Brawn v The King

[2024] HCATrans 85

[2024] HCATrans 085

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A20 of 2024

B e t w e e n -

MATHEW CUCU BRAWN

Appellant

and

THE KING

Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 4 DECEMBER 2024, AT 10.08 AM

Copyright in the High Court of Australia

MR S.G. HENCHLIFFE, KC:   May it please the Court, I appear for the appellant with my learned friend MR A.J. CULSHAW.  (instructed by Caldicott & Isaacs Lawyers)

MR M.G. HINTON, KC:   If the Court pleases, I appear with my learned friends MS K.J. DRAPER and MR W.M. SCOBIE for the respondent.  (instructed by Director of Public Prosecutions (SA))

MS R.J. SHARP, KC:   May it please the Court, I appear with my learned friend MR T.M. WOOD on behalf of the Commonwealth Director of Public Prosecutions, intervening.  (instructed by Office of the Director of Public Prosecutions (Cth))

MR B.A. HATFIELD, SC:   If the Court pleases, I appear with my learned friend MS E.R. NICHOLSON on behalf of the Director of Public Prosecutions (NSW), intervening.  (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER CJ:   Thank you, Mr Hatfield.  Mr Henchliffe.

MR HENCHLIFFE:   May it please the Court.  The appellant’s notice of appeal raises two grounds of appeal.  The first ground at paragraph 2 of the notice, which appears at appeal book 56, raises three issues.  Firstly, the issue of principle underlying the grant of special leave of this matter, that is:

whether a materiality threshold exists for an error or irregularity to amount to a miscarriage of justice for the purpose of the common form appeal provision.

The second issue is:  if such a materiality threshold does exist, what is it?  The third issue, whether the Court of Appeal erred in finding that the admitted non-disclosure in this case did not result in a miscarriage of justice to the appellate.

The second ground of appeal is found at paragraph 3 of the notice of appeal.  That concerns a factual error in that the Court of Appeal acted on a concession the appellant says he did not make.  That error feeds back into the first ground of appeal and, the appellant submits, contributed to the Court of Appeal erroneously holding that there was no miscarriage of justice.

EDELMAN J:   So, the second ground of appeal is not really to be taken as an independent ground of appeal.

MR HENCHLIFFE:   It depends on the first ground of appeal, ultimately, yes.  Your Honours, a notice of contention has been filed by the respondent – that appears at the appeal book, page 59.  It is premised upon the Court first determining that no materiality threshold exists for an error or irregularity to amount to a miscarriage of justice.  If that was the Court’s determination, the respondent invites the Court to apply the proviso and dismiss the appeal on the basis that the non‑disclosure did not have the capacity to affect the result of the trial.

Given what the members of this Court have previously said about the existence of a materiality threshold and the appellant’s submissions on the first ground of appeal about why the admitted non‑disclosure, we say, had a capacity to affect the result of the trial, we observe it is unlikely the Court will need to consider the notice of contention.

Before advancing my submissions on when an error or irregularity is or may amount to a miscarriage of justice, I want to briefly outline the factual background against which that issue falls to be determined in this case.  The appellant was and is a member of the Sudanese community living in Adelaide.  He was charged with the offence of maintaining an unlawful sexual relationship with a child contrary to section 50 of the Criminal Law Consolidation Act.

The complainant was a young girl from the Sudanese community also living in Adelaide.  Her family and the appellant’s family were close friends.  [X] was someone the complainant would call “uncle”.  That term was commonly used by younger members of the Sudanese community as a term of respect to senior members of the community whom they knew or whom they were close with – there was evidence about that.

At the trial, after the prosecution opening, the appellant’s counsel outlined to the jury the issues in dispute.  Somewhat uncommonly, counsel told the jury that the issue in dispute was not whether the complainant had been the subject of sexual abuse by some male person, but the dispute was the identity of that person who had committed acts of sexual abuse against the complainant.

And although the appellant was not in a position to make a formal concession as to the accounts of sexual abuse, because he was not there and did not know, he did not challenge the complainant on her assertions that somebody had sexually abused her around the period of time that she alleged – and I will go into some more detail about the evidence later.  But the appellant was duly convicted after trial, and then the following month, counsel spoke outside court, and they spoke about this case, and during the course of that conversation, the prosecutor casually mentioned to defence counsel at trial that [X] had previously been charged with child sexual offences.  Defence counsel had not known that, but the prosecutor had not known that defence counsel did not know that.

That set in motion the sequence of events described in what I will call the first Almeida affidavit, which appears in the appellant’s book of further material from page 4, by which the existence of allegations of sexual abuse by another female child in the Sudanese community who had laid against [X] were ultimately disclosed to the appellant’s legal representatives.  And in that regard, the appellant’s book of further material contains a copy of a South Australian Police statement of facts document, a little like an apprehension report, which sets out the charges initially that [X] was arrested for and a brief summary of what the allegations are from the complainant against [X].

Following the obtaining of that information, appeal against conviction was made to the Court of Appeal.  The sole issue on appeal was whether the prosecution’s failure to disclose the fact and details of the allegations and the charges of child sexual offences against [X] at the appellant’s trial, or before the trial, had caused a miscarriage of justice at his trial.  At the appeal, the respondent Department of Public Prosecutions conceded that there had been a failure to comply with the prosecutorial duty of disclosure by failing to disclose the fact and details of those allegations against [X].  That concession is noted by the Court of Appeal in its reasons at paragraph 51.

The Court of Appeal also found in its reasons at paragraph 56 that the undisclosed material:

might . . . have materially assisted the conduct of the defence case.

But notwithstanding this, the Court of Appeal determined that the failure to comply with the duty of disclosure did not cause a miscarriage of justice, and central to that reasoning was the conclusion at reasons paragraph 73 that:

the undisclosed material, if disclosed, could not have altered the forensic contest which was marked out by the cases for the prosecution and the defence at the trial.

Now, we ‑ ‑ ‑ 

BEECH-JONES J:   Mr Henchliffe, is that finding at paragraph 56 an assumption or was that a finding?

MR HENCHLIFFE:   Sorry, your Honours?

BEECH-JONES J:   At paragraph 56, where it says:

this appeal can be decided on the basis that –

MR HENCHLIFFE:   In my submission, what their Honours are saying there is that they accepted that the material, as they say:

might, as a reasonable possibility, have materially assisted the conduct of the defence case.

GORDON J:   Did that not follow from what was put at paragraph 52?

MR HENCHLIFFE:   It did, your Honour.

GORDON J:   The way I understood it was, at 52, it was put by the respondent:

it was “on the cards” that this material may have been of some forensic utility to the defence.

And then you have:

may be of indirect use –

et cetera.  That, in a sense, as I understand the submissions put by the respondent, and then on the basis of that, at 56:

Having regard to the concessions made –

which I assume means what is in 52 as well.

MR HENCHLIFFE:   I agree, your Honour.  The concession was – and the concession goes – if we look back to paragraph 50 on page 42 of the appeal book, the express concession is set out there – sorry, I withdraw that, that was a concession by the appellant.  I should have directed your Honours to paragraph 51, that is the first time there was a concession of failure to make a disclosure.  That was then explained by what was said at paragraph 52, that the respondent accepted:

it was “on the cards” that this material may have been of some forensic utility to the defence.

In my submission, when you come to paragraph 56, both parties are agreeing that the material may have been of forensic utility to the defence, the court proceeded on the basis that it accepted that was the fact, not just made an assumption to that effect.

Of course, the appellant submits that the Court of Appeal was wrong to conclude that the non‑disclosure could not have affected the forensic contest, and I will make further submissions about that in due course.  However, it is convenient at this point, perhaps, to turn to the general principle concerning miscarriage of justice before coming back to the specific facts of the case.

GLEESON J:   How was the test of “may have been of some forensic utility” applied in a case like this?

MR HENCHLIFFE:   It has to be applied by considering, obviously, the facts of the case to some degree.  Now, whether it has been considered on the basis of the miscarriage of justice ground or the proviso, there may be a different level of intensity to which one drills into the facts.

GLEESON J:   I mean at the point of making a disclosure decision, how does the prosecution determine that the material may have some forensic utility?

MR HENCHLIFFE:   That would depend on the relevance of the material to the issues in dispute at the trial.  So, in this case, the issue in dispute at the trial was who had committed sexual offending against the complainant.  The material that had not been disclosed was material which could tend to prove that [X] had a proclivity or tendency to commit sexual offending against younger girls in the same community as the complainant who complained against the appellant.

In terms of relevance, in our submission, it was fairly clear in this case that there was relevance.  The relevance was to the issue of the identity of the perpetrator, and both the evidence from the complainant and, of course, evidence from other persons could have been explored in more detail, as I will explain later, if the appellant had known before the trial that that evidence existed or that he could have drawn on that evidence to more strongly point to somebody in particular as opposed to just “somebody else” – some other male but not me.  It really comes to the relevance, and it is a fact‑based inquiry, where one looks at the facts of the actual case and looks at the material that was not disclosed.

BEECH‑JONES J:   Mr Henchliffe, that duty of disclosure, did that only arise from the point when counsel for defence opened the trial, or had there been notification earlier that the defence was, we are not disputing this happened, but we are saying it is somebody else?

MR HENCHLIFFE:   My understanding is that had not been expressly advised to the prosecution in advance of the defence opening, and that is why, I think, the court took the path perhaps of least resistance in that certainly by the time that the defence put the prosecution on notice to that fact, there was an obligation to disclose the evidence regarding [X].  But no, I cannot put it that it was definitely on the cards before that.

BEECH‑JONES J:   I see.

MR HENCHLIFFE:   Your Honours, can I come to the general principle on it, and I will come back to the facts in more detail after that.  But if one considers the miscarriage of justice ground and its meaning and what it requires proof of, the analysis, of course, starts with the statutory provisions themselves.  In South Australia, they are found in section 158 of the Criminal Procedure Act.  They appear at joint book of authorities volume 1, page 91; they are also set out in the appellant’s written submissions at paragraph 38.

The general form of the provision is well known:  section 158(1) sets out the three grounds on which an appeal against conviction will be allowed.  In this case we concentrate on section 158(1)(c), which provides the Court of Appeal will allow:

allow the appeal if it thinks that –

(c)on any ground there was a miscarriage of justice.

That section is subject to the proviso in section 158(2), that:

The Court of Appeal may . . . dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

Perhaps it is trying to say the two subsections must be read together, and work must be found for each of them to do.  That means, in our submission, that a “miscarriage of justice” for the purposes of subsection (1)(c) and a “substantial miscarriage of justice” for the purpose of subsection (2) must be different things.  A “miscarriage of justice” must include insubstantial miscarriages of justice; there must be able to be miscarriages of justice without them being substantial.  The terms of the proviso must also be noted, which provide:

The Court of Appeal may . . . dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

In our submission, that requires the court, in considering the proviso, to consider what actually occurred at the trial and what the actual effect of the miscarriage was.  On the other hand, the language in subsection (1)(c) does not, on its terms, require the actual effect of the error or the irregularity in the trial process to be considered.

In our submission, establishing that a miscarriage of justice has occurred does not require the actual effect of the error or irregularity of the trial to be determined, and that supports a view that establishing a miscarriage of justice only requires an appellant to establish that there was an error or irregularity in the trial process which had a capacity to, or was capable of, affecting the outcome of the trial – whether it did so or not.  The endpoint of that analysis, looking at the words of the statute, in our submission, before even considering the history or the authorities about the provision, supports a view that the threshold, if there is one, to establish a miscarriage of justice, is not intended to be onerous.

Can I turn to a case that was discussed in some detail yesterday, of Weiss – or Weiss, however we pronounce it.  I think in South Australia we tend to call it Weiss, but I am sure the Germans would not appreciate that.

GAGELER CJ:   I have always called it Weiss.

MR HENCHLIFFE:   Weiss.  I will try to stick with that, your Honour.  A literal reading of paragraph 18 in Weiss – and your Honours will know the paragraph that I am referring to – is that it creates, as a necessary condition to establishing a miscarriage of justice, that there has been a:

departure from trial according to law, regardless of the nature or importance of that departure.

They are the words used.  Now, in this case, by the Director’s concession before the Court of Appeal, we have a departure from trial according to law, and the question arises, perhaps acutely in this case, as well as being necessary, is that all that is required?  Is that sufficient for a miscarriage of justice and, if not, what more is?  This Court in both the cases of Kalbasi and GBF, only in 2020, reaffirmed the literal meaning of paragraph 18 of Weiss, that:

Any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the common form provision.

We have accepted in our written submissions from paragraph 45 onwards that in recent years there has been a tendency by the Justices of this Court to acknowledge the existence of a materiality threshold in deciding whether an error or irregularity amounts to a miscarriage of justice.  However, we make no express concession that there must be so.

Yesterday, counsel for the appellant in the case of MDP advanced a persuasive argument that materiality should be considered at the proviso stage rather than at the miscarriage of justice stage, and that would place the onus on the respondent to invoke the proviso and establish an error or irregularity was immaterial to the outcome of the trial rather than requiring an appellant to prove that the error or irregularity was material in order to meet the test of miscarriage of justice.

The appellant’s primary position is that the Court ought to take that approach, consistent with those judgments of Weiss, Kalbasi and GBF.  However, in view of the recent judgments of this Court in the cases of Edwards, Hofer and HCF and the various verbal formulations given in those cases for a miscarriage of justice, each including a materiality threshold of some kind, the appellant accepts, pragmatically, that the Court may not continue to apply the Weiss formulation precisely in its terms, or literal terms, about what amounts to a miscarriage of justice.

Certainly, we accept, as set out in some detail in our written submissions, the reasons why the Court may choose to depart from that in some way, so as to identify a materiality threshold.  Your Honour the Chief Justice’s reasons in Hofer particularly are persuasive as to why that may be the correct law, rather than as boldly stated in Weiss.  But in our submission, if the Court does not intend to follow Weiss in its literal reading, we respectfully say the Court should say so in its judgment in this case, and explain the reasons for qualifying Weiss, if that is necessary to correctly state the law, in order to assist intermediary courts of appeal and also parties and their counsel, so they can correctly apply the law.

If the Court does determine and confirm that there is a threshold of materiality in order to establish miscarriage of justice, it is the appellant’s submission that the observations of your Honours Edelman and Steward in HCF at paragraphs [79] to [83] about those requirements, or any such threshold, are compelling.  Most importantly, any test for the miscarriage of justice ground must avoid collapsing it into the proviso in order that there is a coherent reading of section 158(1) and (2) and their equivalent common form appeal provisions in other jurisdictions.  We support the formulation by your Honours Justices Edelman and Steward in HCF, if there is to be a threshold, that an error or irregularity in a trial will be a miscarriage of justice if it has a capacity to affect the outcome.

Regardless of whether it might or might not have actually done so, that is a test, in our submission, that requires establishment of a rational possibility – not a substantial or significant possibility, simply a rational possibility.  In our submission, to set the materiality threshold at that standard or level takes account of the long tradition of the criminal law that a person is entitled to a trial where the rules of procedure and evidence are strictly followed, but also that there can be irregularities occurring in trials that are innocuous, benign or even advantageous to an accused person.

EDELMAN J:   Is that formulation any different from the formulation that is set out by the respondent in their oral outline of argument, that one is concerned with:

an irregularity that . . . is one capable of affecting reasoning to guilt.

It seems your formulation of capacity is very, very similar to the respondent’s in that respect.

MR HENCHLIFFE:   They are similar, your Honour; I absolutely accept the similarities.  There have been a number of formulations by different members of the Court, and they were described, I think yesterday by Mr Holt, as having different levels of intensity.  That is, I think, in my submission, a reasonable way with which to describe them.  The particular formulation of my learned friend which appears at paragraph 2a of his skeleton, we would not quibble with, other than the word “realistically”; “realistically” itself has its own value or evaluative requirement.  We would simply say an irregularity that could affect the verdict of guilt is one capable of affecting reasoning to guilt.

BEECH-JONES J:   Mr Hinchliffe, can I suggest an example, and you tell me if this works.  Say the Crown puts “murder” on two bases – let us just leave it in miscarriage area – and there is an error on a disputed element on one basis; and a jury convicts.  You do not know which path they took.  You might say there is a realistic possibility, or that the error had a capacity to affect the verdict that was, in fact, reached, even though you do not know that for sure.

MR HENCHLIFFE:   Certainly.

BEECH-JONES J:   Then, it would not collapse the proviso then, would it, if, on the proviso, the Crown set out to demonstrate that, notwithstanding that error, the case was sufficiently overwhelming on either basis, or, particularly, the basis that was not affected by the error.

MR HENCHLIFFE:   I accept what your Honour says, and I agree.

BEECH-JONES J:   Is that not an example of something that is both “realistic” and has the capacity?

MR HENCHLIFFE:   It is, and I agree with that, your Honour.  The difficulty comes in, in that the verbal formulations will – and this probably could be said of all of the verbal formulations in the three main cases since Edwards – in most cases, they will probably lead to the same outcome.  But one can imagine that there may be cases in the margins where differences in emphasis could lead to a different outcome.  That is why the appellant is inviting the Court to be careful, and to ensure that the threshold is set low.

EDELMAN J:   If one focuses, I think, as Justice Beech-Jones has illustrated, on the words:

capable of affecting reasoning to guilt –

is there anything in that that is inconsistent with your submission?

MR HENCHLIFFE:   No there is not, I think that has the same effect.

EDELMAN J:   Yes.

MR HENCHLIFFE:   It is where the – some of the formulations seem to bring in the words “substantial” or “significant” which then, in my submission, start to increase things beyond a merely rational possibility, but a real possibility, as opposed to a possibility that is at least rational.  So, it is a slight difference of emphasis and in most cases it may make little difference, but one can imagine that in some cases, at the margins, it could make a difference.

GAGELER CJ:   It is a practical inquiry, is it not?  It is not a theoretical inquiry.

MR HENCHLIFFE:   It is a practical inquiry – I certainly accept that, your Honour – but in our submission, when one is looking at the proviso, one is not expected to drill down too deeply into – one has to look at the facts, but one is not expected to drill down too deeply into every detail, because it has been determined at a level of capability.  You are not really getting right in amongst every question and answer.

EDELMAN J:   So, you mean miscarriage of justice, rather than the proviso.

MR HENCHLIFFE:   Yes.  For a miscarriage of justice as opposed to proviso, where you may well have to go down into every question and answer, every piece of evidence to look at the – when you do that real review of the case.  But miscarriage of justice is carried out at a slightly high level of abstraction, where you do not have to consider every little bit, you are looking at, could this affect it – is there a capability?  In that way, it serves as a gatekeeper, if you like, for the proviso, that you can deal with things before you get there.  And where it is obvious that things are innocuous or advantageous to the defendant, one does not get there, then, to the proviso.

We accept that the formulation of capacity to affect the outcome or affect the verdict is a test with a reasonable high level of generality, but we say, with respect, correctly so.  As the New South Wales Department of Public Prosecutions submits in their written submissions – correctly, to this extent, in our submission – miscarriage of justice can arise in a broad array of circumstances and it is not desirable or possible to set an overly prescriptive test, it has to be stated at a fairly high level in order that it can be used to then look at the particular circumstances you are dealing with.

In terms of the categories of case that the New South Wales Department of Public Prosecutions has set out in their written submissions, in our submission, the test at the level of what is capable – or capacity – can sit with all of those decisions, perhaps the only exception being the cases of fresh or new evidence, where a different approach has been taken traditionally – that is, a higher bar has been set for miscarriage of justice alone.

In our submission, the threshold for a miscarriage of justice certainly does not require an appellant to establish that the error caused the outcome – that is, caused the guilty verdict – or even that it was likely to have caused the guilty verdict, partly because those things are all but impossible to establish, given the inscrutability of a jury’s verdict.  We do not know, precisely, the path of reasoning it chose.

One must presume that if there is a path of reasoning open in which would have been affected by the error or irregularity, then the jury may have taken it.  As your Honour Justice Beech‑Jones said, they may have taken the path that ought not to have been left to them to convict.  One must assume that that is a possibility, and therefore we come, then, in that case, to the proviso.

EDELMAN J:   That would apply if there were a single path as well, so that if there were a single path to reasoning towards a conclusion of guilt but that path involved overlapping or concurrent strands of evidence, then anything that was capable of supporting the conclusion would be something that was capable of affecting the reasoning towards guilt.

MR HENCHLIFFE:   That is right – so it may only affect one of the strands, but that may be the strand that the jury put particular weight on, I agree.

Your Honours, I did want to take your Honours to one passage, and only one passage, of the judgment in HCF v The Queen.  That appears at joint book of authorities volume 5, at page 797, and in particular to the judgment of your Honours Edelman and Steward at page 815, and particularly to paragraph [82].  Your Honours there set out the capacity test, if I can put it that way, capacity to prejudice – in this case, it is expressed as:

the capacity to prejudice the jury’s consideration of the defendant’s case –

It may be that the capacity to affect the reasoning to a verdict may be a broader way to describe it because, of course, the defendant’s case is important, but it may also affect the prosecution’s case.

EDELMAN J:   Yes.

MR HENCHLIFFE:   So, I think that one would include that there.  But the point I wish to make is that your Honours then went on to say:

There will generally be an irregularity that has the capacity of prejudicing the jury’s consideration of the defendant’s case where, as Kiefel CJ, Keane and Gleeson JJ said in Hofer, contrary to the “long tradition of criminal law” there is a failure to ensure that “rules of procedure and evidence are strictly followed”.

That has some echoes back to the words in Weiss, that is, the strict requirement or the entitlement to have the rules of evidence and procedure strictly followed.  It seemed, at least to me, that perhaps there was some attempt to accommodate what was said in Weiss, there, with the existence of a fairly modest materiality threshold.  I may have read too much into that, but that was simply my impression.

In our submission, one thing that must be taken into account when applying the materiality test or threshold is that in many, if not most cases, a degree of speculation will be necessary to understand whether the error or irregularity may have had a capacity to affect the outcome of the trial.  That was acknowledged in another non‑disclosure case of Grey by the plurality at paragraph [19], and they said there – that concerned, of course, a letter of comfort, I believe, for a witness, a prosecution witness, that had not been disclosed.  They said there:

It is not difficult for the Court to imagine a fertile area of cross‑examination –

arising from the material that was not disclosed.  It did not require, in Grey, the appellant to prove that, because, whilst the inquiry is fact‑based, one is trying to consider whether something – that is, the existence of now‑disclosed evidence – could have rationally affected what occurred in the past when it was not in the possession of the defendant.

So, it is always, to some degree – perhaps to a large degree in non‑disclosure cases – a hypothetical consideration, that is, in those sort of cases, the appellant cannot prove what he would have done, he can only point to what he might have done, and the Court can consider whether, rationally, those possibilities that he might have done those things were open.

If they were, the Court has to, in my submission, work on the basis that that might have occurred, and that may have changed things, just as in Mallard where there was perhaps the starkest possible case, there was physical evidence which was not disclosed which could itself have been introduced, and the Court considered whether that may have affected the way in which the defendant ran his trial and concluded it clearly might have.  But the Court did not need to find proof that it would have; it is only a question of possibility.

In this case, it cannot ever be known precisely, or we cannot prove precisely how the defendant’s trial might have unfolded, had proper disclosure been made two or so years ago.  The appellant cannot definitively prove that after the event.  In our submission, it is for that reason that the focus of a materiality threshold on the capacity of the error to affect the outcome, and not require proof of an actual causal connection between the error and the outcome, is appropriate.

If a test required proof of an actual causal connection between error, irregularity and result, that would set almost at naught the entitlement to a trial according to law and would collapse the test, because you would be asking an appellant to prove too much:  to prove things they could not do so, particularly in a non-disclosure case, where we have to look back and consider what might have happened.  That is all I wish to say about the general issue of principle, other than what is contained in the written submissions.

Having said that about our position with the general principle, we do say in this case that the appellant suffered a miscarriage of justice, and we say in this case that it does not actually matter which of the verbal formulations of the materiality threshold is used.  We put our case that highly, that on any of the various formulations, the Court of Appeal should have found a miscarriage of justice in this case.  It never got to the proviso in this case; it simply said there was no miscarriage of justice.

I turn to the reasons of the Court of Appeal and some errors we say it made.  If the Court takes up the core appeal book, turning to page 42, which is part of the Court of Appeal’s judgment, in our submission, paragraph 49 contains two errors by the court.  Firstly, a wrong test, being:

denied “a real chance of acquittal”.

as the Court of Appeal said, is to use language apt to describe the proviso before Weiss, and that was a test concerned about whether there had been a substantial miscarriage of justice, not a miscarriage simpliciter.

Secondly, the Court of Appeal treated the appellant’s failure to prove that if a disclosure had been made, evidence could have been called from the complainant – the [X] complainant – as being determinative of that question, and, in our submission, made an error in the way it approached that issue about the calling of whether evidence was available from the complaint for [X].

From there, we submit the Court of Appeal erred by finding the appellant was not denied the opportunity to call relevant evidence – and I will come to some detail in why we say that they erred in that conclusion, and secondly, in concluding, ultimately, there was no miscarriage of justice because it found that nothing could have changed the forensic choices or contest, that happened.

In our submission, that is simply the wrong conclusion on the facts, the evidence and an analysis of the two.  It is relevant that the court said what it did at paragraph 56 – which I have already taken the Court to – that there was an acceptance:

that the prosecution failed to disclose material which might, as a reasonable possibility, have materially assisted the conduct of the defence case.

It was relevant, obviously, because it was relevant to the defence case that the appellant was not the offender, that somebody else was.  And the court also accepted at paragraph 56 that:

the undisclosed . . . material may have assisted the appellant’s cross‑examination of various witnesses at the trial on the topic of the identity of the offender.

Which, again, was the central issue.  In our submission, on those findings, that was enough, in itself, for a miscarriage of justice to be established in this case.

GLEESON J:   Where was that second finding?

MR HENCHLIFFE:   They are both in paragraph 56, your Honour, page 44 of the appeal book.  The second finding is the last sentence.

GLEESON J:   Thank you.

MR HENCHLIFFE:   But I will go further, of course, to explain other reasons why we say there was a miscarriage of justice.  If I ignore, for the purposes of this part of the argument, the concession that the Court of Appeal said they relied upon – that the appellant could not have called evidence from the complainant who had made the allegations against [X] – if I ignore that for one moment, we say there were two relevant bodies of evidence that might have been adduced by the appellant at the trial, had proper disclosure been made by the prosecution.

One body of evidence was evidence from the complainant who did make those allegations against [X].  In our submission, the appellant was denied the opportunity to explore calling her to give evidence at the trial because of the failure in disclosure.

BEECH-JONES J:   Sorry, when you say “the complainant”, do you mean the complainant in respect of [X]?

MR HENCHLIFFE:   [X], yes.  Perhaps I will just refer to that as [Y].

GLEESON J:   [Y].

MR HENCHLIFFE:   [Y], yes, I will use that acronym “[Y]” to differentiate her.

GORDON J:   Do you need to go so far as to even require or point to the need to call at evidence?  Is it not sufficient for your case that the ability to explore, by actually either dealing with what the material was before the police, that you obviously would have had access to?

MR HENCHLIFFE:   In my submission, we do not need to go as far as that.  I guess I am going as far as I can, in case the Court does not take that view – I am taking it further – but, in my submission, we do not.  All we needed to show was that evidence existed that could have been used which possibly could have been used.  In my submission, that is enough for the miscarriage; then we would get to the proviso, if need be.  In my submission, we do not have to prove, despite what the prosecution would say, that we would have been able to call her.

In this case there is, actually, an added difficulty for the appellant in proving what the respondent says would need to be proved in that the appellant still does not know precisely what [Y] says, because [Y]’s statement to police has still never been disclosed to the appellant.  All we have ever been given is the statement of facts from the police, and that records that [Y] made a signed statement on 5 July 2019.  But, despite her being one of the central planks of the appeal, the prosecution never provided the appellant with a copy of her statement – which it would have, because it has a file, it conducted the committal proceeding in which he was committed for trial, but then they issued a white paper to discontinue the prosecution.

EDELMAN J:   Does South Australia have the rule against collateral facts?

MR HENCHLIFFE:   In what aspect?

EDELMAN J:   The inadmissibility of evidence that does not go to a fact in issue that is in dispute.

MR HENCHLIFFE:   Yes, it has – if a fact was truly collateral, only to credit, then you could not prove the fact, but we would submit, and the Court of Appeal did consider whether [Y], her evidence would have been admissible to prove a tendency on the part of [X] to commit similar offences at about the same time, and the Court of Appeal operated on the basis that, at the very least, it may have been admissible; it did not determine whether it was or was not, partly because it did not have her statement, and that was because the appellant did not have her statement, because he had never been given it.

Of course, if he is going to explore calling her, the first thing he wants is to be given her statement before he then goes out – his solicitors go out to see her, talk about what evidence she could give, and then make a decision as to whether to call her, either voluntarily or subpoena her.  But, in this case, it is put by the respondent, well, the appellant did not produce evidence to show he could have called [Y].  In our submission, he did not need to, but the main reason he could not do that is because he still was waiting to receive her statement.

GORDON J:   The reason why I asked the earlier question is because I read the last sentence in 56 as saying:

The duty to disclose arose because, at the least, the undisclosed and unused material may have assisted the appellant’s cross‑examination of various witnesses –

MR HENCHLIFFE:   Yes.

GORDON J:   But that is a step prior to what you are now talking about.

MR HENCHLIFFE:   Indeed, and that is the second body of evidence I will perhaps come to now.  I will perhaps come to that in a moment, your Honour, I just want to finish with the evidence of [Y].

GORDON J:   Sorry, of course.

MR HENCHLIFFE:   What we could prove, given the current state of disclosure, is that there was a complainant who made serious allegations against [X] at about the same – just after, I think it was –time basis of sexual offending by him, and that could prove [X] had a tendency, it is relevant to the issue of the identity of the offender ‑ ‑ ‑ 

EDELMAN J:   Sorry, the complaints could prove the tendency?  It would have to be the truth ‑ ‑ ‑ 

MR HENCHLIFFE:   No, no, the evidence of [Y] could prove it.

EDELMAN J:   If accepted.

MR HENCHLIFFE:   If accepted.  That, on its own, probably does not sound like much, but I just need the Court to know that that would be added to the evidence that did exist at the trial that [Y] called [X] “uncle”, and that when she first made a complaint about sexual abuse she said that her uncle was the perpetrator ‑ ‑ ‑ 

BEECH‑JONES J:   You mean [X]?

MR HENCHLIFFE:   Sorry, [X], yes.  She had referred to her “uncle” being [X], and – we will use the name [the complainant], my friend says, so that we differentiate between [the complainant] and [Y] – I know it is confusing.

BEECH‑JONES J:   Could you just start this submission again, Mr Henchliffe?

MR HENCHLIFFE:   Certainly, your Honour, I will.  There was evidence that [the complainant] – the appellant’s complainant ‑ ‑ ‑ 

EDELMAN J:   I take it that that is a pseudonym.

MR HENCHLIFFE:   Perhaps we will use [the complainant].  Perhaps if I could simply refer to her as “the complainant” and [Y] – that was working before, I think I just made a mistake in relation to transposing the two.

The complainant referred to [X] as “uncle”, and the initial complaint evidence, the very first complaint about sexual abuse, she referred to her “uncle” as being the perpetrator.  In addition to that, there was evidence [X] had opportunity to commit sexual acts with the complainant in the period of the charge.  One adds that the two families are very close.  There was also evidence that the complainant said the acts had occurred in a bedroom at the appellant’s house, which had a lock and a mirror.  There was evidence that his – the jury perhaps did not accept, but there was evidence that his bedroom did not have a lock or a mirror; there was evidence that [X]’s bedroom did have a lock.

So, there were little pieces of circumstantial evidence which, on their own, without a proof of a tendency or a propensity to commit unusual acts like this, would not rise very far; but when that was added to it, could become more significant.  In our submission, there was evidence that could have affected the reasoning of the jury towards the conclusion as to who was the offender, as to whether that was the appellant.

BEECH-JONES J:   That submission you have just put about the evidence of [Y] is premised on success on ground 2?

MR HENCHLIFFE:   I suppose it is, your Honour.

BEECH-JONES J:   That says the potential to call or adduce evidence from [Y], combined with the other evidence at trial, raised the potential path to guilt.

MR HENCHLIFFE:   That is right – the path to an innocent explanation or reasonable possibility it was not the appellant.

BEECH‑JONES J:   Yes.

MR HENCHLIFFE:   If I come to the second body of evidence that could have been called, had disclosure been made.  That is the additional evidence from the witnesses who did give evidence at the trial – evidence about [X]’s whereabouts in a period of the alleged offending.  I can use an example to explain how questions were not asked that could have been asked.  The complainant’s evidence included evidence about a final alleged sexual assault at a birthday party at a park.  It was, I think, at Caeser’s first birthday party.

Now, many questions in cross‑examination were not asked about [X] and that event which might have been asked if disclosure had been made and greater focus put one the possibility that he was the real offender.  For example, the complainant in her police interview – this is in the respondent’s book of further material from 67 to 71 – she was not examined, she was not asked about the presence of [X].  In cross‑examination, she was not asked about the presence or otherwise of [X] at the party at all – she could have been.

The complainant’s mother – this is at the respondent’s book of further material page 139 – she said in examination that [X] attended the party, but then in cross‑examination all she did was confirm [X] was present.  She was not asked about her observations of where he was, what he did at the party, whether he went to the toilet where the offence was said to have been committed, whether he was absent for a period of time and the like – which could have been asked.

The same can be said about the complainant’s father and the complainant’s brother, who did no more than say [X] was there.  It was not explored with them whether they made particular observations of him:  where he was, where he went, whether he was absent for a time and the like.  That is just an example of what more could have been done, and although the appellant ‑ ‑ ‑

GORDON J:   Does that sit also with evidence that I understand was given that the appellant said he only turned up very late at the park?

MR HENCHLIFFE:   That is right.  There was evidence, including documentary evidence from his employer, that he had worked a shift that finished late in the afternoon.  He then gave evidence himself, and his family did, that he only had been at the last thirty minutes or so, when they were packing up – which also, of course, pointed away from him being the offender, if there had been an offence at the party.

Whilst the appellant, in an abstract sense, had the opportunity to ask these questions, he was denied the opportunity to understand the forensic significance that asking those questions might have had for the purpose of his defence which, we submit, is no less important.  In our submission, the Court of Appeal failed to grapple with that, in reasons paragraph 75, where it said the appellant could always have paid closer attention to [X] at trial.

In a general abstract sense, that is true, but without the disclosed material, he did not have the reason to do so, and as we have endeavoured to explain in writing in our submissions, whilst that approach to focus more on [X] might have been literally available to the appellant, the reasoning of the Court of Appeal assumes, wrongly, that the failure of disclosure did not affect the preparation for and forensic choices that counsel made of how to present the defence case at the trial.

GLEESON J:   Is that true, that he did not have that reason?  I mean, while it is correct that the defence was that the offences were committed by another person, who was unidentified, defence counsel certainly explored questions about [X], so it was clear that he was the subject of suspicion, or the subject of that defence, that there was another male who committed the offences and he was a person who was living in the house where some of the offences were committed.

MR HENCHLIFFE:   I accept that.  It is more of a question of how much focus counsel determined to put on [X] as a specific possible offender.  There were some questions asked, and when one comes, though, to the closing address one sees that defence counsel never suggested it might have been [X] – he was never identified as a potential offender.

Part of the reason for that may well have been the requirements of the Bar rules, which I have referred to in my written submissions at footnote 36, the Bar rules that are applicable in South Australia provide, amongst other things, that:

A barrister must take care to ensure decisions by the barrister to make allegations or suggestions under privilege against any person;

(a)are reasonably justified by the material then available to the barrister –

and that particularly applies if you were to make an allegation that it is possible [X] committed these terrible offences.  In my submission, without the disclosed material, counsel did not have enough to specifically single out [X] responsibly, in accordance with their ethical duties, and yet the disclosure would make, in my submission, tip it over so that she could ethically and properly put that to the jury.

BEECH-JONES J:   So, leaving aside the evidence, the real loss from the non-disclosure is the ability to single out [X] as the most likely perpetrator.

MR HENCHLIFFE:   Yes.  I am putting that because the evidence did not allow anyone else to be singled out either, and then the disclosed evidence would allow that to be put in that way.

In our submission, because of these matters, a miscarriage of justice did occur.  One can understand, in our submission, that where in a case such as this, where there are allegations of child sexual abuse within a fairly small community – the Sudanese community in Adelaide – the pool of possible offenders was finite, if I can say; but it certainly had a lot of people in it, still.  Running a defence in that situation, where the alleged offender is someone known to the victim, it is obviously forensically preferable to be able to point to an alternate suspect than to leave it just as a hanging “somebody else”.

GLEESON J:   The complainant did identify the uncle, that is the first label of the perpetrator, but you say that label was not sufficient to justify the submission of the kind that would single out [X]?

MR HENCHLIFFE:   Not in circumstances where she then walked back from that and identified the person as the appellant, whom she did not call “uncle” because he was too young to be called “uncle” in the community, whereas [X], who was not only a senior member of the community but a member of the relevant church that they belonged to, was a person who was certainly in the category of “uncle” in the cultural circumstances.

Can I turn to ground 2.  Turning to ground 2, one of the bases upon which the Court of Appeal reached the conclusion there was no miscarriage of justice was on the basis of a concession it set out at reasons 83.  If I take the Court to the appeal book at page 49, the court set out there that:

The appellant has conceded that, notwithstanding non‑disclosure, he has not been denied the opportunity to adduce admissible evidence that [X] engaged in the offending with which he was charged.

Now, as I understand it, that is a reference to what the Court said was a concession they could not call [Y], the complainant, against [X].  In our submission, the concession referred to at 83 was not made, and nor could it have been made, in my submission.  I will come to why it was not made, but how could it have been made, when counsel for the appellant had still never been provided with the statement of the complainant [Y]?  How could she concede, without having made any exploration of whether [Y] could be called, that she could not call her?  It does not logically follow.

GORDON J:   I had understood from your answer to Justice Beech‑Jones, though, that, in a sense, your argument is the concession is not made; did not have the statement; could not do it.  But it does not matter, on your case.

MR HENCHLIFFE:   It does not matter, no.

GORDON J:   Because you would say, as I understand it, the miscarriage – to adopt the language of Justice Beech‑Jones – was the loss of the ability to single out [X] as the most likely perpetrator.

MR HENCHLIFFE:   That is right.  This is a second limb to the argument:  if we do not succeed on this, we still say we win on ground 1; we do not need this, but because, obviously, we do not know where the Court will be going, I am taking the cautious approach of dealing with this separate argument, but your Honour is quite right, Justice Gordon.

GORDON J:   Thank you.  Sorry, Justice Beech‑Jones.

BEECH-JONES J:   That is all right.  My question was:  were there any mechanisms within the Court of Criminal Appeal for you to have subpoenaed or got access to the statement?

MR HENCHLIFFE:   There are, your Honour.  We were not – I was not counsel, nor were my solicitors instructed.  I do not know.  It did not happen, I do not know why it did not happen.  Yes, I have to accept there are mechanisms, though I would also submit that an appellant should not have to fight for what he is entitled to.

BEECH-JONES J:   Was there a complaint made to the Court of Criminal Appeal that you did not have the statement? 

MR HENCHLIFFE:   I have not read the complaint made there, your Honour, but certainly we complained about it in our submissions on the application for special leave, and we complained about it again in the submissions here, and we still have not got it.

BEECH-JONES J:   There might be issues about the fresh evidence here, but I was talking about the Court of Criminal Appeal.

MR HENCHLIFFE:   No.  There is nothing in the written submissions about that, your Honour.

We have dealt with this ground 2 in the written submissions at paragraphs 86 to 93, but I think I do need to take the Court to the actual transcript – and this appears in the appellant’s book of further materials.  The two passages where we say that the possible issue arises as to a concession, really, commence at page 36 of the book of further materials.  At page 36, lines 15 to 23, a concession is made.  The word “No” at line 21 – it is conceded that if:

you had the charge sheet that’s in the appeal book –

the charge sheet is at page 19 of the same book, which sets out seven charges, President Livesey said:

let’s say that you had the charge sheet . . . you are not suggesting that would have been tendered.

At the trial.  And the answer is:

No –

because that, in itself, the fact that he was charged, would not prove anything – anything relevant, that is.  So, that certainly is a concession, and we stand by that.  But that is in the sense that the charge sheet itself could not have been tendered.  That gives content, then, as we go on to the next page, page 37, where Ms Powell for the appellant, from line 8, goes on to say:

there would have been far more exploration about –

where [X] was:

on these occasions.  Far more exploration about the . . . bedroom.  The mirror.  The lock on the door.

And so on, and:

Did he give her presents?

The reason for that line is that one of the things the complainant had said in her initial complaint, where she referred to her uncle as the perpetrator, was that her uncle gave her presents – that is another thing she said, so it could have been explored.  Her Honour Justice David then says:

So is it your argument that you would you have used that information without necessarily educing evidence of it?

The information being the charge sheet and the allegations in it.  And the answer is:

Yes.

That was not the appellant’s only argument, but that was an argument, and that concerns the extra questions the witnesses that already existed could have been asked.  So, that is one point.  Then, the other ‑ ‑ ‑

GORDON J:   Well, it seemed to have been accepted at the foot of 56:

The duty to disclose arose because, at the least, the undisclosed and unused material may have assisted the appellant’s cross‑examination of various witnesses –

in their reasons, so they seem to have accepted that, at least in part.

MR HENCHLIFFE:   I agree.  Then, the other point I wanted to go to, your Honours, is at pages 43 and 44 of the further book of material.  Ms Powell, for the appellant, from line 13 refers to having asked earlier, or:

said ‘Well how ere you going to deploy it –

That is, the information that had been disclosed – the charge sheet and its allegations:

how ere you going to deploy it in the trial –

Her point was:

you don’t need to go that far to explain . . . how it might have been deployed –

because, in a sense, she was saying:  it is obvious; I do not need to go through the nuts and bolts; it is obvious how it could have been used.  Then, his Honour President Livesey – refers to the questions going through his mind.  At line 36, he gives an example:

For example, it’s not material that could be used to undermine the credit of a prosecution witness, it’s not material that could be led so as to suggest another offender, for example.

Now, in our submission, that would have been taken as a reference to the charge sheet and its allegations – that is, what had been disclosed – and he was just trying to work out what the relevance test is.  Ms Powell says, on page 44, she found it:

hard to answer . . . because we didn’t know it I don’t want to commit this argument to say that we could not have deployed it.

That is, deployed the information at the trial.

BEECH‑JONES J:   Did Ms Powell say, look, we would have given serious consideration to calling [Y]?

MR HENCHLIFFE:   Not in those words, your Honour, but she did not ever say we would not have been able to call [Y] at the trial, which is effectively what the concession is said to have been – the concession is that they could not have called the evidence.  In our submission, when one trawls through the wording of the exchanges between counsel and the Bench, one does not see a concession to that effect, and there is no such concession in any of the written work.  So, it is a slight mystery as to why the Court of Appeal came to believe that that concession had been made – of course, I accept that they believed the concession had been made, I am not suggesting anything wrong other than an innocent error.  But ‑ ‑ ‑

BEECH‑JONES J:   But beyond the possible evidentiary use of the facts statement, there does not seem to have been any suggestion raised, we lost the opportunity to call [Y].

MR HENCHLIFFE:   In my submission – and perhaps if I could take that on notice to come back to, your Honour ‑ ‑ ‑ 

BEECH‑JONES J:   Please do.

MR HENCHLIFFE:   ‑ ‑ ‑ because I cannot point to the exact passage at the moment, but my impression, from recollection, is that certainly that was not being conceded.  But that that may well have been put – and I want just to check that, if I can perhaps deal with that in reply.

GAGELER CJ:   Perhaps what is recorded as a concession is really just an absence of argument.

MR HENCHLIFFE:   Yes.  But in our submission, if there was an absence of joinder on the issue, it would not really strictly be right to call it a concession unless it was brought to the attention of the party, do concede this – so there was transparency and natural justice to all the parties.

But just to finish on this, page 44, while I still have it, what Ms Powell does go back to say to the question of deploying the material – and bearing in mind that the material they had was just the charge sheet and a facts of charge document – at line 21, Ms Powell says:

I get what your Honour’s saying now.  I can’t point to a way that the fact of his having been charged was something that would have been introduced in the trial –

and we accept that, that there is a concession there that the mere fact of being charged is not relevant, therefore it could not have been introduced – you would need to call evidence from the actual person making the allegations.  We are not saying that we could have simply put in the charge sheet under the business records rule – I mean, the judge would simply not have accepted that – that would not have been appropriate.

So, that is really, in our submission, what the concession was, and there has been some misunderstanding about the extent or the width of the concession that was made.  But given, in our submission, the centrality of the reference to that concession at paragraph 83 of the Court of Appeal’s reasons, which then leads to the dispositive conclusion that there was no miscarriage of justice, in our submission, clearly it gave it significant weight in reaching that final conclusion.

If your Honours please, unless you have any further questions, those are my submissions.

GAGELER CJ:   Thank you, Mr Henchliffe.  We will take the morning adjournment.

AT 11.19 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

GAGELER CJ:   Mr Hinton.

MR HINTON:   If the Court pleases, can I deal with the elephant in the room straightaway.  The statement should have been disclosed.  I am not a hundred per cent sure why it has not been, but it should have been.  In time, I will take your Honours to the facts of the charge sheet that my learned friend has referred to that appears in his book of further materials, commencing at page 19.  When I do, you will see that this document, prepared by the investigating officer, includes a narrative of what the officer has been told by the complainant [Y].

So, even though you do not have the statement signed, you have what has been told to the officer in a form that justifies the officer then determining to lay the charges.  So, you have it.  You have what you need in terms of then progressing an inquiry as to where [Y] is, whether or not she maintains her position with respect to her complaint, and potentially whether or not she is prepared to give evidence, but I will come to that.

Can I take your Honours back to the Criminal Procedure Act, quite quickly.  That is to be found behind ‑ ‑ ‑

GAGELER CJ:   We have it separately.

MR HINTON:   You have it separately?

GAGELER CJ:   Yes.

MR HINTON:   Thank you, your Honour.  I am sorry to do this, but in a way, it is a provision that has plagued us for almost 120 years, so it cannot hurt to go over it one more time.

GAGELER CJ:   We could recite it to you.

MR HINTON:   As my learned friend took your Honours to, the common form appeal provision in South Australia is contained.  It is divided between two subsections:  158(1) and 158(2).  If we look at the chapeau to 158(1):

The Court of Appeal, on any such appeal –

Now, if I just might pause there for a moment, your Honours might say, “on any such appeal”, what are they referring to?  Can I refer your Honours, then, back to section 157(1).  “Any such appeal against conviction” is an appeal provided for in section 157(1)(a)(i) and (ii).

Pausing there for a moment, in response to a question that I think was asked by your Honour Justice Beech‑Jones yesterday – and your Honour will correct me if I am wrong – is a wrong decision under the second limb just a species of miscarriage of justice?  If it is, why do you need both?  In South Australia, one answer to that – the contextual answer – is that if we go to section 157(1)(a)(i), on “a question of law alone”, you have an appeal as of right; whereas with respect to anything falling within the first or third limb, permission is required.

GLEESON J:   The suggestion was that when you are reading the report and wondering why that hypothetical is put in the description of the hearing, a likely reason is because it explains what is said at paragraph 43.

MS SHARP:   That may be so.  I would be speculating, though, as to the reason that the report has decided to include that particular question and not others in the report.

Unless there are any further questions, those are the submissions that I sought to make this afternoon.  If the Court pleases.

GAGELER CJ:   Thank you, Ms Sharp.  Mr Hatfield.

MR HATFIELD:   If the Court pleases, I wanted to confirm that we rely on our written outline, the written submissions and the annexures thereto and our oral submissions from yesterday from transcript 75 to 85.  Other than that, I just wanted to confirm in relation to formulation, although the New South Wales Director does not advocate for a universal verbal formulation of the threshold for materiality, if there is to be one, our position is it must include that there must be a potential connection between the error or irregularity and the outcome of the trial that was had, qualified, as I did yesterday – that does not mean there needed to be a different outcome.  And we also agree with the Commonwealth Director that the formulation ought not include a specific reference to the reasoning process.

Unless there are any specific questions, I am content to rely on the written material otherwise.

GAGELER CJ:   Thank you, Mr Hatfield.  Mr Henchliffe.

MR HENCHLIFFE:   Your Honours, I have a brief reply for all matters dealing with the facts of the case.  Your Honour Justice Beech‑Jones, I think, asked my learned friend Mr Hinton, how many uncles are we talking about.  My friend has referred to some of the evidence that would inform that matter.  There is evidence at the respondent’s book of further materials, page 335, from line 13 from a witness called Jessica Woko.  She said that: 

as Sudanese or African, we don’t call adult with their names, this is what, whenever they saw me –

She was referring there to the appellant and his siblings: 

they call me Aunty.  When they saw my husband they call Uncle.  So in all the community we have to call adult with respect, we don’t call their names. 

That evidence was to the effect that it was a very widespread practice for children to call older people “uncle” and “aunty”.  That is also confirmed from the appellant’s evidence at the respondent’s book of further materials page 285, where he talks about there being a number of uncles – his uncles – at the birthday party, where the last act is said to have been committed in the toilet.

It would seem that, really, if you were an older person, the younger people are expected to call you “uncle”, so we are talking about quite a few uncles that must have been around.  The second matter is – Mr Hinton submitted that ‑ ‑ ‑

EDELMAN J:   Was there evidence of [X]’s age?

MR HENCHLIFFE:   He did not give evidence, your Honour, so I do not think there was direct evidence, but there may have been.

GLEESON J:   Is there not something in the papers that suggested he was born in 1971?  Maybe it is the charge. 

MR HENCHLIFFE:   I am sorry, I cannot answer that question.  My learned junior might have a look to see if there is anything and give your Honour the page reference.  Mr Hinton put that there was no evidence that [Y] maintains her complaint – that is, maintains the allegation she made against [X].  In response, we would submit that there is no evidence that she cannot maintain her complaint; no evidence she had resiled from it.

On the state of the evidence before the Court of Appeal, it was a possibility that [Y] could have been called and it was clear that, had she been called, she had relevant evidence to give.  In our submission, that was enough to establish a miscarriage of justice and, in my submission, the appellant did not have to prove that he could have called her at the trial that was actually had, because that is actually the trial that is relevant.  It is not one that might be held in the future; it is actually the trial that he had.

He says it was possible to call her.  We did not know about the existence of the evidence.  It is really then, in my submission, once he shows that to be a possibility, it then turns to the proviso for the respondent to show she could not have been called at that trial.  If it can show that she could not have been called on that trial, then it will establish that trial would not have been different – for example, if you could prove that she was deceased, unknown to everyone, in which case then the proviso might get applied because she could not have been called.  So, that is how, in my submission, that evidence or that matter should be looked at.

Your Honours, this is not evidence from the trial.  This is evidence before the Court of Appeal, however.  At the appellant’s book of further materials page 10 there is an email that was passing between solicitors for the appellant and the DPP in the course of getting the information that had not been disclosed.  In that, the solicitor for the appellant advised that [X]’s date of birth is [redacted] 1971.  I think that is what your Honour Justice Gleeson was perhaps referring to.

If your Honours please, those are my submissions.

GAGELER CJ:   Yes, thank you, Mr Henchliffe.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 3.00 PM THE MATTER WAS ADJOURNED