Dansie v The Queen

[2022] HCATrans 106

[2022] HCATrans 106

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A4 of 2022

B e t w e e n -

PETER REX DANSIE

Appellant

and

THE QUEEN

Respondent

GAGELER J
KEANE J
GORDON J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 15 JUNE 2022, AT 10.02 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the appellant with my learned friends, MR K.G. HANDSHIN, QC and MS K.J. EDWARDS.  (instructed by Nathan White Lawyers)

MR M.G. HINTON, QC:   If the Court pleases, I appear with my learned friend, MR D. PETRACCARO, SC, for the respondent.  (instructed by Office of the Director of Public Prosecutions (SA))

GAGELER J:   Mr Game.

MR GAME:   If the Court pleases.  Your Honours should have our outline.

GAGELER J:   Yes, thank you.

MR GAME:   So, just to be clear, the orders we seek, if successful, are quashing of the orders of the Court of Criminal Appeal – but remittal to the Court of Criminal Appeal to deal with the appeal.  That is to say, we are not seeking to ventilate a further question about whether or not the verdict is in fact unsafe.

GAGELER J:   Your complaint is entirely about methodology.

MR GAME:   That is right, your Honour.  So, our submissions are in three parts, as you can see, and I wanted to begin by saying something about what actually the task is, and it is obviously very familiar to the Court, but there are some matters that I would like to extract or clarify.

First, if I could trouble the Court to go to M v The Queen, and what I wanted to say about M v The Queen is this, and I will take you to the relevant passage in a moment, but M v The Queen was really a watershed.  It was a watershed because the nature of the assessment to be made by the Court was not clear and it was not settled.  It was a joint judgment of Justices Deane, Toohey and Gaudron in Morris which spoke about an independent assessment, and the Court was troubled in Chidiac about just what that meant and different positions were expressed.  But when it came to M v The Queen – and one can see this if one goes to pages 494 and 495.

There were statements in cases such as Chamberlain, we see this at the bottom of – it is actually 493 of the judgment at 265 of the book.  There were statements in Chamberlain which seemed to suggest that the Court needed to stay away from assessment of factual issues, particularly credibility issues.  Yet there was Chief Justice Barwick’s judgment in Ratten that spoke of a doubt entertained by the Court.  What happened at page 494 was the judges, particularly Chief Justice Mason, and Justices Dawson and Toohey – they gave away their differences of opinion.  One can see this at page 494.  So that paragraph:

But it is, we think, possible to make too much both of the view expressed by Barwick C.J. and of the qualification suggested.

Then each of the following sentences are quite important, and there are four of them.  The first is:

It is only where a jury’s advantage –

et cetera.  Where:

a doubt experienced by a court –

The second refers to the:

manner –

The third:

even making full allowance for the advantages –

and then fourthly, the proposition:

is not substituting trial by a court of appeal –

Then their Honours say, at footnote 41 on page 495 ‑ it is an important footnote, and it is an important footnote because 443 is the Chief Justice, 451 is Justice Dawson, and 458 is Justice Toohey agreeing, and 461 and 462 is Justice McHugh explaining the nature of the obligation.  What they were saying was that they were giving away their differences of opinion and each of them in their own way expressed more stringent views than were ultimately taken in M v The Queen.

The upshot of this – incidentally, in Justice McHugh’s judgment – maybe I will just take you briefly to – if your Honours look very briefly at Justice Brennan’s judgment, you will see at page 501, or 273, he stayed with Justice Dawson’s opinion that Justice Dawson had given away.  Justice McHugh explained in his view what it meant for the Court to examine the question for itself and he took a strong view of the matter and you can see – although he dissented in the outcome.  You can see at 524 that it is not without significance that he thought that the formulation of “must have” was actually stronger to “open to”.  As I said, Justice Brennan had made the observation that “open to” left unresolved a kind of tricky question about what it meant.

GAGELER J:   You are taking us to these passages ‑ ‑ ‑

MR GAME:   For a reason.

GAGELER J:   ‑ ‑ ‑ by way of contrast, are you?

MR GAME:   That is right, what I am trying to explain is this, and that is all I am going to say about it.  What I am trying to do is explain that when you get to – there are other things that happen after M v The Queen.  M v The Queen is kind of a tabula rasa and it is dangerous to go back to other authorities to look for what the test is.  Then after – and I do not need to take you to – that is all I need to do with these things – but if I could just say this?  There are things that come after Filippou that are significant that fall into place.  One is ‑ ‑ ‑

GORDON J:   You mean after M?

MR GAME:   Sorry, after M v The Queen.  I am sorry, what I said.

GORDON J:   Of which one is Filippou?  

MR GAME:   Of which one is Filippou.  So, Filippou confirms that you apply the same test with respect to a judge alone trial.  S v The Queen makes it clear that describing issues as “quintessentially jury issues” detracts from the critical question that the Court is engaged in.  Then there is Pell, but Pell was really – you addressed it to a different problem.  So, what we say is this – incidentally, Justice McHugh in M – and, I think, in Chidiac – thought that what the Court was obliged to do in respect to a jury verdict was stronger than a court was required to do in a rehearing in a civil appeal.

In a sense, M v The Queen does have a parallel in developments in civil appeals in Warren v Coombes where Warren v Coombes was a watershed but – I am not trying to bring them together – but they have the same kind of significance about that which came before them.  The problem, we say, with the judgment here, is that Justice Livesey has not really appreciated, we submit, that one really goes to M and one does not go past M for what the exercise is that the Court needs to engage in.  That is the whole point of the first section of our submissions.

Amongst other things, Justice Livesey does use the language of saying things are quintessentially jury questions.  Or he says, over and over again, that that was a matter for the judge.  I will take your Honours to come of these passages.  He also refers repeatedly to the constitutional differentiation between trial and appeal court.  But we say, in this case, of course that is the case, but in an exercise of the first limb of the common form provisions, that is all about what the advantage was that the trial court had.  And that what Pell is about.

GORDON J:   Does that issue arise here though?

MR GAME:   Not at all.

GORDON J:   Where you have got, as I understand it, no dispute about the evidence.  In other words, that there was no ‑ ‑ ‑ 

MR GAME:   There was no dispute.

GORDON J:   The question was, what followed from it.

MR GAME:   That is right.

GORDON J:   And so, when you come to the drawing of inferences, that is not a question of critiquing the trial judge’s inferences?

MR GAME:   Not at all.

GORDON J:   It is a process whereby the appellate court looks at the evidence in answering the question you identified at the foot of page 494 in M.

MR GAME:   Yes, your Honour. And that is all it is.

GORDON J:   Is that the case?

MR GAME:   That is it.  Yes, your Honour and that is all it is.  So, setting it up is not a complicated thing.  But what inferences you drew, and if you drew some adverse inference, say, about the appellant embellishing, well, it was there to see.  It was – it was not – there is an inference to be drawn.  What you make of the inference is a quite separate question.  So that ‑ ‑ ‑

GLEESON J:   Mr Game, was there really only one possible qualification to that, which was the video material – and there was some discussion about whether or not on an appeal the appeal court ought to review that?

MR GAME:   So, all of the judges did review it, but – I was going to come to that shortly, but I can answer that question now.  The sorts of things that were drawn from it possibly were quite unreliable with things like lack of emotion and so forth.  But what was said in it was plain to see whether or not one viewed it.  But we do take issue with Justice Livesey’s proposition that viewing real evidence in that way is the same thing as viewing evidence and cross‑examination of a complainant on a video, because one is real evidence and the other is testimonial evidence being tested in a live context.  And it is there to see.  It is no different when a court looks at the evidence if there is a cause to do so.  So, we say that that point – I say “point” – that observation by Justice Livesey does not really change anything.

GLEESON J:   So, just to make sure I understand – so, in truth, there was really no evidence at all where the trial judge had a particular advantage over the appellate court in this case?

MR GAME:   There was no circumstance which provided any advantage, is our submission.  Yes.

GAGELER J:   He went on the view, I think, did he not?  Three times?

MR GAME:   Twice.  Twice.

GAGELER J:   Twice.

MR GAME:   There is a – yes.  So that, really – I have said that is really the kind of – the legal frame within which we say that the thing needs to be addressed.  And we say that the way Justice Nicholson approached it was correct, but we also say, critically, that required the consideration or identification of whether or not the hypothesis, consistent with innocence, had been excluded beyond a reasonable doubt.  And his Honour specifically considered that in a long passage at the end of his judgment.  And that is an exercise that Justice Livesey, in plain terms, issued, and many times.

So – I will come to it, if necessary, but there is also a passage in which Justice Nicholson examined for himself where it was that the wheelchair must have come from and he concluded it must have come from Rock B.  None of the other judges even addressed that question, but it is quite an important question if you are asking yourself a question about whether or not accident had been excluded beyond reasonable doubt.  So, again, that is just a comment about process.  So ‑ ‑ ‑

GAGELER J:   Mr Game, can I just ask you a question about – I suppose it is about process – but the grounds of appeal identified by Justice Nicholson at page 110, are dealt with separately before he comes to the unreasonable verdict ground.  Did the unreasonable verdict ground just develop in the course of submissions before the Full Court? It seems to have been dealt with discretely, it is why we are here, but it does not ever seem to have been formally articulated.

MR GAME:   I think it is ground 1, but it is put in a strange way.

GORDON J:   You mean the particulars were put in a strange way?

MR GAME:   Yes.

GORDON J:   The ground is alright, is it not?

MR GAME:   Yes, the ground is fine, but the particulars are put in a strange way.  That may be a local practice about identification of particulars, but I am not certain.  I could ask Mr Handshin in a moment.

GAGELER J:   Thank you.

MR GAME:   There were other grounds that were dismissed, and clearly the judge’s reasons are important for that.  One of them is the intermediate issue about unlikelihood of an accident and how that fits in – but I only want to make a comment about that, again, in terms of process.  So, I wanted to take ‑ ‑ ‑

GORDON J:   I suppose – this will be my last question, I am sorry to interrupt – it may very well be that the way in which it was particularised, in effect, is why Justice Livesey’s judgment looks like it does.

MR GAME:   I do not think so, your Honour, because the thing was argued as a fall – unsafe – and it was fully argued as – but one can see how it was argued by looking at Justice Nicholson’s judgment – I think.  The passages I wanted to take your Honours to at the moment, begin at – I have to kind of duck back and forwards a little bit, but I will do it as quickly as I can – paragraph 422 of Justice Livesey’s judgment, we see a proposition – and it says:

In a case depending on circumstantial evidence, it is not for this Court to determine whether the only rational inference to be drawn from the circumstances was guilt beyond reasonable doubt.

That proposition is taken from Justice Menzies’ judgment in Plomp, and it cannot stand with subsequent authority – particularly M v the Queen.  The very next passage that follows is a ‑ ‑ ‑

GLEESON J:   Mr Game, I am sorry Mr Game, are you going to develop that argument?

MR GAME:   Yes, your Honour, the reason is the Court does have to determine that in going through the first limb in asking itself whether it has a doubt.  It must do that, there is no other way in which it can exercise the function.

KEANE J:   Unless you treat Justice Menzies as speaking in a compendious way that includes acknowledgment of the advantages of the jury, or the tribunal of fact.

MR GAME:   Well, your Honour, if you examine the judgment, the judgment actually feeds off the judgment in Peacock, which was pre‑common form which was something that Chief Justice Dixon pointed out, and there is no suggestion of addressing advantages of the jury in that.  The judgments speak of – including Chief Justice Dixon’s – those were matters for the jury to determine.  So, we would say no, that if in unambiguous terms it is not correct to set for oneself as a starting proposition that it is not for this Court to determine that because the Court must do that exercise ‑ ‑ ‑

GORDON J:   Can I ask a different question?  Was it not answered by Filippou?

MR GAME:   Yes, your Honour.

GORDON J:   So, is not the reference to Plomp in a sense there unhelpful?

MR GAME:   Yes, your Honour.  What happened with Filippou was that Fleming had left unresolved a question about reviewing factual findings based on some decisions such as O’Donoghue and Kyriakou, and that controversy was put to bed in Filippou.  So it is a significant misstep, in our submission, to base oneself upon that which was said by Justice Menzies in Plomp, and may I add to that by going to paragraph 456.

STEWARD J:   Just before you do that, so that we are clear, is it your case that necessarily what Sir Douglas Menzies said in Plomp is now wrong?

MR GAME:   Yes, your Honour.

STEWARD J:   If that is right, then you must win.

MR GAME:   Well, that is our contention, your Honour.

STEWARD J:   Yes, all right.

GLEESON J:   Mr Game, can I just understand, is not one reading of that passage of Justice Menzies just that it is not necessary to exclude all logical possibilities?

MR GAME:   No, your Honour, it was about the ultimate conclusion about reasonable doubt.  It is really centrally directed to what the question is for the court about the safety of the verdict.  If you go to paragraph 456 you will see – and the trouble with it is that much is left unclear from the word “open”, but at 456 now his Honour is discussing circumstantial evidence and in the discussion of circumstantial evidence he comes back to Justice Menzies in Plomp and he says:

It follows that the question now is not whether this Court thinks that the only rational hypothesis –

That means, i.e. to the exclusion of any hypothesis consistent with innocence that the applicant drowned his wife.  That is the ultimate question in fact.  He says:

It is rather whether this Court thinks that upon the evidence it was open –

There is a footnote there, 350 – footnote 350 says:

The approach of Menzies J . . . has been favourably cited –

None of those cases support that proposition, in our respectful submission.

GORDON J:   It is not quite true, is it?  M v The Queen – the only references to Plomp in M v The Queen are in McHugh ‑ ‑ ‑

MR GAME:   Justice McHugh’s judgment, yes.

GORDON J:   The majority do not refer – or the plurality do not refer to Plomp at all.

MR GAME:   That is correct.

GORDON J:   As I understood your ultimate submission, the beginning was that M in effect rewrote the law.

MR GAME:   That is right, and M settled the law.  But one will not find in the cases discussion about the doubt that the Court entertains for itself until you get to Chief Justice Barwick’s judgment in Raspor.  This is not even on the – it is not on the radar; the Court making its own assessment as to whether it is of the view that the person was guilty.  As your Honours would appreciate, the English law had taken a different position which we did not join with or went halfway towards joining with in M v The Queen.

None of the reasoning in M v The Queen was remotely in the spectre, and if I just take your Honours, in fact, back to Plomp – I will have to come back to this part of the judgment.  If I take your Honours to Plomp, which is at page 19 of the joint book, we see in Justice Menzies’ judgment a discussion of Peacock.  This is at page 246.  Peacock was a question reserved.  There was no common form appeal provision.  Then we see quotation from Peacock:

They were not bound to draw that inference; another jury might arrive at the opposite conclusion.

Then the very next thing that Justice Menzies says, following on from that is:

It follows that the question now –

So it is a very restricted exercise.  But if I could just also take your Honours to a couple of passages from Chief Justice Dixon, we see at 242, his Honour says at line 4:

It is unnecessary to traverse all the circumstances in detail.  They were placed before the jury and doubtless considered by them.

And that is it.  But then his Honour, in the passage that is quoted later in the judgment of Justice Livesey at the bottom of 243, says:

In the present case it appears to me that if the jury weighed all the circumstances they might reasonably conclude –

et cetera.  But then over the page ‑ ‑ ‑

GORDON J:   Sorry, where are you reading now?

MR GAME:   The bottom of page 243 at appeal book 28.  One sees there is a passage there at page 244 where his Honour draws a point of warning or caution about Peacock because Peacock was decided before the common form appeal provision.  But one saw there was no such reticence in the judgment of Justice Menzies.  Even so, Chief Justice Dixon took an approach that we say involved clear difference to the jury on questions of fact from the passage that I just took your Honours to.  So, the passages I was taking your Honours to – I took you to 422 and 456.  Then, at 495 ‑ ‑ ‑

GAGELER J:   Can I just ask about 422?

MR GAME:   Yes, your Honour.

GAGELER J:   There is a quotation from the joint judgment in Filippou.  I know that was introductory, but does it really apply to the first limb of the common form of the statute?

MR GAME:   That quotation from Filippou has got nothing to do with this.  Again, that is in an opening paragraph in Filippou which is setting the scene with respect, actually, to asserted factual errors by the trial judge.

GAGELER J:   But it really seems to be by reference to the third limb in the proviso.

MR GAME:   Yes, your Honour.

GAGELER J:   Rather than the first limb.

MR GAME:   Yes, your Honour.  So, we would say the balance of the passage suggests a significant misstep because our task is different.  That was a matter for the trial court.  It is not – all those things – the propositions against the Court assessing – truly assessing – for itself whether it had a doubt.  Most importantly, addressing the question of the drawing of inferences.  It is our submission that his Honour – in the plainest terms – issued the consideration of inferences but, particularly, from our perspective, inferences consistent with guilt.

I am going to have to come back to a couple of these passages a little later but, for the moment, if I go then to 495.  At 495, we see, in the second sentence:

It is neither necessary nor appropriate for this Court to dwell upon what might be regarded as arguments for the defence about inferences.

Then, there is a reference to a case called Allen, which is about something completely different.  Then, at 497, we see similar, and a reference to Chief Justice Dixon in Plomp.  Then, finally, on visit, 505:

The Court of Criminal Appeal does not decide whether inferences tending towards guilt should or should not have been drawn following a verdict of guilty.

GORDON J:   Sorry, where are you reading now?

MR GAME:   Page 505, sorry.

GORDON J:   Thank you.

MR GAME:   So, just how deep the misunderstanding might go, we say that those passages should be taken for what they say – which is that, for reasons apparently based on Plomp, the Court was not going to engage with the ultimate question of what inferences should be drawn and a specific eschewal of the addressing of hypotheses put forward by the defence ‑ ‑ ‑

STEWARD J:   It may not be as clear as that – I accept the force of what you say.  But, at 473, Justice Livesey says he did his own review of the evidence and then sets out a whole series of detailed findings.  At 491, he then says:

Having reviewed the evidence before the trial Judge –

I make the following inferences.  Then, in the paragraph following – the one you just mentioned at 505, at 506 his Honour says:

That conclusion is reached by the Court of Criminal Appeal only after it undertakes its own independent review of the evidence before the trial court.

MR GAME:   Your Honour, we ‑ ‑ ‑

STEWARD J:   So, he seems to be saying, I am going to do my own review, even though I am also relying upon what Sir Douglas Menzies said in Plomp.

MR GAME:   But actually, ultimately, his Honour does not address hypotheses consistent with innocence at all.  I will come back those passages shortly. 

STEWARD J:   All right.

MR GAME:   But that is quite a qualified exercise, in our respectful submission.  What it is asking is, is there a pathway to guilt?

STEWARD J:   But you are not suggesting that his Honour did not review ‑ ‑ ‑ 

MR GAME:   No, I am not suggesting that ‑ ‑ ‑

STEWARD J:   himself the evidence ‑ ‑ ‑ 

MR GAME:   No, no ‑ ‑ ‑

STEWARD J:   It is the way he did it. 

MR GAME:   That is correct.

STEWARD J:   I see.  All right, thank you.

MR GAME:   So, there is nuance to this.

STEWARD J:   Yes, I appreciate that.

MR GAME:   So, can I just show your Honours something that I was going to come to a little later, but I will just do it now.  If your Honours look at Justice Nicholson’s judgment at paragraph 357.  At 357 his Honour asked himself a question about whether accidental death could be excluded as a reasonable possibility.  And there, in a very lengthy examination, he examines the inferences, and he examines what is put by the defence about them.  So, for example, you see (vii) to (x) on page 219.  Those things are all significant.  That exercise, or anything like it, you will not find in the judgment of Justice Livesey, and that is because he says that it is not for him to do that exercise.  He is also – although this is getting down to the minutiae – but if you go back to page 351 – sorry, back to page 213, sorry.  Paragraph 247 – sorry, footnote 247 – his Honour makes a comment about it:

as highly unlikely –

that the deceased was anywhere else:

than Rock B –

Then 351 on page 216, he says it could only be Rock B.  Then later on he addresses a question about whether it is a reasonable possibility that it was an accident, her coming from there, and he does that ‑ ‑ ‑ 

GLEESON J:   Mr Game, while you are there, at paragraph 350, did Justice Nicholson really have to engage in that analysis?

MR GAME:   Well, yes, your Honour.  In a case like this it ‑ ‑ ‑ 

GLEESON J:   But in this case – I know we are getting into the weeds again here, but as I understood it, the accused admitted that he pushed the wheelchair into the pond, so why would you have to engage in alternative analyses about rear wheels first into the pond, and such?

MR GAME:   He admitted that he had hold of the wheelchair, but, your Honour, what I am saying is that – I do not really want to get into the minutiae, but what I was, the reason I was showing your Honours this was that there were factual questions that one needed to get to in considering whether or not a hypothesis consistent with innocence had been established.  Or indeed establishing whether or not, as I say, the Crown case beyond reasonable doubt that this was a deliberate event.

Justice – it is just an example – but Justice Nicholson engaged with that question.  All that Justice Livesey does throughout is say his Honour made such‑and‑such a finding, I respectfully agree, and that is a different exercise.  That was in explicit terms to do what his Honour described as seeing if there was a pathway to guilt, and that is not the right question either.

Just while I am still on Justice Nicholson, at 360 he deals with the issue about reasonable possibility, and it positions it in the situation where the wheelchair is at Rock B.  He also – at 380 – makes that point – first of all, 376, he talks about assessing the “whole of the circumstantial case”, and at 380, he describes what are described as “jury points”.

Justice Livesey uses the language of things being “jury points”.  To be blunt, the difference between the parties is what you draw from Justice Livesey’s judgment about the exercise it carried out and it is not pellucidly clear, but we say it is clear enough that he eschewed the exercise that we say had to be engaged in that we just saw Justice Nicholson engaged in. 

GORDON J:   Is it two complaints, then?  One is he asked the wrong question – i.e. is there a pathway to guilt and, second, he did not address the defence of accident.

MR GAME:   Yes.  He failed to address the question of whether or not the reasonable hypothesis consistent with innocence – namely, an accident – had been excluded.

GORDON J:   And they are two separate exercises?

MR GAME:   Yes, your Honour.  The respondent places a good deal of weight on what sits between 414 to 417, but if you look at 415, you will see the word “must”, and the word “must” comes up a lot and it seems to be used in contradiction to something else and for the purpose of making something more difficult.  There is the point that Justice Hayne was making and it was a completely different one and the subject was pretty much put to bed in Pell.  But we see that passage in 415, which says – it is five lines down:

It is primarily for the trial court whether inferences tending towards guilt should or should not be drawn –

His Honour then, in the very next sentence, says:

Having reviewed the evidence –

So, it is put against us, well, his Honour said he reviewed it.  But one has to qualify that as to what the review actually was, and when one comes to paragraph 426, one sees that when his Honour says at 426:

The second feature is that the independent assessment must be undertaken by the appeal court in a manner which recognises that it is the trier of fact . . . who is entrusted with primary responsibility –

that that is quite problematic because – that is a quote from SKA – and the very next thing that it says in SKA is:

However, the joint judgment in M went on to say: ‑

Then it quotes from M v The Queen as to what you have to do.  Then the next sentence says:

Notwithstanding the need for independent review . . . that does not become a trial by the appeal court:

In doing so, the court is not substituting trial –

and that is a quote – I took you to that quote before – that is the fourth sentence in M v The Queen, but the footnote is to Chidiac and all of those passages where judges took different views.  So, it is a muddle, actually, as to what his Honour thought he was doing.  But you can have no confidence from this that his Honour firmly grasped that there were two steps in the process.

STEWARD J:   Just so I am clear, in a case based upon circumstantial evidence which is not in dispute and where the trier of fact has no advantage in evaluating the evidence, what is the difference in the task that an appellate court must undertake as distinct from that of the trier of fact?  Is there any substantive difference in your view?

MR GAME:   Little.  But the court – there is a question that has to be asked squarely, and that is, did the trier have an advantage?

STEWARD J:   If the answer is no ‑ ‑ ‑

MR GAME:   That is the end of it.

STEWARD J:   So, it is the same task.  It is a straight de novo review.

MR GAME:   It is not a straight de novo appeal, but it is stronger than, for example, a civil appeal on a – it is stronger than a Warren v Coombes exercise.  In fact, I will not take you back to this, but Justice Dawson, in a way, was kind of more frank about…..and he said, “Well, look, actually, that is what we are doing.  We are asking ourselves that question.  It may seem odd, but that is what we are ultimately doing”.‑

STEWARD J:   That is what you are saying is correct?

MR GAME:   That is what I am saying in this case, but this case – I will not say it is an unusual case, but this case there were really no facts.  It was all about what inferences you drew.  So, once you have cited M v The Queen, you are into the inferences.  You are into the primary facts and you are into the inferences.  Anyway, that is how we put the argument.

GLEESON J:   Mr Game?

MR GAME:   Yes.

GLEESON J:   You have made that criticism of Justice Livesey for footnoting Chidiac at the end of the passage in paragraph 427.

MR GAME:   Yes, your Honour.

GLEESON J:   But all his Honour has really done is to replicate the footnote that was given in M v The Queen to that fourth sentence.  Are you saying that by doing it in that different context, he has displayed some confusion?

MR GAME:   Yes, your Honour, because he thinks that Chidiac is saying the same thing and it is not.  That is just as we saw him thinking that Plomp had been supported by other judgments when it had not.  Most importantly, you go back to the first sentence in 426 is if you say to:

the trial Judge, who is entrusted with primary responsibility for determining guilt or innocence -

and then you completely leave it up in the air how that demarcation might apply in this case when the passage that you have referred to says, in the very next breath, that the court as to ask itself whether it has a doubt, that is strongly suggestive that the independent assessment is not the kind of independent assessment that was contemplated by M v The Queen. 

Then we go from there to that which appears at 427 as a reference to Pell v The Queen.  But, as I have said, Pell v The Queen is about a completely different question, which is about courts of appeal being, shall I say, enticed into watching videos of witnesses giving evidence and being cross‑examined and what that means in terms of – but that is all ultimately about the manner of – manner and atmosphere of trial, not about the drawing of inferences. ‑

GORDON J:   That was truly an advantage case.

MR GAME:   Yes, your Honour.  Truly, yes, your Honour.  But one is left, we respectfully submit, lost as to what it is that his Honour thinks that the functional constitution or demarcation means in this case and that pervades the judgment.

Then one goes to 429 and the introduction.  Just as we saw at the very beginning the proposition that the evidence was not all one way, here at 429 we see a question about whether there are solid obstacles.  The appellant has pointed out that that, itself, was problematic because it replaced a question about whether or not it was possible the person was guilty instead of was it possible that the person was innocent.  That is what is said in Pell between paragraphs 40 and 46.

The solid obstacles, again, we see the idea of “was there a path to conviction” and his Honour finishes the discussion of the matters determined by the trial judge to explicitly say that there was a path to conviction.  We saw that that comes there in 429 and it comes again at 493.

There are some more passages here.  We see at 435, even if it be assumed demeanour had nothing at all to do with the assessment, it would still be necessary for this Court to recognise the function - we say in this particular case that really it is not to ignore that demarcation but it is all a question about whether or not the second leg of M v The Queen - whether or not there was an advantage and so forth, what kind of a case it was.  The problem is that his Honour thinks that restraint is required in this exercise.

Now, his Honour makes an observation at 438 about why he thinks the same restraint should apply in respect of the video recordings.  That is at 439.  But then, at 441 there is quite an important passage from our perspective, because 441 is marking out not just assessments of credit, but the drawing of inferences.  We see those words “whose drawing of inferences” and about which there is exercised “a measure of appellate restraint”. 

Now, that is just not correct, but what the footnote there – I am sorry to go into footnotes – but, it is to a case called Western Australia v Rayney.  That was an appeal from a judge alone trial.  It came after Fleming but before Filippou.  It was a Crown appeal against an acquittal.  So it had nothing to do with unsafe.  It was a discussion by three very learned judges who were all acting judges for the sake of that case, about how Warren v Coombes might or might not have a role to play.  So again, the idea of exercise of restraint appears at the end of 441.  In 442:

Finally, I leave to one side the issue, not debated before us, whether the approach described in Warren v Coombes, where it was held that the appeal court is in as good a position as the trial judge to draw inferences . . . 

The exercise the court is obliged to do goes straight past Warren v Coombes.  There is no need to engage with Warren v Coombes because the court is centrally involved in what inferences should or should not be drawn from the evidence in the first leg of M v The Queen.  We say that those two passages again demonstrate a clear misunderstanding about what this exercise is and that it would be very brave to turn around and say, well, he did ask himself questions.  He did speak about an independent assessment.

But we say that is a heavily qualified exercise because of what his Honour is saying in clear terms here.  We say that it did nothing but introduce a level of confusion and uncertainty to fall back on the idea that there was something above and beyond demeanour that would require the Court to respect the findings in respect of inferences made by the trial judge, and yet that is exactly what his Honour said.

I took your Honours to this before – but there is a passage at 495 and 496 where we say that his Honour is specifically eschewing the drawing of inferences.  There is also just one other exercise that I wanted to draw to your Honours’ attention.  At 471 his Honour proved, in effect, an exercise done by the trial judge which was an intermediate conclusion that an accident was highly unlikely.

Now, inferential reasoning in criminal cases does not speak about intermediate conclusions at all.  There are some things called intermediate facts, but if you are treating accident as an intermediate conclusion then it was indispensable to prove, and we see in the second sentence his Honour says it was not indispensable to proof of murder.  But this very exercise is problematic and it is an example, we say, of his Honour, as it were, mirroring what was done by the judge and then saying, well, there is a pathway to guilt and therefore the verdict stands.

There are two problems with that paragraph.  One is the second sentence, which is wrong, and in a significant way, and then the other is the very engaging at an intermediate – well, there are three because there is no such thing as an intermediate conclusion, but three – the idea of doing that is quite problematic and the reason for this is because it comes dangerously close to a determination at an intermediate stage against the accused of whether or not accident had been excluded as a reasonable possibility.

I will not take your Honours back to it but at paragraph – although Justice Nicholson said there was no specific error there, his Honour at 378 specifically assumed the idea of engaging in an intermediate exercise.  So, now I come to the – it is those passages set out in paragraph 20 of our submissions – you see 240 to 243 his Honour is considering it as a discrete error, and at 378 he is dealing with it within the context of unsafe.

Now, I will come to the passages that your Honour Justice Steward took me to a little while ago, but it is said against us, well, his Honour did do the exercise.  I have taken your Honours to that which was done by Justice Nicholson as specifically engaging with whether or not a hypothesis consistent with innocence had been excluded.  So, the passages – you see at 472, the third sentence says:

It was then a matter for the trial Judge, as the trier of fact, to decide whether to draw the various inferences –

That might be fine if his Honour went on to say, “I am now going to address the question of inferences,” but he did not.  He speaks of his findings.  Those findings – those 77 paragraphs are all about things, factual matters, that were not in dispute.  It was a question of what inferences you did draw from them.  Then we see the reference to credit in 474.  One can observe those things.  The question is what one does with them, ultimately.  As I say, those things were not really challenged.  The question is what you draw from them. 

At 477, he cites approvingly the judge rejecting the appellant’s account of how the deceased came to be in the pond.  Again, that comes dangerously close to excluding beyond reasonable doubt the hypothesis consistent with innocence.  But every paragraph that follows there is about what the trial judge found.  His Honour does say – and then he says at 487 – and this is an important sentence:

They were capable of being used as matters from which the trial Judge “might properly infer intention”.

He does say:

Respectfully, I agree with them.

But he has not engaged with the inference that what his Honour is doing there is really addressing the question we see at 493:  was there “a clear pathway to proof of guilt”?

GLEESON J:   Mr Game – sorry to cut you off – that exercise that Justice Livesey goes through at 477 to 487, is there any place for an exercise of that kind in the M analysis?

MR GAME:   No, your Honour, not in this situation.

STEWARD J:   But does it all turn on really what we are to take about 488?  I mean, his Honour has a set of reasons before him and conventionally an appellate court might summarise and refer to the trial judge’s reasons.  The question really is whether he deferred too much to those reasons, as you would put it, or whether he actually undertook the M analysis, which is bound up in what is said in 488.

MR GAME:   What I say about that is this, that when you get to the end of it, he says:

there was a clear pathway -

and the very next thing is he says, “I eschew the question of drawing of inferences”, and I will take you to that shortly. 

STEWARD J:   All right.

MR GAME:   I am not suggesting that this judgment is without uncertainty as to what is meant at certain places, but that is not good enough, in my respectful submission.  His Honour then goes on to this passage at 491:

Having reviewed the evidence before the trial Judge, the inferences . . . include the following –

Now, those are all about inferences tending towards guilt and there are only three sentences in the whole thing that say anything about the defence position.  One is about “too small to warrant contemplating murder” in paragraph 1; the fifth last line of 2, may have included travel to China; and number 3, “no talk of divorce”.  That is it, full stop.  There is nothing else in the judgment where he considers – and he is not considering them as hypotheses consistent with innocence.

STEWARD J:   There is also 494, though, where he adverts to the inferences that Justice Nicholson considered.  Again, your complaint may be that it is not good enough.

MR GAME:   What he says is – you get to the end of this and he says:

These inferences and considerations are not exhaustive.

He uses the language:

there was a clear pathway to proof of guilt –

and we say that we should take him at his word, that that is what his Honour was doing.  Now, I say, plaintively, that is all we are asking be done but it is terribly important that it be done correctly, whether or not one necessarily – one does not need to come to an ultimate conclusion about the matter and we are not asking you to.  This judgment, in our submission, is really very problematic for not just one or two reasons, but for a series of reasons.  Then if you come to 494, the first sentence is:

considered by Nicholson J were arguable –

Then it says the appellant:

contends for different inferences.  The potential for argument about inferences does not necessarily generate a –

Then his Honour uses the word “must”, again seems as a point of emphasis.  But then the last sentence is quite important because it says:

It is extremely unlikely that the trial Judge overlooked this and other “quintessential jury questions”.

That was the problem in SKA and that was the problem that Justice McHugh identified in Chidiac as having been done by the Court of Criminal Appeal there, and it is the final sentence, these being “quintessential jury questions”.  Then we come to this very important paragraph saying:

It is neither necessary nor appropriate for this Court to dwell upon what might be regarded as arguments for the defence about inferences. 

We had seen back at 441 him saying that it was not part of the Court’s role to do that.  Then we see the idea of hypothesis consistent with innocence is pretty much swept away in 497.  There is a citation to Chief Justice Dixon’s judgment in Plomp which, for the reasons I have given, itself will not give you the answer.  I have already mentioned this, but the footnote to the defence – do not have regard to defence arguments about inferences – where his Honour cites the case of Allen and saying this:

“comes close to arguing the merits of the defence case”.

I know it sounds excessively bold, but we are arguing the merits of the defence case.  One cannot get away from it in this exercise.  Then, for 502, second last sentence:

It is not my own view of this evidence that is important in this case.  The question is whether the view taken of this evidence by the trial Judge was open.

And then, again:

The Court of Criminal Appeal does not decide whether inferences tending towards guilt should or should not have been drawn ‑ ‑ ‑ 

GORDON J:   Where is that, Mr ‑ ‑ ‑ 

MR GAME:   Paragraph 505.  Again, in 506, emphasises the independent review, but, as I say, one can cherry‑pick some sentences and paragraphs against that which we say.  But what I put to your Honour is quite a strong theme throughout this judgment, and one should take him at his word that that is what his Honour did.  Now, those are our submissions, if the Court pleases.

GAGELER J:   Thank you, Mr Game.  Mr Hinton.

MR HINTON:   What I intend to do is to deal with the question of the applicable principles in the case of an appeal that engages the common form appeal provision, and indeed the unreasonableness ground, as dealt with by Justice Livesey.  Then, against that ground of looking at how his Honour deals with the principles, turn to his application of them.  In the course of doing so, I will endeavour to answer a question by your Honour Justice Steward as to whether or not there is really any difference in the task once there is no advantage that the jury had, and indeed answer questions that your Honour Justice Gordon raised about, is there really two complaints here?

Can I start by taking your Honours back to M v The Queen, which is to be found in the second volume of the joint book of authorities at page 259.  I want to take your Honours back to page 492 at 264, because interleaved throughout Justice Livesey’s judgment is an understanding of the conceptual difference between the role of the trier of fact and the role of an appellate court, between the role of determining whether guilt has been proven beyond reasonable doubt and the role of determining whether or not an error has occurred in the course of a finding that guilt was proven beyond reasonable doubt.

Now, conceptually, the two are different.  The task taken on the appellate side of things in determining whether or not there has been an error leads you to undertake the independent assessment of the same evidence, but the two tasks are essentially different.  Throughout his judgment, Justice Livesey continually draws that distinction, and we find that distinction drawn in M v The Queen, but can I take you first to 493 and the paragraph commencing – sorry, 492:

Where a court of criminal appeal sets aside a verdict on the ground that it is –

We have, of course, set down the requirement that there be an:

independent assessment ‑ ‑ ‑ 

GORDON J:   Well, it is the first thing, which I think is the first complaint made by the appellant in this case, is that the court does not consider whether there is evidence to support the verdict.  So, that is the first thing the court does not do.

MR HINTON:   Correct.

GORDON J:   So that is – and I think what Mr Game was saying was that at least in some passages of Justice Livesey’s judgment, it might be contended that he was approaching that question impermissibly.

MR HINTON:   Particularly that passage where he mentions the pathway to guilt.

GORDON J:   Correct.  And so – it is unfortunate language, let us put it neutrally for the moment.  That is the first problem by relying on this passage in M.

MR HINTON:   Indeed.

GORDON J:   Then we go to the next question about what you are to do.  That is:

decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.

MR HINTON:   Agreed.  Then can I invite your Honours onto page 493, and the penultimate paragraph, commencing “where”, still dealing with the same issue.  We have the test, authoritatively stated, with a qualification.  This qualification is, in part, what will answer your Honour Justice Steward’s question.

But there are two parts to the qualification:  firstly, the jury is the body entrusted with the primary – and I ask your Honours to note the word “primary”, because that is a word that Justice Livesey latches on to.  You will see it repeated throughout his judgment as he draws the distinction in function.  So, it is not just here that the jury has the benefit of having seen and heard the witnesses, but it also has that primary responsibility.

So, the question arises, how do you then take into account that primary responsibility as part of undertaking the task of determining whether or not, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt?

GAGELER J:   Is that not what gets addressed on the next page?  That is the critical passage at the bottom of 494.

MR HINTON:   That is one of the qualifications, yes.  That is the qualification about having the benefit of seeing and hearing the witnesses.  It does not deal with the first one, the primary responsibility determining guilt or innocence.  We see that, again, continually raised in Justice Livesey’s judgment.

GORDON J:   Is that not anything more than to say there has been a jury trial, in other words, you are not there to be the jury, you are there to undertake the task – which, as Justice Gageler has said, is set out in very clear terms at the foot of 494?

MR HINTON:   Yes and no, with respect.  Yes, you are there to undertake the task, and yes, you are undertaking the task of determining, as part of an independent assessment, whether or not it was open to the jury to be satisfied beyond reasonable doubt.  Your Honour also said there has been a jury verdict.  When you undertake the task, you do so on the record, the record includes the fact of the verdict.  There is no reason to distinguish here between this task and the application of a proviso.  It includes the fact of the verdict.

What I am putting to your Honours is that you take into account not just that there was the constitutional role of the jury here – trial by judge alone – but the fact that there has been a trial of fact that was persuaded of guilt.  That is just a factor to be taken into account in determining whether or not, as part of as part of your own independent assessment, you are persuaded to the necessary degree, and nothing more.

So, there are to parts to it then, in answering your Honour, Justice Steward’s question, yes, there is that benefit – absent here, but there is a qualification and I will deal with that – and, secondly, there is the fact that the verdict – as your Honour Justice Gordon, referred to – and what it means.  Can I then take your Honours to what we have framed as the Libke elucidation?

GAGELER J:   Before you do ‑ ‑ ‑

MR HINTON:   Yes, your Honour.

GAGELER J:    ‑ ‑ ‑you need to take into account that there was a trier of fact who was persuaded of guilt.

MR HINTON:   Yes.

GAGELER J:   That is your point.

MR HINTON:   Yes.

GAGELER J:   But how do you take that into account?  What difference does it make, unless there is – if the appellate court, looking at the evidence, entertains a doubt, how does the appellate court take into account that there was a trier of fact who was persuaded of guilt, other than to ask, was there some advantage that that trier of fact had over me?

MR HINTON:   The only additional way in which it can do so is, in assessing the extent to which it is positively persuaded to a conclusion, it takes into account the fact that there was another trier of fact positively persuaded to the opposite conclusion, and no more.

GAGELER J:   But is not M saying the opposite?

MR HINTON:   With respect, no, because it is a step antecedent to ultimate satisfaction.  M says if the appellate court is satisfied after conducting its independent assessment, allowing for the natural limitations, that it has a reasonable doubt, then it is a reasonable doubt that the Court below should have had.  All I am saying is, before you reach that final conclusion, you take into account that there was a trier of fact who was persuaded to the contrary.  Now, the weight we can give to that, in some cases, will be miniscule.  In others, it might be more significant – such as drawing inferences where inferences rely upon common human experience.

So, I do not put it as suggesting in any way that M should be qualified.  What I am saying is that where, on 493, we have that dual qualification, there must be some work given to do to that primary responsibility, and that primary responsibility was to determine the ultimate issue.  The fact that it was determined must be taken into account.

GLEESON J:   Let me just ask, if I am understanding the four questions that Mr Game pointed out in M v The Queen, the function of the jury is recognised in the fourth question.  In other words, the appellate court undertakes the independent assessment and then, looking at the results of that assessment, asks the fourth question, which is when it takes into account the primary responsibility of the jury.

MR HINTON:   Agreed.  And in the two ways that I put to your Honour:  one, can my doubt be resolved by – well, my doubt, taking into account the primary responsibility of the jury in the sense in which I put it to the Court; and then secondly, can my doubt be resolved by any other advantage that the jury had over which the Court of Appeal has.

There is one more issue that I need to draw to your Honours’ attention in M v The Queen, and that is the concluding sentence on 494 over onto 495.  The reason why I draw that sentence specifically to your Honours’ attention is because, again, you see it repeated on numerous occasions in Justice Livesey’s judgment.

GORDON J:   I must say for my part, Mr Hinton, I find this sort of unusual.  There is no doubt throughout the authorities one sees that there is respect for the fact that there is a jury trial, but we are dealing with the common form provisions and we know that sometimes juries get it wrong.  So, there is just – all they are saying is we have got a jury verdict, there is an assessment to be undertaken, this is the way you do it, and is that not what the last sentence is being directed at:

the ultimate question must always be –

it recognises a jury verdict:

whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt –

MR HINTON:   That is the ultimate question, yes.  All I am saying is ‑ ‑ ‑

GORDON J:   Why do we compartmentalise it in this way?  What advantage do you get from it, other than to overcomplicate what is already not easy, seriously?

MR HINTON:   I am not‑  I am sorry if it seems that way, and I do not ‑ ‑ ‑

GORDON J:   Well, I am not being critical of you, I am just trying to understand what advantage you get from this compartmentalisation.

MR HINTON:   What I am putting to your Honour is that when you look at M there is this reservation, and then when you look at this notion of restraint, because we see this word “restraint” from time to time in – not in judgments of this Court, but we see it from time in time in the judgments of intermediate appellate courts, and the notion of restraint has to be linked to the function of the jury.  So, in the course of determining whether or not you are satisfied beyond reasonable doubt, having conducted the independent assessment, I put to your Honours that this notion of restraint is simply, one, the advantage, two, they were persuaded.

Now, the fact that they were persuaded may count for nothing in some cases, bearing in mind that the evidence is – or bearing in mind the nature of the evidence, but in other cases it may be a cause to pause before determining that you are satisfied beyond reasonable doubt.

KEANE J:   But is that not just saying that the appellate court must approach its task with, you say “restraint”, with the sober appreciation of the role of the jury?  Is it any more than saying that it must bear the gravity of what it is doing in mind?  I mean, the Court said so much in Baden‑Clay.

MR HINTON:   That is what I was going to take your Honour to, and I would agree with that, yes.

KEANE J:   But that is all it is, is it not?

MR HINTON:   Yes.  On that – I will take your Honours to Baden-Clay in a moment, but I also want to take your Honours to Pell v The Queen.  That is to be found at 120 to 121, in particular, paragraphs 43 and 45.

GORDON J:   What is the proposition we are to get from these paragraphs?

MR HINTON:   Here is where the court refers to the Libke elucidation, which is to found in Justice Hayne’s judgment in Libke at 113.  And the important point is the observation that it did not depart from M.  Now, I take your Honours here because, of course, again we see the use of the word “must” on numerous occasions in Justice Livesey’s judgment as he interchangeably uses what I have framed “the Libke elucidation” and the test in M.

When one reads one with the other, it would not be open to the trier of fact to be satisfied of an appellant’s guilt beyond reasonable doubt – sorry, after – if the trier of fact was not persuaded of guilt it would not be open, and if the trier of fact arrives at that conclusion then it is a matter of concluding that the jury must have had a doubt.  The two, as your Honours – as the court says in Pell, are to be read together and operate hand in glove.  But my point, again, in taking your Honours to that is because we see them interchangeably used by Justice Livesey.

GAGELER J:   Mr Hinton, would that be a convenient time to take morning adjournment?

MR HINTON:   Yes, if your Honour pleases.

GAGELER J:   The Court will take its morning adjournment for 15 minutes.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.33 AM:

GAGELER J:   Mr Hinton.

MR HINTON:   Can I take your Honours to one further case – that is Baden‑Clay – and, in particular, pages 332 and 333 of the joint book of authorities.  I am taking your Honours to paragraphs 65 and 66.  Paragraph 65 would have been the passage that your Honour Justice Keane had in mind. 

KEANE J:   Yes.

MR HINTON:   That is, in my submission, a limited restraint.  But I also draw your Honours’ attention to 66 and, again, we get the conceptual difference in function.  The reason I take your Honours to these passages once more is because we see, frequently in Justice Livesey’s judgment, these points articulated.  At that point, can I take your Honours to Justice Livesey’s judgment?  I am at point 3 of my oral submissions – aiming to be done by 12.30 in order that Mr Game have time to respond before lunch. 

At point 3, we deal with the “bookends”, as we have called them, which are the two parts in the judgment where Justice Livesey identifies his conclusion.  I start with the disposition of appeal – to be found at page 253 of the core appeal book – commencing with paragraph 413. 

Paragraph 413 is a quotation, as your Honour Justice Gageler pointed out, taken from Filippou.  There is no error there – cannot be any error there.  If you look at the top of page 254 of the common appeal book, that line of the quote, you will see the notion of “support” and “unreasonable” – the two words used in the common form appeal – sorry, the first limb of the common form appeal provision – are separated out.  When we go to paragraph 414, Justice Livesey separates out the two points – 414, he is dealing with support and the question of sufficiency.

In 415, he turns to the notion of “unreasonable”.  In the first sentence of 415, you see what fell from Justice Hayne in Libke.  In the second sentence, we get this notion, again, M v The Queen –primarily for the trial court to determine, elaborated upon in the third sentence – and in the fourth sentence, it is a serious step – the passage that we just saw in Pell – sorry, Baden‑Clay.  When we turn to 416, it commences with the words:

Having reviewed the evidence before the trial Judge, I do not doubt the guilt of the appellant.

Pausing there, that is the answer to the ultimate question posed in M v The Queen.  The second sentence:

It cannot be said that the various inferences suggestive of guilt should not have been drawn –

That can be viewed as a modification of the Libke elucidation – “should not”, “must”.  We then have a reference to some of the factual issues and, at 417, the expression of an opinion in conformity with the test in M v The Queen. 

In my opinion, it was open to the Judge to be satisfied beyond reasonable doubt that the appellant was guilty.  The evidence, taken as a whole, did not require -

Again, an extrapolation, a version, a variation of “I do not conclude that the trial judge must have had a reasonable doubt” – M v The Queen and in Libke.  At 418, the judge’s own view:

it was a strong circumstantial case. 

If I take your Honours then to the other bookend, the conclusion.  You will find that at 298 of the core appeal book commencing at paragraph 505, a paragraph my learned friend took your Honours to.  It has to be read closely, paragraph 505, because here, in my submission, we see the demarcation of function between the appellate court and the trier of fact.  The task of the court in 505 is spelt out in terms consistent with M v The Queen in the second sentence. What the first sentence identifies is the task of the trier of fact. 

Now, we might be dancing on pins to some extent, but the difference between the two may be difficult to see but, nonetheless, there is that difference identified in M and that is what he is referring to.  When you go to 506, it is the amplification of M v The Queen:

That conclusion is reached by the Court of Criminal Appeal only after it undertakes its own independent review of the evidence before the trial court.  Recognising the trial court’s advantage . . . respecting the demarcation –

M and Baden-Clay:

the appeal court evaluates whether the evidence so lacks credibility, displays –

Again, that is straight from M at 494.  In most cases, that is a “doubt experienced”, and so on.  At 508:

I disagree . . . the appeal should be dismissed.

So, apart from that first sentence in 505, there is nothing wrong in the second bookend.  Paragraph 505, in my submission, however, looked at closely, is just an acknowledgement of the difference of the role of the Court of Appeal by comparison to the trier of fact.

Can I then take your Honours to Justice Livesey’s treatment of the role of the appeal court.  That commences at core appeal book page 255.  So, in two places, in my submission, his Honour has stated his ultimate conclusion applying – purportedly applying M v The Queen, consistent with the authorities subsequent to M v The Queen, Libke, Baden‑Clay and Pell. 

At 255 we have the introduction at 419, 420 – the role of the appeal court at 421.  As your Honour Justice Gageler pointed out, we move to 422.  That is a quote directly from Filippou v The Queen and, indeed, a quote from paragraph 4 of Filippou v The  Queen, and when one looks at Filippou v The Queen, paragraph 4 – it is in the joint book of authorities at page 228 if your Honours want to go to it – you will see that at this point we are concerned with the three limbs of the common form appeal provision.  Despite the reference in paragraph 421 to the first limb:

unreasonable or cannot be supported –

422 is dealing with the three limbs.  In 423 we return to the first limb.  The first sentence is correct.  The remainder of the sentence is correct.  The third sentence in paragraph 423, again, is a statement of M, as the footnote demonstrates to the fourth sentence.  Between paragraphs 424 and 441, his Honour deals with three features to bear in mind in applying the M test.  The first, 425, is the independent assessment:

“both as to its sufficiency and its quality” -

The penultimate sentence in that paragraph:

requires an analysis of the whole record, not merely any “point of principle” –

Importantly, the last sentence to 425:

As will be seen, I have done that.

Between 426 and 434, his Honour deals with the question of whether there are any solid obstacles to the undertaking of the independent assessment.  He does so by reference to, and distinguishing the circumstances in Pell, Coughlan, and Rayney.  Important to observe, at 430:

In this case it was never suggested that any particular feature of the evidence represented an obstacle to proof of the appellant’s guilt. 

So, it is a case of inferences.  However, 433 – there were credibility findings, but they do not pose an obstacle to the court conducting its independent assessment.  At 434:

Nevertheless, findings were also made by the trial Judge regarding the appellant’s demeanour and apparent lack of urgency, distress or agitation . . . These credit findings are important. 

That, with respect to his Honour Justice Livesey, is totally appropriate, bearing in mind the qualification on M – the advantages of seeing and hearing the witnesses. 

My learned friend has drawn a distinction here, because, of course, these credit findings are largely made from video recordings of records of interview conducted with the appellant.  He was first interviewed – and not just that, but also from evidence of his demeanour and presentation when he was first come across by Rock Pool 7.  There was evidence from the ambulance officers.

There was the recording of the 000 call that he made.  Then there were the first police officers on the scene, who started a notebook statement before switching on their body‑worn video.  Then there were two lengthy records of interview, one during the search of his house later that evening, and one into the early hours of the morning, back at the South Parklands and, indeed, at the police station.

There is a body of material there that has been assessed, not just for what was said, but how it was said taking into account the circumstances prevailing at the time.  That is the point that Justice Livesey is making.  He has made the point it does not interfere with the exercise he has asked to undertake, but he nonetheless acknowledges it, because of course, applying M requires as much.

At paragraph 436 he deals with the question of the out‑of‑court interviews.  At 438 and 439 he determines that they should be dealt with in the same way as the evidence – in the same way in terms of how an appellate court conducts an independent assessment as the oral evidence of a witness given in court when it comes to questions of demeanour.

Now, my learned friend drew a distinction between real evidence and testimonial evidence, and there is that distinction.  But in terms of the assessment of the evidence, it does not matter whether it be real or testimonial here because when one looks at not only what was said but how it was said you are engaged in the same sort of exercise, and that is what underpins, in my submission, Justice Livesey’s conclusion.

When we get to 441 we come back to this measure of restraint.  Those words are used, “a measure of appellate restraint”.  True it is that they are taken from Rayney which was an appeal against an acquittal.  But, with respect, they rise no higher than the observations made in Pell at paragraphs 37 and 38 and, indeed, in Baden‑Clay, the paragraphs that I took your Honours to.

Paragraph 442 is a difficult paragraph, the reference to Warren v Coombes.  Whatever Justice Livesey had in mind were that question debated does not alter the fact, in my submission, that so far in the bookends and under the heading, “Role of the Appeal Court”, what we see is a correct articulation of the principles that govern his approach when dealing with then one of the common form appeal provisions.

Can I turn then to point 5 in our oral outline to deal with the method?  What we have given you at 5a. are a number of references made in the course of his Honour’s reasons that are significant to the assessment.  At 430 he has identified – I have taken your Honours to it – that there was no fact – no fact was identified which was an obstacle to proof of guilt, none an obstacle to the conduct of the independent assessment.

At 433 there is, as I have taken your Honours to, that reference to the “credibility findings”.  Again, not an obstacle but, nonetheless – to use the words of Justice Livesey – they must be taken into account, repeated at 468.  At paragraph 434 another reference to the trial judge’s credit findings.  Between 443 and 471 his Honour deals with circumstantial reasoning.  He perhaps need not have done so.  However, he draws – or makes the important point at 461 that in this case there was no “indispensable intermediate fact”.

At 471, a paragraph that my learned friend took your Honours to, we have reference to the trial judge’s “intermediate conclusion”.  Now, that was dealt with differently by Justice Nicholson from Justices Livesey and Parker.  Justices Livesey and Parker determined that despite that intermediate conclusion, or that inference of fact if you like – it does not matter which – the trial judge nonetheless went on then to consider that conclusion in the context of all of the evidence, and having done so did not deal with the circumstantial case contrary to the principles that we find in Hillier, Peacock and Plomp.

There is nothing in that paragraph that would suggest that Justice Livesey has failed in his approach to undertake in the independent assessment of the evidence.  Under the heading, “The evidence and findings in this case”, core appeal book page 272, Justice Livesey summarises the evidence to the extent that it is relevant to his independent assessment.

Can I take your Honours to paragraph 472, core appeal book 272.  Here is a reference to the trial judge’s role – necessary, perhaps not once you are engaged in an independent assessment, but it is not wrong, and it does not suggest that the independent assessment was not conducted because what is set out in 472 stands in stark contrast to the opening lines of 473:

For the purposes of my own review –

unequivocal:

I have considered the evidence before the trial Judge.  In order to assess the strength of the case it is helpful to highlight the following evidence before the trial Judge, and the findings made by him, as well as the relevant events before, on and after 16 April 2017 –

the day upon which Mrs Dansie died.  Importantly:

For the purposes of my own review -

Your Honours then have 77 subparagraphs from page 272 of the core appeal book to 291 – of the facts relevant to the independent assessment.

GORDON J:   Do we make anything of the third line of 473:

the following evidence before the trial Judge, and the findings made by him ‑ ‑ ‑

MR HINTON:   As you will see, Justice Livesey – and as you have already seen – in the conduct of his own independent assessment, does have regard to what the trial judge finds and assesses his own conclusions against that background, but in doing so, my submission to your Honour ultimately will be that you can be satisfied he has nonetheless conducted his own independent assessment and arrived at his own conclusion.

GORDON J:   Thank you.

MR HINTON:   You get to appeal book 291 and the heading, “Adverse credit findings”.  These are adverse credit findings made by the trial judge – 474 speaks for itself – and 475.  Importantly, for my purposes, 476:

I agree with them.

It is not just:

They were open –

in terms that there was evidence capable of supporting:

I agree with them.

Now that, in my submission, is an indication of the independent exercise of fact‑finding.  Paragraphs 477 to 487 are where Justice Livesey deals with the defence hypothesis.  Now, he does not set it out in the same terms as Justice Nicholson in the paragraph that my learned friend took your Honours to, but it is here that he deals with the defence case.  He deals with it again through the lens of the trial judge’s conclusions.  But at 488 you have Justice Livesey’s own conclusion, core appeal book page 294:

I am satisfied that there was a proper basis for these findings.  All were open on the evidence led at the trial.

Now, that is “open” used in the difference sense to M v The Queen.  “They were open” means you could simply draw the inferences.  But more than that:

I agree with them.

We then get to the subheading – I pass over “Reasoning to guilt”, but the subheading “Considering the inferences available on the evidence”, opening with 491, core appeal book 294:

Having reviewed the evidence before the trial Judge, the inferences and reasoning available on the whole of the circumstantial evidence include the following matters –

And we have then six inferences all, in one way or another, portraying an evaluation; inferences drawn by Justice Livesey.  We are not here talking about the trial judge.  This is Justice Livesey.  The first subparagraph, 491(1):

Whatever the truth about the propriety of his management of Mrs Dansie’s pension –

Now, that is an evaluation.  The last sentence in paragraph (1):

This was, for the appellant, comparatively important in circumstances where his own personal exertion and pension income was so modest.

Again, that is the language of an evaluation.  Subparagraph (2):

Regardless whether the appellant intended to marry Sophia, or anyone else, he knew that this was of interest to Sophia, and others –

That is an evaluation going toward the relationship motive:

The appellant was admittedly bored and apparently consumed –

Again, the language of evaluation and assessment.  Subparagraph (3), the second line:

there is a great deal in what the trial Judge said about it being something which the appellant had come to regard as time consuming.

Again, that is the ‑ ‑ ‑

GORDON J:   I accept all of that except, when you get to 493 – sorry to jump ahead, but that is not what he is doing.  He seems to be saying:

Whether the trial Judge had explicit regard to all of these inferences . . . is not to the point . . . These inferences were open to him because they arise on an independent review –

MR HINTON:   Yes.  But what he is saying is, whether the trial judge had regard to them does not matter because I have – I have.

GORDON J:   It was put against you that this was sort of tending towards guilt – a pathway to guilt kind of analysis.

MR HINTON:   If you read that paragraph in isolation on its own, we would have an uphill battle.  But if you read it with all the other paragraphs that I have taken your Honours to, in my submission, Justice Livesey is well aware that he has to arrive at a conclusion that is more than just, “There is a pathway to guilt, but I am satisfied of guilt”, and indeed he says so expressly in the bookends to which I have taken your Honour. 

GORDON J:   I apologise.

MR HINTON:   Can I just go back to subparagraph 6. 

GORDON J:   No, go for it.

MR HINTON:   My apologies if I am moving slowly, but it is a difficult judgment, with respect, but it is not littered with indications that there has been conducted an independent assessment that is compliant with M.  What I wanted to draw to your Honours’ attention in 491, subparagraph 6, was the last five words:

the circumstantial case becomes compelling –

At 492 there are other inferences; 493, the paragraph that your Honour Justice Gordon and I were discussing:

Whether the trial Judge had explicit regard to all of these inferences –

is not to the point.  It is not to the point because I have.

GORDON J:   It is the last sentence.

MR HINTON:   Is difficult, yes.  I have admitted as much.  You cannot sugar‑coat that.  But it has to be read in the light of what follows and what has come before.  Again, 494, we return to the defence case.  Competing inferences – 494 – do not establish a doubt, as a matter of the mere fact that they exist.  In 495 and 496 we see a return to the point made at 422, which is – not 422, that is wrong – sorry, I withdraw that.  In 495 and 496 we have language that my learned friend latched onto, and again the demarcation of function in 495:

We do not try the case, even when reviewing the evidence –

Again, that is correct when one has regard to that analysis of the difference between the role of the trier of fact and the role of the appellate court.

GORDON J:   Sorry to pick out sentences, what do we do about the second sentence of 495?  It starts at the bottom of page 296.

MR HINTON:   Take it at face value.  There is no necessity to dwell on it.  The question is, as part of your independent assessment, are you satisfied with proof of guilt beyond reasonable doubt?  They are arguments about inferences.  It does not mean that you ignore – and he has not gone so far as to say to ignore the defence case.  He has dealt with the inferences in the preceding paragraphs, and the inferences that he is prepared to draw, arriving at a conclusion that the circumstantial case becomes compelling.

GORDON J:   Is that not to be read with paragraph 496, which is the complaint against you?

MR HINTON:   With respect, no, that again would come back to the primary function of the trier of fact.  The significance of 496, of course, lies in the last line - in the last sentence and in particular the last line.

GORDON J:   

it has been erroneously addressed by the trial judge ‑ ‑ ‑

MR HINTON:  

or its role as part of the whole necessarily raises scope for reasonable doubt.

GORDON J:   Do you accept the first part is wrong:

erroneously addressed by the trial judge ‑ ‑ ‑

MR HINTON:   You would not have to arrive at that conclusion as part of applying the first limb.

GORDON J:   Thank you.

MR HINTON:   What is critical is the second bit, which you do have to deal with.  We then have the illustrations, the language of evaluation used in 498 and 499.  I then come to the subheading, “Reviewing the video and audio evidence”, to be found at 298 of the core appeal book.  His Honour indicates that he has reviewed the recordings – the video and audio recordings.  Again, 502, the last line, we have the demarcation of function.  Paragraph 504 is important ‑ ‑ ‑

GAGELER J:   But is it the question?  Is the question at the end of 502 the question for the appellate court?

MR HINTON:   The last sentence?

GAGELER J:   Yes.

MR HINTON:   No.  It is not the view taken by the trial judge.  It is whether or not guilt has been proven beyond reasonable doubt.  That is imperfect, yes.

GAGELER J:   As we go through all of these paragraphs, we can find a sentence that read one way seems all right.  We can find sentences that do not seem to be defensible.  We find a mixture, but the overall thrust is that his Honour is instructing himself to look for error in the reasoning of Justice Lovell, to a conclusion.  Is that not what he is doing?

MR HINTON:   I would characterise it differently.  The overall thrust is that his Honour is looking for error in the sense that guilt was not proven beyond reasonable doubt.  I do so because of the frequent correct references to the test in M v The Queen, to the references to – I have conducted an independent assessment to the evidence and the inferences that I am prepared – well, the evidence I have taken into account – the inferences I am prepared to draw, my assessment of the competing inferences and, indeed, the bookends and the principles discussed. 

Yes, there are passages which are difficult.  However, in my submission, at the end of the day your Honours can be confident that ultimately what his Honour Justice Livesey did do was compliant with the principles authoritatively stated in M.  The last paragraph I wanted to take your Honours to, of course, was 504.  Again:

And, with respect, I agree with his treatment and findings.

If the Court pleases, for those reasons, in my submission, your Honours can be confident that the requisite independent assessment was conducted and the appeal should be dismissed.  If the Court pleases.

GAGELER J:   Thank you, Mr Hinton.  Mr Game.

MR GAME:   Just a couple of points.  The constant emphasis on the jury being entrusted with primary responsibility just throws up a cloud of real uncertainty because what is being put by Mr Hinton is that this is part of the first question as to whether or not the court has a doubt.  But how could that possibly be the case?  But not only that, what it is being used for, in this case, is something concrete, which is do not get engaged in drawing inferences, and that hurts – and that really undermines the whole exercise. 

Yes, your Honour Justice Gageler, if you go back to paragraph 422, what his Honour is doing is going through what the judge said bit by bit and trying to see whether or not this error in particular seems this way or that way.  When one lands at a point – say, my independent review – what does agreement mean when you have precluded consideration of inferences?  Paragraphs 477 to 487are not dealing with defence inferences.

Moreover, he eschews dealing with defence inferences and if they were dealing with defence inferences they would not be dealing with them in any adequate sort of a way.  You will not find that in 477 to 481.  Nor is, in 491, his Honour pulling together inferences.  It is not.  Four or five of the things are just statements of fact.

I think we started by accepting that there are bits and pieces of this judgment where his Honour said, “I did not engage in independent assessment,” but looking at the thing overall, one can see what the thrust of the thing is, is that, “I am staying out of the drawing of inferences.  That is for the trial judge.  Discrete findings of fact.  I am looking at what those findings affect and asking myself whether or not they were open to the judge.”  It does not lead to the same outcome. 

So we say – and most importantly you will not find in this judgment anywhere the consideration of the hypothesis consistent with innocence put and addressed.  As I said, we saw the way in which Justice Nicholson dealt with it.  It does not have to be precisely the same, but it has to be dealt with and it was not.  If the Court pleases.

GAGELER J:   Thank you, Mr Game.  The Court will reserve its decision in this matter and will adjourn until 9.30 am tomorrow for the pronouncement of orders, and otherwise until 10.00 am.

AT 12.11 PM THE MATTER WAS ADJOURNED