 11 to 21:

over the years of the sexual incidents that you describe, was there any violence towards you by the defendant?‑‑‑Yes. Towards the end of everything – end of the encounters –

was the description of that. We cannot otherwise find any other references that would justify that within the period of time when the accused was said to have been – the appellant was said to have been under the age of 14. Similarly, the third dot point, the gagging again is said to have related, we think, to count 12, a late primary school count, and to count 7, which was a primary school account. That is the whole – that is the like late count, and so, following the ages of 10 to 17, so where on the first, on the Crown case, as we started this hearing, it was after he was 14, and on the second, it was at least reasonably possible that it was after he was 14.

And the same keeps going through each of these, and it was part of the problem with the sort of omnibus approach that was taken to the evidence here in the absence of any real help being given to the jury about it, that a whole lot of matters that had simply come out as a matter of generality over a long period of time or when the complainant specifically said they occurred at a time when he would not have been 14 were then being deployed by the Crown, and continue to be deployed by the Crown, it would seem, as a way of saying that the presumption had been rebutted. That is where the real complexity of the point in time analysis which the jury were not directed to becomes significant in the context of the nine‑year timeframe of the charges.

They really needed to be told in respect of each count they could not generally decide whether there was capacity using evidence that might or might not have gone right up until the defendant was the age of 18 or 19, which is what this body of evidence refers to, to then somehow extrapolate backwards to a state at any particular point in time when he might have been less than the age of 14.

GORDON J: Your submission is basically, one could have – if properly directed, a jury might have formed a view there was no capacity for the earlier charges, but capacity for the later charges?

MR HOLT: They might have, although our respectful submission in fact goes further than that to say that ‑ ‑ ‑

GORDON J: The only point being, not because that is the conclusion that might be open but that is because they were not directed to identify the particular evidence relevant to the capacity at the time of the event.

MR HOLT: Exactly so. And also that, when one then looks at the evidence, there was in fact scant evidence to that effect at all, evidence not even as good as that which was rejected as being insufficient in RP to that effect, because they really come down to a combination of secrecy – which was talked specifically about in RP, and, again, as a matter of logic and knowledge of children is something which could never, in our submission, nor as the Court indicated in RP, indicate or demonstrate a capacity to reason in a moral way, in the way that the section requires, because kids behave in secretive ways.

It raises all of those fundamental questions, which is why RP was such an important decision in terms of the evidence that is required to rebut the presumption, because of the complexity of the presumption and the way in which it gets rebutted, because of the complexity of children and the way in which they develop in a nonlinear and nonhomogeneous fashion – without even needing to get into questions of intellectual disability, for example, which obviously was a feature of RP, at least on a borderline basis. Here, of course, there was evidence, and we there stray down into evidence from the parents, which is, we think, intended by the Crown to be the totality of the evidence that was available as to the moral and intellectual development of the child in this case.

It is very scant, in our respectful submission. The idea that because he was disciplined from a young age verbally and physically that that says anything capable of rebutting a presumption of incapacity really only needs to be said, in our submission, to be rejected. So too, the fact that the family had a process of loss of privilege as part of a disciplining process for other matters, again, is something that really tells you no more than that this is a child. It does not really tell you anything else. And it is part of one of the themes that comes out of the Queensland cases, which, in our submission, is wrong, with respect, which is the idea said most vividly, I think, in JJ, that the absence of disability is somehow significant, that a normal child – “normal” in inverted commas – can, if something is sufficiently serious, or obviously serious enough on its face, can have the presumption rebutted with some form of relative ease.

Then we come into the sex education that had occurred. And again, a really difficult proposition, in our submission, for the Crown to maintain that that is of any relevance in this context, in the sense that there was reference to the Harold the Giraffe van coming to school and statements by the mother that, you know, the touching of someone was wrong. If it were as simply as saying to a child, or a group of children, an explanation of that which was wrong and that which was not wrong as a matter of morality sufficient to rebut the presumption, then one would think one would have no need for a presumption, in that sense.

To the extent that there was evidence of intellectual development, it tended to show here that the appellant was average or below average. There was a diagnosis of dyslexia . . . . . submit, even though it might be contrary to our interests at this point, it is difficult to see how a diagnosis of dyslexia in a child could say anything about ‑ ‑ ‑

KIEFEL CJ: Well, that affects his reading. It does not necessarily affect his intellectual capacity, does it? And there is no evidence of that.

MR HOLT: Exactly so.

KIEFEL CJ: It is just the father’s idea of his intellectual abilities.

MR HOLT: It sort of felt a bit like, if I can put it this way, it sort of felt a bit like the prosecutor recognised that she might have needed to have led some evidence of intellectual development, capacity, and so asked some questions about that. But the results of those questions told us, really, nothing very useful, is the short point.

GORDON J: In the sentencing remarks, and I know that they are not relevant in this context, the trial judge talks about intellectual disability and also visual impairment. But is that – where is the evidence ‑ ‑ ‑

MR HOLT: These are.

GORDON J: I see, thank you.

MR HOLT: My assumption is that that was material led on the sentence. Maybe it should have been led at trial, but it was not, and I cannot now rely on it.

GORDON J: Thank you.

MR HOLT: Yes, so, our respectful submission ultimately is that – and again, I suspect that it comes back to whether one characterises the problem here as being a problem with the way in which the jury were told as to how to deal with evidence, or whether it is a constructional problem. But ultimately, what the evidence that was led and the way in which it was taken by the Court of Appeal to be sufficient to rebut the presumption in this context tells us a lot about the way in which the Court of Appeal viewed the nature of the presumption itself.

In our respectful submission, it did not view it in a way which is consistent with the way in which this Court reasoned in RP. Can I then come on ground 1, finally, to the question of remedy. Our respectful submission is that if the Court agrees that the jury was – in effect, that the directions that were given to the jury and the Court of Appeal’s assessment of those directions were inadequate in light of the principles identified by RP, that that would unquestionably be an irregularity in the trial process or an error in the trial process which would be sufficient to describe it as a miscarriage of justice for the purposes of the common form appeal provisions. The question then becomes, in our respectful submission, what the remedy would be in that regard.

GLEESON J: Well, I mean, is it an irregularity in relation to a charge where the jury could only have reasoned on the evidence that the offence occurred when the appellant was over 14?

MR HOLT: In our respectful submission, yes, it can still be an irregularity for those purposes – or an error, or an irregularity for those purposes. As we have said at the outset, it would not always be so. That is not an immutable principle that we would invite this Court to adopt, that the mere ‑ ‑ ‑

GLEESON J: Based on the direction that you have said was correct in relation to, first, consider whether the offence occurred when the appellant was over 14 – would not the jury stop at that point?

MR HOLT: Your Honour, I understand the force of what your Honour says, and the difficulty, in our respectful submission, here, is twofold, and I will be repeating myself so I will attempt to do it only briefly because I cannot make a submission beyond this.

The first point is that the Crown, having effectively chosen the battleground for the trial, going back to the 10th birthday of the defendant, and all of the difficulties that that engenders in a trial of this kind, to be asked to defend a charge with a specific date within a nine‑year period when at the beginning you are a prepubescent child of 10 and at the end you are a young man of 19, means that, in effect, the Crown should be held to that date range and to the consequences of that date range in this context.

What I cannot dispute is the force of the proposition that if the evidence only permitted that conclusion, then either it would be open for the Court to find in respect of those charges that it was not an irregularity for the purposes of the miscarriage limb of the third limb of the common form provisions. Or, if it was, that one could apply the proviso with comparative ease. The only submission I can make in response to that is that the taxonomy of the approach to that date delineation, effectively, if we can put it that way, was one on the evidence that was not particularly compelling, was pretty vague in the way in which it was put, in the way that we have set out previously. And it was, of course, always open to the Crown simply to file a proper indictment or to seek to amend this one. At any stage during the course of the trial it could have done so, and the trial judge . . . . . not.

So, to now come and say you should treat these charges, in effect, as if they were confined to that period because they must obviously have been years later than when we commenced the charge period is not something, in our submission which could be countenanced, but ‑ ‑ ‑

GLEESON J: Is this a proposition about procedural fairness?

MR HOLT: I think as I develop it, it must be. Yes, I think as I develop it, it must be. The architecture of this trial was so poor in terms of the problems that have arisen and why they have arisen in this way from a decision which is only for the Crown to take, which is the way in which it chooses to lay the charges – a charge which it is now said it is impossible to imagine that the presumption could have applied is a charge that has, as its opening date, the 10th birthday of my client. You know, there are four years of the charge period in which she is aged between 10 and 14, and that was the Crown’s choice, to file a charge of that kind, and the trial was run – albeit without challenge – on the basis of that architecture. The evidence that was led to attempt to limit those charges was not evidence of particular force, in our respectful submission.

Can I attempt to put it this way? I confuse myself, but can I attempt to put it in this way. Whatever category of charges, whether it is all, as we say, or some, as is being otherwise being put to me, that would be affected by – infected by that error, our respectful submission is that the result would be an acquittal on those charges because, effectively, the evidence that underpins them, for the reasons that we have identified, would not, in any event, be sufficient to permit the discharge of the presumption in the circumstances of this case.

KIEFEL CJ: I am sorry, you are talking about an acquittal on the charges to which the presumption arose?

MR HOLT: Whether that is all of the charges, as we submit it ought be, or whether it is a smaller body, that would be the remedy.

KIEFEL CJ: The ones that were identified at the outset?

MR HOLT: Exactly so. That would be the remedy, in our respectful submission.

GORDON J: Can I ask one question about Rye. In Rye, in dealing with that question about relief at paragraph 78, the Court of Appeal says the Crown should not have a second go at fixing it up, without any explanation. Is the Court of Appeal there pointing out that the Crown had the burden of proof and it should not be able to have a second go at proving a charge it has not proved?

MR HOLT: Exactly so, and that is why we say that the threshold question for the Court will be whether there is, on the record as we currently know it, sufficient evidence to rebut the presumption. If there is not, the Crown ought not be given a second go, even if it might say to the Court – and I do not know whether it will or not – we would want to go and get a child psychiatrist, or a psychologist, or a neuropsychologist or someone of that kind to give evidence in this case. It has been given its chance, and if it failed on its burden, then it failed on its burden, in our submission.

GLEESON J: Is there anything special about the fact that the failure relates to a question of capacity, or the infant status of the child?

MR HOLT: We would say – in response to that question I would point out two submissions. The first is, to come to the conclusion that it would be acquittals that would be entered would not require a conclusion that this was a special – that the capacity gives rise to some special consideration. So, that . . . . . on that basis we would then say, in answer to your Honour’s question, yes, it nonetheless would in the sense that this – the question of capacity is effectively elemental, that is, although it is not an element of the offence per se, it is not something upon which a defendant carries an evidential burden, or an evidential narrative, it simply must be disproved by the Crown beyond reasonable doubt.

Of course, the question of remedy in this Court is a matter of very poor discretion – there is no doubt that an acquittal is available. It is true, on the record, that the defendant has now spent a substantial period of time in custody and remains in custody. It is also true that the Crown ran the first trial with this extraordinary time frame and architecture – which is in large measure a part of the significant problems that have been created. But the fundamental submission that we make is that, if the evidence is insufficient – which the Court would conclude it was – then the Crown should not be given an opportunity to have a second go. Can I turn, then, to ground 2 and recognise immediately that the same discussion will necessarily have to be had in respect ‑ ‑ ‑

KIEFEL CJ: Yes, if you could at the outset – some clarification of what happened after the legislative provision came into effect in January 2004, I think.

MR HOLT: It is easier and there are fewer. I can put it that way and I will not remake the submissions that I have made about the more – perhaps what has been more accurately put to me as being the procedural fairness point that might come out – I will simply indicate that we rely on those submissions.

In our respectful submission, the Crown’s submission at paragraph 8 of its outline, which says that none of the charges can have had the consent issue arise is, in our submission, wrong. There are four, and they are essentially for the same evidential reasons that we have identified previously – 2, 3, 7 and 8.

GORDON J: Sorry, just so I am clear. I did in reverse because I do it timewise. It is 7, 8, 4, 2 and 3. Is that the way it works? Did you say 7, 8, 4, 2 and 3?

MR HOLT: No, I said 7, 8, 2 and 3.

GORDON J: Numbers 7, 8, 2 and 3, thank you.

MR HOLT: It is only those, and for the same reasons – so there are fewer.

GORDON J: And if you are right on the first ground, then the second ground is moot, is it not, on relation to those charges?

MR HOLT: Absolutely, it is. There is an entire overlap of the second category to the first.

GORDON J: Thank you.

MR HOLT: That is so. Also, of course, the remedy in respect of ground 2 would only ever be a retrial – it would not be an acquittal in that regard, because there is no evidential difficulty – it would only be a question of a wrong direction as a matter of law, so, ground 1 would entirely subsume ground 2 in that regard. Obviously enough, I maintain our position in respect of the appropriate approach to all charges, for the reasons I have indicated – but I will not repeat them now.

So, recognising that, it is, in our respectful submission – the helpful starting point is that it was an agreed error made – it was an agreed failure to direct on an element of the offence. The effect of that error was that the Crown was relieved in respect of those charges to which the court concludes that it properly applied – the Crown was relieved of the requirement to prove an element of the offence beyond reasonable doubt.

KIEFEL CJ: Mr Holt, the fault that you have identified is relevant to consent. Does the Crown agree with this? Have you had an opportunity of discussing this with Mr Heaton?

MR HOLT: I do not know whether the Crown agrees with it, I am sorry, your Honour. I can approach my friend now.

KIEFEL CJ: No, proceed. Mr Heaton will tell us in due course.

MR HOLT: Thank you, your Honour. So, the – it had also some other significant consequences, which also tie back to the nine-year timeframe for many of those charges. Of course, it meant, as well as having the Crown being relieved of the requirement to prove the consent point itself, it also meant that the associated question of section 24 was simply not even considered to be live in respect of those counts.

I will come back to that. But it also meant, because of the way the Crown had charged in the case, that it had to – that it was relieved of the requirement, in effect, to prove the associated question of when each offence was alleged to have taken place in relation to that particular point at which the law changed in January of 2004. So, it had a significant effect, in our submission, on the way in which the trial was run.

GLEESON J: Mr Holt, why does ground 2 of the notice of appeal use the language of the removal of an element of an offence from the jury?

MR HOLT: It should not, your Honour. And I now have what I have described in this Court previously as drafter’s remorse. It was simply the – can I think of a better way to word the ground and come back to the Court in reply? But your Honour is absolutely right and I apologise for that.

GLEESON J: Thank you.

MR HOLT: It remarkably, and regrettably, there appears to now be a dispute about whether the Court of Appeal in this case was applying the proviso or determining the antecedent miscarriage question when it was determining this matter. And the relevant discussion is found at page 84 of the core appeal book, but in particular at paragraph [139] and following of the judgment below of the reasons of Justice Boddice with whom the other members of the court agreed.

In paragraph 1 – because, obviously, there was an agreed error, what is interesting, of course, about – sorry, I should have said this earlier, what is interesting, of course, about the Court of Appeal judgment is that the thing which the Crown now relies most heavily on, which is the idea that this did not matter because of the timings, issues on the complainant’s evidence was not the way in which the Court of Appeal appeared to have reasoned it. Rather, the Court of Appeal said consent was not a live issue at all in the trial, in respect of counts involving penetration, and so on that basis there was no – either miscarriage or substantial miscarriage, depending on how one characterises his Honour’s reasoning.

But we simply invite the Court to notice that the language of miscarriage, not substantial miscarriage, is used in paragraph [140], and it is said there that the reason why no miscarriage has occurred, when we go through to [141] and following was because consent was not a live issue at trial, in effect. But then, at paragraph ‑ ‑ ‑

KIEFEL CJ: His Honour is really saying, is he not, that the case was conducted on the basis that the defence denied that the acts took place?

MR HOLT: Exactly so. And then at [143] – and I will come to that, your Honour, if I may, if I can just walk through the reasoning process at the moment. At paragraph [143] his Honour deploys the language of:

an independent assessment of the evidence as a whole, the prosecution proved beyond reasonable doubt –

And so on, “without the complainant’s consent”. And that, in our submission, and with the greatest of respect to our learned friend, cannot be read as anything other than the implication of the proviso, rather the antecedent question of the third limb of miscarriage.

Now, ultimately in the context of this issue it might not matter, and can I make that submission for this reason, which I do not think we made clear in the submissions, and I make this submission by reference to a very short passage of the plurality of this Court in Kalbasi. It is at paragraph 55, which is at page 83 of the report. It is a very short statement. I will just read it:

a direction which effectively removes proof of an element from the jury’s consideration, may not amount to a legal error, much less occasion a substantial miscarriage of justice, if proof of the element was not a live issue in the trial.

What the Court is saying in Kalbasi is, if the conclusion that Justice Boddice came to – that is, that the issue was truly not live at trial – that could in fact mean, or in law mean, that there was either or both of: no miscarriage or, in any event, no substantial miscarriage. So, in fairness to his Honour, it does seem that there is a legitimacy to the way in which both thresholds were used.

Having said that, the question then becomes, at least on the Court of Appeal’s reasoning, what it means to say that something is not a live issue at trial and that, in our submission, is an important question. It is a trite submission, but we make the submission that it is no small thing to remove an element of an offence and permit the Crown to prove it without the need to rely on evidence, but by way of judicial direction, in effect, and particularly in the context of the offence of rape or, indeed, any sexual offence where sexual activity – and again, this is an obvious and trite submission – sexual activity is only made unlawful by the absence of consent, so one is talking here about consent as a critical element, because it is that which turns what is otherwise lawful conduct here into criminal conduct.

It is important in this sense, in our submission, to recall, of course – and it is a trite submission again – that a criminal trial is accusatorial, that a plea of not guilty is a general plea and that it puts all matters in issue. So, to say against that context, which the court has expressed on many, many occasions over the course of the last couple of decades, the accusatorial nature of a trial, to say that an element is not, to use the language of Kalbasi, “live” is something which, in our respectful submission, should not be a matter of implication, but should be a matter of clear, positive and competent statement to that effect, that is, the defence actually have been conducted, not just in a way which had a primary case theory and a secondary case theory, but in a way that truly conceded the element.

One sees – and indeed Kalbasi itself was an example of this – cases where by virtue of discussion, a decision is made by a trial judge to say, there is this element of the offence, but you are not going to need to worry about it, members of the jury, because everyone has agreed that it is not an issue in this trial. That is what one would need to get to, in our submission, to properly say that an error which leads to allowing, effectively, a direction that the Crown proves an element that it should otherwise have proved, is not a miscarriage or a substantial miscarriage, being live, one would need to get to that point. In this case, that just was not so.

GORDON J: What was not so?

MR HOLT: It was not so that there was any concession made at the trial that the element of consent was not an issue.

KIEFEL CJ: But there was no cross‑examination.

MR HOLT: No, there was not, but our submission is more is required than simply the running of a primary case theory in a particular way, and the more that is required is effectively an actual concession, which usually one sees reflected in directions that the trial judge gives, that a particular element is not an issue. Otherwise we end up in the remarkable situation that we are in here where the way in which counsel chooses to conduct a case by cross‑examination on a primary case theory of this kind results in the Crown effectively being relieved from the obligation to prove other elements, even if no formal concession is made about those.

KIEFEL CJ: Could it not be said, Mr Holt, that the complainant’s general denial of consent at any point could reasonably be understood by the jury to apply to every act?

MR HOLT: Absolutely. But there is a world of difference, in our respectful submission, between that as a conclusion as to the way in which the evidence might allow consent to be proved as a matter of relative ease in the context of a particular case, and the taking away of that element from the jury by way of judicial direction, in effect.

KIEFEL CJ: Yes, I see, the focus on direction.

MR HOLT: That second thing is so important in an accusatorial criminal trial with a general plea of not guilty that it should only be done where a concession is made. Now, I will say this immediately. We are not suggesting for a moment that we are a case where an element is truly not in issue, that is, where – and we run trials like this all the time – when one says to a trial judge and to a jury, you do not need to worry about that, that is absolutely accepted, that a trial judge would nonetheless need to direct in any level of detail on that element of all; that would be contrary to Alford v Magee. But ‑ ‑ ‑

KIEFEL CJ: You do not think it was tolerably clear here?

MR HOLT: No, we do not, and can I ‑ ‑ ‑

GORDON J: Can I ask about that – could you please go to core appeal book, page 20, at line 30. I choose this as an example of where the trial judge is directing in relation to consent.

MR HOLT: Yes.

GORDON J: Why is that insufficient?

MR HOLT: I am sorry, I think I have the wrong page reference, your Honour.

GORDON J: I think it is page 20.

MR HOLT: Line?

GORDON J: I think it is line 30:

The second thing that must be proved is that if he did so . . . that he did so without her consent.

Core appeal book:

Now, consent has a legal definition . . . a child under the age of 12 years cannot consent.

Et cetera.

MR HOLT: Exactly so. But the difficulty is, it is the child “under the age of 12 cannot consent” problem. So, that is where the direction was taken; that is where that element was taken from the jury in respect of those counts.

GORDON J: So, just so I am clear now, we are on the narrow case? We are on the case of the change in the law dealing with a child between the age of 7. Is that the bit we are dealing with?

MR HOLT: That is exactly the bit we are dealing with. But the way in which the Court of Appeal – I am sorry, I have not been clear – the way in which the Court of Appeal reasoned is that consent was not in issue at all, in the trial, in relation to acts which amounted to vaginal penetration.

GORDON J: So, I put the Court of Appeal aside for the moment and in dealing with what actually happened by way of direction ‑ ‑ ‑

MR HOLT: Yes.

GORDON J: ‑ ‑ ‑ because the trial judge directed on consent.

MR HOLT: Directed on consent, but specifically excised from that direction any circumstance in which the jury concluded that the complainant was under the age of 12. So, there was, and the way – and I am sorry to come back to the Court of Appeal – but the way in which it was then reasoned in the Court of Appeal was to say that is not a problem – even though it is an error of law – that is not a problem because the entirety of the defence case was right on the basis that consent was not in issue at all, that consent was ‑ ‑ ‑

GLEESON J: But this is put on the slightly unrealistic premise that consent might not have been disproven in relation to an offense which occurred ‑ ‑ ‑

MR HOLT: When she was under ‑ ‑ ‑

GLEESON J: ‑ ‑ ‑ when the complainant was between the ages of 4 and 7.

MR HOLT: Can I immediately accept the force of what your Honours says in terms of the unrealistic nature of that, conceivably. There are two responses to it. The first, of course, is that it was, nonetheless, a matter for the prosecution to prove, and that, in and of itself, as a matter of principle, is important, and that is where the submissions I have made so far go to.

The other question is, it could easily have – and we do not know, because the error was made, and it was made by everybody – it could have easily have or may have resulted in an approach not so much on the question of the giving of actual consent, but on an honest and reasonable mistake as to the giving of consent.

And the reason – I see your Honour’s reaction, I can understand why – but, of course, when the complainant was that much younger, so, too, was the defendant. So, as a 10‑year‑old, to be receiving, if that is what the jury accepted, signals of a particular kind with all of those questions about cognitive development and capacity – to understand signals and those sort of things – it is not as immediately offensive as it first sounds ‑ ‑ ‑

KIEFEL CJ: That sounds like saying that if the child understood that consent was important, it could be inferred that the child knew about moral wrongness.

MR HOLT: I understand that, your Honour.

KIEFEL CJ: You sort of – you get into deeper water.

MR HOLT: Maybe I simply have to acknowledge those waters and attempt to walk around them, because that is the complexity with this area, which is that we are dealing with two separate ‑ ‑ ‑

GLEESON J: You might have to walk on them ‑ ‑ ‑

MR HOLT: We are dealing with two separate presumptions here. A presumption that changed during the course of trial as to the ability of a child of a certain age to consent, and then a differential age with a differential test as to whether a child has capacity to know the moral wrongness of a criminal act.

GORDON J: So, if you break it up and just identify it in two parts, your first complaint is the question of principle but you are really merging it with the proviso analysis, are you not? By saying – are you? I cannot quite understand. The principle is they have taken away an element ‑ ‑ ‑

MR HOLT: Yes.

GORDON J: You say that that is a miscarriage.

MR HOLT: Yes.

GORDON J: You therefore say there has to be an analysis of the proviso, and it cannot be because ‑ ‑ ‑

MR HOLT: No, we say – and it comes back, really, to that passage and Kalbasi that we identified – it would seem, effectively, that if an element is taken from a jury – if I can use that inelegant language – if an element is taken from a jury, our submission is, unsurprisingly, the prima facie position, as a matter of legal error, unsurprisingly, the presumptive position, the prima facie position would be that that was an error of a kind that would amount both to a miscarriage and to a substantial miscarriage.

GORDON J: Because of the nature and gravity of it?

MR HOLT: Exactly so. The way in which one unlocks the exception to that, in our submission, is that which was identified by this Court in Kalbasi, which was that the issue is not a live issue in the trial. Our submission is that the only way to unlock that, the only way to say that something is not a live issue in the trial is by a positive concession to that effect, and there was no such positive concession in this case.

KIEFEL CJ: I do not think that you can point to any authority which says that for something not to be a live issue, you need a positive concession.

MR HOLT: No, we have not – nor, though, any that disputes that notion, and so can I address it, if I may, by ‑ ‑ ‑

KIEFEL CJ: It is what is clear for the jury and – what is needed, how the trial is conducted and what needs to be made clear for the jury.

MR HOLT: We respectfully suggest and submit that the threshold ought to be a higher one than that. That is, because to do otherwise is to risk some significant consequences to the nature of the accusatorial trial, because to do that is to allow forensic decisions, which, as this Court has made clear in Hofer, for example, can be made for all sorts of different reasons as to what is put or not put in a particular context.

GORDON J: Do you need to go that far? I mean, you have got the direction as to consent on page 20 of the core appeal book, your point is just, evident on the face of it, that they were directed about an element but directed incorrectly.

MR HOLT: Yes, and ‑ ‑ ‑

GORDON J: Is that how far you need to go?

MR HOLT: Well, I suppose I am seeking to go further only to demonstrate why, in our submission, we say the matter was not live even though it must be accepted that the principal defence case was that no penetration occurred, and, by implication from that ‑ ‑ ‑

KIEFEL CJ: Well, it was not the principal defence case, it was the only defence case – there was not one question put which suggested that it was in issue.

MR HOLT: I am not going to dispute that proposition in huge detail, save to say there were questions asked that appeared to be directed to the issue of how she responded in certain circumstances to certain things. And there was, of course ‑ ‑ ‑

KIEFEL CJ: They were going mostly to her credit, were they not?

MR HOLT: I think they were, in fairness, but there was also the pretext call, where he said, as a general statement – because nothing specific was put to him – everything that happened was consensual. But, more importantly, in our submission ‑ ‑ ‑

KIEFEL CJ: No, he said the effect of the pretext call is, we were children, we did not know what we were doing.

MR HOLT: But there was a clear statement that everything we did was consensual.

KIEFEL CJ: Because he is an adult now and he knows.

MR HOLT: I am sorry, your Honour?

KIEFEL CJ: Because he is an adult now and he knows it matters. That is how you read the pretext call.

MR HOLT: And he does describe, of course, having looked up on the internet these sorts of sexual things that occur between siblings and that sort of thing. Can I simply make reference to the three parts of the record that we say demonstrate that the consent was in fact a live issue at trial, in effect, notwithstanding the fact that the principal case – and I maintain that language for reasons I will come to – why the primary case was put on the basis that the acts did not occur at all. I will simply give the Court the references and the paraphrase. The first is in the defence closing, which is found at the appellant’s book of further materials 220, at lines 27 to 33 in particular.

GORDON J: Sorry, what were the lines?

MR HOLT: Lines 27 to 33. So, this was the defence closing. I will summarise it in this way. Counsel for the appellant said what is in issue is – she said:

we are in a trial involving competing arguments, there is some important middle ground . . . effectively, that there was this sexual relationship . . . and it’s really the extent of that conduct; the range of years over which that conduct occurred, whether certain particular acts took place, such as penile rape and oral sex performed on –

I am sorry:

performed on [the complainant], and if those acts occurred, the circumstances in which they occurred.

Then at page 232, lines 15 to 24, in the same closing address, the counsel says:

But that issue of whether she consented or not, as in the circumstances in which it happened, that issue of consent only becomes a live issue for you to consider, if you are satisfied that he could be criminally liable under that first threshold –

So, it is clear that even though that is the primary step, defence counsel is running an alternative case theory in that regard. Most importantly, at the core appeal book in the trial judge’s directions at page 32, lines 19 to 23, in summarising the defence’s position ‑ ‑ ‑

KIEFEL CJ: I am sorry, could I have that reference again?

MR HOLT: I apologise. Page 32, lines 19 to 23. In summarising Ms Bain’s submissions, the learned trial judge said this:

She submitted that if the question of consent arises, of course, an event occurred after [the complainant] was 12, then there are reasons to doubt that the Prosecution have proved an absence of consent.

So, the way the trial judge understood the defence case to be put was that there was a primary submission of no penetration and a secondary submission as to a doubt as to consent and, in our submission, that is at least enough to say that the issue was live in the context of the trial.

Unless I can assist the Court further, those are our submissions.

KIEFEL CJ: Thank you, Mr Holt. This might be a convenient time for the Court to take its morning break. The Court will adjourn for 15 minutes.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ: Yes, Mr Heaton.

MR HEATON: Can I begin by just dealing with some of those factual matters at the commencement of my learned friend’s submissions. Particularly, I will start with counts 2 and 3. Now, just to recap, it was said that these two counts were implicated in the issue about capacity because of the evidence given by the complainant in relation to a photograph and her inability to identify whether or not the incident that she described occurred before the photograph or after the photograph.

We submit, respectfully, that the appellant is making too much of that evidence, and when put in its proper context it is clear that the complainant was shown a photograph of the bedroom with the defendant in the bed and she was asked questions about the location of the bed and the layout of the room, and she gave some evidence about that – very brief evidence – and then she was asked, simply, a question as to whether or not she could remember whether or not the event that she described happen before or after that photograph was taken. There was no specific reference at the time that the question was asked that the photo was taken at any particular time. And she, perhaps in a display of frank concession, said that she could not pinpoint with any more particularity.

GORDON J: I thought the photograph was dated. Am I wrong about that?

MR HEATON: It was dated, but in the series of questions when she was asked about it there was no specific reference to the date of the particular photo.

GORDON J: I see.

MR HEATON: That is simply the point that I am trying to make. In addition to that, there was evidence given by her parents ‑ ‑ ‑

GORDON J: Is this still about counts 2 and 3?

MR HEATON: It is about counts 2 and 3 – that also assists to identify the timeframe during which these counts happened, bearing in mind these counts were said to have happened in the loft. And at 139 of the core appeal book, there is evidence from the appellant and the complainant’s mother.

KIEFEL CJ: Sorry, core appeal book ‑ ‑ ‑

MR HEATON: Page 139.

KIEFEL CJ: Thank you.

GORDON J: Do you mean core appeal book, or the book of further materials?

MR HEATON: I mean the core – I mean the book of further materials. I do that all the time.

GORDON J: That is alright.

MR HEATON: It is the book of further materials. Yes, it is the trial transcript. Let us call it what it is. Page 139, commencing at about, well, relevantly at about 27, her mother – the complainant’s mother – was asked about his living in this bunk – in this loft:

Mid-high school, I think –

is when he moved in:

about grade 9/10 –

he then at line 40, I think he stayed:

I think, until about year 12, or just after –

And then he moved into the shed. Now, that evidence supports the contention that when the appellant was in 9/10, year nine, 10, that was 2006, 2007, at a time when the complainant was in grade five or six. It is all – ultimately, we say it is all matters of fact for the fact‑finder to discern, but there is evidence there which does particularly go to identify that this event and these two counts were also offences which were said to have happened after the critical time when he was 14.

Can I turn to count 7 and, just in addition to what has already been discussed about that count, at the book of further materials, at page 100, in cross‑examination by counsel for the appellant at the trial, the complainant was asked questions specifically in relation to the events touching upon what is in count 7, and indeed, count 11 – were the two that happened in the bedroom with the bunk beds. Count 11 was an occasion when there was a broken arm. Count 7, there was no broken arm. At the top of page 100, she was asked by reference to the incident in relation to the broken arm, whether it happened before or after her broken arm in 2008. Then it was pointed out to her:

But in fact, in your statement, there’s a reference to that incident –

This is what is count 7, we say:

being in 2006 or 2007, so before you broke your arm?

And she agreed with that proposition. We say that is, again, further evidence which identifies that that even at that time – 2006, 2007 – with certainty, we can say, after he was 14 years of age. So, apart from count 4 and count 8 – which we do concede there is a reasonable possibility on the evidence that it occurred at a time before he was 14 – all of the other offences, we say – the only evidence upon which a jury could act to identify when it happened supports the only conclusion that it happened after he was 14. In relation to factual matters ‑ ‑ ‑

KIEFEL CJ: What about – I see, yes, count 4, you acknowledge, yes, thank you.

MR HEATON: Yes. Count 4, he was 13 and nine months.

KIEFEL CJ: Yes.

MR HEATON: And count 8, being conservative, mid to late primary school, so that must implicate grades three to seven.

KIEFEL CJ: It puts him at about 13 to 14, so you would have to concede that.

MR HEATON: At the start of that period.

KIEFEL CJ: Yes.

MR HEATON: So, it was necessary then for the jury to be properly directed about capacity in order to consider the issue in relation to those counts. But ultimately, we submit that they were sufficiently so for the circumstances of this case.

Can I just say broadly, in relation to the framing of the indictment before moving on to our specific submissions in relation to the grounds, whilst the date range is, of course, wide – it is what it is, we do not shy away from that – the evidence, once it was given, certainly supported a narrower date range. We submit, though, that it is the evidence which is relevant to a consideration of the issues which arise and about which the jury needed to be specifically directed in order to properly consider the issues and ensure that there was no miscarriage of justice.

It also relevant, again as an overarching concept in this respect, that there was no application for further embedded particulars. There was no application to, or any suggestion that the appellant was unable to answer the charges by reference to the way that it had been framed. It seems clear that, as complicated as that approach may have made it, everybody proceeded on the basis that the evidence identified when the offences were said to have been committed, and the directions were fashioned in order to cover all possibilities.

Can I move to ground 1? In relation to this question, we say that the answer lies by consideration – or a proper focus on the language of section 29. The judge in this case directed the jury in the language of that co‑provision. He properly drew the jurors’ attention to the requirements of the law in respect of each of these offences, and indeed, he took some time to go through each specific offence and direct them specifically on the question of capacity in relation to each offence.

Certainly, by the end of the redirection, or the response to the question that was asked of him, the jury had then been perhaps assisted to connect the concept of “capacity to know” within section 29 with the community standards, to give that concept some practical meaning and to enable the jury to properly apply it in the circumstances of this case.

GLEESON J: If the directions were as to capacity for each separate offence, does that not indicate that the question of capacity was in issue for each offence?

MR HEATON: Well, it was in the sense that he directed them, as has already been discussed, that they had two questions to answer. The first was what age he was, and if they concluded that he was under 14, well, then they had to consider the question of capacity. That, perhaps in light of the way that the indictment was framed, was a necessarily cautious, perhaps, in light of the evidence, but at that stage of the directions – I guess ultimately recognising that it was a matter for the jury to accept, or not, the evidence that was given by the complainant as to the timing of events. There was a mix of charges, some were, as we have identified, clearly under 14. Some were not.

We submit that by the time the jury had been further directed, they would have understood properly that the relevant question was a moral one, as opposed to a legal one, which was the question that they asked and that it was necessary that the understanding was of serious wrongness as distinct from mere naughtiness. So, we can see that, whilst different language was used, the judge did draw in the broader concepts that are said by this court in RP, and indeed by the Western Australian court in Rye, those broader concepts that might assist the jury to understand the concept of a capacity to know that he ought not do the acts.

But we say also, properly, that the judge’s directions remain focused on the language of section 29. Whilst the articulation of the factors relevant to this question in RP are relevant to the common law, they do not, we submit, reflect the requirements of the statutory position in Queensland. So, we say, contrary to the submission that is made by the appellant, that Queensland is not out of step with the common law. Instead, the jurisprudence here in Queensland reflects the different legislative framework that operates on this question.

Consequently, the directions that were given, we say, properly appraised the jury not only by reference to the specific provisions of our Code, but also, at least by the end of the further direction, the other concepts that draw on what was said by the Court in RP in the circumstances of that case, and in Rye.

In addition to promoting the specific articulation of the relevant inquiry in accordance with what this court said in RP, the approach of the appellant seems to also seek to limit the scope of the evidence which is necessary in order to displace the presumption. What evidence there is and what conclusion it reasonably supports will vary from case to case. Bearing in mind the statutory framework for proof of the relevant capacity, it is a matter of fact whether the evidence supports it in the circumstances of a given case or not. The critical distinction, we say, in RP, was that there was evidence of limited intellectual functioning in the form of a psychological report.

In that context the Court found, in the application of the law in relation to capacity to those circumstances, that evidence which touched upon a clear demonstration of his moral and intellectual development so as to, in the matrix of all of the evidence that was available in that case, displace the presumption, was required. The majority did recognise that what will or will not displace the presumption in a given case will vary. It will vary depending on the nature of the allegations and of the particular child in question and these are, we say, matters of logic.

The relevant evidence as to capacity is – again, contrary to the submissions that are made in support of this appeal – was significant and ‑ ‑ ‑

GORDON J: Are we talking about this case now?

MR HEATON: This case.

GORDON J: Thank you.

MR HEATON: And capable of support ‑ ‑ ‑

KIEFEL CJ: Mr Heaton, have you finished with the question of construction?

MR HEATON: Yes.

KIEFEL CJ: What do you say about the appellant’s submission that there is little by way of distinction to be drawn between a reference to capacity to know and to know?

MR HEATON: That might be so in a pragmatic sense in a particular case, and in another case may not be so. We say it is a matter of fact and what is required in a specific case will depend on the nature of the allegations and the nature of the child and, ultimately, the question is what the jury need to know in order to properly apply their process of reasoning to the task. There is a fundamental distinction between capacity to know and actual knowledge. That has been recognised in the jurisprudence in Queensland and it is the legislative words which necessarily must be the focus of the inquiry by a jury or a fact‑finding judge in Queensland.

GORDON J: In your outline of oral argument at paragraph 3, you say:

Whilst ‘capacity to know’ and ‘knowledge’ are closely related in a practical sense –

Is that ‑ ‑ ‑

MR HEATON: That is essentially what I tried to just say then. I do recognise – and my learned friend has gone through the example of proof of capacity but not knowledge might be a very fine distinction in a factual, in a pragmatic sense, but that is not to lose sight of the fact that in Queensland the legislative language is very clear. The jury in this case, on no less than – on my count – about nine times were reminded of what that language is and in the context of the task that they faced in finding or in considering the issue of his capacity.

GLEESON J: So, you do not criticise the reasoning in Rye?

MR HEATON: No. Can I turn to the facts that were available, that we say were significant and indeed ably supported the conclusion in this particular case that the appellant had the capacity to know that he ought not do the offences that were alleged against him? The circumstances of the offending included the matters that have been set out in that document at page 206 of the book of further materials, and that seems to have ben the document that was referred to by – certainly the prosecutor, but also by the counsel and the judge in framing the discussions and the directions about this evidence.

As I have said, the judge took the jury through the evidence by reference to each of the specific offenses in a detailed way, and that appears at 14 to 20 of the core appeal book. There was evidence from the ‑ ‑ ‑

GORDON J: Sorry, if I can just interrupt? Do you propose to go back to 206 and address the arguments that were put to us by Mr Holt about the inapplicability of a number of those matters listed under the heading:

Evidence from Complainant –

as well as evidence from parents, but dealing with just the first one which were, on one view, not relevant in the sense that they were not available for the earlier counts?

MR HEATON: I can answer that in two ways ‑ ‑ ‑

GORDON J: I do not seek to take you out of your ‑ ‑ ‑

MR HEATON: No, that is okay. You have perhaps reminded me to address that in more detail before moving on. On the first occasion the complainant gave evidence that it was accompanied:

that it was their “little secret” and that she couldn’t tell anyone –

about it, and that if she did:

he would hurt her –

That is on the very first occasion that she spoke of.

KIEFEL CJ: It is pointed out by Mr Holt that the appellant was under 10 at that time.

MR HEATON: What that says is that whilst he might have had legal protection against prosecution, it evidences a capacity on his part to know that he ought not be doing what it was that was alleged against him. So, in a factual sense it demonstrates that capacity even though he has a legal protection at that age.

GORDON J: He also relied upon the observations made in RP about the fact that secrecy, at least, does not demonstrate the necessary capacity on the capacity to know, rather than even the knowledge test.

MR HEATON: It does not, and in our approach to the consideration of this evidence, we stress that it is necessary that the Court look at the combined force of all of these bits of evidence rather than isolating and dealing with them in piecemeal.

GORDON J: Well, it is a bit more than that, is it not? Consistent with, I think you accept in your submissions, he would have to do it at the time in relation to each of the charges ‑ ‑ ‑

MR HEATON: Yes.

GORDON J: So, my point is, if you are dealing with it in relation to – let us take one that is accepted, which, I think, is number 4, for example – one could not take into account matters relied on in relation to count 12 in that list.

MR HEATON: Perhaps not.

GORDON J: Do you accept that?

MR HEATON: Yes.

GORDON J: So that means that – where in the direction were the jury told that they had to, in effect, not use this long list of matters in relation to capacity for each charge?

MR HEATON: The answer to that is that they were not specifically directed in those terms.

GORDON J: Yes.

MR HEATON: The nature of the case, and indeed the way the evidence was led was of a more broad – general circumstances surrounding the individual offences coupled with overarching background evidence from the parents. Which, we say, importantly, and specifically from the complainant’s mother, deals with the specific features of this sort of offending and the wrongness of it.

So, rather than dealing in a more nebulous way with a moral concept of what is right or wrong, there was evidence in this case very specifically directed to an awareness of the wrongness of this type of conduct. Which, according to the evidence of the mother, was from a time in his life when he was still a toddler.

GLEESON J: But again, does not that suggest that the prosecution was putting the case that the jury might accept that in relation to every charge, capacity needed to be considered?

MR HEATON: In how the case was framed by the Crown, is that the premise of the question?

GLEESON J: Well, what were they to do with this sheet? Potentially, they were being required to examine it in relation to every charge.

MR HEATON: Potentially, yes, that is right.

GORDON J: Without the time, without the identification, which even on Queensland authorities would require you to look at the material time for each charge.

MR HEATON: Yes. But against that, and turning to the language that the judge used commencing, at 14 of the core appeal book, in his directions, “at the time”, had the capacity, at the time to know that he “ought not do the act”.

GORDON J: My point is more basic than that, Mr Heaton. I am sorry to belabour it, but maybe I have not made myself clear, and for that I apologise. What they were not told, though, was when they picked up this sheet ‑ ‑ ‑

MR HEATON: Yes.

GORDON J: ‑ ‑ ‑ they had to excise out, clearly, I think, as I think you accept, for example, the gagging is count 12, that they could not use that for capacity when considering the charges that occurred before count 12.

MR HEATON: I have to accept that ‑ ‑ ‑

GORDON J: Thank you.

MR HEATON: ‑ ‑ ‑ that is right.

GORDON J: Sorry, I did not mean to labour it, I just ‑ ‑ ‑

MR HEATON: No, that is all right. But we have maintained that that is not the answer to the issue that might arise from that because the directions specifically related the enquiry at the time that the offence was committed in relation to each specific offence. So, we say, regardless, the jury were properly directed that the enquiry was at that time.

Can I bring in, in support of my position on that aspect as well, that the number of offences in relation to which capacity was actually a live issue was limited.

GLEESON J: But the jury would not have known that, from looking at that sheet.

MR HEATON: They would not have known it from looking at that sheet, but they would known that from their examination of the evidence.

KIEFEL CJ: Did this sheet go to the jury ‑ ‑ ‑

MR HEATON: I think it did.

KIEFEL CJ: ‑ ‑ ‑ without objection? But it was said it was “marked for identification” – that does not always suggest it goes to the jury.

MR HEATON: I will have my junior search for that. I do not know the answer immediately to that question.

KIEFEL CJ: It might be of some importance.

MR HEATON: Indeed. Can I just, perhaps, briefly touch upon the breadth of the evidence which we say was ably capable of supporting the inference of or displacing the presumption of capacity. I have mentioned in passing, already, the evidence from the mother and from the father. The mother, of course, specifically, to the features of offending that are relevant to the offences here, as well as the broader consideration of his intellectual development.

There was reference, by both the mother and the father, to him having a dyslexia diagnosis, but that did not impact on his intellectual functioning per se, although he was recognised by his parents as being – I think the word was okay, in a general sense, but struggled with school. There was no consideration, so the evidence of the parents went, no consideration of a special school or anything of that type to address any identified needs.

That evidence gave the jury as well, in combination with, we say – always – in combination with the other evidence as to the circumstances, particularly, the: it is a secret and do not tell anybody and if you do, I will hurt you. So, we say that there is a body of evidence, and the combined force of that evidence ably supports the conclusion in the counts where it is relevant and, we say, that only remains to be counts 4 and count 8, bearing in mind that he was acquitted by the jury of any of the other counts which may have been implicated in relation to the question of capacity.

GORDON J: They were counts where there was no timing indicated.

MR HEATON: There was no timing or very young timing.

GORDON J: Thank you.

MR HEATON: So, we say, contrary to the appellant’s contention of 46 of their written material, there was no risk of the jury focusing on any one part of the evidence, relevant to the question, to the detriment of the appellant. The issue was dealt with in a holistic way as it needed to be. The jury were assisted by documents – we are having a look at that, actually. This all tends, in our submission, to support the conclusion that, even accepting the relevance of the concepts as a broad proposition that RP spoke of, and that were picked up in the decision of the Western Australian Court of Appeal in Rye – in a general way, in the circumstances of this particular case, there was no issue or risk of any miscarriage of justice or impermissible process of reasoning by the jury in relation to the question of capacity.

Can I move to ground 2? Of course, the misdirection is accepted and so too, therefore, is the proposition that the jury were not properly directed in accordance with the law in relation to consent. Whilst I acknowledge the basis upon which the Court of Appeal determined this issue – that consent was not a live issue in the trial – and we do not shy away from that characterisation of the relevance of consent in this case, but can I draw in aid to the lack of any impact that this misdirection can have possibly had by referring to some other features of the evidence in relation to consent.

GORDON J: Can I ask you about this. Do you accept, as Mr Holt does, that if you are limited in relation to the doli incapax charges and those charges are affected in the way it has been described by Mr Holt, then this issue is moot?

MR HEATON: Yes, absolutely. It has already been touched on but it is worth repeating that prior to 5 January 2004, which is the relevant date, the complainant was seven years of age. She turned seven on 16 November 2003, so she was just seven years of age. The case was litigated on the basis that he denied any of the penetrative acts. There was no evidence that he was mistaken about her consent to any of the offences.

In particular – and this is reflected in the directions that we went through earlier, pages 19 and 20 of the core appeal book – I beg your pardon, 20 and 21. So, at the bottom of 20 was the passage we looked at earlier. Can I just for the sake of emphasis bring the Court’s attention to the
very last line, commencing with:
Consent means consent freely and voluntarily given –

and I am over on the top of 21 now:

by a person with the cognitive capacity to consent.

So, that is what is required in relation to the concept of consent. We are dealing with, here, a child who was then at that date seven years of age. A very young age was therefore a very compelling feature for the jury to contemplate in this context.

It is also important to note that he was acquitted of any offence in which the evidence left open the realistic possibility that it occurred before 5 January 2004. That just seems to have been a coincidence, but perhaps motivated by the very young age of the complainant and perhaps the appellant.

KIEFEL CJ: I am sorry, Mr Heaton, what was the coincidence? That ‑ ‑ ‑

MR HEATON: That the jury did not convict of anything – any offence that can have predated 2004.

KIEFEL CJ: I see. But as you say – that we can only infer that that is a coincidence.

MR HEATON: Yes. So, we say despite the admitted misdirection, it is clear that in the circumstances there was no miscarriage, that there was no consequence of prejudice to the appellant as a result of what was, in all respects an innocuous ‑ ‑ ‑

GORDON J: I thought you accept – your opening line on this was that the misdirection was accepted and that there was a miscarriage?

MR HEATON: Did I say that?

GORDON J: I thought you did. Maybe I misheard you.

MR HEATON: I accept that misdirecting a jury on a matter of law is prima facie a miscarriage of justice. I do not shy away from that. But I submit that what is required, then, as to whether or not it is a matter which has led to a miscarriage of justice in the sense that 668(1) of our Criminal Code speaks, that there must be some consequence of that.

GORDON J: But is that not where the proviso comes in? This is the debate you had in a case earlier.

MR HEATON: It is. It is. And I do not want to revisit that, because in essence we say it was either a miscarriage point or a proviso point. The consideration that was undertaken by the Court of Appeal was the same, it does not matter what they were undertaking. But, in the circumstances here, it can be said that whether it is no miscarriage or no substantial miscarriage, the misdirection cannot have impacted upon the verdict to the prejudice of the defendant.

GORDON J: And do you seek to make good that by reference to the application of the proviso?

MR HEATON: Yes.

GORDON J: And which paragraphs of your submissions do you rely on for that?

MR HEATON: I will have my junior look those specifically up. From paragraph 63 on page 18. And indeed, that essentially brings me to the end of the submissions, the oral submissions that we seek to make.

Unless there is something that I can further assist the Court with, those are our submissions.

KIEFEL CJ: Yes, thank you, Mr Heaton. Reply, Mr Holt?

MR HOLT: Yes, briefly, if I may. Can I deal, regrettably back with the factual questions, briefly, about the timing of the charges? Dealing first with counts 2 and 3, and your Honours will recall that our learned friend took your Honours to the evidence of the father and the mother in order to attempt to make good the proposition that the loft incident occurred later, on the basis of when the defendant moved into the loft. Regrettably, a couple of aspects of the evidence that referred back to that photograph were not referred to by our friend, and can I take the Court briefly to those, because they really do highlight the way in which what now looks like quite a precise taxonomy of dates at this point of the proceeding was not in any sense as clear as that at trial.

So, my friend took you, for example, to the evidence of the father. And I will take the Court to page 160 of appellant’s book of further materials

KIEFEL CJ: Was that 160?

MR HOLT: Page 160, where our learned friend identified that what the father had done was to say that the moving into the loft was at a much later time which logically supported the proposition that was made. The difficulty is that if one then, at page 160, in cross-examination – I am sorry, when he was giving evidence in‑chief, the photograph was then put to him after he had indicated that proposition, that is:

is that your memory of when he would have been sleeping ‑ ‑ ‑

GORDON J: Sorry, can you just tell me where you are reading from?

MR HOLT: Page 160 at about line 10, the photograph was then put to the witness:

Around 2004?‑‑‑Yes, I would say so –

In other words, again, when confronted with evidence of the photograph that showed that the assumptions that had previously been made were not assumptions that could properly be made. Equally, with the mother’s evidence where she suggested it was mid high school, at page 151 of the appellant’s book of further material at the transcript of the trial, at about line 40, in cross‑examination, she corrected herself. She was shown the photograph of December 2004 and then agreed effectively, having previously stepped back a little bit from the position at about line 35:

In high school years . . . I think. I’m not – not positive.

Then goes back and concedes effectively that that must have been it, because of December 2004. So, those aspects that our friend points to, to suggest that the evidence was clear and there was other supporting evidence in fact shows quite the contrary, and again supports the proposition that (a), counts 2 and 3 were well and truly in range and, (b), more importantly, casts doubt on the overall approach to the assessment of dates by reference to periods of time when a person was at school.

The only other matter – and a factual matter – was to respond to your Honour Justice Jagot’s question earlier about page 92, which related to the bunk incident and the fan incident, if I can put it that way, which we have relied on for the late primary – the not being late primary school, effectively the whole of primary school issue at page 92, where it was put at line 6:

So all you can remember about your age on that occasion is that you were in primary school?‑‑‑Yes.

Your Honour asked whether that was a general part of the evidence or not. Can I just refer back to page 91, from about line 37, where it is clear she is talking about the incident that occurred on the bunk beds, and our submission simply supports that proposition.

GORDON J: What count is that?

MR HOLT: Count 7.

GORDON J: Thank you.

MR HOLT: Again, what it highlights, in our respectful submission, is the real difficulties of relying on what looks, when one tabulates it, as regrettably we did, something which has some scientific precision about it, it has nothing of the sort.

Can I deal then briefly only with ground 1. Our learned friend in a defence of the directions that were given by the learned trial judge suggested that the direction focused on the language of section 29 and, of course, that is true, but we would go further and say in fact all it did was to repeat the language of section 29 and to suggest that what that did, even with the extended direction was to, quote, “draw in the concepts from RP”, close quote, is, in our respectful submission, to put things far too high.

The suggestion also that many of the matters that arose, as we have discussed, as a matter of logic in RP were linked directly to the suggestion, or the evidence in RP of intellectual disability, in our respectful submission, is wrong. Many of the propositions in RP as a matter of the evidence that can be used to rebut the presumption but which ultimately say much about the nature of the presumption itself go well further than being specific to a case involving a person with an intellectual – or a borderline intellectual disability, as was the case there.

Can I deal briefly, then, finally with the evidence that the Crown – evidence base that the Crown seek to rely on, and sought to rely on, in respect of the rebuttal of the presumption, what I will call the page 206 summary. On our review of the transcript, it does not appear that that document went to the jury. It appears that that document was given to the learned trial judge to provide the learned trial judge with an aid to the way in which the jury would then be directed, and it appears as his Honour then used it in that way.

Our learned friend makes the submission, though, when looking at that, that it is necessary to look at “the combined force of the evidence”. And of course, at a general level, that is entirely true. But what was also critical, in our respectful submission, in this case, was to properly identify what evidence of capacity was able to be used to go to an assessment in respect of any particular act.

The general submission that it must be done at the time of the act was nothing like sufficient when page 206 – the doli incapax schedule and thus the way which is consistent, as the Court will see, with the way in which the prosecutor then closed, relies on a range of matters, some of which – and I will use one as an example – but some of which, on the Crown’s position in this Court now, overwhelmingly occurred years after he turned 14. The best example of that is the ninth dot point down – they are not numbered, but the falling off the bike pretence, which is associated with a count and a time which is said to have happened by the Crown many years after he turned 14, and so ‑ ‑ ‑

GLEESON J: Can you just take us to some evidence to support that proposition? I thought that that related to what is said in paragraph [40] of the Court of Appeal, and then I was not able to identify a timeframe.

MR HOLT: So, it seemed to us that that relates to – it is the time he told her to pretend she had fallen off her bike, and their father almost caught them together in the shack.

GLEESON J: Is that paragraph [40] of the Court of Appeal?

MR HOLT: I will just check that.

GLEESON J: It may not be a useful reference.

MR HOLT: Yes. Yes, it is. And that relates then to count 12, which is one of the counts which is, on the taxonomy that is proposed, a late primary school one, and therefore necessarily occurred, if we are operating in that paradigm, in late primary school. So, again, it is not simply a question of identifying, as the Bench did to our learned friend, the need to ensure that the jury knew that they could only use some of the things that were being put to them. In fact, many of the things that were being put to them could not ever say anything about capacity under the age of 14 because they were things that the appellant was said to have done after the age of 14.

But none of that, in our respectful submission, ought detract either from the fundamental submission we make about that, which his that, in combination, they are no more of the sorts of things which this Court in RP held were the proper understanding of what the presumption actually is, and what evidence is needed to rebut it are not capable of rebutting a presumption of that kind.

STEWARD J: Did you want to say anything about Mr Heaton’s reliance upon page 100 of the book of further materials? About count 7, where he says the incident – I think it was the fan incident.

MR HOLT: Yes. I am sorry. I thank you, your Honour. Our friend said that there was no reference to the photograph at all, and of course, when one goes over to page 101 and looks at lines 1 through 25, in particular lines 23 and 24, there is there a reference to the photograph being shown to her and noting that it was in 2004, and she said at that point:

No. It does not assist me.

May it please the Court. Those are our submissions.

KIEFEL CJ: Yes, thank you. The Court reserves its decision in this matter and adjourns until 9.30 am tomorrow.

AT 12.15 PM THE MATTER WAS ADJOURNED

[2023] HCATrans 46

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