Collins v The Queen

[2018] HCATrans 53

[2018] HCATrans 053

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B34 of 2017

B e t w e e n -

JOHN COLLINS

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
KEANE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 22 MARCH 2018, AT 10.01 AM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   If it please the Court, I appear with my learned friend MR D.K. FULLER for the appellant.  (instructed by Legal Aid Queensland)

MR M.R. BYRNE, QC:  If it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr Callaghan.

MR CALLAGHAN: Thank you, your Honour. The appellant submits that he did not have notice that the Court of Appeal might dispose of his case by invoking section 668E(1A) of the Queensland Criminal Code, commonly known as the proviso.  It is said against us that, having asserted that the proviso could not be applicable, having heard the respondent assent to that proposition and having met no resistance from the Court, the appellant should nonetheless have continued to make submissions on the point.

Reference has been made in the written materials to authorities concerned with tactical decisions made during a trial.  We do say that such authority does not translate into an appellate context, but in any case if, on an objective analysis of the situation, it was thought that more was required of the appellant then so be it.  It is a stark question, in our submission.

KIEFEL CJ:   Is that the correct question, Mr Callaghan?  Is it not the question really whether or not an opportunity was given?  Whether it was taken up is by the bye.  The question is whether the court provided an opportunity for submissions. 

MR CALLAGHAN:   Yes.  With respect, that is probably the better way of asking the question.

KEANE J:   It is not so much that this case is about something peculiar to the proviso and its operation.

MR CALLAGHAN:   No.

KEANE J:   It is actually about a fair hearing.

MR CALLAGHAN:   That is all it is about and very much to be determined in the circumstances as they apply.  It is not a case – I know this Court delivered a judgment last week in which issues relating to the proviso were considered in a little more detail but, with respect, your Honour, no, such issues do not really arise, except, I suppose, when we come to the question of disposition of the appeal and whether it is the type of case where the proviso can or should be applied would affect whether or not you ordered a retrial or remitted the matter to the Court of Appeal.

Our submission is that it is not the type of case where the proviso should apply because the misdirection was one of fundamental importance.  It went to the heart of the trial.  We go further and say it is really not a case where the proviso could apply, the case turning so much as it did on the credibility of a witness who could not be seen and heard by the Court of Appeal.  That is fast forwarding to the conclusion of our submissions.

EDELMAN J:   There is a bit of a tension between that submission and the submission that you were, in effect, denied procedural fairness by not having the opportunity of making submissions to the Court of Appeal in that if the latter submission were accepted would not the appropriate course be to afford you that opportunity by remitting the matter?

MR CALLAGHAN:   Only if there was thought to be some utility in it.  We submit that the situation is so clear and these issues will still be there that there is actually no utility in it and to arrive at that point does not require this Court to do a detailed analysis of the evidence.  If that were so, if there was a need for the consideration of an intermediate appeal court, then, with respect, your Honour’s observation might be right.  But once again we submit that because the issues are so stark and the nature of the evidence was so clear, there is just no utility in that point, that the same problem will be there.

BELL J:   Assume that the Crown had not made the concession that it did, you say it would have been an error for the appellate court to dismiss the appeal under the proviso.

MR CALLAGHAN:   Yes.  The concession makes the whole situation very clear, but we do not say it has freestanding significance.  It would have been an error by the court, of its own initiative, to apply the proviso without going through the process that we have respectfully suggested ought to be adopted, that is, the process suggested by Justice Nettle in Lindsay v The Queen.  It is no more, we would submit, than compliance with fairly elementary requirements of procedural fairness – identify the issue and give an opportunity for the issue to be addressed.  The court did not do that. 

BELL J:   But the matter I was raising with you is, you would say, that the submissions that would have been made, namely, that nothing could be taken from the return of the verdict of guilty in circumstances where the misdirection was material to the issue and in circumstances where proof of guilt depended entirely on acceptance of the complainant’s evidence that it would be an error for the court to dismiss the appeal in the application of the proviso - that is your contention ‑ ‑ ‑

MR CALLAGHAN:   That is our contention.

BELL J:   ‑ ‑ ‑ which supports the orders that you say this Court should make.

MR CALLAGHAN:   Yes, and the contention would be as valid and there would still be no answer to it if the matter was remitted and I think that comes back to the question that was asked of me earlier.  For completeness, we have made the point in the written submissions that there were those arguments to be made, with respect, that your Honour Justice Bell has indicated.  Those were the arguments which would have been advanced, but there would also have been opportunity to engage with the reasons that were relied upon by the Court of Appeal, some of which are addressed or overlap with - I will start that again. 

The responses to those reasons would overlap to some extent with the arguments that we have just identified.  But the Court of Appeal also, for example, relied upon the existence of physical evidence that did not go to the element of consent as part of their justification for relying upon the proviso.  That is a point on which there would have been some serious engagement for the reasons explained the written submissions.

BELL J:   The fact of intercourse was admitted.

MR CALLAGHAN:   Yes, yes, and the physical evidence could do no more than establish that there had been physical contact between them.  It established only non‑contentious issues and for that reason we say could not be relied upon in the application of the proviso.  That is the argument for the appellant and it has, we hope, been laid bare in the written submissions and I do not want to cross the line between emphasis and repetition.

BELL J:   Unlike some cases in which there is emphasis on the difficulty of the appellate court on a review of the sufficiency of the evidence to establish guilt to the criminal standard where one has a conflict in evidence, here the court assessed on a review of the transcript of the complainant’s evidence that putting to one side immaterial inconsistencies her account was a consistent one and there is no question of the court endeavouring to resolve a conflict because there was no evidence adduced on the appellant’s behalf.

MR CALLAGHAN:   We make the point though that all that is really established by the transcript is that the complainant was consistent, or one might say repetitive, in terms of being able to relate a story which had been

no doubt captured in a statement and given in evidence, or adopted in evidence at a committal proceeding. 

Consistency of that kind does nothing, we say, to allow satisfaction about the credibility of the witness to be reached to the requisite standard.  For the reasons we have explained then, or we have identified in the written submissions at paragraph 29 - and I will not repeat the words that are written there - but they do raise for consideration issues which are not answered by the mere proposition that the complainant was consistent, or as described by the Court of Appeal “robust and unvarying”. 

The question of whether or not a witness can be said to be robust is not one which would in any event shed much light upon their credibility we would submit but is also not one that can be gleaned from examination of a transcript.  It was, as we have said, the mere reproduction in type of the complainant’s evidence that the Court of Appeal had, and that was all they had, and given the issues involved and the type of case that it was, the requisite degree of satisfaction could not be reached.  It is one of those perhaps many cases in which the necessary degree of satisfaction cannot be reached because of the natural limitations that exist in the case of an appellate court. 

Your Honours, I do not apprehend the need to elaborate further on our principal point.  There is the notice of contention and we do have some issues in relation to that.  Would your Honours hear that in reply?

KIEFEL CJ:   We will hear you in reply then, thank you.

MR CALLAGHAN:   Thank you.

KIEFEL CJ:   Yes Mr Byrne.

MR BYRNE:   If it please.  Your Honours have, no doubt, had the opportunity to review the written submissions, and given the manner in which the oral discussion this morning has progressed could I cut to the chase without going through the background material?  To adopt, with respect, the observation of your Honour the Chief Justice that this is a case more about opportunity than whether the opportunity was taken up, the submission is, quite simply, that the opportunity existed and was taken.  It has never been suggested on behalf of the respondent that this was a case where more could not have been done.  But, the issue is whether what occurred was sufficient in the circumstances.

It is a relevant feature, in my respectful submission, to observe that counsel appearing was not a novice and can be expected to be making decisions.  This is not a case where the court had said to the appellant, we do not want to hear any more from you on that proviso.  They were not cut off.  Certainly, there was not an ‑ ‑ ‑

BELL J:   But, counsel for the respondent disallowed it.  In those circumstances, some might think an experienced counsel would have the good sense not to trouble the court with an argument that had been conceded.

MR BYRNE:   Indeed, and that is one of the tactical decisions at play.  I think it is in the written submissions but if it is not, I accept that the decision not to pursue it further, almost undoubtedly, relied on that concession by counsel appearing for the respondent below.

GORDON J:   Then, you have got the added complication, have you not, that not only do you have that position but you have nothing from the Court of Appeal that follows.  That is, there is no additional matter raised as a result of that concession.

MR BYRNE:   No, but this is a case where the argument in the Court of Appeal was held after the decision in Lindsay – of this Court in Lindsay – which makes it clear that at least non‑reliance is not a matter that would necessarily preclude the application of the proviso.  The point I make in my submissions is that whether it is non‑reliance by not raising the matter or non‑reliance by disavowance, it remains a non‑reliance.

BELL J:   There is, one might think, a significant difference between the prosecution making those submissions – indeed, as sometimes happens, neither party making any submission on the proviso and a clear statement from the prosecution that it does not rely on it, that the prosecution accepts, in the event the ground is made good, that there has been a substantial miscarriage of justice.  True, it may be, that that concession does not bind the appellate court but nothing in Lindsay suggests that, in those circumstances, it is not incumbent on the appellate court to signal its disposition not to accept the concession.

MR BYRNE:   Indeed, and my submissions outline that there is a factual distinction between this matter and Lindsay and perhaps the next question to be asked then is does that make a legal distinction in terms of the application of the test?  This, because it deals with questions of opportunity, will always resolve down to issues of fact and degree in the individual matter. 

Now, I am desperately trying to stay away from the unedifying concept of getting into an “is so/is not” argument but, at the end of the day, the highest we can put our position is that not only was the appellant below taken to be aware of the possible or potential, if you prefer, application of the proviso but was in fact alive to it because his counsel’s submissions recognised it.  The concession by counsel for the respondent below was no doubt persuasive, as it would ordinarily be in any case, but it was not the end of the matter and counsel should be taken to have recognised that and to have made a decision.

In terms of my reference to TKWJ, in anticipation of being asked what is the forensic advantage, it really goes no higher than that identified by your Honour Justice Bell that to continue with the matter may not have been a sound exercise of forensic tactics for a few reasons, one of which was that to continue on to it may have given the court a belief or an impression, a perception, that counsel thought there was more in the proviso than he was otherwise saying, that is that he was giving some oxygen to the issue, to use the vernacular phrase.  That is as high as I put the forensic advantage.

The submissions have, of course, touched upon the appropriateness of the application of the proviso in light of all the evidence.  It is not suggested that the Court of Appeal did not do its task in that it did undertake an independent review of the evidence.  Can I commence by recognising what was said by this Court in Weiss v The Queen (2005) 224 CLR 300 in the judgment of the plurality at paragraph 44 where the Court recognised:

No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given.

That was reaffirmed by this Court last week.  I simply mention that in passing.  It remains good law.  I accept, as is plainly obvious, that the misdirection – and I say a misdirection reserving my rights on the notice of contention – goes to an essential feature and that is to the issue of consent and that was the issue in the trial.

The manner in which the defence was conducted was to put directly that consensual intercourse had occurred and not to challenge the other counts, could I put it that way.  The allegations of sexual intercourse also form part of the formal admissions that are found at page 208 of the appeal book.

In that sense, there is some little, but I do emphasise the word “little”, some little more weight to be given to what might otherwise be innocuous pieces of supported evidence.  There is some more weight to be given to the fact that the complainant’s DNA was found on the ‑ I think it is the upper and lower ‑ but on the cutting surfaces of the clippers that she said were used in the course of count 1, which was part of the overall transactions that occurred on that evening or morning but not directly part of the rape offence which had been formally admitted.

There is also some little weight to be given to the fact that when police exercised the search warrant on 28 January, so some 16 days later, thereabouts, there was located the alcohol bottles the complainant spoke of having been purchased earlier in the day.  Now, that is 16 days later, and I accept all of that, but in my respectful submission, it goes too far to say that no weight can be given to that when assessing the essential issue of consent which can only in this case have come from the complainant.  To separate them out suggests that the complaint’s account was entirely divisible. 

What was being looked at was whether there was no substantial miscarriage of justice in an assessment of the credit of the complainant.  That was the essential feature.  I can make this point perhaps a little clearer by contrasting it with the situation where that evidence was not found, where there were no clippers or where there was DNA on the clippers but it was not the complainant’s, and so forth.  That tends to detract from the credit.

BELL J:   But when the issue is consent, in this factual context ‑ ‑ ‑

MR BYRNE:   Yes.

BELL J:   ‑ ‑ ‑ how does, for example, the discovery of a large quantity of alcohol in the interior of the yacht, how does that assist one way or the other?  It is accepted that there was sexual intercourse.  The defence case is that they had consumed a substantial quantity of alcohol and a sexual encounter took place in those circumstances, a perhaps improbable sexual encounter in other circumstances, but alcohol seems to me to be at least neutral, as do the clippers.  People engaging in sexual activity might engage in the shaving that the complainant described.  It just does not seem to be capable as a matter of logic in resolving the essential issue.

MR BYRNE:   Your Honour posits the proposition that it becomes neutral.  My submission is that it goes ‑ and I have emphasised the word “little” ‑ but that it goes a little further simply because to approach it otherwise is to divide up the person testifying about it.

KIEFEL J:   Do you say that it provides the jury with an opportunity of assessing the complainant’s credibility in relation to specific issues.  When I say particularised issues, that that might assist the jury in ‑ ‑ ‑

MR BYRNE:   Overall assessing the ‑ ‑ ‑

KIEFEL J:   ‑ ‑ ‑ an overall assessment.

MR BYRNE:   Yes.

KIEFEL J:   Is that the thrust of your submission?

MR BYRNE:   Yes.

GORDON J:   Is that an answer to, as I understood the way Mr Callaghan put it, and that was that given the sole issue was consent, one could not assess the credibility of the complainant from just the transcript.  One had to, in effect, have the benefit of having seen her in the witness box.

MR BYRNE:   Well, I was going to come to that submission and, with respect, if that is taken to its extreme conclusion, that would suggest that in a word‑on‑word case the proviso could never be applied and yet this Court says that there is no single universally applicable description.

GORDON J:   I had understood the submission was not put in those broad terms but was by reference to the circumstances of this case and, in particular, the purported inconsistencies in the complainant’s position. 

MR BYRNE:   It may be that I have misunderstood the submission in that light.  I had understood the references to cases like Dearman v Dearman, Fox v Percy, that talk about the difficulties that arise deal with concepts of assessing credit on the written word as opposed to the opportunity to see and hear the complainant. 

Now, leaving aside whatever cases may exist where an appellate court will have the opportunity and does in fact view the recorded evidence of a complainant ‑ ‑ ‑

GORDON J:   That was not the position here, was it?

MR BYRNE:   No, it was not.  But leaving those matters to one side, my submission simply is that to take what my learned friend has said to the end means that a word‑on‑word case would never be subject to the proviso.

GORDON J:   The reason why I raise it is because as I understood the submission it was in a sense that the complainant’s account had been consistent, if not repetitive, and there was ‑ in a sense, you are left in terms of checking the robustness or checking the credibility of that by reference to the transcript.  So it was not just a general submission, it was peculiar to the facts of this case. 

MR BYRNE:   The difficulty from my perspective is that my submission is I am damned if I do and ‑ damned if she does and damned if she does not, because if the complainant maintained consistency under robust cross‑examination or search in cross‑examination, one would generally think that that is a matter that goes favourably towards her credit, and yet the consequence of not being consistent is that it detracts from her credit.

In the latter case, reference to the transcript seems to be more than able to be used.  The other fact to be taken into account in this particular matter is that that consistency occurred over 14 years.

GORDON J:   That was one of the real problems in the appeal.  And, that is why I say, peculiar to this appeal.  I mean, you have got seven years between the alleged event and the committal and then another seven years until trial.

MR BYRNE:   Yes.  I am sorry, I had not picked that up when your Honour spoke specifically about this appeal but, of course, your Honour is quite correct.  It is one of the difficulties here but it is simply that which I am facing. 

BELL J:   Your submission, a few moments ago ‑ ‑ ‑

MR BYRNE:   Yes.

BELL J:   ‑ ‑ ‑ that if your opponent’s submission were accepted, one could never apply the proviso in what you described as a “word‑on‑word” case, puts the case for the appellant perhaps higher than it is.  We are not – true enough by the plea of not guilty, the appellant put in issue the capacity to prove the offence beyond reasonable doubt but it was not a “word‑on‑word” case in the way sometimes that expression is used.  The focus was the capacity of the appellate court to review the sufficiency of the complainant’s evidence to establish the commission of the offence beyond reasonable doubt.  It did not involve an exercise of the appellate court determining whether the complainant’s account was of such cogency as to remove any doubt raised by inconsistent evidence led by the defence.

MR BYRNE:   Indeed.  And, that is, perhaps, my fault.  I was using the phrase “word‑on‑word” case in the sense of there being no contrary evidence apart from the denials.

BELL J:   Yes, I understand. 

MR BYRNE:   Yes.  I apologise if I have misled.

BELL J:   But, can I take this up with you?  I understand that the respondent’s position in this Court is that it was not an error for the appellate court to apply the proviso, notwithstanding the concession that the respondent made before it.

MR BYRNE:   Yes.

BELL J:   I understand that argument.  But, a discrete issue is whether the respondent, in this Court, adheres to the submission that it made below that in light of the issue in the trial which was consent if the direction was a misdirection, it occasioned a substantial miscarriage of justice.

MR BYRNE:   I do not adhere to the concession made below.  I have, in the written submissions, made reference to some authority from this Court.  The case is actually referred to in Lindsay (2015) 255 CLR 272 at paragraph 34 in the judgment of the plurality ‑ and it looks like a wrong reference to me. I have written down the wrong paragraph.

BELL J:   But, Mr Byrne, is that to take us to the holding that the circumstance that the Crown did not rely on the proviso in the intermediate court does not preclude its reliance on the proviso in this Court?

MR BYRNE:   It is. 

BELL J:   That analysis was not concerned with the circumstance that we have here of a concession by the Crown in the intermediate court that if the misdirection was established it was a substantial miscarriage of justice.  I accept that it is open to the respondent Crown to change its position, and I am simply asking if that has happened.

MR BYRNE:   That has happened.

BELL J:   Yes.

MR BYRNE:   On that topic, the holding that your Honour has referred to is very starkly stated in Kelly v The Queen (2004) 218 CLR 216 in the judgment of the plurality of Chief Justice Gleeson and Justices Hayne and Heydon at paragraph 56. Kelly was another case where there was non‑reliance, not a concession.  I make that clear at the outset.  But it is a very clear statement.

BELL J:   Yes.

MR BYRNE:   Justice Kirby, at paragraph 123 of the same case, expressly joined in that sentiment.  Your Honours, I have accepted that the misdirection – for present purposes, a misdirection – went to the real issue to be involved here.  But there are very, very good reasons to expect that a jury simply would not have accepted that the alternative version had been given; that is, the tentative terms of “I think I was raped and I do not remember something after a certain period of time”. 

I make the observation in terms of an assessment of the whole of the evidence that the complaint to Ms M, the mother, was the second in time.  The first was to Ms Johnson.  It was in positive terms:  “I was raped”.  It was asked of Ms Johnson in cross‑examination whether it was possible that she was told, “I thought I was raped,” and she denied that.  The third complaint was to the journalist, and again it was in positive terms.  There is this difference in the terms of the complaint made in the second of the three complaints that were made. 

The complainant was unchallenged as to the terms she had used when she complained to her mother.  I do not suggest that the failure to do that caused any prejudice to the prosecution.  It was in the papers; we knew about it.  However, it is a very clear case of the need to give the witness the opportunity to comment on a proposition that is to be suggested is deleterious to her credit and did not occur.

Without drawing something from that failure to do it, it simply leaves the state of the evidence that the complainant is uncontested in the positive terms in which she complained.  It is uncontested – I beg your pardon; that is the incorrect term.  The state of the evidence is such that, to the first and the third preliminary complaint witnesses, she complained in positive terms. 

It leaves the suggestion open or one to ponder, particularly in light of the terms in which Ms M testified, which, in my words, she was very unsure.  I will not take your Honours chapter and verse through it.  You no doubt are aware of the passage but she was unclear because of the passage of time.

KEANE J:   Are you coming to the notice of contention now?

MR BYRNE:   No, not yet, but that does bear on the notice of contention.

GORDON J:   Is this submission directed to the fact that the proviso should be applied?

MR BYRNE:   Yes.  So it posits the possibility it is an aberration and it is also very, in my submission, illuminating.  Notwithstanding the legitimate approach of counsel at trial to cross‑examine heavily on prior inconsistent statements, Ms M was not taken to any other statement to suggest that the complaint had been made in less than positive terms.  So my submission is that the jury would inevitably have dismissed that difference as being of no account.

The written submission put against us criticises the use by Justice Burns at appeal book 290, paragraph 72, of the term of “natural limitations” without outlining what they are.  In my outline, at paragraphs 25 and 26, I have sought to trace through the cases going from the one that Justice Burns footnoted to show that they in fact trace back to the ones that are cited by the appellant and there is no legitimate criticism there.

So undertaking the test that was required in all of the circumstances, recognising that there is no single universally applicable description that can be used concerning this proviso provision and recognising the particular peculiarities of the evidence, it is my submission it was in fact open for the proviso to be applied as it was.

If your Honours were of the view that there had been a lack of procedural fairness creating a misjustice in the Court of Appeal, my submission, as I have already outlined, is that this Court can consider the application of the proviso.  Could I move to the notice of contention?

KIEFEL CJ:   Yes.

BELL J:   Just before you do, do I take it from that submission that your contention is in the event that the procedural fairness complaint were thought to have substance, the appropriate course would be for this Court to determine at the end of the day that the appropriate course was the application of the proviso, rather than sending the matter back to the appellate court?

MR BYRNE:   It is.  I make that submission for these reasons.  The evidence is in short compass, or comparatively short compass.  The timelines have already been spoken of in this matter.

BELL J:   Yes.

MR BYRNE:   That is probably my better point than the length of the appeal book but the time lines give credence to the suggestion that should occur.  My alternate submission is that if this Court does not do that, it should send it to the Court of Appeal rather than back for retrial.  That of course is subject to the notice of contention and my submission is that if my submissions are accepted it is a complete answer and that there was no miscarriage at trial.

I said I was not going to take your Honours chapter and verse through the evidence of the mother.  I think perhaps I should for these purposes.  Could I take the Court to appeal book page 111.  From line 15 there was a discussion about the job interview, that she eventually spoke to her daughter at line 21:

She phoned me to tell me that she had been raped and that she was very upset –

Essentially there is a little bit of toing‑and‑froing that is of little moment.  At line 36 the witness said that that was the extent of the recollection of the conversation other than she:

advised her to go to the police –

Cross‑examination occurred shortly after on page 112 commencing at line 18.  At line 27 it was reiterated that she had indicated she could not:

recall the exact terms‑

and this was the first time in cross‑examination the witness said:

it was quite some time ago, as you can appreciate -

very early on.  She continued with sentiments to the same effect as I will take the Court to.  Line 30:

Well, your memory was better back in 2007?‑‑‑I would think so.

. . . Yes.

Now, I do not suggest that that is so equivocal as it should be taken as anything “yes” other than an acceptance.  Line 34, it was suggested that she had said in earlier evidence:

“I’m not even sure that the words were, ‘I was raped.’  I believe she said, ‘I believe she said, ‘I think I was raped’, because she was – she was, ‘Mum, I think he’s drugged me and I think he’s raped me.’”

She was asked if she recalled giving the evidence and acceded that if she gave it at the time that is how she would have remembered it.  There is then a start of a process from line 42 to show a written document.  The court then adjourned in the sense of the witness and jury leaving.

At page 114, at line 47 – earlier on, from page 48, the witness is taken through that which she had been taken to.  Line 47:

Do you agree you gave that evidence?‑‑‑Well, it’s written so I must have.

And, at the top of the next page:

You accept that?‑‑‑Yes.

I will not read chapter and verse from line 3.  But, at line 9, she agreed that she had given the evidence.  At line 15, she was asked if that assisted as to her understanding of what she had been told at the time.  I pause to make the submission that that, really, was the point in time where counsel was attempting to have the witness accept the truth of the assertion.  Her answer is, in my submission, illuminating.  Line 17:

I can appreciate what you’re saying, but what you need to remember is that the phone call happened in 2000.

I will take out the interjections by question:

We were then approached in 2007 to try to remember –

. . . 

and life goes on –

. . . 

365 days a year.

Line 27, counsel says:

I appreciate that.  I’m not being critical of you.

Then, he puts this positive proposition:

You can’t say anything further –

That is my emphasis:

You can’t say anything further than, your memory, when you gave evidence back on the 21st of September 2007, was better that it is now?‑‑‑Yes.  I would say so, yes.

And when you gave that evidence, that was the best recollection you could give to the court of what she said to you?‑‑‑Yes.  I would say so, yes.

May I emphasise there that, again, that answer is in tentative terms.  The whole tenor of that passage that I have taken the Court through is affected by the passage of time and is in tentative terms.

I also highlight that there was no actual question – although I have suggested that there was an attempt to lead into the proposition – there was no actual question that that was the truth at the time.  There was no questioning to the effect – and I will broad brush this – but, to the effect, you understood that it was a court, you understood it was a serious occasion to be testifying, you had taken or affirmed – I cannot recall – sworn to give true evidence, and, you would have remained true to that oath. 

Neither was there the simple proposition which can often be used as a device in these circumstances of putting to the witness, you simply cannot dispute what you said at committal is correct.  And, if there was to be some argument, that then generally follows up with cross‑examination that you cannot dispute it because the passage of time has dulled your memory.  None of that occurred.  In those circumstances ‑ ‑ ‑

BELL J:   Can I just take this up with you?

MR BYRNE:   Yes, your Honour.

BELL J:   As I understand it, you would accept that the inference of acceptance of the evidence in that sense of acceptance that it was the witness’ best memory and that the witness had been endeavouring to tell the truth would have sufficed for the evidence to become, as it were, her oral evidence at the trial.  Am I right in that?

MR BYRNE:   I do not mean to hedge the answer - in all likelihood yes, it would.

BELL J:   So if one is looking at cross‑examination on a suggested prior inconsistent statement that is not given in court that might, on one view, give rather greater weight to the complaint that you make.  But in circumstances where it is accepted that the witness, an adult person, is giving evidence in a court and the witness agrees with the proposition that the evidence there given represents the best recollection that the witness was able to give to the court of the matter the subject of the evidence, you say it is not open to infer by that answer the witness’ appreciation that it was a serious occasion?

MR BYRNE:   No, one could still infer the witness appreciated it was a serious occasion but the point I was about to move to is that the best recollection in 2007 is still seven years old.

BELL J:   But all the witness can ever do is give the witness’ best recollection of a matter, whether it occurred yesterday or whether it occurred 10 years ago.

MR BYRNE:   Indeed.

BELL J:   What is important is whether the witness accepted the making of the earlier statement and accepted that on the occasion when the earlier statement was made it was the witness’ truthful account, as the witness then understood matters.

MR BYRNE:   Although the witness here, by reference to page 115, line 33, simply says that she would say so that it was her best recollection.  She has agreed that she had a better memory at the time.

BELL J:   She has affirmatively answered a question it was the best recollection that she could give to the court of what the complainant had said to her.

MR BYRNE:   In less than conclusive terms.

EDELMAN J:   Do you accept it would have been sufficient then if she had just answered “Yes” rather than “Yes.  I would say so, yes”?

MR BYRNE:   That is a proposition that I should have thought through and had not before now, but I suspect that is so, yes, your Honour.  It is part of the whole mix that in 2014, quite understandably, the witness is still not conclusively sure that she gave the best recollection at the time.  That is the product of the passage of time that is going through. 

The inference could more readily be drawn if reference had been made to a contemporaneous or, if not truly contemporaneous, a statement made close to the time, particularly if recorded in writing or recorded in some other manner.  There is no reference to any such statement in cross‑examination in the trial.  It is simply a matter of threshold, whether the threshold has been reached.  That is the point to be made.

In my written submissions I have posited the test as being whether the evidence taken as a whole and at its highest from the perspective of the defendant would allow a reasonable conclusion or that it would be fairly open to conclude that the witness had adopted the truth of the prior statement in the course of testimony.  I have largely drawn that from ‑ ‑ ‑

KIEFEL CJ:   In relation to that, your point is that at no point she accepted the truth as a fact of what she had earlier said because she was trying to say that in 2007 she was not entirely sure at that point.

MR BYRNE:   Yes.

KIEFEL CJ:   So the whole of her evidence might in fact be qualified.

MR BYRNE:   It may well be.

BELL J:   But that still confronts the difficulty that, at appeal book 115, line 31, the question that was being put to her was whether it was the best recollection that she was able to give to the court of what the complainant had said to her.  Whether it was a good recollection or bad, whether she has a wonderful memory or a very imperfect memory is not to the point, surely.  What is to the point is whether she accepts that the evidence given on the earlier occasion was the best she was able to do in terms of giving an account on an occasion when she was giving evidence in court. 

MR BYRNE:   My submission is that, by answering “Yes.  I would say so, yes.” her answer, in my paraphrasing, is that “I’m now unsure whether it was but I would say so, yes”.

BELL J:   I suppose we have to take that with the earlier concession, consistent with human experience, that her memory in 2007 was likely to be better than her memory in 2014 of a conversation in 2000.

MR BYRNE:   Indeed.

GORDON J:   Your proposition really is that, if you take those pages, 112 through to 114, the conclusion we should draw is that this witness accepted that she had made an earlier statement but now could not be certain in her own mind which version was true?

MR BYRNE:   Yes.

KEANE J:   So that if the further question were asked, after the question at page 115, line 30 – if the next question were asked, “Are you content that what you said then is your best recollection now?” the answer might have been, “I do not know.”

MR BYRNE:   It might have been but that is the difficulty with the hypothetical.

KEANE J:   Quite.

BELL J:   If her evidence had been “I don’t know”, what, if any, use could have been made of her acceptance that she had given evidence in the terms put to her, that at the time her memory was likely to be better as to the contents of the conversation than it is at the date of giving evidence at the trial, and that on the occasion when she gave the evidence at the committal, she was giving her best recollection of what the complainant had told her.

MR BYRNE:   It would go only to her credit.

BELL J:   Why?  Why would it go to her credit?

MR BYRNE:   Because there is an acceptance of the prior inconsistent statement having been made per se, without the next step of the acceptance of the truth of that earlier statement.

BELL J:   Yes, I see.

MR BYRNE:   Your Honours, the test that I had posited ‑ ‑ ‑

KIEFEL J:   But she had not been given an opportunity to comment on that, so how could it go to her credit – if she has not denied the truth of it?  You mean just as a proof of a prior inconsistent statement.

MR BYRNE:   Yes.  I am happy to be shown to be wrong on that but that is my understanding of the law. 

KEANE J:   Is the circumstance that she was not asked the further question, is that something that - I mean are there Browne v Dunn considerations that arise here in relation to fairness to the witness in that she was not asked the further question and then the proposition is put that she has in fact adopted, or the jury are entitled to conclude that she has adopted her earlier evidence as her evidence on the occasion of this trial where the cross‑examination has gone thus far and no farther, that then it is said that the inference can be drawn that she has indeed adopted her earlier evidence in contradiction of the evidence that she has given.  Are there Browne v Dunn considerations that arise?

MR BYRNE:   The hesitation in my answer is that perhaps if there was any of those type of considerations, it was perhaps incumbent on the prosecutor in re‑examination to re‑establish credit.  I am not sure that is the complete answer but that is the answer that is coming to mind.

That test, as I say, was drawn largely from the judgment of the plurality in Braysich v The Queen (2011) 243 CLR 434 at paragraph 36. The concept of being fairly open is taken from the words of your Honour Justice Bell in the same judgment at paragraph 102. That is dealing with leaving a defence rather than whether evidence meets a threshold to be left in these circumstances. My endeavours have not found any statements as to this threshold test.

So it is against that background that my submissions turned to the judgment of Justice Burns where it is my contention that the errors are most clearly identified at paragraphs [59] and [61].  About halfway down paragraph [59], four words in:

Then he needed –

that is, counsel:

to establish that what she –

Ms M:

said in evidence at the committal hearing was her preferred account.

Again, I go back to the passage from 112 to 115.  The witness accepted that she had given her best recollection but was never asked which is the preferred account.  An inference, it may be said, can be drawn from the fact that the witness accepted the well‑known phenomenon that her memory was likely to be better in 2007 than in 2014.  I simply make that observation that it would have to be from that inference only.

His Honour then set out three propositions that counsel had to achieve.  The first is not in issue whatsoever.  The witness did distinctly admit she had given the evidence at the committal hearing.  Secondly, the witness agreed that the parts she was taken to were more reliable than her trial testimony because her memory was better back in 2007.  That is another way of referring to the inference that I just spoke of.

That may go some way but, in my submission, it does not go sufficient to justify the third proposition and that is to accept that those parts were true or accurate, that is to say they represented the best recollection she could give to the court.

KIEFEL CJ:   The latter part qualifies the first part, though, does it not?  His Honour is not saying that they were accepted as true but rather represented the best recollection.

MR BYRNE:   Yes, the latter part of that third proposition, your Honour.

KIEFEL CJ:   His Honour is saying that she is accepting that they represented the best recollection she could give to the court rather than that she was accepting them as true.  That was not put to her.

MR BYRNE:   Yes, I am sorry.  I thought I might have misunderstood what you said, but that needs to be qualified by the ‑ guarded may be putting it to high, the qualified way in which she accepted that:

Yes.  I would say so, yes.

KEANE J:   Well, I mean, it might be being unduly strict about this but the question that was put to her was, when you gave that evidence that was the best recollection you could give to the court.  Read at least on one view, that was asking her about the best recollection she could give to the court back seven years ago.

MR BYRNE:   In 2007.

KEANE J:   His Honour has treated that as the best recollection she could give to the court today; that is, today when she is giving the evidence.  Now, it might be, it might be that there is no real difference as a matter of substance but there is certainly a difference in terms of the question she was being asked and if what has to be established is the proposition that she accepts that what she said back then, is the best evidence she can give today, that was not established.

MR BYRNE:   No, it was not and that is why I started with this passage at that sentence halfway through paragraph [59], referring to the:

preferred account.

There is no evidence establishing that the preferred account in 2014 is that which she testified to in 2007.

BELL J:   Unless one draws it by a process of inferential reasoning from her acceptance that her memory of the terms of the conversation in 2007 was likely to be better than her memory of the conversation at the date of the trial.

MR BYRNE:   Indeed.  May I make this observation however, “was likely to be better” does not necessarily get across the line ‑ ‑ ‑

BELL J:   Yes.

MR BYRNE:   ‑ ‑ ‑ because of the seven year gap between 2000 and 2007.

BELL J:   As a matter of human experience, I am not sure whether that is so. 

MR BYRNE:   Could I rephrase it this way?  Her best recollection in 2007 is not necessarily the right recollection.

BELL J:   But we are not concerned with the right recollection.  We are not concerned with accuracy, in fact.

MR BYRNE:   No, quite so.  Yes, you are quite right, of course.

KIEFEL CJ:   Just the making of a statement.

MR BYRNE:   Yes, quite so.  At paragraph [61], Justice Burns then refers to Ms M having adopted:

what she had said in evidence at the committal hearing became part of her oral testimony at the trial . . . two competing accounts –

and it is from there that the misdirection is said to arise.  Can I make it clear, that if his Honour is correct and the witness had adopted the “truth”, in the terminology I am using “the truth of the account”, there was a misdirection.  I do not suggest otherwise. 

My point is simply one of threshold as to whether that had been established.  The submission then, of course, is that it did not go to the truth of the fact and the evidence only went to the credit of Ms M which was the basis of the directions that were given.

BELL J:   It is curious, in a sense, to confine it in that way.  The witness has admitted the earlier statement – has agreed that her memory was better at the time she made the statement – has accepted that she was doing her best to tell the court in 2007 the contents of the statement.  How is the jury to reason that her credit is adversely affected by the fact of the inconsistent statement?

MR BYRNE:   The jury would, quite reasonably, have thought it had no effect given the passage of time but, speaking more generally, the mere fact of differing accounts may, depending on the weight the jury gives to it, lead to a finding of lesser credit than would otherwise be the case.

BELL J:   In the way the evidence was, in fact, left, the jury was invited to determine which of the two accounts the jury accepted.  Is that ‑ ‑ ‑

MR BYRNE:   No.

BELL J:    No?

MR BYRNE:   No.  The jury was directed that the inconsistent statement by Ms M could be used only to assess Ms M’s credit.

BELL J:   Yes, I recollect – am I thinking of ‑ ‑ ‑

GORDON J:   It is page 152.

BELL J:   Yes.  I am thinking of ‑ in fact, some of the analysis in the Court of Appeal.

MR BYRNE:   Yes.

BELL J:   Yes, I am sorry, yes. 

GORDON J:   So, as I understood the direction at 152, the bottom two paragraphs, it was a direction to say, yes, there are these inconsistent statements, you, the jury, are to assess Ms M’s credibility and having determined her credibility, at 155 the second direction is given in relation to what then is taken by reference to the complainant’s evidence by reference to the three complaints – whatever you have made of Ms M’s credibility.

MR BYRNE:   Yes.  It is one of these chains of ‑ ‑ ‑

GORDON J:   A two‑stage process.

MR BYRNE:   Indeed.  I was going to say chains of reasoning, but multiple stage process.  Because it is preliminary complaint evidence, the jury were directed to consider the credibility of the preliminary complaint witness to then determine the credit of the complainant.

GORDON J:   Yes.

BELL J:   But, as Justice Burns reasoned at paragraph [63], his Honour considered that – I am sorry, that may be the wrong point.  Yes, I am sorry, it is paragraph [68].  His Honour considered the second phase had not cured the clear direction ‑ ‑ ‑

MR BYRNE:   Yes.

BELL J:   ‑ ‑ ‑ which if you fail on your first point, was an error of law, namely, that what was said to the mother seven years ago was not evidence that ‑ ‑ ‑

MR BYRNE:   On the first point of the notice of contention?

BELL J:   Yes.

MR BYRNE:   Yes, your Honour.

BELL J:   Not evidence that could be used in assessing the credibility of the complainant’s account.

MR BYRNE:   I have already conceded that if there was a misdirection ‑ ‑ ‑

BELL J:   Yes.  Coming back to the analysis, the Court of Appeal’s analysis was, in the way the evidence ultimately fell out, it was a matter for the jury to determine which of the accounts the mother gave.

MR BYRNE:   Yes, and that they should have been directed to that effect.

BELL J:   Yes.

MR BYRNE:   So can I just touch very briefly on - although I have now traversed some of that - some aspects of the summing‑up as they are rehearsed in the judgment.  I will start at appeal book 288.  This is the continuation of paragraph [64], the judgment, and the third line towards the end:

But what the mother said . . . is not evidence of the fact that the complainant said those things to her.

His Honour Justice Burns said that was a misdirection.

BELL J:   Yes.

MR BYRNE:   At paragraph [66] on the same page, in the third paragraph of the quote from the summing‑up:

She said that she advised her –

and so forth and you will see the boldened part, ending with the words:

which I’ve already referred to and directed you in relation to.

That must be the passage I had taken your Honours to just before.  Then in paragraph [67] on page 289 of the appeal book, in the second indented paragraph, in the boldened portion:

any inconsistencies between any one of those accounts -

As your Honour Justice Bell has touched upon, Justice Burns, in the next paragraph, thought that in fact – I just cannot see the exact words – it may

have been enough to save it, as it were, if I can use that terminology.  Clearly, the sense in which those words were used by the trial judge any one of those accounts had to refer to the in‑court accounts of Ms M, Ms Johnson and the journalist, not the committal account of Ms M because his Honour the trial judge said it went only to the credit of Ms M.

In that circumstance, if my contention on this threshold is correct, there has been no misdirection and so the appeal should have been dismissed without resort to the proviso.  If those words are wide enough, as Justice Burns thought they were, to include the committal account of Ms M, the direction was unduly favourable to the appellant and there was no miscarriage requiring the allowing of the appeal or resort to the proviso.  I just see your Honour Justice Bell pondering that submission.  Can I explain it this way?

BELL J:   Yes.

MR BYRNE:   If my contention is correct, the jury could not be directed to use the committal account to assess the complainant’s reliability, the complainant account of Ms M.

BELL J:   If your contention is correct, yes.

MR BYRNE:   If my contention is correct and, again, I have already conceded, if my contention is wrong, that is it.  Your Honours, with the written submissions I have outlined the series of orders that I submit are appropriate.  I have touched upon them a little in the course of discussions.  Unless there is anything to assist the Court further.

KIEFEL J:   Yes, thank you, Mr Byrne.  Yes, Mr Callaghan.

MR CALLAGHAN:   Just in reply on the procedural fairness point, there was reference to – it was suggested that there was some significance to the fact that this case was argued after the decision of this Court in Lindsay. 

Can I just point out that in paragraph 45 of Lindsay, at the bottom of page 288 of the judgment, it is made clear that the potential for application of the proviso was identified by the Court in Lindsay and indeed the basis for it was identified.  Namely, in that case whether the objective limb of provocation could ever be raised and so it – to that extent was, if anything, suggestive of what the Court of Appeal should have done, which was identify the issue and place the appellant on notice of the type of thing that the court was interested in. 

Now, as to the notice of contention, it might have been insufficient for the appellant’s purposes if trial counsel had established only that Ms M had uttered the words at the committal and left it there.  Something more was required before the committal evidence became part of the oral evidence of the witness. 

But it was not necessary before that point could be reached for the accuracy or truth or any other term that might be applicable of that evidence to be established with some sort of empirical certainty that we might associate with electronic recording, as your Honour Justice Bell observed.  All you will ever get is a witness’ best recollection and so the importation into this argument of words like “truth” is potentially misleading.

What was required, we have to come back to what was involved here.  It was a choice between two competing versions.  Now, what was required was something upon which the jury could rely to establish, as Justice Burns put it, that one was the preferred version, or at least that they could act upon one rather than the other. 

It did not require the witness to exclude the other as a matter of certainty.  In effect, did not require the witness to admit to a prima facie case of perjury.  Say “No, what I just said was absolutely wrong”.  That is not going to happen.  But what does have to happen is something, as Justice Burns’ said, that allowed the jury – or counsel had to establish something was a preferred account, and when we talk about establish in a criminal trial, it is always relevant to remember this was something to be established by the defence and the onus has a function in that regard. 

What was required was something upon which the jury could rely to establish, as Justice Burns put it, that one was the preferred version, or at least that they could act upon one rather than the other and it did not require the witness to exclude the other as a matter of certainty.  In effect, it did not require the witness to admit to a prima facie case of perjury and say, “No, what I just said was absolutely wrong”.  That is not going to happen. 

What does have to happen is something, as Justice Burns said, that allowed the jury ‑ or counsel had to establish that something was a preferred account.  When we talk about establish in a criminal trial, it is always relevant to remember that this was something to be established by the defence, and the onus has a function in that regard. 

So, there is no need for some sort of test that imports or that has its roots in philosophy and demands answers to the question of what is truth.  It is only necessary for there to be a basis for the jury to conclude that the committal evidence was the better evidence upon which they could rely and they could act on that statement.

KEANE J:   And that the witness accepted that.

MR CALLAGHAN:   And that the witness accepted that the evidence – the committal evidence was better, yes.  Since your Honour Justice Keane has asked me a question, can I come back to the analysis that you were performing of paragraph [59] of Justice Burns’ judgment, that is at page 286, line 40 because it is necessary to read that whole paragraph and to acknowledge that his Honour contextualised it at about line 33 by reference to the passages from cross‑examination which are extracted in paragraph [20] on page 269 and it is also necessary to observe that when his Honour wrote that the committal evidence represented the “best recollection [she] could give to the court”, that is in quotation marks, and that is a reproduction of the question asked by counsel at line 15 on page 269.

So his Honour was not actually certifying that it was the best evidence that she could give to the District Court which is, I think, what your Honour took it to mean.  He was only saying that counsel had got the witness to accept that the version given at the committal was the best that could be given then.  When that is read in conjunction with the acknowledgment that her memory was better then, then there was the basis for the – or counsel had, as he put it, established the preferred account and that was all he had to do.

Now, if we are suggesting that there is some significance in the words “I would say so” I would respectfully submit that it is inviting cross‑examination to descend to a level of pedantry which is not ever going to be particularly helpful.  Much might depend in that situation, too, on tone of voice.  Someone might say “I would say so” with some emphasis.  It might actually be affirming the certainty.

KIEFEL CJ:   It might be a figure of speech, too, because the witness uses it more than once.

MR CALLAGHAN:   With respect, she does.

KIEFEL CJ:   Given the mother’s evidence about how she was unsure at 2007 because there had been seven years to that point, I understand you to say that the – and to adopt what Justice Burns said about the admissibility of this to show two different versions of what the daughter had conveyed to her but would a proper direction have been not only that these two versions were available and that seven years earlier the mother has accepted that seven years earlier her memory might have been better, but also the direction would need to go on to say that on the mother’s evidence she had some doubt about her recollection in 2007 as well.  Proper direction would have to cover the lot, would it not?

MR CALLAGHAN:   Perhaps.  It was though a choice between two, as I say ‑ ‑ ‑

KIEFEL CJ:   What I am really saying is that the mother’s – the qualification in the mother’s evidence might not have had the effect for which Mr Byrne contends in relation to the notice of contention but it might have had the effect that the trial judge needed to give a somewhat qualified direction about whether it was black and white so far as the witness was concerned.  That does not mean to say that that affects the notice of contention point.  It is really a question how one characterised the qualification the witness was trying to make and how it should be dealt with in the trial.

MR CALLAGHAN:   I think our answer to your question is it would not have been wrong to give such a direction but it is really getting down to a question of weight.

KIEFEL CJ:   Yes.

EDELMAN J:   But that comes into the proviso, does it not?

MR CALLAGHAN:   Not at this point because if this was available for the jury to act upon, then there was a misdirection and then we say the proviso ‑ ‑ ‑

EDELMAN J:   But one must assess the gravity of misdirection in assessing whether the result would inevitably have been the same.

MR CALLAGHAN:   That is one limb to our argument about the proviso.  One is that it was, indeed, a grave misdirection ‑ ‑ ‑

EDELMAN J:   I understand that.

MR CALLAGHAN:   ‑ ‑ ‑ and, with respect, that must be right.  We have another limb to it as well which concerns the natural limitations.  But, even if the direction suggested by the Chief Justice might have been thought to have been open, the fact that it was not given does not affect the gravity of the misdirection when the jury were told that what the mother said is not evidence of the fact that they were said.  That is a fairly stark ruling.  Whilst it could have been qualified – there may have been nuances – it does not affect what we say is the gravity of a misdirection in a trial where the sole issue was consent – consent is a state of mind – the only direct evidence as to that state of mind came from the complainant so her credibility on all issues – particularly on that issue – was central and this went to that.  In that way, we say, the issue at the trial and the misdirection merged into effectively the same thing.

We would respectfully adopt the submission made by the respondent at paragraph 37 of the outline provided, and respectfully suggest that that is the sort of argument that we are having here.  It is really a factual argument about the effect of it.  It would need to be a very stark error indeed to have been made by Justice Burns to invite the intervention of this Court on this point.  That is, in our submission, simply not able to be demonstrated. 

There was a basis upon which his Honour could find, as he did in paragraph 59, that counsel had established that the witness had a preference on the basis of evidence that was the product of a better memory.  On that basis, the jury ought to have been able to act upon the statement.  Indeed, we would submit it would be absurd if the version which was likely to have been more accurate and more reliable – that is to say, the committal version – was not open to the jury to be used in this situation.  It would have been a very strange thing indeed to say, “No, you cannot act on the product of a better memory; you are stuck with a piece of evidence that came a full seven years after that, as uncertain as the witness might be about it”.

BELL J:   Do you adopt the reasoning of the Court of Appeal that in a circumstance where a witness distinctly admits a prior inconsistent statement, accepts that it was made at a time when the witness’ memory was better than it is at the date of giving evidence and that on the occasion of giving the earlier statement the witness was endeavouring to give her best recollection that the appropriate course is to leave for the jury the determination of which of the witness’ accounts is, as you have been putting it, the preferred account in the sense of the account that the jury accepts as reliable?

MR CALLAGHAN:    With respect, that must be right.  It is a question of fact.  It was for the jury to resolve.

BELL J:   Yes, and I think that accords – there is an analysis I think along these lines in CB v Western Australia 175 A Crim R 304.

MR CALLAGHAN:   Yes.  I did see that but I do not have that to hand.  I think that is right.  I am not sure that there was much more to be said.  I did respectfully wish to endorse the observation that the Chief Justice has already made, that in paragraph 39 at line 40, where Justice Burns refers to the phrase “true (or accurate)”, he does qualify what he means by that and that goes back to the passage at paragraph 20 that I have already taken you to.

KIEFEL CJ:   I think Mr Byrne has accepted that.

MR CALLAGHAN:   Indeed, but it comes back to where I began, I suppose, that the use of the word “truth” here is perhaps not, with respect to his Honour – well, given that he had to qualify it, it probably suggests that another word might have been used.  But, in any case, there was enough there for the purposes of counsel and indeed it follows for the purposes of the Court of Appeal.  Unless there was anything further, those are our submissions.

KIEFEL CJ:   Yes, thank you.  Mr Byrne, do you have anything in reply on the notice of contention?

MR BYRNE:   Just one point.  I have already conceded that this is a threshold case, which is paragraph 37 of my submissions.  It is my submission, however, that it is not to the point that this may or may not be a point which would be the subject of a grant of special leave.  Special leave has been granted in the case; it is a point of contention that is raised in answer to the grant of special leave and to the appeal itself.  That is the only matter.

KIEFEL CJ:   Thank you.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow in Sydney.

AT 11.23 AM THE MATTER WAS ADJOURNED