Douglass v The Queen [2012] HCATrans 184

[2012] HCATrans 184

[2012] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A17 of 2012

B e t w e e n -

RAYMOND HOWARD LYLE DOUGLASS

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 AUGUST 2012, AT 10.00 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the appellant.  (instructed by Patsouris & Associates)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friends, MS A.F. CAIRNEY and MS J. LITSTER, for the respondent.  (instructed by Director of Public Prosecutions (SA))

FRENCH CJ:   Yes, Ms Shaw.

MS SHAW:   May it please the Court, we have provided to the Court written submissions of our principal arguments and a written reply.  In addition, the Court should have been provided with a three‑page list of propositions that we contend for.  In addition, the Court should have a copy of the Evidence Act (SA), to which both the respondent and the appellant will refer.

By way of overview, your Honours, this is an appeal from the judgment of the Full Court of the Supreme Court of South Australia dismissing the appeal by the appellant in relation to his conviction for aggravated indecent assault upon his granddaughter, who was aged three years 11 months at the time of the alleged offence. 

The two grounds of appeal are in the appeal book at page 542.  Our primary submission, which covers grounds 1.1 and 1.2 in relation to the failure to give reasons in essence – our submission is that in a case where the accused gives sworn evidence denying the charge, in order to convict it is necessary that his evidence be rejected beyond reasonable doubt.  It is our contention that in the present case the trial judge did not expressly reject the appellant’s evidence or, indeed, deal with it at all other than to say his demeanour did not assist the prosecution case.

There are two possibilities that are open as a result of that finding:  firstly, that the learned trial judge did not reject the appellant’s evidence beyond reasonable doubt or, secondly, that the learned trial judge did reject the appellant’s evidence but did so without giving any reasons.  If it is the second possibility, and the learned judge made it clear that the reason it was not demeanour, one is therefore left to wonder why was it rejected beyond reasonable doubt.

The Court of Criminal Appeal held that it was entitled to infer that the learned trial judge had rejected the appellant’s evidence beyond reasonable doubt and, indeed, also to infer what the learned trial judge’s reasoning process in doing so must have been.  However, in our submission, in the absence of a finding by the learned trial judge that he rejected the appellant’s sworn evidence the court ought to have drawn the inference that he had not done so.  Accordingly, the appellant’s submission is that the reasoning process that the Court of Criminal Appeal concluded was obviously undertaken by the trial learned judge was itself erroneous.

The Court of Criminal Appeal held that there was no need for the learned trial judge to give reasons for rejecting the appellant’s sworn evidence because on the central issue of whether the alleged offence was committed, this was a case of word against word.  For reasons which we will develop, we reject that characterisation as a proper base to determine proof of the offence, but even if it were so characterised, a case of word against word does not provide an occasion for choice or preference reasoning between opposing bodies of evidence.  We submit that to approach the matter in that way is to misapply the criminal standard of proof.

As an overview of our second ground of appeal, this submission which relates to the independent assessment required by the Court of Criminal Appeal where the unsafe ground is invoked, it is our submission that although the Court of Criminal Appeal identified the relevant authorities, it did not, in fact, carry out an independent assessment both as to the sufficiency and quality of the evidence in question.  Again its characterisation, in this context, of the case as involving word against word influenced and, we say, distorted its approach to this task.

FRENCH CJ:   Now, I am just looking at paragraph 64 on 534 in the judgment of the Court of Appeal, of the Full Court:

Having considered the evidence as a whole, and being satisfied of the truth and reliability of C’s evidence, the Judge necessarily rejected the denials –

Do you say that an appropriate line of reasoning would have been that the trial judge could accept C’s evidence and yet not be satisfied beyond reasonable doubt of the element to the offence because of the want of any basis for rejecting the accused’s evidence?

MS SHAW:   We do.  That is our submission.

FRENCH CJ:   In other words, you reject the proposition that the acceptance of C’s evidence is the end of the story in terms of proving the elements of the offence?

MS SHAW:   That is our fundamental submission.  In our respectful submission, a trial judge is entitled to accept, in particular, the truthfulness of a witness entitled to form the view that he cannot reject beyond reasonable doubt the accused’s evidence.  Those two findings would result in the failure to prove the charge beyond reasonable doubt.

FRENCH CJ:   It is not a matter of rejecting somebody’s evidence beyond reasonable doubt.  The reasonable doubt criterion applies to proof of the elements of the offence after you have looked at all of the evidence.

MS SHAW:   The proof of the conduct in question.  So the truthfulness of a particular witness is only the beginning of the questions that have to be posed.

KIEFEL J:   The trial judge made a number of references to the strength of the child’s account.  Would that be sufficient to have created an acceptance of her evidence which outweighed any acceptance of the accused’s evidence?

MS SHAW:   In our respectful submission, no, because the acceptance of the child’s evidence was on the basis of truthfulness.  Yet the child’s evidence in relation to the way in which it was obtained was of a different qualitative status to the accused’s sworn evidence.

KIEFEL J:   I am not just saying acceptance of her - he seemed to give it particular weight, though, because of the statement to the father as tending to corroborate the statement to the mother and his belief that a child would not speak in the way she did.

MS SHAW:   Under our section 34M, the statements to the father ‑ ‑ ‑

KIEFEL J:   Were not evidentiary, yes; I had overlooked that.

MS SHAW:   Yes, that is so.  They are merely in the category of what we call an initial complaint in South Australia, the weight of which ‑ ‑ ‑

KIEFEL J:   Yes, I follow that.  But if one could infer that the trial judge gave particular weight to the child’s evidence, would that be sufficient inferentially to have displaced the father’s evidence?

MS SHAW:   In our respectful submission, no because the trial judge must reject the accused’s evidence beyond reasonable doubt to discharge the burden.

KIEFEL J:   Is that the correct approach - rejection of the accused’s evidence, or is it rather that the trial judge must be satisfied of the elements of the offence beyond reasonable doubt?

MS SHAW:   In our respectful submission, the correct approach is that it is a precondition to discharge the burden of proof that the accused’s evidence is rejected beyond reasonable doubt.

KIEFEL J:   Is rejected.

MS SHAW:   Because if the accused’s evidence is only “a reasonable possibility” is often the phrase used to juries then it does not matter that they accept the complainant’s evidence.  It does not matter that they accept her evidence beyond reasonable doubt.  The issue is is the conduct proved beyond reasonable doubt?  So a particular witness might be accepted, but the jury might take the view at the end of the day, “We cannot reject the accused beyond reasonable doubt.”

HAYNE J:   At least intermediate courts have looked, have they not, at the error that is committed when a judge tells the jury, “You have to choose between (a) and (b)”?

MS SHAW:   Yes.

HAYNE J:   Has this Court looked at that issue?  I thought we had in Palmer, but I am wrong.

MS SHAW:   Murray v The Queen - your Honour Justice Hayne joined with his Honour Justice Gummow.  It is on our list of authorities, your Honour, No 18 on the list.  The relevant passage is in ‑ ‑ ‑

FRENCH CJ:   What is the reference please?

MS SHAW:  (2002) 211 CLR 193. The Court, that is your Honours Justice Hayne with Justice Gummow and her Honour Justice Gaudron, was critical of the trial judge’s direction to the jury that the question for them was whether or not they could accept in that case the accused’s version of what happened. In the joint judgment of your Honours, your Honours Justice Hayne and Justice Gummow, commencing at page 212 under “Burden of proof”, paragraph 56, your Honour and Justice Gummow referred to the direction about posing to the jury a question whether they, in that case, accepted the appellant’s version. At paragraph 57, your Honours went on to say:

Although at the start of her directions about murder her Honour told the jury that it was for the prosecution to prove that the appellant had intended to kill or do grievous bodily harm, the references she made, particularly in the passage of the directions set out earlier, to the jury accepting the accused’s evidence or version of events were apt to mislead the jury about the decision they had to make.  The choice for the jury was not to prefer one version of events over another.  The question was whether the prosecution had proved the relevant elements of the offence beyond reasonable doubt.  This required no comparison between alternatives other than being persuaded and not being persuaded beyond reasonable doubt of the guilt of the appellant.

Her Honour Justice Gaudron, at paragraph 23 on page 201, in substance, in our respectful submission, made similar remarks:

Although the trial judge, in the early part of her directions, correctly instructed the jury with respect to the onus of proof, in the passages set out above, her Honour posed the question for the jury’s determination with respect to murder as the question whether it accepted the prosecution’s or the appellant’s version of events.  That was the central or critical direction in her Honour’s summing up.  And as the issue for the jury was not whether it should accept the appellant’s version but whether the prosecution had negatived it as a reasonable possibility, that direction mis‑stated the issue for determination in a way that relieved the prosecution of proving its case beyond reasonable doubt -

and held that the appeal ought to be allowed.

BELL J:   Perhaps it might also be noted that in Liberato v The Queen (1985) 159 CLR 507, Justice Brennan made the same point at 515. His Honour’s judgment was dissenting as to the outcome but a Liberato direction is commonly given in terms where there is a conflict of evidence between a prosecution witness and the evidence of a defence witness.  It is essential that the trial judge direct that the answer to that question – if adverse to the defence – is not taken as concluding the issue.

MS SHAW:   Thank you, your Honour, and we adopt that passage.  Can I take your Honours to one further passage in Murray v The Queen and it is in the judgment of his Honour, Justice Callinan, where he sets out the judgment in the Queensland Appeal Court of his Honour, Appeal Justice McPherson, and adopts it as correct but in particular the passage at 232 is, in our respectful submission, the correct approach of, in essence, identifying what is the fact in issue.  What is the evidence relevant to that fact in issue and whether or not – it is at page 232 in paragraph 132 setting out the judgment - his Honour Appeal Justice McPherson.  The third possibility which your Honour Justice Bell has referred to from the judgment of Liberato is expressed in these terms:

That was, with respect, wrong in law because it failed to accommodate a third possibility, which was that, even if they were not prepared to accept his evidence wholly or in part, it and other evidence, including that of Sgt Graham, might nevertheless suffice to raise a reasonable doubt whether he had the necessary intent to kill or do grievous bodily hard.  If the appellant’s evidence, even if not accepted wholly or in part, raised a reasonable doubt whether his intention was only to frighten Celap, it might also have raised a doubt whether he in fact possessed the intention to kill or do grievous bodily harm.  Factually, the two questions were not mutually exclusive, and in relation to both of them the prosecution carried the onus, as to the first, of eliminating any reasonable doubt, and, as to the second, of proving beyond reasonable doubt that the appellant had the intention required under s 302(1)(a).

HAYNE J:   But the basic proposition is to present the question as either/or is masking (a) the real question, are you persuaded of the elements beyond reasonable doubt, but also masking the fact that there is a third possibility in play; the third possibility is not satisfied beyond reasonable doubt.

MS SHAW:   That is so.

HAYNE J:   So either/or is deceptive.

MS SHAW:   And as importantly we would say, focusing on the conflict between two bodies of evidence rather than directing the question of proof to proof of the fact in issue ‑ ‑ ‑

FRENCH CJ:   I suppose one of the risks associated with that form of instruction also at another level is that a jury might think that the choices are (a) is telling the truth, or (b) is telling the truth, and they are mutually incompatible, I accept that, without actually looking at the credibility of and reliability of those two bodies of evidence as separate exercises.

MS SHAW:   With respect, we agree with that, that is fundamentally the problem, that the focus is solely on credibility; that is, do you believe this person or do you believe that person, and so it is to invite an erroneous line of reasoning for the jury and it is to deflect attention from the second question.  Even if you do reject the accused’s evidence beyond reasonable doubt, even if you do believe him, and you accept the truthfulness of the complainant, the next question though is, is that evidence reliable enough beyond reasonable doubt to prove this conduct happened?

So, for example, in a case where the accused does not give evidence at all and you have a complainant who is three years and eleven months and the only evidence that the prosecution rely on to prove the criminal offence is an out‑of‑court statement taken in circumstances where the child is not apprised of the importance of the occasion, is not asked whether or not she understands the difference between truth and lies, makes initial denials that anything happened, in fact, first offers that something happened with her brother, then the acceptance of the truthfulness of that child is in itself not sufficient to prove the charge beyond reasonable doubt, the court must ask the next question, is it reliable?

FRENCH CJ:   In your written submissions, you have made some references, I think, to the comparative status of the child’s evidence vis‑à‑vis that of the accused.  That is apt to distract, is it not, just from the substantive question of reliability based on judgments about the content of the evidence, its relationship to other events and so forth?  One does not discount the evidence at the start because it is unsworn, does one?

MS SHAW:   We submit, with respect, we agree with that.  The reason for identifying those three tiers of evidence was to demonstrate that one does not logically dispose of the other.  In other words, just because you accept the complainant, it does not mean you necessarily reject the accused’s evidence because the complainant’s evidence qualitatively is not sworn.  It is not even in the unsworn category.  The accused’s evidence is sworn, but it is subject to cross-examination and the judge has made no comment about it except there is nothing in his demeanour that assists the prosecution.  So if logically, which is the second part of our argument in this particular case, even if preference reasoning was permissible – and we say it is not – the failure to recognise that the status of the child’s evidence was not of a nature that necessarily started off from a point of equality with the accused’s evidence as being on oath had to be taken into account.  That, in essence, addresses our unsafe ground as well as, we say, exposing the flaw in this kind of reasoning.

FRENCH CJ:   But your first ground, really, is to the effect that the reason leave is up in the air, in a sense, that we do not know whether the trial judge reasoned this way or that way or left it simply on a word-for-word basis, because he did not disclose that in the reasons.

MS SHAW:   That is so.  The trial ‑ ‑ ‑

FRENCH CJ:   And that the Court of Criminal Appeal erred in, as it were, inferring his form of reasoning.

MS SHAW:   That is so.

HAYNE J:   The inference they drew was an either/or inference.

MS SHAW:   An either/or inference, assuming that they were of equal status and therefore one necessarily displaced the other.

KIEFEL J:   You say absent rejection or express rejection of the accused, the trial judge must have reasoned, ought to have reasoned, that there was a reasonable doubt.

MS SHAW:   That is so.  Our submission is the only comment the trial judge made about the accused’s evidence was, in essence, a positive comment that his demeanour did not detract from his credibility or reliability.  Indeed, the Court of Appeal also remarked that the fact that there was no inherent flaw or the defendant’s evidence had no flaw that needed to be exposed did not stand in the way of the discharge of the burden of proof.  In our respectful submission, that is not correct in terms of the application on the burden of proof.

In our respectful submission, if, as this Court has held in Fleming v The Queen (1998) 197 CLR 250 – I will not take the Court to it; the passages are referred to in our outline – but also in AK v Western Australia (2008) 232 CLR 438 – in both cases this Court has held that if the trial judge does not make a finding that is necessary for proof of the charge or does not articulate the link between that finding and proof of the charge, the inference ought to be that the trial judge did not make that finding – not that he did and did not spell it out.

HAYNE J:   My recollection at least of AK was not a case of an inference; it was that the judge had not performed the obligation required by that section of the legislation which said the judge shall give reasons.  AK, I thought, hinged about the text of the provision regulating the giving of reasons.  What is it that required this judge to give reasons in this case?

MS SHAW:   Your Honour, our Full Court has held in the case of R v Keyte that section 7 in our Juries Act, which provides for ‑ ‑ ‑

FRENCH CJ: That is (2000) 78 SASR 68, I think.

MS SHAW:   Yes.  Thank you, your Honour.  Our Full Court has held that section 7 of the Juries Act, which permits an election for trial by judge alone, has implied the obligation in a trial judge to give reasons for that decision, for the same reasons that this Court articulated in AK v Western Australia and in Fleming.

HAYNE J:   AK was founded on the statute, Fleming was founded on the statute.

MS SHAW:   That is right and I can indicate to your Honours that, indeed, his Honour Justice Heydon in AK v The State of Western Australia at page 480 adopted the rationale of the former Chief Justice Doyle in Keyte’s Case, as to the explanation why reasons were necessary.  Those reasons included, of course, as his Honour Chief Justice Doyle said firstly, of course, that an appellant does have a right of appeal and if there are not reasons which expose the findings made, the reasoning process and the linkage between principles of law and factual findings then that will impair an appellant’s right of appeal.  Therefore the appellate court cannot properly carry out its function. 

In addition, his Honour adopts the same principle that this Court adopted in AK v The State of Western Australia and Fleming that justice not only be done, but be seen to be done.  An accused is entitled to know why it is that his, in this case, why his evidence - whether his evidence was rejected and why it was rejected.  Your Honours, in the decision in Keyte 78 SASR 68 the relevant passages of his Honour’s reasons, after referring to various authorities including Flemingv The Queen at paragraph 42, his Honour held at paragraph 51:

For the reasons of principle, identified by me, supported by a distinct trend in judicial authority, I conclude that there is an obligation on a judge to give reasons for a decision which, by s 7(4) of the Juries Act, has “the same effect as a verdict of a jury”, and that the failure to do so is an error of law.

Then his Honour discussed the extent of the reasons that are required and, in particular, on the facts of that case.  Your Honours, if I can perhaps take your Honours to the way in which his Honour dealt with the question of reasons or the sufficiency of reasons in the Court of Appeal because his Honour’s approach was, in our respectful submission, erroneous in that his Honour applied dictum from his Honour Justice McHugh in the New South Wales Court of Appeal in the case of Soulemezis.

FRENCH CJ:   Are you taking us to paragraph 46 of the reasons at 530?

MS SHAW:   I am, your Honour.  If I can take your Honours to the appeal book at page 529.  His Honour commences the discussion on page - provide proper reasons at the bottom of page 528 paragraph 41.  His Honour then refers to his conclusion in Keyte and the implication from section 7(1) of the Juries Act, and refers to Fleming’s Case.

His Honour then referred to his Honour Justice Kirby, as he then was, in the New South Wales Court of Appeal’s remarks, and then to Justice McHugh’s remarks in Soulemezis.  The particular passage from Soulemezis that his Honour adopts, in our respectful submission, improperly, is the passage that is set out at paragraph 47 of page 530.  If your Honours go to paragraph 47 – and this is his Honour’s discussions of the law – his Honour says:

Particularly when a finding or the resolution of a case turns on credibility, it may be enough for the judge to say that the judge believes one witness in preference to another.  In Soulemezis McHugh J said at 280:

Where the resolution of the case depends entirely on credibility, it is probably enough that the judge has said that he believed one witness in preference to another; it is not necessary “for him to go further and say, for example, that the reason was based on demeanour” –

Your Honours, we point out that Soulemezis’ Case was a case on appeal from a decision in the WorkCover jurisdiction where there was an appeal only on a question of law and the statement is confined to credibility only and, of course, the burden of proof in that jurisdiction is quite different.  His Honour then, when he comes to deal with the first ground of appeal – having set out those authorities at page 533 – which was the failure to give adequate reasons, his Honour referred to counsel’s submissions, the complaint that the lack of reasons did not permit the court to discharge its function, and his Honour referred to Mr Edwardson’s submission as to the inadequacies in the judge’s reasons that – his Honour says:

Mr Edwardson’s criticisms raise an issue of the quality of the evidence.

At paragraph 61, his Honour says:

Mr Edwardson is on firmer ground in complaining that the Judge does not explain how and why he rejected the defence case, as he must have.  Mr Edwardson argues that this is all the more problematic because the Judge makes no adverse comment on the evidence of Ms Hay, and the Judge said that there was nothing in Mr Douglass’s demeanour that assisted the prosecution case.

For the Court’s reference, this finding about the accused’s evidence by the trial judge is at appeal book 512, paragraph 98.  I might just take the Court to that quickly, because if your Honours go to paragraph 98, your Honours will see that the totality of what his Honour said in relation to his analysis of the accused’s evidence was:

I bear in mind as well that the accused has given sworn evidence denying the allegations.  Further, I do not find anything in his demeanour that assists the prosecution.

So Mr Edwardson’s criticism was that that does not expose, firstly, that he had rejected the accused’s evidence and, secondly, the reasons for it.  His Honour resolved the failure to give reasons at page 534, paragraph 63.  His Honour held that:

Upon the central issue, whether the alleged offence was committed on the afternoon in question, this was a case of word against word.  The Judge had to assess the credibility and reliability of C’s evidence.  The same applies to the evidence of Mr Douglass.

His Honour reasoned that ‑

The fact that there was no inherent weakness in the evidence given by Mr Douglass, and the fact that there was nothing in his demeanour that led the Judge to reject his evidence, do not mean that the Judge was not entitled to do so.

Now, your Honours, we say that begs the question because if the judge was entitled to do so his reasons do not disclose that he did.  His Honour went on to say that:

The Judge adequately explained why he found C to be credible and reliable.  Mr Edwardson was right in saying that the Judge does not explain how and why he came to the conclusion that he could and should reject the denials by Mr Douglass, and make a finding of guilt beyond reasonable doubt.  But to my mind, the explanation is obvious.  Having considered the evidence as a whole, and being satisfied of the truth and reliability of C’s evidence, the Judge necessarily rejected the denials by Mr Douglass.

So, in essence, by adopting the approach that in a case of word against word a trial judge, or in fact, a trier of fact, a jury, is entitled to resolve the ultimate issue upon the basis of characterising it as word against word, then logically acceptance of one results in rejection of the other.  We say for the reasons of this Court in Murray v The Queen, which we have taken the Court to, that is not a correct application of the discharge of the standard of proof.  Indeed, his Honour former Chief Justice Doyle at paragraph 65 reinforces why, in our respectful submission, the failure to reject the accused’s evidence ought to have resulted in an acquittal.  His Honour says:

In the particular circumstances, it was not necessary for the Judge to spell out why he rejected Mr Douglass’s denials.

The particular circumstance that his Honour is alluding to, of course, is the fact that he has characterised it as a case of word against word.  His Honour goes on to say ‑

Indeed, there is little he could say other than that; because he accepted and acted on the evidence of C, he necessarily rejected the evidence of Mr Douglass.

Of course, his Honour did not say that, but more importantly in terms of the discharge of the burden of proof that does not necessarily follow because of the third possibility that your Honour Justice Bell has referred to and the fact that there is no onus on an accused; the question is whether or not his evidence in the context of the entire case is a source of reasonable doubt.

His Honour then applies that passage at paragraph 47 at appeal book 530 that I took the Court to.  This is a case of a kind referred to by Justice McHugh in Soulemezis at 280 and by me in Keyte at paragraph 59. Unlike Papps, it is not a case in which the failure to explain why the judge rejected the evidence leaves this Court unable to properly consider the appeal.  Papps v Police was a case where the accused’s credibility was pitted against the police credibility.  His Honour Justice Gray, who wrote the leading judgment for the court in that case, held that the failure to expose the reasons for rejecting the accused meant that the burden had not been discharged.  His Honour stated in this case at paragraph 65:

There were no flaws in the defence case that needed to be exposed and explained.

In our respectful submission, if that was correct and the evidence was on oath it was a source of reasonable doubt and we take issue with the conclusion that the judge’s acceptance of C’s evidence is the explanation for the rejection of the defence case.

BELL J:   Your second ground takes up that, notwithstanding that the Court of Appeal approached the exercise of appellate review on the basis of M v The Queen, the Court identified the reasons given by the primary judge for accepting the evidence of the child complainant as reliable in the two respects that the trial judge identified as matters that the Court of Appeal on its independent review did not find so persuasive.  It does not seem to be an analysis of how against that background the test was satisfied, that is the M v The Queen test.

MS SHAW:   Can I indicate to the Court, following through with what your Honour Justice Bell has articulated that in fact the premise of his Honour’s reasons was a misunderstanding of 34CA of the Act because unlike the provision that was considered by this Court in Gately v The Queen (2007) 232 CLR 208, which is number 22 on our list, and I do not need to take the Court to it, the statement received under section 34CA does not become the evidence‑in‑chief of the child. So the 34CA statement was not adopted by the child in court, it was received and, therefore, did not get achieve the status even of unsworn evidence. It remained an out‑of‑court statement received without any consideration as to whether or not it had either the status of unsworn evidence or could be tested as to what was the child’s level of understanding of the seriousness of the occasion at the time the statement was made.

FRENCH J:   But it becomes admissible and probative by reason of 34CA(3).

MS SHAW: Yes, but his Honour Chief Justice Doyle at paragraph 28 at page 526 said, “This statement became C’s evidence in chief at trial” and he repeated that at paragraph 31 on the same page. Now, I only draw the Court’s attention to that because nowhere in the judgment does his Honour identify that the status of this section 34CA statement is not even unsworn evidence which the judge – whereby it is admitted, pursuant to section 9 of our Evidence Act where a child has been shown not to understand the giving of an oath and, therefore, is permitted by a trial judge to give unsworn evidence providing the judge has asked certain questions and is satisfied that she ought to give unsworn evidence.

That is the basis upon which we draw the Court’s attention to the fact that in this case the issues related to three tiers of evidence – 34CA statement – that is not unsworn and has none of the safeguards that giving unsworn evidence in court has attached to it.  There is the unsworn evidence which, of course, is unsworn because the person cannot comply with, or understand the obligations of an oath ‑ ‑ ‑

FRENCH CJ:   That is the evidence in cross‑examination in this case.

MS SHAW:   The evidence in cross‑examination was unsworn.  Of course, one of the points made by analogy, and I accept it is not a good analogy, but this Court might recall that in Morris v The Queen (1987) 163 CLR 454 the hearing was concerned with a question of whether the verdict was unsafe. The appellant was alleged to have thrown methylated spirits on a man. He was, in essence, an alcoholic who was shown to have brain difficulties, or injuries, as a result of his alcoholism and he had allegedly made an admission to a third party whose credibility was not in issue.

That admission was, in essence, the sole evidence against him.  When the appellant came to give his evidence at trial, he was no longer affected by his alcoholism – he was coherent, he denied it – and so, therefore, the reliability of the statement he allegedly made, that is the alleged admission, had to be considered as at the time it was given and the fact that he might, at the time of giving evidence have, in essence, appeared to be coherent, appeared to be intelligible, was not necessarily a governing factor in assessing the reliability of the statement at the time it was made. 

So, in our respectful submission, true it is that there was some limited cross‑examination as permitted under the statute and the appellant’s counsel put to the child that it did not happen and she said it did.  In our respectful submission, that cannot cause the out‑of‑court statement to gain some significance that it could not gain as a result of the ‑ ‑ ‑

FRENCH CJ:   But she is giving unsworn evidence in court that the incident occurred against the proposition that it had not occurred.  She said that it did.

MS SHAW:   That is so, yes.  It was put to her it did not and she said it did.  I can indicate to your Honours that part of that cross‑examination included her acknowledgement that before she came to court she had spoken to her parents 10 times and the backdrop was that there had been a proofing with the DPP the previous Friday.  The child had been shown the wrong video of another girl.  She had sat through this wrong video, had not pointed out to anybody it was not her with another witness assistance officer, and there are some declarations in the papers which reveal how it was learnt subsequently that she was shown the wrong video.

KIEFEL J:   I think the point is made in the Court of Appeal, however, that no point was made by counsel for the defence about the wrong video having been shown.

MS SHAW:   No point in the sense of making her evidence incompetent, but certainly counsel did address on the circumstances in which she came to be cross‑examined, namely, that the child had said she had spoken to her parents 10 times, that when he did put to the court as part of his submissions that there was this backdrop, but it went no higher, I accept, your Honour, than saying that in order for the question of reliability to be addressed it was necessary to, in our respectful submission, exclude the possibility of influence from others in terms of giving that cross‑examination, even as unsworn evidence, a sufficient quality to discharge the burden of proof.

KIEFEL J:   Did the trial judge and counsel view the video?

MS SHAW:   Yes.  I can indicate to your Honours, of course, that the influence that the defence counsel complained about in his submissions to the trial judge was from the mother who, of course, was a co‑complainant in the proceedings and who had also made an allegation against her father.  That allegation was said to relate to the co‑complainant when she was seven years of age back between 1981 and 1983.

As it turned out, the co‑complainant alleged that this happened in a shed on the appellant’s property.  She was adamant that she was at the Enfield Primary School, she was adamant that it happened in this particular shed and the defendant produced evidence from various council records to prove beyond a shadow of a doubt that there was no shed on the property at the time and the shed that was eventually built was built many years later.  The approach his Honour took to that proof that meant the co‑complainant’s account – this is the mother’s account – was impossible was that he believed the mother, nevertheless, but said that because of this other evidence he did not find the count proved.

FRENCH CJ:   He said he had put the mother’s evidence to one side in assessing the credibility of C’s evidence.

MS SHAW:   He did; I agree with that.  I am just raising this in the context of the Crown were contending that the allegations were strikingly similar and therefore where the person who is alleged by the defence to be potentially influencing the child against the grandfather, in particular prior to cross‑examination, was indeed a co‑complainant.  So the evidence in cross‑examination was we say itself a matter that the reliability needed to be seriously evaluated.

Could I just take your Honours to the relevant passages from the interview.  I can direct your Honours to the nature of the answers given by the child when she was three years and 11 months.  I point out, as I have said, that there was no inquiry at the beginning of the interview as to whether the child understood the difference between truth and lies and, of course, the importance of what she was going to do.  Not surprisingly, because of the age of the child, she was in a little play area and so therefore interweaved in the questioning is talk of pizzas and eggs and cooking and the child delivering to the interviewer a piece of pizza and the like, talking of chalk.

In following the interview your Honours will note that the child is in a playroom and, again, obviously a quite proper procedure to adopt when obtaining statements from young children, but clearly not part and parcel of testing whether the child understood the difference between truth and lies. 

Your Honours, the relevant passages that we wish to take the Court to are actually in the trial judge’s reasons, because there were some minor corrections that occurred at the early part of the proceedings that appear in the transcript in the trial judge’s reasons and not in the transcript that appears in the appeal book at page 460.  The relevant passages in the trial judge’s reasons commence at 497.  The child, at the time of the interview – her birthday was on 3 November, so she had just turned four when the interview happened on 28 November.  It is the offence that was alleged to have happened when she was three years, 11 months.  I may have been misstating those dates and I apologise.  So, your Honours, the child is four by this ‑ ‑ ‑

FRENCH CJ:   I think it was 26 November, actually, was it not?

MS SHAW:   26 November.  So the child is four years of age at this time.  Your Honours, at page 498 the relevant passages are when the child is asked – and we say the only topic raised with the child is about touching someone’s willy – page 498, line 15:

Has someone ever asked you to touch their willy?

Now, the child volunteers –

I touched my brother’s.

The questioner says –

You touched your brother’s did you.  And what happened?

Answer:

I told to –

[M] was the brother –

to pee in the bucket.

So, your Honours, we point out that the cognitive development of the child about the response to the question is such that, we submit – and this is plain from other answers – that a child of that age does not necessarily comprehend what the questioner is directing the question to.  But this answer that on this topic – bearing in mind she had spoken to her parents, the parents were at the interview, had brought her to the interview – the interviewer, before the interview and during the interview, mentions the parents.  The parents, as an aside, your Honours, say in their evidence that the child had never told them about [M], namely that they had never heard that allegation.  In any event, the questioner then says –

Did you?  And he did.  Oh Okay.  And what about anybody else.  Did someone else ask you to touch their willy.

C        No.

L         Or do anything to their willy?

C        No.

L         Or.  Some people call this a penis –

So the questioner has introduced the word “penis” –

Did you know that?  That’s the proper word for it isn’t it.

C        Yes.

L         Has anyone asked you to touch their penis?

C        No –

This child does have a brother who is three years older, and the evidence was that they did bath together, and the grandmother gave evidence that she had seen the child walking in on [M] in the toilet, obviously all very innocent.  The questioner persists –

Are you sure?

C        No –

and it was agreed at the trial, and in the judge’s remarks, that the sense of that answer was yes, and so having got, in essence, four denials which, if that was asked in a court of law, would have been the end of it, the questioner then says –

Okay.  I was just talking with mum about all that sort of stuff before –

So the child is then referred back to the person who, on the defence case, was there was a risk that she was influencing the child.  So then the questioner persists –

If somebody did ask you to hold or touch their penis.

C        I touched on my grandpa’s.

Now, this is the high‑water mark of the case against this appellant.  In our respectful submission, and we will not go to it, we have referred to in our written submissions various guidelines for examination of children in this context and even the Western Australian regulations under their legislation which prohibit leading questions, for obvious reasons, and in our respectful submission it would prohibit this kind of persistent inquiry.

The questioner then ‑ of course, that could have been accidental and does not in itself make out an offence ‑ in the same way as telling [M] to pee in the bucket – it was not necessarily anything that could make out any kind of offence according to the criminal law.  So the questioner then proceeds because the stage at which the questioner needs to get to is that in fact the grandpa told her to do it, otherwise from the point of view of the criminal law there would not necessarily be an offence.  So when the questioner asks her the question, “What happened?” the answer is on page 499, “I don’t know”, and then the questioner says:

Oh, okay.  Well do you know what.  I wasn’t there and you were there.  So what if I try and figure out what happened and you help me.  Okay?

CYes.

LAlright.  So where were you when that happened?

CIn the shed.

LYou were at the shed, were you?  At whose house?

CHis shed.

Now, your Honours, bearing in mind that the critical topic upon which the co‑complainant’s evidence came undone was that it was alleged to have happened in his shed, and the particular shed was not built at the time, this coincidence of allegation becomes relevant to what happens later.

If I can just perhaps introduce here the sequence of events.  The child was at the grandparents’ place on the previous Thursday.  It is described in the evidence as the Wednesday, but it matters not – 23 and 24 August.  On the following Monday she was staying with her father.  She made a comment to her father that he had a beautiful penis and according to the child’s mother she was also told she made a comment that [T]’s father, that is, the father’s father, not this defendant’s father, was a dickhead – that was the topic and the sense in which it came up.  Then the next day in the morning when the father was urinating in the backyard the child was alleged to have said that she held grandpa’s penis – willy – in the shed.

Now, after that – and the time was not identified – the mother reported that the child said to her that he had – the grandfather, the accused – had urinated on a tyre on a tractor, and so the implication was it was the tractor shed.  Now, the mother’s evidence on that was simply that it was some time later, so it was never clear whether it was before or after this video interview.  So once the tractor shed is introduced, and that becomes relevant because the tractor shed was not on the defendant’s property, it was on the neighbour’s property, which was where his mother and one of his sons lived, or [S]’s house.

After the tractor shed report to the mother, which is on the different property, in November 2009, a year later, the police come to the mother’s house and the mother has prepared two plans which – it is a bit unclear whether they were prepared in the context of her statement earlier or were prepared for this particular visit – but my reading of the transcript is that she had prepared a plan in the context of her statement to show where the shed was that she alleged the incident happened on his property.  When this police officer, a year later, came along she did a plan which was of the neighbour’s property, namely, showing [S]’s house, the tractor shed and another shed which was called the woodshed on the side of the house.  In other words, she was not shown a plan at all of the appellant’s property.  She was shown the neighbour’s property and Detective Kelly explains that this was essentially the mother putting this forward.

So when the child is shown the plan of the neighbour’s property, although Detective Kelly indicates he does not know the context in which it was said, he does not know what the exchange of conversation was, the child points to a shed that was a woodshed.  It was not the tractor shed and it was not a shed on his property.  But we know that was the outcome of this particular discussion a year later. 

So the reason that that, your Honours, became relevant was because the prosecution opened its case upon the basis that it was in the appellant’s shed – that is a shed at his house – but at the end of the day the prosecution put to the defendant in cross‑examination, well, have you ever done it in [S]’s shed or in a shed, so the fact in issue that the case started with was, was there an inveigling of the child to touch a penis in a shed on the appellant’s property.

FRENCH CJ:   Now this is all going to paragraph 22 of your outline, is it?

MS SHAW:   It does, your Honour, and I apologise for going there but I merely wanted to put the context of his shed.  So then, just completing the 34CA statement, the only other topic I wish to take the Court to is the child then was asked:

and what were you doing in the shed?

She said:

Holding his willy.

Then the questioner says:

Holding his willy.  Ohm, and how did that happen, like?

Answer:

He told me.

Now the answer, “he told me”, for a three year old, your Honours, is not necessarily clear.  But the questioner then asks how many times and she says:

I holded his willy again.

On the next page – and I will take the Court straight to it – at line 20:

What exactly did he say?

I don’t know.

Of course, that was critical because it was necessary that the prosecution prove that he said or did something to make her do it.  So the questioner’s next question on this topic, having referred to the pizza, at line 46 is:

So how did you feel when grandpapa asked you to his willy?

In other words, there is the prosecution case right in that question.  Answer:

I don’t know.

. . . 

Has anybody else ever asked you to do that, or?

CNo.

Then she said the willy looked like MD’s.  Now, your Honours, coming back to the topic of the shed and the subsequent tractor tyre allegation from the mother, and the 2009 allegation of the woodshed, at page 502, line 15 the question is:

L         Where did he do a wee?

C        I don’t know.

I apologise, your Honour.  My learned junior has pointed out to me that this critical question at page 500, line 45:

So how did you feel when grandpapa asked you to hold his willy?

CI don’t know.

The question at the top of the page says - at 501:

Hey, CD, you know how before you were saying that grandpapa asked you to hold his willy?

So again that complex statement for a child that age is repeated.  So, your Honours, that is the high‑water mark of the prosecution case, apart from one other passage that is not in the judge’s reasons, but is in the interview itself and that appears, your Honours, in the appeal book at page 475.  The child was asked, just to put it in context, the top of page 475, line 10:

Oh.  Why was he in the shed?

C        Cos he had to do a wee wee.

Then at line 35:

Did you have to hold his willy while he did a wee?  Or, is that what happened?

C        Yeah.

Again, the “yeah” is completely ambiguous:

L         Or something else happened?

C        Something else happened.

L         What was that?

C        Don’t know.

Now, your Honours, that is the total statements by the child to prove this offence and then the reference back to mum and dad again.  So, your Honours, that is the topic of the interview and his Honour, the learned judge’s approach to it, as I have said, was to find that she was truthful.  Your Honours, just on the topic of reasons - I am not sure if the Court wishes me to go to Fleming and AK v Western Australia, or simply give the Court the paragraph numbers, as we have set out in our witness submissions and our three‑page propositions. 

But in essence we submit that the reasons for verdict should set out the findings that are made and the reasoning process, which links the findings to the verdict that is reached and here the factual findings, of course, related to this topic of the shed, whether it was in the shed and which shed it was and, importantly, what the evidence was about that topic and whether or not the quality of that evidence impacted upon its reliability.

In Fleming’s Case – we have given the Court the citation, but it is No 16 on the list – at paragraph 28 in the joint judgment of the Court; I accept, as your Honour Justice Hayne, it is an interpretation of the particular provisions of the New South Wales Act but adopted by our Full Court as implied – the Court held:

it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made.  Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.

Further, that the reasons must articulate how the link was made between the principle requiring proof beyond reasonable doubt and the findings of fact made.  We have referred to AK v Western Australia at paragraph 45, page 453. I need not take the Court to it but simply to rely on it to support our submission that one of the findings of fact that the trial judge was required to make was that he rejected the accused’s evidence beyond reasonable doubt and he was required to articulate the reasons so that the appellate court could review those reasons and the reasoning process and link those reasons to the findings of fact.

Your Honours, I have already taken the Court to what we say about Murray and our submission that the court erred in relying on Soulemezis.  We say that Soulemezis does not have any application – that is, this dictum – in a criminal court for three reasons, firstly, because the reasoning cannot apply where reliability of the prosecution witness is in issue, as in this case; secondly, it does depend on the two bodies of evidence having an equal status, for example sworn evidence; and, thirdly, most fundamentally we submit, it is not relevant in a criminal context where the issue is not which account is preferred but whether the conduct has been proved beyond reasonable doubt.

We submit that in relation to the first ground the failure to give reasons, in our respectful submission, constituted an error of law and should lead to the setting aside of the conviction.

HAYNE J:   With what consequential order?  You ask in your notice of appeal for entry of verdict of acquittal.

MS SHAW:   Yes.

HAYNE J:   AK and Fleming both yielded orders for new trial.

MS SHAW:   Yes.

HAYNE J:   What do you say, if your arguments were to be accepted, what relief should you have?

MS SHAW:   The difference in this case was, in our respectful submission, that the accused’s evidence was not rejected and that indeed at first instance the results should have been an acquittal and that the Court of Criminal Appeal in looking at the findings of fact, namely, the finding of fact that there was nothing about the accused’s demeanour that supported the prosecution case should have led the Court of Appeal to say, well, that ought to have meant that the trial judge was not able to exclude reasonable doubt and substitute an acquittal.

FRENCH J:   That is going into the second ground, is it not?

MS SHAW:   It is going into the second ground.

FRENCH J:   The verdict was unsafe because the evidence could not sustain proof of elements of the offence beyond reasonable doubt?

MS SHAW:   Could not sustain it, yes.  I accept we are stronger on ground 2 in relation to the fact that a verdict of acquittal should be substituted but our first position is that if the Court of Appeal is faced with a trial judge’s reasons where the accused’s evidence is not rejected or, indeed, not remarked on adversely, but, if anything, hinting at a positive, then on a reassessment under ground 2 - then the Court of Appeal independently assessing the evidence is therefore not hamstrung by a negative finding in relation to the appellant’s demeanour.

When I say hamstrung, the Court is in the same position that the trial judge was in in considering the quality of the evidence and weighing up the competing bodies of evidence in undertaking an independent assessment.  In a case where the accused’s evidence, for example, has been rejected and issues of demeanour arise then in those cases, on an independent assessment, a court might have more difficulty in substituting a verdict of acquittal but we say in this case there is no advantage, in essence, that the trial judge had that this Court does not have insofar as the accused’s demeanour was concerned.

Your Honours, in relation to his Honour’s reasons concerning the disposition of the ground of appeal that the verdict was unsafe again we submit that his Honour failed to recognise for the purposes of undertaking this task the different qualitative status of the section 34CA statement, the unsworn evidence and the accused’s evidence. We accept that his Honour did set out the proper principles that apply to a consideration of unsafe under our section 353(1) of the Criminal Consolidation Act at page 527, paragraph 37 and the correct statement of principle from M v The Queen (1994) 181 CLR 487 at 493. His Honour concluded that summation of the authorities. At paragraph 40:

The second ground poses a question that requires the Court to consider whether that evidence supports a finding of guilt beyond reasonable doubt.

When his Honour comes to determine whether or not the verdict is unsafe – or using that word to mirror or to summarise our provision, which is on almost identical terms to the New South Wales provision - your Honours, at page 531, paragraph 50, his Honour says in the second line:

There was evidence to support the Judge’s finding –

Then refers to particular steps in the reasoning at paragraph 52, in particular that:

It was open to the Judge to accept C as truthful and as reliable –

His Honour then makes some comments as to a view he might have taken, for example –

One might argue with particular steps in his reasoning.  For example, I am not confident that I would say that the incident was something that a three year old child was unlikely to make up.

In our respectful submission, that particular reasoning process in this case was undermined because this child at the time of giving the interview and indeed at the time of making the allegation, if the father’s report was accepted, had already touched her brother’s penis.  So for this child, on her account, it was not the kind of allegation that was necessarily unusual.  Proceeding on, his Honour said that ‑

At trial and on appeal Mr Edwardson made some valid points about C’s responses to questions from the psychologist.

Those were the points that I have taken the Court to in the main, but his Honour said –

But these matters were dealt with by the Judge, and were dealt with in a manner that was open to him.  I agree with the Judge that the inconsistencies between the statements to the psychologist and other statements by C, and C’s initial statements to the psychologist that no-one had asked her to touch their “willy” or penis, are explicable on the basis of C’s young age.

Although the points made by Mr Edwardson are not to be dismissed out of hand.  Then on page 532, his Honour reasons in the fourth line ‑

Nor could one say that C’s evidence was inherently unreliable because of her age.  However, having regard to C’s age, it was open to the Judge to decide that she was truthful and reliable during the interview by the psychologist, which became her evidence –

That is an allusion back to that earlier misunderstanding of our provision it did not become her evidence ‑

despite the problems with that evidence that Mr Edwardson identified.  I also agree with the Judge that he was entitled to be influenced by C’s firmness in cross-examination, although again I am not sure I would give that as much weight as did the Judge.

So his Honour is in essence, we submit, deferring to the learned judge’s approach and making comments as to whether or not, on a point‑by‑point basis, he would necessarily agree or disagree.

HAYNE J:   A question at the moment being considered by Chief Justice Doyle was whether it was open to the trial judge to be persuaded beyond reasonable doubt.

MS SHAW:   Yes.

HAYNE J:   Do you say it was not open?

MS SHAW:   In terms of the sufficiency of the evidence, I do not contend it was not open if one accepts that question by the questioner that there was an agreement with a proposition put by the questioner and there was, on the face of the interview.

HAYNE J:   If it was open to a trial judge to be persuaded beyond reasonable doubt that the offence was proved, would that not suggest that if your criticisms of the Court of Appeal’s judgment are right, the appropriate order is retrial.

MS SHAW:   With respect, I may have misstated my understanding of “open” in the way your Honour referred to it.  “Open” in the sense as a matter of law, it was open, but sufficient in the sense of “A” would sustain a conviction in terms of it being unreasonable and against the weight of the evidence, we say, no it did not.  On the unsafe ground, it was not sufficient to sustain a conviction.  So one is a question of law – pure law – the second is a section 353 question on an independent assessment of the evidence – was it capable of proving the offence beyond reasonable doubt?  If this Court undertakes an independent assessment, weighs the competing bodies of evidence and arrives at a view that it has a doubt, then the next question would be whether or not, as a doubt, the Court takes the view the learned judge should have had.

In our respectful submission, the remarks in M v The Queen at page 500 are quite pertinent in this respect because what the plurality said there in relation to the consideration of the unsafe ground was that, in the last paragraph:

On the other hand, an innocent man could have done no more than the accused did in conducting himself as he did during his interview with the police or in giving evidence on oath at his trial.  No doubt the jury believed the complainant and disbelieved the appellant and did so having seen and heard them both.

Your Honours, this case is not that case.  There has been no disbelief of the accused by the judge.  In that case, though, their Honours went on to say ‑

But even making full allowance for the manner in which both gave their evidence, the matters which cast doubt upon the prosecution case, to which we have referred, remain unanswered.  In those circumstances, in the absence of any corroboration of the complainant’s allegations, it would, in our view, be unsafe and unsatisfactory to allow the verdicts to stand.

In that case, an acquittal was entered.  So, your Honours, the approach we say is stronger than M v The Queen where, of course, there was the conflicting evidence of the accused and the complainant in relation to a sexual offence because here there has been no rejection of the appellant, and if the Court does conduct an independent assessment of the complainant’s evidence, recognising its status in that way, in our respectful submission, the Court ought to find that the verdict is unsafe.

FRENCH CJ:   Well, this reduces to the proposition that on any view of the evidence – well, looking at all the evidence, one could not have been left without a reasonable doubt.

MS SHAW:   It does because of the ‑ ‑ ‑

FRENCH CJ:   That is your proposition.

MS SHAW:   That is our proposition, in this case, because the judge did not reject the accused’s evidence.

We have an interesting debate in this case about the use of that word “entitled”.  I think it raised your Honour Justice Bell’s eyebrows, that use of the word “entitled” by the Chief Justice in, I think it was, paragraph 57, appeal book page 533.  We have cited the authority of Libke v The Queen in answer to this case.  In my submission, where the Chief Justice uses that word “entitled” he has not devolved to the position of determining that there was sufficient evidence to make out the case.  He has not failed to undertake the independent assessment. 

Where he uses that word “entitled” he arrives or he is attempting to describe his conclusion, being, although there are these questions about weight, I am not satisfied, I am not persuaded, that the trial judge must have had a reasonable doubt.  The test is open to the jury to be applied against the background of acknowledging the primary role of the jury in determining guilt and so there is a degree there of satisfaction; was it open?  There is room to conclude that whilst there are questions as to the weight given to pieces of evidence, I cannot say that the trier of fact ought to have been satisfied and that is what is encapsulated in that word “entitled”, in my submission.

We draw, in particular, upon your Honour Justice Hayne’s judgment in Libke v R 230 CLR 559 at paragraph 113. Your Honour was agreed with in this judgment by the Chief Justice and Justice Heydon and I invite your Honours to read paragraph 113. The words “must, as distinct from might”, in my submission, is important.  If the Court of Criminal Appeal does not arrive at that degree of satisfaction, then it remains open to the trier of fact to have been satisfied of guilt beyond reasonable doubt.

BELL J:   In circumstances in which, on its independent review, the Court of Criminal Appeal was not persuaded that the incident was something that a three year old was unlikely to make up, and where the court was not inclined to give the weight that the trial judge did to the child’s firmness in cross-examination, and in circumstances in which the Court of Appeal did not explain why the fact that on one matter of detail relating to where the offence occurred – as I understand it, the Crown acknowledges the child a year later got it wrong – it considered that it had been open to be satisfied beyond reasonable doubt that the elements of the offence charged were proved.

MR HINTON:   We come back to that inconsistency.  Inconsistencies can matter and they may not.  I tell your Honour nothing new there.  The question was, did this inconsistency matter?  The trial judge is of the view that it does not.  I can put it no higher than that.  That is, of course, you must look at that, as with all of this, in the context of evaluating all the evidence.  We do not just pluck, which is crucial to the consideration of the second ground of the appeal, one relevant factor.  We look at it in the light of everything.  Was it a factor?  Of course.  The weight to be given to it, a matter for the trier of fact.  Could the Court of Criminal Appeal – should the Court of Criminal Appeal have said that that factor should have attracted so much weight that it must have given rise to a reasonable doubt?  No. 

So when we come to questions of status of the evidence, an out‑of‑court statement, an unsworn statement, a sworn statement, they are all factors.  The weight to be given to them in the assessment of the evidence cannot be considered in isolation, as your Honour the Chief Justice said, of the content of the evidence and when one looks at the content of the evidence in this case, of course we focus upon those crucial paragraphs in the record of interview and we look at their being consistent with the complaint.  So it is not sufficient just to say, well, that was an out‑of‑court statement.  Of course it was an out‑of‑court statement. 

We hear trial judges everywhere up and down the country say of an accused’s record of interview where the accused does not get into the witness box, you can take into account the fact that that record of interview was untested and not given on oath.  Of course you can.  But you cannot do it in isolation from any other evidence that supports the accused.  So here, in my submission, when one looks at the other evidence, the question of status pales into insignificance.  It was not important.  It could not attract great weight.  Look at the evidence you have, the positive evidence, the consistency, consider matters of age, matters of absence of corroboration and ask, are you satisfied of the proof of the elements beyond reasonable doubt, and that is what the trial judge did.

In my submission, the Chief Justice correctly directs himself with respect to the task – page 527, paragraphs 37, 39 and 51.  I will not take your Honours to them.  He conducts the independent assessment.  It is an assessment of the cogency.  There is that degree of persuasiveness that the Court of Criminal Appeal must feel in order to conclude that the doubt is one that the trier of fact must have had.  The Chief Justice, with whom Justices Anderson and David agree, was not satisfied that this was a doubt that the trial judge must have had.

I should have given your Honours the references – we have set them out – of the defence denial with respect to the crucial allegations.  They are at the second dot point in paragraph 5 of our oral submissions.  With respect then to the second ground of appeal, at paragraph 12 we make our submissions as to the influence of status and weight.  At paragraph 13 in our oral handout we set out the other factors in this case to be taken into account.  At paragraph 15 we identify the factors that would have had necessarily, in our submission, the consequence that in this case the status was something that would have paled into insignificance.

Can I deal, before sitting, with one or two submissions that my learned friend made in passing. I have explained to your Honours why we have handed up those additional materials. Can I say, the comment made about the interview, there are two submissions to be made about that. Firstly, section 34CA of the Evidence Act (SA) is not the equivalent – I think it was of section 93 or 98 – of the Queensland equivalent that received treatment by this Court in Gately’s Case. Section 93A I am told. That is a regime designed to have the evidence of a complainant, similar to this, in a sex case heard well in advance of the trial with protections built in. We have no such facility in South Australia. There is an equivalent in Western Australia.

In South Australia, section 34CA operates as an exception, unlike its equivalent in Queensland and Western Australia, to the hearsay rule. Your Honours will note that 34CA permits the person to whom the statement was made to give evidence of the statement, the out‑of‑court statement. It is an exception to the hearsay rule. Strictly speaking in this case then, the evidence comprised in the record of interview is that of the psychologist who conducted the interview with the child. Her name is Ms Kernahan. It appears on page 1 of the transcript. She was not called because it was agreed she was not required.

Ideally, you would call the psychologist; prove the out‑of‑court statement through her because she was the person to whom it was made, the important point being this is a different regime.  This is an exception to the hearsay rule where you can use the out‑of‑court statement for the truth of the content.  So then to bring into this notions of protections in other regimes is an imperfect translation.  I am not saying that those protections are not important, perhaps again, as factors in the weight of the evidence but they do not directly apply in South Australia.

The second point I wish to make about the record of interview is that it was conducted by a Ms Kernahan who works for the child protection service.  It is in the evidence.  The child protection service is a branch of one of Adelaide’s leading hospitals.  This is not a police officer.  This is not an investigative agency in any way conducting this interview.  So to criticise this psychologist on the basis that she did not ask questions about, “Do you know the truth?” and, “Do you know what a lie is?” in my submission, is unfair.  This is not one of those interviews conducted in Queensland or Western Australia by specially trained people for a specifically forensic purpose.  It has broader purposes and it is conducted by a person differently trained. 

My learned friend took your Honours to the crucial paragraphs in the evidence of the complainant.  I make one submission about that.  It relates in particular to the portion of that interview commencing at page 498 at about line 51 over to the top of 499.  The child has been taken to a topic, undoubtedly, but the child volunteers who the offender was and the child volunteers what happened and in that crucial interchange there is no leading question.  It is volunteered.  It is spontaneous. 

Much is made by my learned friend of the possibility of suggestion by the mother, the importance in this interview of the reference to mum and dad being outside.  Never put.  Never put in the course of this trial to mum or dad.  No suggestion that this child was coached by them at all.  There is no evidence upon which you can entertain the possibility that this child has been put up to it where it has not been put.  At the end, with respect to the second ground of appeal, one is left with the way in which this case was conducted and a consideration of all the evidence and multiple factors that attract different weight in determining whether or not the conviction was safe.

Finally, can I address the orders.  If the first ground of appeal is successful, the appropriate order would be that the matter should be returned for a retrial.  As I understand the submission with respect to the second ground of appeal, it is that this man was not rejected therefore there should be an acquittal.  In my submission, you cannot have any comfort either way about that.  It ultimately is a case about the sufficiency of evidence and the appropriate order at the end of the day where there is a concession that as a matter of law it is sufficient, is a retrial.  If, as a matter of law it is sufficient we have a prima facie case, the Director of Public Prosecutions should determine whether or not the matter should be prosecuted again.

BELL J:   I must say for my part, Mr Solicitor, I understood there was some confusion in the exchange that occurred concerning whether or not it had been open.  I understood counsel to put open in the sense that there was some evidence of the elements of the offence, but that in the way the submission on count 2 was developed, the contention was it was not open in an M v The Queen sense for the trier of fact to have concluded on the evidence led at this trial that the guilt of the accused had been established beyond reasonable doubt, and if that is so, the consequential order would necessarily be the substituted acquittal would it not?

MR HINTON:   The reason given, as I understood it, I do not disagree with your Honour’s recollection, the reason given I think was in answer to questions asked by his Honour Justice Hayne, was that because there is no evidence of a failure to disbelieve.  Of course we have on the other side satisfaction beyond reasonable doubt.  There are hairs on it, but, in my submission, it is the sort of case where ultimately the decision should be left to the Director of Public Prosecutions.  If the Court pleases, those are the submissions of the respondent.

BELL J:   Just what is the position in terms of – I do not think our appeal books contain details of any sentence imposed.  From something that Ms Shaw said, I understand that the sentence is nearly completed.  What are the details of it?

MR HINTON:   I will have to check.  As I recall, at least it is a non‑parole period of 18 months.

FRENCH CJ:   It is a three‑year head sentence, is it not?

MR HINTON:   Thank you, your Honour, a non‑parole period of 18 months ‑ ‑ ‑

FRENCH CJ:   I think it is in the special leave materials.  I think Justice Crennan ‑ ‑ ‑

MR HINTON:   I am grateful, your Honour.

CRENNAN J:   Yes.

MR HINTON:   The non‑parole is expired.

CRENNAN J:   The sentence commenced on 10 November 2010.

MR HINTON:   Justice Bell, there is your answer.  The non‑parole period though has expired and it is a question of an application for parole.

FRENCH CJ:   But he is still in custody, is he?

MR HINTON:   Still in custody, yes, your Honour.  If the Court pleases.

FRENCH CJ:   Thank you.  Yes, Ms Shaw.

MS SHAW:   Your Honours, firstly, in relation to the submission that the response of the appellant was a mere denial, we submit that that has been characterised as that purely because of the paucity of detail of the complainant and therefore there was no detail to which he could take issue.  Secondly, it was put that the learned trial judge’s reasons commencing at appeal book 509 commenced with him indicating he believes the complainant and then commences an investigation of the truthfulness of CD’s evidence.  We point out by reference to paragraphs 83, 86 and 93 that his Honour confines himself to truthfulness and creditworthiness and does not separately consider reliability.

The Court of Appeal assumes that his Honour has assessed credibility and reliability, but it is not separately considered, and the only reference to the topic of the status of the unsworn statement is in paragraph 98, I think it is, where his Honour refers to the complainant’s unsworn evidence – that is, he does not acknowledge the difference between the statement and the unsworn evidence.

Your Honours, we respond to the suggestion about the status of the 34CA statement as compared to the unsworn evidence in this way.  We are not relying on it in the abstract.  It is just in the circumstances of this case.  The 34CA statement was not attended with any of the safeguards that might occur in court, and we refer to our written reasons in that respect.  Because the Court of Appeal approached it upon the basis of word against word, it was therefore deflected from the need to address the imperfections and the limitations of the 34CA evidence because it had assumed that there was no difference in terms of the way in which the evidence was given.

In our respectful submission, the approach of the Solicitor‑General in tying himself to the reason of the Full Court and posing to the Court the alternative hypothesis is fabrication necessarily means that the Solicitor‑General’s response position is choice reasoning is permissible.  The complaint we make as to the reasoning is that it is not permissible.

You do not start from the premise of making a finding about the complaint’s evidence, whether you believe her, and then moving to the defendant’s evidence.  You start from what are the facts in issue.  When I move to the complainant’s evidence, I cannot make a finding about her evidence unless and until I have weighed into that evidence, the accused’s evidence.  It is a precondition for accepting her evidence beyond reasonable doubt that you have rejected the accused’s evidence.  So by adopting choice reasoning, namely, let us look at the complainant first, do I believe her, in our respectful submission, that deflects the fact finder from identifying the facts in issue and properly applying the burden of proof to those facts in issue.  So we say that it is wrong question to say the alternative hypothesis is fabrication.

Your Honours, finally in relation to the contention that it is appropriate to reason by posing the question word against word at a practical level, we submit that in fact the way in which word against word has jurisprudentially been relied upon is in accordance – or following in particular R v Murray, the New South Wales Court of Appeal case which is our list at No 6, (1987) 11 NSWLR 12 at 19, that if it is a case of word against word, that is a cause for caution and scrutiny, not a route to discharge the burden of proof. In other words, it should have the opposite message. Where a case depends on a single witness, whether it is a child or any other witness, as in Mr Morris’ case in Morris v The Queen, then once

that is the totality of the evidence against an individual, then a jury ought be directed that they need to scrutinise that evidence with special care before convicting.

So, in our respectful submission, the notion of word against word is completely misplaced as a method to discharge the burden of proof.  If indeed it is word against word, that is a reason for a caution, not a reason to reject the accused without reasons.  I should just point out factually that insofar as the complaint evidence was concerned to the mother, the mother on the Friday had quizzed the child about what had happened – what she had told the father, I should say, on the Tuesday, and the child, in essence, repeated an allegation.

The elaboration which the trial judge relied on to incorporate this in the original complaint depended upon an allegation of urinating on the tractor and depended on the allegation to the detective a year later that it was a shed at [S’s] place.  But in the outcome his Honour decided to essentially not use those facts as part of the complaint because he put them to one side in deciding he could not say which shed it was.  In that sense, the mother’s complaint was not an elaboration for the purposes of section 34M.  In our respectful submission, the conviction should be quashed.  If the Court pleases.

FRENCH CJ:   Yes, thank you, Ms Shaw.  The Court will adjourn briefly to consider what course it should take.

AT 12.35 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.39 PM:

FRENCH CJ:   The Court is of the opinion that the Court of Criminal Appeal of the Supreme Court of South Australia erred in concluding that the trial judge gave sufficient reasons for concluding that the charge preferred against the appellant was proved beyond reasonable doubt.  Further, having regard to the content of the complainant’s accounts of events and the trial judge’s finding that the demeanour of the appellant in his sworn evidence denying the events did not assist the prosecution, it was not open to the trial judge to be persuaded beyond reasonable doubt that the elements of the offence charged had been established.  Accordingly, there will be orders:

1.Appeal allowed.

2.Set aside the order of the Court of Criminal Appeal made on 3 December 2010 and in its place order:

(a)appeal allowed;

(b)conviction and sentence quashed; and

(c)direct the entry of a verdict of acquittal.

The Court will publish its reasons at a later date.  The Court now adjourns until 9.30 tomorrow in Sydney and 9.30 tomorrow in Melbourne.

AT 12.40 PM THE MATTER WAS ADJOURNED