DL v The Queen

[2018] HCATrans 22

[2018] HCATrans 022

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A38 of 2017

B e t w e e n -

DL

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 FEBRUARY 2018, AT 10.00 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the appellant.  (instructed by Town & Country Lawyers)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MR B. LODGE, for the respondent.  (instructed by the Director of Public Prosecutions, (SA))

KIEFEL CJ:   Yes, Mrs Shaw.

MS SHAW:   If the Court pleases.  We have provided to the Court an oral outline of our submissions.

KIEFEL CJ:   Yes, Mrs Shaw.

MS SHAW: If the Court pleases, the appellant was tried before a judge sitting alone with the offence of persistent sexual exploitation of the complainant, MGF, over a period which spanned about 10 years. The particulars and the complainant’s evidence at trial involved allegations of different acts of sexual exploitation. The respondent accepts that the reasons for verdict had to make apparent the acts of sexual exploitation, amounting to sexual offences found proved beyond reasonable doubt. That is the actus reus of the section 50 offence of the Criminal Law ConsolidationAct (SA).

Although the reasons for verdict do not in terms identify, by reference to allegations made by the complainant, two or more sexual offences found proved the respondent contends that read holistically and fairly the reasons should be understood as constituting a finding beyond reasonable doubt that each sexual offence alleged occurred – albeit with a rejection or non‑acceptance of particular details surrounding those allegations such as time or place. 

In our submission, the reasons cannot and should not be understood in that way because, as we will develop, firstly, the judge directed himself that he did not need to find all acts proved and stated a conclusion that he accepted the complainant reliable as to the core allegations.  Secondly, the trial judge never identified the elements of sexual offences nor explained how, in relation to particular offences, the relevant evidence was such as to permit a finding beyond reasonable doubt, notwithstanding the accepted inconsistencies and improbabilities in the complainant’s account and the appellant’s sworn denials.

Indeed, we submit that the trial judge’s reasons suggest that he did not make findings as to particular allegations, but made an overall generalised finding to the effect that the complainant was reliable as to an unidentified core of his account.  This was not a case where the judge could readily or at least without a fuller explanation, have acknowledged the apparent inaccuracies or implausibility of aspects of the complainant’s account relating to timing and circumstances but still have been satisfied beyond reasonable doubt that each and every allegation occurred.

The timing was too forensically significant for that approach in this case, that is to say if the judge did in fact find each and every allegation proved, without expressly saying so and without explaining how that could be reconciled with the acknowledged inaccuracies and implausibility, the reasons would be inadequate for that reason. 

The judge’s reasons, we submit, were required to show that the correct elements of the offence and issues had been identified.  The reasons had to show that the judge had properly directed himself with respect to the actus reus of the offence and made findings directed thereto.

In the appellant’s submission, while it would be enough to demonstrate a failure by the trial judge to make apparent his findings as to the actus reus, we go further and we submit that the failure to give reasons which identified the particular sexual offences were found proved, leaves open the very real prospect that the judge did not approach proof of the overarching offence in that way and, therefore, there was a miscarriage of justice and the verdict was unreasonable.  That is why we contend there are three limbs to our single ground of appeal, at appeal book 403 to 404.

In our submission, the Court of Appeal erred by failing to uphold the appellant’s appeal and it also erred by approaching the matter by reference to a general issue, rather than by reference to the necessity for a finding of two or more particular sexual offences proved. 

I will come momentarily to the judge’s reasons and the Court of Appeal’s treatment of the appeal grounds with which it dealt, but can I first, without labouring them, briefly describe the allegations and seek to illustrate why this was a case where the timing of the allegations and the sequence in which different types of offences were alleged to have occurred was important.

EDELMAN J: Ms Shaw, just before you do, the premise of your submission that the primary judge was required to make findings as to which of the acts, the underlying offences, were committed, is that consistent with section 9 of the Statutes Amendment (Attorney‑General’s Portfolio) (No 2) Act 2017?

MS SHAW:   Your Honour is referring to the amending – no, it is not.

EDELMAN J:   That Act is retrospective, is it not - or that provision is retrospective?

MS SHAW:   It is retrospective in relation to matters currently before the Court but we submit not retrospective to apply to matters in respect of which are before the High Court.

EDELMAN J:   So it would not apply to the facts of this case?

MS SHAW: In our submission, no, because this case has already had a determination on the previous section 50 and, therefore, its path through the justice system is necessarily governed by the previous provisions of the criminal ‑ ‑ ‑

EDELMAN J:   How would one then read down the reference to a sentence imposed on a person before the commencement of this section?

MS SHAW:   That relates, of course, to sentence.  This is an appeal against conviction.

EDELMAN J:   Does it relate only to sentence?  The reference in provision (1)(a) to “trier of fact” would include a judge as well as a jury, would it not?

MS SHAW:   It would.

EDELMAN J:   Is not then the premise of (1)(a) that the trial judge then is not required to direct himself or herself as to which acts of sexual exploitation or which particulars are found to have been proved beyond reasonable doubt?

MS SHAW: In our submission, that can only relate retrospectively to offences that may have occurred before the date of the operation of that section, but it cannot relate to trials that have already been completed, that is, this Court is seized of a trial that was under the old section 50 and it is determining whether or not that trial was, in effect, vitiated by error. This Court is not addressing the question of whether or not, ab initio, this offence is made out.

EDELMAN J:   I do not understand that because it applies to sentences that are imposed before the commencement of the section.  So that must apply to trials that had occurred before the commencement of the section. 

MS SHAW:   It applies to sentencing or sentences in relation to the approach of the sentencing judge.  In other words, if the trial was had before this amendment then the judge in sentencing would approach that trial that has been had at the time of sentencing in accordance with the amendment, but it does not impact on or change the base upon which the trial was had, in our respectful submission. 

In our respectful submission, that would potentially raise a constitutional point because it would mean that the accused has submitted himself to a trial by one trier of fact, namely, a judge or a jury, and yet this amendment purports to – if, with respect, your Honour’s interpretation was correct – subject to the accused to findings that were in fact never the subject of hearing before the Tribunal at first instance.  I am not sure if that assists in responding.

BELL J:   Yes.

MS SHAW:   Can I perhaps seek the Court’s indulgence and respond in this way.  This has not been a matter raised by the respondent and if it is to be an issue we would seek permission to file submissions in response to that point.  I apologise for not being able to adequately address the point raised by your Honour.

Your Honours, in terms of the factual matters that we wish to address to support our submission that indeed the timing and location was significant it is for the purpose of submitting to the Court that the inconsistencies and the objective challenges to that evidence were not consistent with an acceptance of all of the alleged acts having been proved. 

As I mentioned, the allegations particularised against the appellant spanned a significant period of time which translated to a period starting when the complainant was about five years of age and ending when he was about 15 years of age.  The last allegation made against the appellant was said to have occurred on 28 August 1994, a date which, by agreed fact, was the date on which the complainant in fact indecently assaulted the appellant’s daughter. 

On that day the complainant digitally penetrated the appellant’s daughter and faced criminal charges for this, but, as part of a Youth Court agreement he had to undertake three years of counselling.  It was only in proofing just before trial that the complainant – that is in July 1993 – 2003, I am sorry – 2013 – that the complainant alleged for the first time that on the very same day that he had abused the appellant’s daughter the appellant had in fact abused him, that is to say, he did not mention this in the course of the Youth Court proceedings, nor was it disclosed in the three years of counselling that followed.  Indeed, no sexual abuse by the appellant was alleged in that period. 

Evidence was sought to be led of an initial complaint to the complainant’s partner many years later but as the trial judge acknowledged it was not specific as to who had allegedly abused the complainant or any of the details.  The complainant did not go to the police until 2011, after he became aware that the appellant’s daughter, whom he had abused, had received about $50,000 in victims of crime compensation. 

He did claim that he had made disclosures to a counsellor, a little prior to this, who had encouraged him to go and see the appellant to stand up for himself but the evidence was that the complainant visited the appellant twice in late 2010 or early 2011 and that on neither occasion was any suggestion of abuse raised.

KIEFEL CJ:   Mrs Shaw, how is this relevant to the ground of appeal which has regard to the sufficiency of the reasons?

MS SHAW:   It is relevant in illustrating that there were real contests as to the different types of acts that occurred and their frequency and their location and that his Honour did not grapple with those inconsistencies and the objective evidence that undermined them and, therefore, when the ultimate finding of his Honour was that, in effect, he was satisfied as to the core of the complainant’s evidence there are no reasons to explain, firstly, whether that core involved some or all of the different types of offences, and secondly, more importantly, whether or not the number of offences was impacted by the objective evidence that undermined the possibility that offences could have occurred over the timeframe he in fact alleged.

In our submission, the importance of the need to provide reasons and the inadequacy of reasons ground is that it was necessary for his Honour to resolve or make factual findings that addressed these critical challenges or inconsistencies so that he exposed the path of his reasoning to guilt but more importantly identified what indeed were the sexual offences he found proved.  In other words, because his Honour, as we argue, did not at any stage identify the actus reus, that is, identify what particularised offences or what particular acts of sexual exploitation he found proved, the reasons are inadequate.

The purpose of addressing, as we have done in our written outline and I am outlining now, is to demonstrate that where there are different types of acts of sexual exploitation alleged, the timeframes mean that there are potentially different numbers alleged, then it was necessary for his Honour to articulate reasons as to, firstly, which offences he found proved and the number of them or, as this Court has held in Chiro and Hamra, his Honour could have decided that he accepted them all, that is, every single offence, but if he did do that, if he did accept every single allegation, it was necessary for him to explain how he resolved the conflicts and the objective evidence that undermined the complainant’s account in relation to each of those, either classes of acts or numbers of acts.

BELL J: Would it not have been sufficient for his Honour to find that over a period of not less than three days, two acts answering the description of sexual exploitation of the complainant, MGF, had occurred? That would have sufficed in terms of proof of the elements of the offence provided by section 50 as it stood at the date of the trial.

MS SHAW:   Your Honour, certainly that would marry up with the elements of the section.

BELL J:   Yes.

MS SHAW:   However, the complaint is that his Honour was required to provide reasons, that is, identify them, and provide the reasons necessarily for identifying them so that the very principle as to why reasons are necessary can be fulfilled.

BELL J:   I understand that aspect, I think.  It is just that a few moments ago you seemed to be suggesting that it was necessary for his Honour to make findings about every act of sexual exploitation that MGF alleged, as distinct from making findings establishing the fact of the commission of two acts of sexual exploitation separated by the relevant period.

The reason I raise it with you is if you go to his Honour’s conclusion at appeal book 122, paragraph 74, his Honour makes a generalised finding that the appellant sexually assaulted the complainant “on numerous occasions over a period of some years”.  His Honour then says:

The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse. 

Just looking at the balance of the concluding sentence, mutual oral sexual intercourse with a person aged under 18 years would be an offence under Division 11 of the Act, would it not, under section 49?

MS SHAW:   Yes.

BELL J:   I think earlier in the judgment, without going into details, his Honour had described acts which would answer the description of sexual intercourse when that takes the form of oral intercourse, so that on one reading his Honour is clearly finding that there was more than one act of oral intercourse.  Is your complaint that there is no further delineation of the particular acts?

MS SHAW:   Yes, but not in the context of suggesting that he was required to delineate each and every act but rather in the context of submitting that he was required to identify at least two or more acts on the evidence that had been adduced in respect of which he resolved the challenges to that evidence and provided a path of reasoning that exposed how he arrived at a conclusion of proof beyond reasonable doubt of at least two acts of sexual intercourse.

In other words, his Honour could have found only some acts proved and if, for example, he had said “I found that the act of oral intercourse – oral fellatio – that was alleged to have occurred at Cherry Gardens occurred, I have considered the challenges to the complainant’s evidence on that – I am satisfied that they all occurred in the way he said”, then clearly one would have an understanding of what offences his Honour was dealing with and be able to scrutinise whether or not he had approached that finding correctly. 

BELL J:   Given that the prosecution is – or was at the date of the trial – relieved of the obligation to identify the acts of sexual exploitation by reference to the occasions on which they occurred or the places at which they occurred, on your submission it, nonetheless, was necessary to identify by reference to some factor.

MS SHAW:   Your Honour, if it was a single course of conduct with only one type of sexual offence at one place then this would not be such a stark issue.  But, here, the reasons give you no information as to whether or not, in fact, he discounted the complainant’s evidence in relation to shed 2 because of the evidence of the calendar and it being in clear conflict with objective evidence or whether in relation to shed 2, he decided he is wrong about what he says about shed 2, but I consider – I find that something happened, not necessarily as the complainant said – or I find only that something happened in relation to the computer – I can discount the wife’s evidence about where the computer was – I can discount the accused’s evidence about where it was and I accept the complainant’s evidence as to the room it was in and that is why I accept his evidence that that offence has occurred in relation to his allegation that he was molested whilst playing the computer.

But because there are different types of acts at different locations and different challenges to them, the reasons do not tell us whether he decided that he would accept the complainant’s evidence on the counts or he would decide that some happened or he would decide that there was an unlawful relationship but because I have not identified that I need to be satisfied of two or more sexual offences ‑ ‑ ‑

BELL J:   But on any view, his Honour’s finding at paragraph 74 does go beyond a finding of an improper sexually charged relationship.  It is a finding that there was more than one occasion of mutual oral sexual intercourse, which I think you would accept would amount to an act of sexual exploitation because it would be an offence contrary to section 49 in Division 11 of the Act.

MS SHAW:   Yes, we agree.

BELL J:   So, put to one side all the other allegations, there is a finding there of more than one act of sexual exploitation.

MS SHAW:   Yes.

BELL J:   So the complaint comes down to the suggestion that there was the failure to in any way identify the circumstances in which two acts of that kind separated by more than three days occurred.

MS SHAW:   It is perhaps more correctly that because his Honour has not identified that the issue for him was to find two or more acts then one does not know what reasoning path he took to arrive at that conclusion.

EDELMAN J:   This point was not thought to be a difficulty by counsel in the Full Court, was it?

MS SHAW:   Counsel at the Full Court was constrained by the fact, indeed, that the trial judge had, we submit, wrongly identified the issue for himself as to whether or not he believed or did not believe the complainant and the Full Court also adopted that approach.

EDELMAN J:   But there was no argument that was put, that you are putting now, that the reasons were inadequate because of the failure of the trial judge to descend, for example, in paragraph 74, to the particular details of each occasion.

MS SHAW:   That is true and the reason for that, as we have explained in our written submissions, is that the law in South Australia at that time was in a state of flux.

EDELMAN J:   Well, KBT had been decided by this Court in 1997 and it had been applied in South Australia in R v M, BJ in 2011.

MS SHAW:   Yes.

EDELMAN J:   I mean there was no flux about that.

MS SHAW:   Well, with respect, there was, because after R v M, BJ there was another decision of R v C, G which disputed R v M, BJ and it was a dispute by the subsequent decision of R v C, G that is in conflict with R v M, BJ that led to a court of five judges sitting in R v Little and R v Little, the judgment in that, was only handed down the day before the Court of Appeal argument and nobody, clearly, was alive to the fact that in the wake of these two conflicting Full Court decisions ‑ ‑ ‑

EDELMAN J:   I think Little was handed down five months afterwards.

MS SHAW:   After the hearing or before the ‑ ‑ ‑

EDELMAN J:   After the decision.

MS SHAW:   After.  I understood Little was handed down the day before the argument in the Court of Appeal.  That is what we have always understood to be the case and have obviously presented that at the lead to appeal stage and it has not been a subject of contest.  But, in any event, it is plain that counsel were – neither counsel, indeed – were alive to the fact that R v NHS – the judgment that this Court effectively overruled in Chiro – was under consideration in Little and the two conflicting decisions. 

So our complaint is that the trial that the appellant had had the result that the learned judge’s approach of treating the issue as whether or not generally – that is, at a general level – he believed the complainant and found the complainant truthful and reliable was the same approach that the Court of Appeal adopted when testing the argument that the verdict was unsafe or unreasonable and testing the argument that there was inadequacy of reasons.

Your Honours, in our submission, the example of the evidence relating to the allegations of oral sexual intercourse in the shed, as we have set out, highlights the competing aspects of the evidence that we submit needed to be resolved and are left unresolved by the judge’s reasons, that is, unresolved in that the concluding paragraph at paragraph 74 does not tell you whether or not the judge decided that the acts that he was going to convict the appellant of as part of the section 50 offence included the oral sexual intercourse alleged in the shed, but, more importantly, it included some of those acts or all of them.

If it did include, for example, all of them, his Honour had to resolve the conflict where the complainant said, for example, that he had first engaged in oral sex with the appellant past the age of nine, going on 12, and the first occasion occurred when the slot‑car track had been set up in the shed and he said that had been going on – I am referring to appeal book 41, transcript page 59:

past the age of nine, going on 12 –

The accused – this was said to be the first time oral sex occurred, that is, in the shed at the time that the slot car had been set up and, therefore, on the complainant’s evidence, all other allegations of oral sex must have been after that time but before the date which, by agreed fact, marked the window of opportunity for any other offending. 

It was important to note that under cross‑examination the complainant was wont to claim that he was not or had not been dogmatic about his age.  He claimed it happened numerous times and that the oral sex occurred over a large period of timeframe.

NETTLE J:   Mrs Shaw, would you accept that, if the trial judge had undertaken the sort of exercise that Mr Justice Blue did in the Court of Criminal Appeal, the reasons would have been adequate?

MS SHAW:   With respect, no, because Justice Blue misidentified the issue for him.  The reasons would have been adequate if his Honour had decided that the issue was not who do I believe, but how am I able to resolve this conflict to exclude a rational hypothesis or a reasonable possibility that this act did not occur?  His Honour Justice Blue’s approach was also, as he himself acknowledged at paragraph 130 of the judgment ‑ ‑ ‑

NETTLE J:   Liberato can only be pushed so far.  There comes a point at which belief in one witness as opposed to another, considered in the context of the circumstances, is what informs proof beyond reasonable doubt.  Justice Blue is surely at that point.

MS SHAW:   With respect, your Honour, the reason we refer to that approach as effectively the starting point is that his Honour did not approach the resolution of the conflicts on the basis of determining that certain offences were or were not proved or that the issue was not whether or not the complainant or the defendant was believed but, rather, whether or not certain of the allegations as to specific sexual offences were proved or, indeed, all of them were proved. 

His Honour merely – and I say merely because he set himself the task of identifying an issue as a single issue, namely, who out of the complaint and the defendant was to be believed – his Honour approached the resolution of each of the factual disputes that he set out upon the basis that the trial judge was entitled to prefer the complainant’s account over the defendant’s account and so again did not grapple with the need to ‑ ‑ ‑

NETTLE J:   I am sorry, what I was trying to get at was this.  If Justice Blue had been sitting as the trial judge rather than as a judge of the Court of Criminal Appeal, and had undertaken as trial judge the sort of analysis of the evidence which he did, would you accept that that would be sufficient to establish a verdict of guilt beyond reasonable doubt in a way that would be unapellable?

MS SHAW:   Certainly the mode of reasoning – that is, the setting out of the conflicts – we accept is a first step.  But where Justice Blue then diverts from what we submit as a trial judge he was required to do was not just to decide whether it was a credibility issue but to identify that “the issue for me is have these acts alleged by the complainant been proved, or some of them, beyond reasonable doubt?”  His Honour Justice Blue did not do that. 

I agree with your Honour.  If the trial judge had set out, like his Honour Justice Blue did, the various conflicts and then arrived at his resolution and then through that resolution, arrived at his proof of whether he accepted the shed incident or he did not, then I agree that that is the kind of path of reasoning that is required.

NETTLE J:   That, you say, is the minimum path of reasoning which was required of the trial judge in this case.

MS SHAW:   That is right.  So we do agree with your Honour Justice Nettle’s reference to the correct identification of the issues as his Honour Justice Blue proceeded through counsels’ submissions.  But it is the next step where not just Justice Blue but, more importantly, the trial judge did not adopt because he had wrongly identified the issue as simply a general one as to – or approached it on the basis the issue was, as he said – the trial judge said right at the outset at paragraph 4:

in reality, proof of the charge rests entirely upon the truthfulness and reliability of MGF.

This is at appeal book 345 – and I apologise, the numbering in the right‑hand corner is from the Court of Appeal appeal book – it is the small numbering at the top of the page that I will refer to.  But, at paragraph 6:

In a practical sense the issue is whether the prosecution has proved the charge beyond reasonable doubt which, in its turn, depends upon whether it has been proved that MGF is both a truthful and reliable witness.

So his Honour identified for himself the issue as whether or not he was – whether it was proved he was truthful.  His Honour also identified for himself, at paragraph 7 – and this is about point 37:

If such acts are proved, the charge would be made out.  The prosecution does not have to prove each type of sexual conduct alleged, just two or more acts –

So his Honour was not setting for himself the goal that he needed to find all of the sexual conduct alleged proved.  Indeed, his Honour at appeal book page 354 – firstly, for example, at paragraph 61, says:

It is clear to me that some of MGF’s evidence about when some events occurred is inaccurate.  I acknowledge that and have given careful consideration to it.

What his Honour is referring to is not clear.  It might well be he is referring back to what he regarded as an important topic – the building of the shed – discussed at 352, under paragraph 45, and the defence submission that the complainant’s account could not be right because the independent evidence was from the calendar, which was acknowledged by the wife as genuine, that the slot car was not built or in operation until June 1993.

EDELMAN J:   Why is he not referring to what he later sets out at paragraph 66 - in other words, when he rode the motorbike and when he was stoned, as being estimates of his age when the events occurred, being unreliable.

MS SHAW:   There are two matters we respond to your Honour in that respect.  Firstly, at paragraph 66 he gives those as examples.  At paragraph 61, on the other hand, he has just identified in relation to the building of the shed - at page 352 of the appeal book - that the timing of the building of the shed became an important topic during the course of the trial and he sets out the complainant’s evidence. 

He sets out the accused’s evidence that in fact it was not completed until June 1993, and then at paragraph 50 he sets out the defence case that MGF was wrong and confused about when and where the cannabis was grown and when the slot‑car track was completed, that is, so that the defendant was complaining that the complainant therefore could not be relied upon about the substantive allegations and the when that counsel has focused on and the way his Honour expressed it, in our respectful submission, is consistent with paragraph 61, potentially referring to that event.

That ambiguity, in our respectful submission, is an example of the need for a trial judge to identify the path of his reasoning to his ultimate factual findings because, as we submit is our position, an appellate court cannot examine that finding unless that pathway is set out and unless that conflict has been resolved. 

Here it is plain that one does not know from the reasons whether or not his Honour did accept the appellant’s evidence in relation to the building of the slot‑car track and found that the complainant in that respect was inaccurate and, if that was the finding, then of course that had a flow‑on effect, as we have pointed out, to undermining the complainant’s account that oral sex occurred in the context of riding the motor bike, of going to Cherry Gardens, of going to the South Terrace unit because that would mean that all of those events would have to have occurred in that timeframe from June 1993 to August 1994.  That was in contrast to the complainant’s evidence that oral sex occurred over a large period of timeframe.

KIEFEL CJ:   Mrs Shaw, the inconsistencies you identify are in relation to timing and location.  When the trial judge, at paragraph 65, says, accepting some of the problems in the complainant’s giving evidence – when he says he was describing real events, can he not be taken to say that the trial judge accepts that the substance of what occurred actually occurred, that he accepts what the complainant is describing as an event in his life and that one infers from that that the potential errors about timing or location from the trial judge’s point of view simply do not matter?

MS SHAW:   Your Honour, there are two points about that.  Obviously the real events can include sexual abuse in a general sense but, critically, it does not resolve the question of the conflict about the timing, that is, his Honour ‑ ‑ ‑

KIEFEL CJ:   In a perfect world that might be right, but is not the trial judge saying, “I accept that the complainant is describing a memory of an event which actually occurred”?  If that is the case, it really does not matter if the timing is wrong or there is a feature here.  His acceptance of that is sufficient, is it not?  Why is he required to deal with inconsistency if he is saying that the core event, the core allegation, occurred?

MS SHAW:   Your Honour, in our respectful submission, the section, uniquely, is one that does not allow for a general finding of that without specifically going the next step and saying that that offence constitutes – in fact, includes – sexual offences and, “I find that at least two or more occurred in the shed, even accepting the defendant’s objective evidence, therefore I find they occurred in 2014.”

KIEFEL CJ:   Given the nature of his Honour’s finding about real events, would not the inconsistencies have to be such that that finding was not open, that the inconsistencies were of such a nature that the actual event itself is under challenge, not just some – “peripheral” might be overstating it – aspect of it but the event itself as a memory conveyed by the complainant?

MS SHAW:   Your Honour, there are two points.  The first is that the finding that they are real events is not preceded by a resolution of the conflicts.  The reasons in relation to that finding ‑ ‑ ‑

KIEFEL CJ:   But the question is whether or not it is necessary to resolve the conflict in order to make that finding.

MS SHAW:   In our respectful submission it is necessary to outline the reasoning path that led you to that finding and then to link that finding to proof of two or more sexual offences and to either accept or reject the evidence of the accused and the independent evidence that this occurred or the offences that the complainant described were limited to the period after June 1993, that is, accepting some of his allegations but not all of them.  We do not know from that description by the trial judge whether “real events” means yes, I accept some of the allegations that he said ‑ ‑ ‑

KIEFEL CJ:   Or all.

MS SHAW:   Or all.  One does not know. 

KEANE J:   Why is he not saying he was describing real events?  Why is not the judge accepting that notwithstanding what he said in paragraph 64, that he is:

aware that, individually and cumulatively, inconsistencies and implausibility and other matters may reach the stage of denying proof beyond reasonable doubt.

He is accepting that these events were real; they happened.  You are not making an argument that the inconsistencies were such as to make that conclusion perverse.

MS SHAW:   Your Honour, in our respectful submission our argument is that clearly that description is subject to findings as to when and where.

BELL J:   But that is difficult to make good, given that the provision as it stood relieved the prosecution of the obligation to particularise time, location and the like.  One appreciates the force perhaps of a view, Ms Shaw, that the statutory offence makes an answer to such a charge a very difficult one, since considerations that normally bear on the determination of whether the Crown has excluded reasonable doubt, including the ability, if not to establish an alibi, to at least show that an account is inconsistent in terms of the location of the alleged offence or the time at which it occurred, but once the prosecution is relieved of that and all that it is necessary to establish is that two incidents of sexual exploitation were separated by three days, some of the matters that you raise – let us go to the construction of shed number 2 and accept that the calendar provided support for the view that the slot‑car track had not been constructed before about mid‑1993 - nonetheless, there was evidence from the complainant that on more than one occasion he had engaged in acts of mutual oral intercourse with the appellant and there is a finding at paragraph 74 of acceptance that more than one act of mutual oral intercourse occurred, unless there is an argument that there was no basis for concluding that the statutory period was established it seems to me that shortening the time period in which things might have occurred does not really assist you. 

It does come down to the matter that Justice Nettle raised in the context of an offence of this character, that in practical terms much does turn on the judge’s satisfaction beyond reasonable doubt of the reliability of the complainant’s account that he experienced more than one act of sexual exploitation at the hands of the accused over a period of more than three days.

MS SHAW:   Your Honour, we accept what your Honour says in terms of the conclusion that a trial judge can come to.  However, our issue is that there are no reasons that identify either the particular sexual offences that are included in the real events or at least two or more of them that allow the accused – or the appellant, here – to test whether or not the trial judge did adopt a correct path or reasoning to that conclusion. 

In other words, we do not know whether or not, for example, his Honour by not identifying the particular sexual offences that were said to be the acts of exploitation in conjunction with the real events included, as part of his finding of sexual offences, the showing of pornography which, in our respectful submission, did not make out an offence within the terms of the section at that time.

BELL J:   Accept that is so – paragraph 74 refers to:

indecent assaults and mutual oral sexual intercourse.

It does not depend on ‑ ‑ ‑

MS SHAW:   I agree with that, absolutely, your Honour.  But our point is how does one possibly achieve the ability to appeal against the findings of a trial judge in relation to him having given evidence on oath, having adduced independent evidence challenging the complainant’s evidence, when all the trial judge does is set out – not all of them, but a number of the conflicts - and I have used the shed as an example and then simply conclude he was describing real events.

In our respectful submission, that is precisely the reason why there is a need for reasons to show the path of reasoning.  That is why, in this case, because there were challenges which did change both the timeframe and the opportunity, if you like, for these offences, it was necessary for his Honour either to find some proved or explain away why those inconsistencies and those challenges did not deny the finding that he was describing real events.  It is that step between identifying and acknowledging the evidence and the conclusion that is missing.   

EDELMAN J:   What about if there had been an additional sentence that said “Despite the challenges referred to earlier in my reasons, I am satisfied that these real events occurred”?  Would that be sufficient?

MS SHAW:   There are two matters.  Firstly, it would need to identify which real events so the appellant could obviously ‑ ‑ ‑

EDELMAN J:   The real events in paragraph 74.

MS SHAW:   The real events are obviously in different places and different times.  But to come back to your Honour’s first point, it is not enough to simply state the conflicts and arrive at a conclusion.  As this Court has said in AK v Western Australia it is necessary to identify the link between the factual findings and the conclusion, that is the path of reasoning is the critical finding or reasoning that a judge must provide.

Unless a trial judge identifies the path of reasoning, an accused is denied his appeal ground, is denied the ability to appeal, is denied transparency as to the judgment itself as to why it was that the factors that he relied on, the evidence he adduced was rejected, why it did not impinge upon the judge’s approach to proof of the sexual offences charged.

We accept that it is not necessary that there be particulars as to time and place under the provision but it is necessary in terms of adequate reasons and in terms of proof of the elements of a section 50 offence that his Honour at least identify whether he has found some offences proved and identify what they are - I accept in 74 a conclusion as to sexual assaults but there is no link between that conclusion and any of the allegations made by the complainant.

There is no link between that conclusion and the challenges by the defendant as to matters that undermine the complainant’s evidence.  There is no identification as to whether or not he has decided that he is able to set to one side the inconsistencies and nevertheless accept the complainant and more importantly why and we say that ‑ ‑ ‑

KEANE J:   So is your claim really that the judge’s conclusions were unreasonable.

MS SHAW:   No, with respect, not unreasonable but - unreasonable only in the sense that he did not identify the actus reus in the terms that it was necessary to, as the issue for him, namely, proof of the actus reus, proof of the offences and then, having identified the conflicts, set out the path of reasoning from the evidence to proof of those offences, some of them or all of them. 

There is no information in the trial judge’s reasoning as to whether or not he chose to accept the Cherry Gardens one and why; whether he chose the shed but was able to discount the calendar.  There is no base upon which one can find the linking between the factual findings and the conclusion. 

Indeed, the fact his Honour actually does not make the necessary factual findings to arrive at a point where an appeal court can say well, his Honour has found some of these offences - it is the offences in the shed, it is the ones in 2014 and he has given reasons for why he found those, he said he only had to find two, he said that is all he needed and he has found only two, this Court can then, or an appeal court can then examine that and say yes, he has identified the correct issues.  Yes, he has identified the relating to the legal principles.  Yes, he has identified the path to reasoning to his conclusion.

KIEFEL CJ:   Do not those submissions you have just made proceed upon the premise that his Honour could not have accepted all of the acts as given in evidence by the complainant?

MS SHAW:   Your Honour, we do submit that his Honour’s reasons demonstrate that he could not have accepted all of them, particularly given the calendar evidence about the shed.

KIEFEL CJ:   That does not really address the question of inadequate reasons, does it?

MS SHAW:   It does, because we do not know whether he - the respondent submits that he found them all proved. 

KIEFEL CJ:   You are challenging the reasons, really.  You are not saying they are inadequate, you are saying that the trial judge could not have come to the conclusion that all of the acts were made out.

MS SHAW:   No.  With respect, we are submitting that the reasons are inadequate because his Honour has not made a finding of particular offences or groups of offences or some offences, having effectively disposed of the challenges.  When his Honour premises his judgment on the basis that the prosecution is not required to prove each type of sexual conduct alleged, one does not know whether he did or he did not and it is not to say that he needed to, but he needed to explain in his reasons – in fact, on the evidence – what his findings were in relation to the satisfaction of the actus reus.  He has solely identified the issue as effectively who he believes and acknowledges, even though at 65, he says:

He was describing real events -

He acknowledges, at paragraph 64, that his evidence has its problems in terms of its apparent inconsistencies and implausibility and he directs himself:

I do not have to accept everything he says to be satisfied of the charge.

When you read that with “He was describing real events” then one does not know what it is that he has not accepted.  When you read that, following up from 64 ‑ ‑ ‑

KIEFEL CJ:   Do you not read it as saying, “Any inconsistencies and implausibilities do not stand in the way of me reaching the conclusion that the events took place as he says they happened”?

MS SHAW:   When your Honour says “as he says they happened”, in our respectful submission that does not ‑ ‑ ‑

KIEFEL CJ:   That the events happened, as his Honour says at paragraph 65:

He was describing real events that happened to him ‑ ‑ ‑

MS SHAW:   I go back to my submission that there is no indication of what real events he is talking about.  Is it when he was five?  Has he disposed of the issue of the computer at that stage?  Or is it when he is 14?  Has he disposed of the issue of the shed at that stage?  In fact, if his Honour had said, “I believe everything, all the allegations that the complainant has made” then it would still be necessary for him to give reasons as to how he arrived at that point.

KIEFEL CJ:   I think we are perhaps both going over the same ground.

MS SHAW:   I apologise, your Honour.  Cab I just, in conclusion though, submit that following on from paragraph 65, his Honour then does not say that he does accept all of his allegations.  He says he accepts he is reliable as to the core allegations.

EDELMAN J:   Unless one reads “core allegations” as meaning allegations at the core of the trial, i.e., the allegations that amount to the statement of the offence and the particulars of the offence and the information.

MS SHAW:   We would submit that, in terms of speaking of his reliability as a witness, he is more likely to be referring to the core ‑ however much the core might be ‑ of allegations of sexual abuse, bearing in mind that he had directed himself that he did not have to accept everything that the defendant said and he did not have to accept proof of each type of offence.

So, by concluding that he is only accepting him as to the core, in our respectful submission, it further emphasises that the reasons do not show either what that core is, whether it is the one your Honour Justice Edelman has raised or whether it is merely events without actually ‑ ‑ ‑

EDELMAN J:   Well, one gets a fairly clear hint of what he means by core allegations by the remainder of the paragraph where he sets out those things that are not the core allegations, the aspects upon which he considers the complainant to be unreliable.

MS SHAW:   But, your Honour, when he says, for example:

Any exaggeration was not deliberate -

is he there referring back to the fact that on the complainant’s evidence this begins when he is about nine, riding the motor bike for oral sex, or is he referring to and taking into account the evidence that the first act of oral sex was when the slot car was built which, of course, would then shift what his Honour is finding to a completely different timeframe.

The difference of years involved is a matter in respect of which not just does it demonstrate that the reasons do not expose what in fact his finding is on that, the reasons do not expose what the subject matter is.  Is it the oral sex issue that when he said he was riding the motor bike ride as a bribe for oral sex or is it simply that he rode it around the streets when he was aged nine? 

So, in our respectful submission, it comes back to our point that the failure to proceed from an identification of the two or more acts to ascertain whether or not the actus reus in that form has been proved, no matter what it constituted, whether it constituted only some, whether it constituted all, has meant that the reasons are opaque as to whether his Honour in fact made a conclusion that, look, clearly he is wrong, as he said at 61, about when events occurred in the wake of the shed evidence perhaps but I believe there were some sexual offences occurred, irrespective of what the Crown has laid out as their case.

It is that absence of reasoning that not only leaves the reasons ambiguous as to these various matters in terms of and the need for justice to be seen to be done but more importantly provides no ability of the appellant to examine these conclusions and whether indeed he has erroneously adopted an approach to dispose of the inconsistencies or erroneously simply left himself to find all he needed to do was believe the complainant, rather than all he needed to do was to find two or more acts of sexual offences proved.

Your Honours, in our respectful submission, coming then to where we have left off, in terms of the bringing together of those paragraphs of 61, 64 and 66, we submit that the observations of his Honour at paragraph 66 relating to the complainant being reliable as to the core allegations, we submit that that has not caused his Honour to doubt his truthfulness, reliability, in a general way that abuse, in fact, occurred. 

His Honour does not – the reasons do not illuminate whether or not that is simply, again, pitched at his Honour’s approach – the issue is, do I believe and find the complainant reliable or whether or not it has an impact on the reliability of the complainant’s evidence in relation to the specific allegations about which there was a contest at trial.

Therefore, we submit, that the first limb of the argument – picking up the respondent’s contention – is that the reasons cannot be fairly read as disclosing a finding that each allegation of sexual exploitation occurred and, in our submission, if there was to be such a finding, our submission is that proper reasons have not been given because the doubts as to the matters that have just been discussed that go to when events happened and, therefore, the number and the complainant’s overall reliability have not been the subject of reasons.

Therefore, we submit that what is left open is whether or not, having not identified the actus reus as the issue, his Honour is more likely to have reached a generalised conclusion not on an allegation‑by‑allegation basis or types of acts or groups of acts but on a general basis that sexual abuse occurred.  In effect, the finding regarding the core allegations, we submit, was a finding that there is a core or a kernel that is true but we submit that that is not a permissible way to reason to guilt.

Insofar as the Court of Appeal’s – the approach in the Court of Appeal is concerned, we make the overarching submission, as we have set out, that although a differently constituted Court of Criminal Appeal had decided the day before argument in this matter that the section 50 offence was not a relationship offence and in a jury trial it required unanimity, the appeal was not conducted or disposed of consistently with that approach.

That is to say, we submit, that the analysis of the inadequacy of the reasons was not undertaken with a view to considering whether the reasons set out the relevant principles, findings and reasoning so as to sustain a verdict of guilty by reference to identified sexual offences or even classes of them, but rather by reference to whether the reasons explained why, overall, the judge accepted the complainant in relation to core allegations and rejected the appellant to that extent.

We submit that in relation to the unreasonable verdict ground, the issue was not approached by considering whether the evidence was capable of sustaining a verdict beyond reasonable doubt, founded upon two or more particular acts, but whether it was open to conclude beyond reasonable doubt that the complainant’s core allegations should be accepted.  So we submit that in that way the failure by the trial judge to, in fact, identify two or more acts of sexual exploitation prevented any meaningful resolution of the unreasonable verdict ground. 

Your Honours, so we submit that if our analysis of the reasons of the trial judge and the Court of Appeal is accepted, in our submission, the result in this case follows from the application of the principles which are at least, after the decision of this Court in Hamra and Chiro, now clear enough. 

The steps in our argument are those we set out at paragraph 38 of our written submissions and, in essence, that proof of the section 50 offence required proof of particular acts of sexual exploitation. Hamra’s Case shows that there may still be a case to answer where the victim’s evidence does not differentiate between such acts because the judge or jury could unqualifiedly accept that all such acts occurred, but Chiro’s Case confirms that at its essence section 50 does not involve a relationship offence but a complete composite offence, the actus reus of which comprises individualised offences.

We submit that the requirement to give reasons for a verdict ordinarily requires – and in this case required – the actus reus to be identified.  That is a basic corollary of the requirement to state findings of fact and to show that the judge properly directed himself or herself as to the matters required to be proved. 

In our submissions, the authorities show that where the reasons do not show that the correct principles were applied or that the relevant and critical factual findings were made, it is not appropriate to assume against the defendant that that was done.  We rely in that respect upon Fleming v The Queen (1998) 197 CLR 250 at paragraph 30, and AK v Western Australia at paragraph 111.  

We submit it is settled law – and an example is provided by this Court’s decision in the South Australian case of Douglass v The Queen (2012) 86 ALJR 1086 - that a failure to give reasons sufficient to exclude the possibility of legal error, including the error of simply reasoning to guilt by a preference for the complainant over the accused constitutes legal error. Here, we submit that the reasons do not exclude the possibility of legal error in the way we have outlined.

It follows that, in our submission, the Court of Criminal Appeal erred by failing to allow the appeal on one or more of three bases, namely, that because the judgment did not in fact reveal the actus reus found proved by the reasoning by which the reasonable possibility of innocence in relation to those specific acts had been excluded, the reasons were affected by error of law, but the verdict is unsafe or there is a miscarriage of justice on the basis the judge did not identify and resolve the real issue but instead resolved the case at a higher and impermissible level of generality. 

Indeed, were it to be concluded that the trial judge resolved each and every allegation against the appellant without much more detailed reasons addressing the particular forensic issues that impinged upon particular allegations there would inevitably be a failure to give proper reasons.  We submit that this is supported by intermediate authorities such as Hunter v Transport Accident Commission and Goodrich Aerospace Pty Ltd, which we have referred to in our reply, that suggest it is not enough to set out rival accounts and indicate a preference for one over the other.  Indeed, that is what this Court held in Douglass v The Queen.

BELL J:   Douglass was somewhat different, was it not?  The judge hearing the trial alone in that case accepted the evidence of the complainant ‑ then, I think, aged a little over five years ‑ in relation to an incident said to have occurred to her when she was under four years, referred to the evidence of the accused, made no finding rejecting that evidence, noted that it did not assist the prosecution case, and then expressed the conclusion that he was satisfied to the requisite standard, with no further analysis. 

That is a very different case to this case where the trial judge explained why he accepted MGF notwithstanding inconsistencies as to the time of events and, perhaps, some exaggeration in relation to riding on the bike, having smoked marijuana and, having explained why it was he nonetheless accepted MGF with respect to the core allegations, made explicit findings rejecting the appellant’s evidence, noting areas where it was glib and evasive.  It is not the same issue as was raised in Douglass.

MS SHAW:   It is not the issue in the sense that, as your Honour correctly states, in Douglass, the trial judge had not specifically rejected the accused.  However, the Court made it plain that it is wrong to identify the issue as whether or not one believes, or finds reliable, the complainant or the accused.  I am referring to paragraph 12 because the Court in Douglass adopted, or brought to bear the judgment of this Court in Murray v The Queen ‑ ‑ ‑

BELL J:   Yes.

MS SHAW:   ‑ ‑ ‑ that it is not a choice between one witness or the other but what the Court acknowledged was, importantly, in the context of reasons, it was necessary that the judge outline the reasons that effectively allowed not just the findings of fact which here we submit are not complete, but the principles that he applies in order to move from the findings of fact to proof of the actus reus.  It is that step that does not occur.  If it was, as I have said, a single actus reus in the sense of how one ordinarily has an offence, the difficulties that we complain about would not be so stark.

But where your actus reus is actually a composite offence and you must find at a legal level proof of individual sexual offences, then we submit in that situation when the offences are different, the places are different, the timeframes are different and there are challenges to each of those aspects, you cannot resolve without reasons addressing all of those differences, the ultimate question by simply accepting the complainant and rejecting the defendant. 

We submit that the standard that is required in terms of reasons is such that, as expressed in paragraph 14 in Douglass, it is necessary that the reasons are sufficient effectively to exclude the possibility of error.  Here, we say that is a legal error in relation to the failure to approach the question of guilt by proof of the actus reus and identifying what the actus reus is and then determining the conflicts in the wake of the focus of the actus reus. 

In our respectful submission, our complaint is that it is the failure, as we set out in our ground, it is the failure to identify that two of the elements for the judge that had to be proved beyond reasonable doubt were two or more sexual offences and then to make the findings in relation to credibility and reliability directed to those two or more offences.

In our respectful submission, this decision does, in essence, fall foul of the Murray v The Queen approach because it does adopt a preference for one version of events over the other.  True it is that the judge acknowledged he, even if he rejected the defendant he still was required to consider proof of the Crown case, but the pathway through his reasons are solely directed towards whether he finds the complainant truthful and reliable and are never directed towards the actus reus.  It is because they are not directed towards the actus reus that there are no adequate reasons explaining the challenges and discounting the challenges that relate to the actus reus.

KIEFEL CJ:   I think we have understood the points you have been making.

MS SHAW: Thank you. Your Honours, if the Court pleases, in relation to the point raised by Justice Edelman, referring to section 9, could we have perhaps seven days to put in a response note to that point?

KIEFEL CJ:   Yes, that would be in order.

MS SHAW:   Thank you, your Honour.

KIEFEL CJ:   Yes, Mr Solicitor.

MR BLEBY: May it please the Court, just on the matter raised by your Honour Justice Edelman, section 9(1) of the amending Act is a section that validates sentences. It does not, certainly on my submission, purport to otherwise regularise verdicts. I do not think we even get there because the complaint is of adequacy of reasons, which is an error of law in itself.

Now, if the issue was when the trial judge sentenced in this matter and it was not necessarily apparent that there was a marrying up of the sentencing, the fact that he recites on sentencing other findings because of an inadequacy of reasons, then section 9(1) I think would probably correct the apparent error on sentencing. It is probably a situation that would never actually arise. But I certainly do not take the point that section 9(1) regularises the complaint that is otherwise made ‑ ‑ ‑

BELL J: The indictment charged an offence under section 50 of the Criminal Law Consolidation Act as it stood at the date ‑ ‑ ‑

MR BLEBY:   It did, your Honour.

BELL J:   ‑ ‑ ‑ and the challenge that is made is to the adequacy of the reasons for returning a verdict of guilty in relation to that offence, which was repealed with effect on 24 October 2017.

MR BLEBY: Indeed, yes, your Honour, and section 9(1) of the Statutes Amendment (Attorney‑General’s Portfolio)(No  2) Act 2017 is patently designed to regularise sentences that might otherwise have fallen foul of this Court’s judgment in Chiro on an historical basis.

BELL J:   Yes.

MR BLEBY:   There are a couple of other preliminary matters I wish to address.  Your Honours will have seen in the written submissions a certain level of exchange of fire over the scope of this appeal.  We have raised the issue that the notice of appeal appears to challenge a want of identification of the actus reus, that is the acts of sexual exploitation and nothing more.  My friend has conducted the appeal and your Honours have engaged with my friend on the basis that that gives rise to a complaint that the trial judge has not disposed of the challenges that were made as to implausibilities and inconsistencies.

Then we have paragraph 73, that the criticisms of MGF’s evidence did not cause him to have reasonable doubt.  He rejects the accused’s denials and then at 74, on the basis of all of the evidence, he makes the findings of guilt in a manner that has already been discussed.  So nothing, in my respectful submission, is left unclear.

NETTLE J:    Does that “on numerous occasions” equate to each of the occasions alleged or some of them?

MR BLEBY:   Yes, your Honour, because of course “numerous occasions” was precisely MGF’s evidence in respect of the occasions of oral sex in shed 2.  That was a level which of course it was permissible to adduce evidence, given the nature of the charge. That is the finding.  There is no more ‑ ‑ ‑

BELL J:   Can I just come back to one matter that I really raised with you earlier.  You took us to the analysis at paragraphs 46 to 48, noting that MGF’s account that the oral intercourse had begun in shed 2 and that he had placed that at some time between when he was aged nine and 12 and then his Honour refers to the appellant’s evidence about the date when the slot‑car track was completed.  There is not a finding as I read his Honour’s reasons one way or the other on that conflict.  Is it your position that the “numerous occasions” which his Honour finds is consistent with acceptance of the reasonable possibility that oral sex did not begin until June 1993.

MR BLEBY:   Yes.

BELL J:   Yes.

MR BLEBY:   With respect, there is quite a nice articulation of that by Justice Blue in the Court of Criminal Appeal’s reasons at paragraphs 74, 75, page 386 of the appeal book and that is exactly where I was about to go your Honour.

BELL J:   I see - I am sorry. 

MR BLEBY:   So when we come to this complaint that the reasons failed to identify the true issue or the process of reasoning by reason of what was said to be this failure to identify the actus reus, really the paragraphs I have just taken you through in the reasons provide the answer to that.  My friend has made the submission this morning, again, that it appears that this was reduced to a contest between complainant and appellant and thereby – I am not entirely sure where that sits in the complaint and I inferred, possibly wrongly, that all we can glean – the submission is that all we can glean from the reasons is that there must be a reduction to a contest of that sort.  Paragraph 58 alone demonstrates that is not the case, but so too do the reasons.

If I can just then perhaps briefly take your Honours through those matters – those forensic issues – that were said to be requiring of some further elaboration or resolution.  The overall submission, of course, is that those issues – the timing of the construction of the shed, the location of the computer in the house and the timing of the visit to the unit in South Terrace – these are matters that are only relevant to questions of timing and location. 

They are quite capable of raising a reasonable doubt in the mind of a trial judge and the trial judge acknowledged that.  But the timing issues were also capable of being resolved by concluding on all of the evidence that those issues did not affect satisfaction beyond reasonable doubt.  My submission, of course, from the matters I have taken the Court through, is that that is obviously how the trial judge resolved the question.

I have already taken your Honours, really, to the resolution of these matters in the Court of Criminal Appeal because, of course, these challenges were raised in the Court of Criminal Appeal and this is rather why I kind of take the point still on the scope of the appeal which is what was put up on special leave or the complaint about the actus reus, I say not something that had been resolved from not appealed against.  Nonetheless, Justice Blue deals with the timing of the construction of the shed at paragraphs 72 to 75, page 386 of the appeal book.  I respectfully adopt what his Honour says where he points out at 74:

The complainant gave evidence that he did not have an accurate recollection of his age when the various events described by him in his evidence occurred . . . In particular, he consistently identified the commencement of oral sex as being after the construction of shed 2 rather than by reference to his age.

He certainly gave accounts of his age but, if you like, the grounding evidence was it happened in shed 2.  That is at page 60 of the transcript.  At paragraph 75 his Honour says if we take a fair view of the evidence, there is no demonstrated inconsistency.  On the complainant’s evidence, it began after the construction of shed 2.  The complainant said, “I was 12”.  Now, the complainant may have been wrong about that.  The trial judge, from 61 onwards, notes the difficulties in timing and estimates of age.  There is nothing further to resolve, in my respectful submission.

Then, the only other occasion where Justice Blue deals with that is at paragraph 138 of the reasons.  The appellant, at least in writing, argues that this suggests that maybe the trial judge accepted the complainant over the appellant in terms of timing.  But it is my submission that when we read paragraph 138 in light of paragraphs 74 and 75 in particular, it is quite clear that Justice Blue can only be saying the trial judge accepted the complainant’s evidence as to the core allegations, as I have described them, and that this acceptance extended to rejecting the asserted impact of the conflict on timing rather than potentially the conflict on timing itself.  MGF’s evidence was the oral sex started in shed 2.  He thought he was 12.  If he was older, that did not undermine his reliability or truthfulness.

NETTLE J:   What you see in Justice Blue’s judgment in 74 and 78 is, with respect, admirable.

MR BLEBY:   Yes.

NETTLE J:   What you do not see is something similar in the trial judge’s reasons.

MR BLEBY:   That is true, your Honour.  All I can say to that is what I have already said.  What Justice Blue is doing is, if you like, giving the necessary characterisation.

NETTLE J:   I think what is put against you – I may be wrong – is that yes, it is possible that the trial judge reasoned in the way that Mr Justice Blue has conjectured that he did but because of the way in which the judge did not condescend to particularity of any kind one cannot say one way or other whether he did reason by the process that Justice Blue conjectures.

MR BLEBY:   I think that is what is put against me, your Honour.  My submission, in particular in respect - if we sort of start with paragraph 66 in the reference to core allegations being fanned back out that is the only characterisation of the reasons that is fairly open.

BELL J:   It is more than the reference to core allegations because you must marry that paragraph to the specific finding in 74 of sexual assaults taking the form of indecent assaults and mutual oral sexual intercourse, which grammatically I would take to mean more than one instance of each.

MR BLEBY:   Yes, your Honour, and so that is why I use the term “fan out”.

BELL J:   Yes.

MR BLEBY:   On the other matters that are raised in terms of a failure to properly reason out the resolution of conflicts, in a similar analysis can I just refer your Honours, in respect of the timing of the visit to the Adelaide unit, Justice Blue addressed this at paragraphs 82 to 84 and then 140.  Then in respect of the location of the computer, as to whether it was in the master bedroom or in D’s room, that is addressed by Justice Blue at 79 to 81 and also at paragraph 139.  There is nothing I wish to add to that characterisation of the necessary position.  May it please the Court.

KIEFEL CJ:   Thank you, Mr Solicitor.  Is there anything in reply, Mrs Shaw?

MS SHAW:   Just three matters, if I might, your Honours.  Firstly, in relation to the submission referring to Justice Blue at page 386 of the appeal book, and his analysis of the timing of the shed and oral intercourse, I point out that your Honours will see that his Honour relates the lack of inconsistency to the date of the building of the shed, but that is not the relevant date.

The date of the building of the shed, according to the trial judge’s reasons at paragraph 16, page 347 appeal book, was 1991 according to the complainant and early 1991 according to the accused.  The date on which the complainant said - or how the complainant dated oral sex was by reason of him playing on the slot car at the time.  That therefore meant that oral sex could not have occurred until after the slot car was inserted, and that is where the calendar located that date as June 1993.

Justice Blue has not grappled with the inconsistency that actually was at the heart of the complaint that the date related to the slot car in June 1993.  Therefore, in terms of the numerous occasions of oral sex not beginning until June 1993, that then meant that his Honour was required to grapple with the fact that the evidence about the frequency of visits by the complainant to the home between the age of five, as he said, and 15, was in very general terms by the complainant.  That is referred to in the transcript of the complainant at page 40, line 26 of the transcript.  Your Honours, in essence he has expressed in general terms:

Where did you spend your school holidays growing up.

. . .

Q.       How often would you go to their house growing up.

A.       A lot of my school holidays and weekends -

at appeal book pages 22 to 23.  He stayed up to a week or two weeks and on weekends.  There was no evidence that provided any indication of the frequency per year, for example, that the complainant stayed, but the accused’s evidence was that in fact he only visited two or three times a year at most – transcript 253, appeal book 218. 

So, the reason that it was not just about numerous occasions and the fact that the slot car was not built until 1993, his Honour had to come to terms with the evidence about the frequency or the possibility that it could have been numerous occasions in that one window, in the wake of the accused’s evidence that he only visited one or two times a year and in the face of the complainant’s evidence that all of the allegations of oral sex occurred after the slot car because that was the first - that is the Cherry Gardens, the South Terrace unit as well as of the motorbike bribery allegations.

So, it is in that way that in fact there is no reasoning grappling in the end with the calendar and the timing of the building of the slot car by either the trial judge or in fact Justice Blue in that analysis, although his Honour does recognise there is a dispute that has to be resolved but omits that critical point about the building of the slot car.

Your Honours, the second point which is to correct and give a citation - your Honour is correct that Little was, in fact – we are a year out – it was a year later.  But R v C, G, which was the conflict between R v C, G

and R v M, BJ, that precipitated the five‑member sitting, is reported in [2013] SASC FC 83; 117 SASR 162. That was indeed before the trial. So there was this conflicting state of authorities that led to the Court eventually sitting five judges.

The final point which is perhaps not a strong point but bears out the importance in a composite offence of identifying the particular offences - and that is the submission that merely showing child pornography could make out an offence under section 58 - that is not what M, BJ holds.  In fact, in that case there was an encouragement for the child to masturbate and this section is about an act of gross indecency by the offender or procuring someone else to commit an act of gross indecency.

We point out that in fact the Crown opened on the basis that there would be evidence of an inciting of a sexual act by showing pornography but the evidence did not arrive at that point.  His Honour in his reasons made clear that the extent of the evidence was showing pornography but did not give any indication as to whether or not, not having addressed sexual offences at any stage as to what was satisfied, whether indeed, by way of example only, he had incorporated that as one of the sexual offences.

Although we acknowledge he used the term “mainly”, that is an example of why the appellant is denied his ability to exercise his appeal rights because the reasoning and the pathways have not been exposed and the judge has not addressed the actus reus of the offence as a starting point.  If the Court pleases.

KIEFEL CJ:  Ms Shaw, given that the respondent has not placed any reliance upon section 9 a note will not be necessary.

MS SHAW:   I am grateful.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow in Canberra and in Brisbane.

AT 12.13 PM THE MATTER WAS ADJOURNED