Fleming v The Queen

[1998] HCATrans 309

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S59 of 1998

B e t w e e n -

MARK FLEMING

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 4 SEPTEMBER 1998, AT 10.21 AM

Copyright in the High Court of Australia

MR C.A. PORTER, QC:   In this matter, if the Court please, I appear with MS S. KAUR-BAINS for the appellant.  (instructed by Segal Litton & Chilton)

MR A.M. BLACKMORE:   In this matter, I appear with my learned friend, MR R.D. ELLIS for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Parter.

MR PORTER:   Your Honours, there are detailed written submissions in this matter which I take it that your Honours have read.  If I may come straight to what we say is the fundamental of the appeal:  in our submission, section 33 of the Criminal Procedure Act is meant to, in effect, secure for the person tried by a judge alone a proper observance by the judge of the various principles of law and warnings applicable in the same way - it is analogous to a summing up in the case of a trial by jury.  It is not the same; it is analogous to.

The two safeguards are, firstly, that he has to include the principles of law applied and the findings of fact on which he relied.  In our submission, subsection (3) means, in effect, that a warning is one of the principles of law that has to be included in his judgment.  In our submission, it is quite inappropriate to say, “Although he never mentioned it in his judgment, he took the warning into account”.  If that were permissible under section 33(3), then the section serves no purpose in that regard.

KIRBY J:   Mr Porter, can you tell me - I remember in the Court of Criminal Appeal I sat in a case.  It was an appeal from a decision of Justice Ireland sitting alone and I said something to the effect - and I think Justice Hunt referred to it in a later case - that it would not be sensible for a judge to have to go through the whole rigmarole that a judge does before a jury, but I am not sure that I paid enough attention to section 33.

MR PORTER:   Your Honour, I am indebted to my learned friend the Crown.  He seems to think, and I think he is right, that the - yes, the case is Winner 79A Crim R 528, when you were Acting Chief Justice ‑ ‑ ‑

KIRBY J:   Yes, I will just have a look at that.  I do not want to take you off your course, but I remember thinking about this problem the Crown ‑ ‑ ‑ 

MR PORTER:   The passage your Honour is referring to is at page 531:

But I am far from convinced that the absence from such reasons of express references to judicial instruction which might be required for a jury trial will necessarily indicate the kind of errors that would invite and authorise the intervention of a Court of Criminal Appeal.

KIRBY J:   I think Justice Hunt referred to that in a later case and said something a little similar, but I am just not sure that I paid enough attention to section 33 when I - - -

MR PORTER:   Your Honour, with respect, the type of instruction that has to be given to a jury - there is all sorts of things that have to be said to a jury that would not necessarily have to appear in a judge’s judgment.  But, in our submission, the minimum for the judgment of a single judge is the principles of law applied which would include all applicable warnings which would have had to be given to a jury.  If I can illustrate it this way:  section 165 of the Evidence Act - and this would be applicable in this particular case - section 165(1)(c) applies the warning to:

evidence the reliability of which may be affected by age, ill health.....injury or the like -

and subsection (2) says:

If there is a jury and a party so requests, the judge is to:

(a)  warn the jury that the evidence may be unreliable -

Now, a judge sitting alone has to take into account a warning that would have been given to a jury and in our submission it would be necessary for him to refer to section 165 and say to what extent he has in fact taken into account.  You see, the safeguards of a jury trial are, in effect, the accused is entitled to his counsel to follow the summing up and then make appropriate submissions at the end of the summing up as to matters that he claims ought have been included and if they are not included or if they are put the wrong way then there is a right to set the verdict aside in the Court of Criminal Appeal, assuming that there has been a miscarriage of justice as a result.

GUMMOW J:   Yes, well, this was one of the things that puzzles me a bit.  When sections 32 and 33 were introduced in 1990 or thereabouts, was it?

MR PORTER:That is so, yes.

GUMMOW J:   Was there any amendment of the Criminal Appeal Act?

MR PORTER:No, if your Honour pleases.

GUMMOW J:   And, in particular, the language of section 6 which does not accurately speak, now.

MR PORTER:But as I understand it, I think ‑ ‑ ‑

GUMMOW J:   You see, the first branch of it is that the verdict of the jury should be set aside.  Well, that is not right.

MR PORTER:   As we would see it, the appropriate law now in dealing with an appeal from a judge sitting alone, you do not come to M until you have gone through his reasons.  Then, if you find an error in his reasons or an omission in his reasons, which may well have affected the resulted then that of itself would set the verdict aside.  The question as to whether there should be a new trial or not might well depend upon principles similar to those in M.

GLEESON CJ:   I am looking at pages 464 and 465 of the appeal book.  Which of the grounds of appeal is this directed to, Mr Porter?

MR PORTER:   It is the first ground of appeal.  It is ground 2(a).  This was the matter concerning which leave was given.  Really, that was the special leave point.

GLEESON CJ:   That seems different from the first ground of appeal in the Court of Criminal Appeal which was that the trial judge failed to warn himself in accordance with Longman.  What you have been putting to us so far sounds a little more like ground 1 of the grounds in the Court of Criminal Appeal than the ground of appeal here.

MR PORTER:   Well, you get to that in that way, if your Honour pleases.  It is the same thing.  What we are, in effect, saying is that the M approach was wrong.  The Court of Criminal Appeal should not have approached this on the basis of M at all.  They should have approached it by a proper examination of the judge’s reasons firstly.

KIRBY J:   But the M principles, with adaptation, would seem to be still applicable.  Justice Sully’s dissent is founded on the M principles.

MR PORTER:   Yes, all three judges of the Court of Criminal Appeal seem to have, and in our submission, perhaps in error, seem to have gone straight to the question as to whether the verdict could stand having regard to the principles applicable in M, without considering what we say was the essential first principle, namely to see whether the reasons given by the judge, pursuant to section 33 of the Criminal Procedure Act, of themselves invalidated a conviction.  The M principles, in our submission, would come into play in deciding whether or not to order a new trial.  And, of course, there would be some cases where you could say, well look the judge has made no mistake in his reasoning at all, but nevertheless, on the M principles, the verdict cannot stand.

McHUGH J:   But where do you find the ground to intervene on the basis that the judge has made some mistake?  It is still an appeal under section 6 of the Criminal Appeal Act ‑ ‑ ‑ 

MR PORTER:   That is so, your Honour.

McHUGH J:    ‑ ‑ ‑and the grounds still are that the verdict of the judge, that I assume is the consequence of translating the last sentence of section 33 into section 6, is unreasonable, or cannot be supported having regard to the evidence, or should be set aside on any ground that there was a miscarriage of justice or a question of law.  So the grounds are the same.  It is not as if it is an appeal, as in a civil case where it is a rehearing.

MR PORTER:   No, no, I follow what your Honour is getting at.  Yes.

McHUGH J:   Yes.

MR PORTER:   Our submissions do not - we are not trying to say that we can run a sort of Warren v Combes - in fact, our submissions expressly disavow that.

McHUGH J:   Yes.

MR PORTER:   In effect, what we have to do is to find an error in the judgment or an overall doubt which is a compendious way of trying to encompass the end principle.

McHUGH J:   You have to do more than find an error in the judgment, have you not?  You have to find an error in the judgment that makes the finding of guilty unreasonable or otherwise indicates a miscarriage of justice.

MR PORTER:   We would concede that, your Honour.

McHUGH J:   Yes.

MR PORTER:   We concede that.  In fact, your Honour has stated our position pretty accurately if I may respectfully say so.

McHUGH J:   Yes.

KIRBY J:   That takes you back into the sort of considerations that are typically weighed in an M Case from a jury re‑examining the whole of the case for itself.  The appellate court has to say, notwithstanding the advantages that the primary judge had, in this case the judge of seeing the complainant and seeing the appellant, notwithstanding that we consider that the resulting verdict is unreasonable and/or has led to a miscarriage of justice.

MR PORTER:   In our submission, we come to that in the circumstances of this case rather on the question of whether there should be a new trial rather than ab initio.  Our first approach is simply to look at the reasons and we say that there are errors in the reasons which mean that the judgment cannot stand.  That may mean it is set aside on the ground of miscarriage of justice but that could mean a new trial just the same as if a jury had not been directed as to certain matters.  I mean, say some necessary directions had been omitted from a direction to a jury then that does not quash the conviction without more.

KIRBY J:   No, I think there is a dichotomy, is there not?  If, in fact, you win on the basis that the judge failed in accordance with section 33 to set out adequate indication that he had warned himself of all the relevant things, then that leads to a new trial.

MR PORTER:   That is right.

KIRBY J:   If you establish that the case is one where the Crown, having run its course, has produced a case which leaves you at the end of it with a sense of disquiet that there is not sufficient evidence or that the verdict is unreasonable, then the Crown does not get a second chance to run its case and you quash the conviction.

MR PORTER:   That is so, your Honour.  There is a further fact in this case, of course, that the man has, in fact, served over half his sentence or over half his minimum period.

KIRBY J:   You are trying to slip that in, but that would be relevant to whether the prosecution ordered a retrial.  That is not something this Court would take into account.  It either gets up on section 33, in which event there is a new trial and query whether the prosecution would order a new trial, or it must be quashed and a verdict of acquittal entered, as Justice Sully did, on the basis that the Crown should not get a second chance to run a stronger case if it can.

MR PORTER:   The only query I would have to make with that, your Honour, is just that, say, for the sake of argument he had, in fact, served the entire minimum period - I mean ‑ ‑ ‑

KIRBY J:   I think this has forensic power but not logical power.

MR PORTER:   Anyhow, fundamentally, if your Honour pleases, that is the situation.  The court orders a new trial unless we can show that in effect the first trial ought to have resulted in a verdict of not guilty anyhow.

KIRBY J:   But is not your theory of section 33 a very strict theory, one which would lead to the result that, if the judge by oversight or omission failed to mention some relatively minor matter, that would necessarily lead to the setting aside of a judge’s verdict and a retrial?

MR PORTER:   No.  I thought, your Honour, I had covered that when I was answering Justice McHugh.

GUMMOW J:   Just look at 33(2) and (3).  They are imperative and, if that imperative is not obeyed, why is that not a wrong decision on a question of law?

MR PORTER:   It would be, but it is not every wrong decision on a question of law which necessarily leads to the quashing of a conviction.

GUMMOW J:   You then get down to the proviso, I suppose.

MR PORTER:   Yes.  There can be some mistakes or some omissions in a summing up, for the sake of argument, which the court is quite satisfied on the principles in Mraz and other cases would not have led to any injustice, but it is a bit difficult to apply the proviso in the case of a judge’s failure to take into account warnings that are meant to safeguard the accused.

McHUGH J:   I hate to bring this up, but perhaps it has some importance.  It may be that your real point is not a point taken in the notice of appeal, and that is that the judgment is in error - that is, the judgment of the trial judge is in error - because it fails to properly state the reasons.  The rationale of judges giving reasons is so that parties will know that their cases have been fully understood and evaluate them.  If a judge fails to note that he or she has taken a warning into account, then the reasons may be said to be defective on that basis, even if the judge has in fact taken the reasons into account.  As Lord Macmillan said long ago, one gives reasons so that justice can be seen to be done.  If the judge fails to state that he or she has taken a matter into account, it may be said that justice is not seen to be done.

MR PORTER:   Another way we would put it is the way Justice Gummow put it a moment ago, that the provisions of section 33 are mandatory.  Apart from cases to which you could apply the proviso, the failure to comply with section 33 must ‑ ‑ ‑

McHUGH J:   I appreciate that.  The way I was putting it to you was an alternative way.  The way Justice Gummow put it to you that it is mandatory, then ‑ ‑ ‑

MR PORTER:   We put it both ways.

KIRBY J:   We have the principle that you have advanced, but where are these defaults by the judge?  I mean, where are the warnings that he failed to give himself?  Where are the principles of law that he failed to remind himself and articulate?

MR PORTER:   Is it convenient to your Honour for me to come to that right now?

GUMMOW J:   Just before you do that.  Is it significant in any respect that this procedure follows upon an election?

MR PORTER:   An election to be tried by a judge alone?

GUMMOW J:   Yes.

MR PORTER:   In our submission, no.  I mean, you elect to be tried by a judge alone in accordance with section 33.

GUMMOW J:   Thirty-two.

MR PORTER:   No, but to be tried by a judge alone - you elect under section 32 but you elect to be tried in accordance with section 33.

McHUGH J:   Thirty-three.  Did the rules of court throw any light on procedure?

MR PORTER:   Not on this aspect, I would not think, your Honour.

KIRBY J:   Does the explanatory memorandum for the introduction of this measure explain what the Parliament had in mind by introducing this departure from time honoured jury trial?

MR PORTER:   That I could not say.  I had not looked at that.

KIRBY J:   By inference, one of the reasons would have been to have more economical and speedy trials that would get on more quickly, that could be adjourned if need be for witnesses.  It would be more convenient to all concerned but without a jury.  Now all of that argues for an element of efficiency in the conduct of the trial which would be lost if the judge had to go through the whole rigmarole that is necessary in the case of a jury trial.

MR PORTER:   Your Honours, the reasons for an accused selecting judge alone rather than jury are numerous.  There are some cases where the defence of the accused must disclose a criminal record.  In such a case, he might be wiser to take a judge alone.  That is one case of my own experience ‑ ‑ ‑

GLEESON CJ:   Diminished responsibility cases.

MR PORTER:   Diminished responsibility very much with juries do not seem to be prepared to accept the psychiatrist’s evidence.  There have been lots of those.

GLEESON CJ:   There are some forms of conduct the juries do not like describing as manslaughter when they think they are murder.

MR PORTER:   There are other cases where there is an enormous amount of documentation and so on which can be dealt much more speedily by a judge.  But to answer your Honour Justice Kirby, what we are seeking, what we say is mandatory under section 33 is no great burden on the judge.  I mean, it is a mental process that the section requires him to go through.  We are simply saying that it should be stated.

KIRBY J:   What - you dropped your voice at the critical moment.  I listen as closely as a jury would to your advocacy here, Mr Porter.  What is it that the judge failed to expressly state in his reasons that ‑ ‑ ‑

MR PORTER:I have not come to that.

KIRBY J:   I see.  I am very anxious to get to that.

MR PORTER:Now, if I can come to that, your Honours.  It is difficult to select these matters in order of importance.  I will simply put them in convenient order.  The first matter that obviously stares out in this case, if your Honour pleases, is the absence of  a Murray warning - Murray 11 NSWLR.  It is a very commonsense warning and it simply says that where a Crown case depends entirely upon the evidence of one witness - and this is not limited to sex cases - where a Crown case depends entirely on:

the evidence of one witness then the evidence of that witness must be scrutinised with care.

Not only did the judge not state that warning to himself but it is quite clear on his reasons that he did not apply it.  Although he scrutinised the evidence of the appellant with great care, and we would say with some injustice, there is no evidence whatever - there is nothing in the judgment whatever of a scrutiny of the complainant’s evidence.  You see  ‑ ‑ ‑

KIRBY J:   Is this an attempt to revive corroboration by a back door ‑ ‑ ‑

MR PORTER:No, no, it is not.

KIRBY J:   The Parliament having said, contrary to centuries of common law, that you do not need corroboration, now you are introducing an obligation to scrutinise with great care.

MR PORTER:Well, there has to be.  This has nothing do with the great old controversy about corroboration in sex cases.  If this was a pub brawl case:  “A says he hit me and B says he did not” or “A says he hit me and B says it was self-defence”, if A is the accuser, A’s evidence has to be scrutinised with great care.  It is a commonsense direction.

KIRBY J:   Is it anything more than the onus of proof that the Crown bears?  Is it saying anything more than you have to be satisfied beyond reasonable doubt though it is but the evidence of one person?

MR PORTER:Yes, it is, if your Honour pleases, it is, and that was the error that his Honour made in this case.  It is not something to which you simply pay lip service in that fashion.  You have in fact to carefully examine the evidence of the accuser.  Now, in this particular case the accuser was a 15-year-old girl, at the relevant time.  She was accusing a deputy headmaster of four very serious offences and to none of those offences did she give a date or did she identify in any other way than saying it happened in a certain place during a period of two weeks.  For one of them she said it happened on a Friday.  Now, that meant that by the very vague nature of her accusation it would be impossible for the accused to raise anything by way of an alibi or by way of persons in the vicinity at the relevant time because you had no relevant time.  The accused was, in effect, put in a situation that was very difficult for him.

Now the Crown says in its submissions, that is something that is likely to happen when children make an allegation.  But we are not dealing here with an eight‑year‑old child, or a 10‑year‑old child.  We are dealing with someone who could almost be classified as a young adult; the age of 15.

KIRBY J:   But unless she keeps a diary she simply will not, whether she is a young adult or an old adult, she will not be able to specify a particular date.

MR PORTER:   With great respect, your Honour, no.  That is not good enough.  We would say that if events of this importance happened in her life she should be able to identify them in some better way than she has identified them in this case.  It leaves very much open to question as to whether she has been deliberately vague as to dates and occasions so as to deny to the accused any opportunity of rebutting what she says.  If you look at her evidence, if you subject her to the scrutiny, which, in my submission, his Honour should have done - that is Judge Luland - the thing that immediately stares out at you is that she is has framed her evidence in such a way that it is impossible for the accused to answer it in any other way than say “I did not do it”.  There is no answer he can make.  There is no way he can bring a witness who was in the vicinity.  There is no way he can give himself an alibi.

GLEESON CJ:   That is not entirely accurate, is it?  It is right in relation to the charges, but I thought there was a major issue at the trial subject of a great deal of fresh evidence, or new evidence, before the Court of Criminal Appeal about alibi.

MR PORTER:   That is right, the matters of the charges that she laid, she deliberately selected, in our submission.

GLEESON CJ:   Mr Porter, I was just looking at the way the Court of Criminal Appeal dealt with this argument.  The Chief Judge of Common Law did not accept the premise of the argument; he was not prepared to accept that it would have been necessary to give a direction to a jury along the lines of the direction for which you are contending.  He gave his reasons for that at pages 419 to 420.  He then went on to say even if it had been necessary to give such a direction to a jury, in the present case he says, “it is obvious that” the trial judge did scrutinise the complainant’s evidence “with great care”.

MR PORTER:   If your Honour pleases, that is where we disagree with him.

GLEESON CJ:   You had better deal with the first point, had you not?

MR PORTER:   It would have been necessary, in our submission, under Longman’s Case, to have given this warning because your Honours will remember the sequence of events:  you have the charges from the fourth term of 1994; you have a report made to Mr Nield, a teacher, just before the end of term in 1994 in which she suggests an involvement with a married man, but no physical activity, and leaves it at that.  You have in March that she reports it to her mother, and asks her mother to do nothing about it, and her mother does nothing about it.  So then it is not until somewhere about July, I think, of the following year, that the matter comes to the notice, and the appellant is first accused.

t13.as
           In our submission, he falls very squarely within the Longman principle both because of the delay in reporting the matter and because of the vagueness of the dates given.  He is in precisely the same position as the appellant in Longman.  He is in precisely the same position.  In his particular case, because of the vagueness of the dates given it would not really have mattered whether the report had been made within six months or six years.  She had framed her complaints on a basis where it was impossible to answer them except by saying, “I did not do it”.

In my submission, that called for two things on his Honour’s part.  The first thing that his Honour should have done is to scrutinise carefully as to why a girl of this age and this intelligence would not have been able to identify the occasion with greater precision and, secondly, he would have needed to have warned himself, pursuant to Longman, that the accused was in a situation where he could not answer the matter.

GLEESON CJ:   I may have misunderstood the facts in one respect but I had the impression that her account of what went on was that there was almost continuous activity, very frequent activity in the final term of 1994 and the charges that were laid related to only four, I think, specific occasions.  They, perhaps, being the only occasions where the activity was allegedly of a criminal nature as distinct from impropriety.

MR PORTER:   If your Honour pleases, assuming that was so and I think your Honour may have overstated it, she certainly did use the expression one time how they “came together heaps of times”.  I think that is where your Honour is getting that impression from.  It is, to say the least, a vague brush when she gave that evidence ‑ ‑ ‑

CALLINAN J:   There was one incident, though, that there was quite a lot of evidence of.  It was the incidents in the van.  That is involved ‑ ‑ ‑

MR PORTER:   That is the only other incident of which any detail has been given at all.

CALLINAN J:   That might have involved, I think, criminal activity that one.

MR PORTER:   As I understand her account of the van, it eventually got to the stage where it did amount to indecent assault.

CALLINAN J:   Yes, she was undressed or partially undressed.

MR PORTER:   The other matters to which the Chief Justice has referred seem to me to be just the sort of general throw away line that she made at least once when she referred to the “heaps” of occasions.  I will be coming to the van later because that is a particular matter.

GLEESON CJ:   The frequency with which their contacts allegedly occurred assumed considerable factual importance at the trial as I understand it, because one of the things the defence said was that it is highly unlikely that this could have gone on without people seeing it.

MR PORTER:   Quite.

MR PORTER:   Quite, but that was ‑ ‑ ‑

KIRBY J:   Well, did not Miss Drinan say that people were talking?  May that not be difficult to reconcile with her evidence where she went to warn the appellant that people were talking?

MR PORTER:   No, Miss Drinan’s evidence was purely and simply relative to the fact that he was seeing her so frequently in his office.  That was what her warning was based on.  Nothing else.

GLEESON CJ:   There was no suggestion at the trial that anything of a criminal nature actually happened in his office.

MR PORTER:   That is right and, as a matter of fact, while I am on it I may as well as refer to that because that was the example that I had in mind where, in our submission, the trial judge in his reasons quite clearly went astray because you had a situation, as you very frequently do in these cases, this type of case, where the complainant said the door was shut all the time - now, she dogmatically said the door was always shut when she was there.  He said by and large that the door was open most of the time she was there. 

Numerous witnesses were called as to whether the door was open or not when she was there.  I mean, they all agreed that you could see into the room through the curtains anyhow, but one would not query the finding of his Honour that the probability was the door was sometimes open and sometimes closed, as a number of witnesses said, but how do you jump from that to saying that, therefore, the accused was a liar and the complainant was telling the truth.  I mean, if the accused was a liar, so was the complainant on exactly the same logic. 

That, by the way, is the one occasion where his Honour had seen fit to say that the appellant’s credibility failed.  The other occasion was the van and if I may deal with that quite simply.  Witness after witness was called to indicate - and I am referring to the trial now because our appeal relates to the trial, not to the Court of Appeal subsequently dealing with the matter.  Witness after witness was called to say that on the afternoon he was working around the office and he could not have been in that van.  Witness after witness was called to say that at the relevant time he did not drive the white van; he drove a red car.

It was common ground that the school broke up at half past 12.  Her evidence was that after talking with Mr Nield for about 10 minutes or so he then picked her up in the van.  Now, that is contrary to a vast volume of evidence of apparently independent witnesses.  His Honour said that because one witness - and that is the last witness in the trial - said that she remembered him going home that afternoon sometime after 1.30 - and she could not put it any more closely than that, it could have been 4 o’clock, it could have been anytime - because of that the entire alibi failed and his Honour then went on to say the accused was lying and the complainant was telling the truth.

Now, they are the two occasions on which his credibility was specifically called into question and both of those, in our submission - without having the advantage of seeing the witnesses, it is quite clear that his Honour has made a grave logical mistake.

KIRBY J:   Could you just give me the little passage in Murray where Justice Lee says that where it is simply the evidence of one person you have to warn the jury.

MR PORTER:   Yes.

KIRBY J:   You mentioned Murray but you did not give us the exact reference.

MR PORTER:   I am sorry, your Honour.  I had given the evidence in my written submissions.  I will give your Honours the actual page.

CALLINAN J:   Page 19 about letter E, I think.

MR PORTER:   That is right, if your Honour pleases. 

KIRBY J:   What do we do where Justice Lee says that that is what ought to be done and Justice Hunt, a very experienced judge, seemed to think it was not necessary?  Is the principle agreed but it just did not apply in this case?  Justice Hunt seems to cast doubt on whether it is really necessary where the facts are self‑evident.  Can we go back to principle.  It is sometimes said that the reason for abolishing corroboration was to ensure that no witness is higher or lower than any other witness in a court of law, that people come to the book and give their evidence as equals and that the old law of corroboration has been abolished, as Justice Lee says in Murray, because we do not now, as it were, put women complainants, or any complainants, into a suspect class.  If that is the rule, why should we be, contrary as it seems to the spirit of what Parliament has done, reintroducing a principle and says, “Well, they’re not a suspect class but they’re only one; therefore, you’ve got to weigh their evidence very, very carefully before you convict upon it”.

MR PORTER:   Your Honour, as I thought I made clear in my earlier submission, Murray is not a principle limited or in fact applicable only to sex cases.

KIRBY J:   But it has special relevance in sex cases because the nature of sexual offences is they tend to be alleged to have occurred in private.

MR PORTER:   The principle in Murray crops up in murder cases.  I had it crop up in a murder case only a couple of weeks ago where the sole evidence as to what had happened in a pub brawl depended upon one Crown witness.  It happens all the time.  With great respect to your Honour, the principle in Murray has nothing whatever to do with classification of witnesses as suspect or otherwise.  It is a common sense principle but a vital one and it says, in effect, that if you are going to convict someone on the basis of one‑on‑one evidence, then before you do so you have to examine the evidence of the one Crown witness with great care and attention.  It has to be scrutinised with great care.

With all due deference to Mr Justice Hunt, the reason why these safeguards are applied is because they are constantly repeated.  To take them for granted and not mention them means in effect that they are forgotten.  That is why you have sections like section 33, to emphasise that these things are necessary to be considered.  It is all too easy to say, as the Crown’s submissions say in effect, “Well, Judge Luland’s an experienced judge.  He would have known this”.  The principle is that those looking at the judgment later are entitled to know that he has carefully considered relevant matters, and that is one of the relevant matters that he is supposed to have considered.  On our submission, he has not done so either expressly or by his approach to the complainant’s evidence.

What he has in effect done, in our submission, is he has said, in effect, “Well, look, here is the prima facie case for the Crown.  What has the accused done to knock it down?  And that is the completely wrong approach.  Before you ever get to that stage, you should have scrutinised the Crown’s - I do apologise for the fact that I am suffering from what I call the birthday cold that has many happy returns.  Your Honours, what happened in this case is that instead of asking himself the question, “Well why was she so vague about the dates?  How could the accused meet this case?”, which are two questions he never even considered in his judgment.  He rushed into the conclusion very early in his judgment that the accused was a liar, and she was telling the truth over the question of the doors, where logically, he was quite incorrect.  Then finally, he made the errors as to the car alibi, where he not only erroneously held that the alibi had been broken, but he branded the accused as a liar for having ever raised it.

McHUGH J:   I am not quite following your argument on this point about the.....  I thought trial judges analysis was that the complainant said, Well, there was this half day and he took me off”, and there was some activity there.  There was a boy fishing nearby ‑ ‑ ‑ 

MR PORTER:   I think, with respect, your Honour has missed the crucial point.  The crucial point is, when did he take her off, and so far as one can infer from the complainant’s evidence, soon after half past 12.  That is the crucial point.  I mean, what he was supposed to have done with her is beside the point, for this ‑ ‑ ‑ 

McHUGH J:   Does he deny he took her at all?

MR PORTER:   That is right, he said, in effect, “I was at the school”, and he called ‑ ‑ ‑ 

McHUGH J:   I know he did, but Mr Wilkinson remembered him leaving that day and he told her that he was going.

MR PORTER:   He remembered him leaving that afternoon, some time after half past one, and that was as accurately ‑ ‑ ‑ 

McHUGH J:   And then he said he was going home, or something to the effect.

MR PORTER:   That is right.  But some time after half past one would be way outside the time when she said the events occurred.  This is one of the problems of this case with this young lady, that she is very vague indeed as to her times.  In this particular case, she has identified an occasion, and the date has been got, Tuesday, 6 December 1994.  You look carefully at her evidence to see when did she say it happened?  So as far as one can gather, it happened very soon after the school broke up.  So you have an abundance of evidence to say the school broke up at half past 12.  Now, how does it break his alibi to say that some time, some indefinite time after half past one, he went home?

McHUGH J:   It is consistent with her story, is it not?

MR PORTER:   No, in my submission it is not consistent with it.  That is the whole point.

McHUGH J: .....that he left school that afternoon, did he not?

MR PORTER:   He did not deny that he left school that afternoon.  He obviously went home some time in the afternoon.

McHUGH J:   Well, naturally.

MR PORTER:   Then he came back again to a function.  It was a formal function so he had to go home and get dressed and come back again.

McHUGH J:   Yes, but this evidence has to be assessed in the context where the appellant called a number of people, in effect, to say that he did not leave during the afternoon, that he was there.  Well, there was evidence to the contrary.  And the fact that she should name a white van, itself, has the ring of truth about it.  His case was that he usually drove a red car and yet she mentions a white van, and it turns out he has a white van.

MR PORTER:   A white van which he drove earlier in the year.

McHUGH J:   Yes.  When you read the whole of the evidence, there is a lot to support her case.  There is the question of the vasectomy.  There is the question that she knew his age.  There is the story about the security and it turns out he..... first call on the security.  And on any view of the case, there was some sort of a close relationship between them, even in the appellant’s version.  Now given that and that the trial judge said that she was an impressive witness and the accused did not make a favourable impression in the witness box, so far as the judge was concerned, why is it unsafe in those circumstances for the judge to have convicted him?

MR PORTER:   Your Honour is coming to the later stage of the case rather than the point that I was dealing with but still.  But, your Honour, it would require quite a lengthy exposition by me to come back to the answer to all of those things.  May I first start off with a proposition, though, that so far as the judge having the advantage of seeing the witness’s concern, we concede that.  The courts have always paid a great deal of regard to the fact the judge has the advantage of seeing the witnesses.  We do not know.  For all we know, the complaintant was like Deanna Durban and the appellant was like Boris Karloff.  We have no idea.  But there has to be a limit to the extent to which, as there was in M’s Case and numerous other cases, there has to be a limit to the extent to which you can simply say, well the judge saw the witnesses, therefore he ought to know.

GLEESON CJ:   Mr Porter, I understand that you make a separate point about section 33, and I am not intending to deflect you from that point.  But on the subject of an argument that the verdict of a judge sitting alone without a jury, the judgment of a judge sitting alone without a jury is unsafe or unsatisfactory, do you accept that the test is as stated in M?  And if it is not, what is it?

MR PORTER:   I thought I had made my position fairly clear, your Honour.  What we say is this, that the reasons under section 33 are firstly examined.  If there is a failure under section 33, either by giving the wrong reasons, the wrong inferences of fact or failing to express or pay regard to a warning, in any of those cases the verdict would be set aside in the same way as it would be set aside for.....in the summing up.

GLEESON CJ:   I understand that, then passing on beyond that ‑ ‑ ‑

MR PORTER:   Passing on beyond that, if your Honour pleases ‑ ‑ ‑

GLEESON CJ:   Let me suppose that.....did not have any complaint here, let us suppose the judge had actually said at some part of his judgment, “I must scrutinise the evidence of the complainant with great care and I now proceed to do so”.

MR PORTER:   Yes.

GLEESON CJ:   Would you accept that?

MR PORTER:   Assuming that was the only complaint I had to make about the judgment, yes.

GLEESON CJ:   And you then wanted to mount an argument that the decision was unsafe or unsatisfactory and the conviction was unsafe and unsatisfactory, would the test be as stated in M?

MR PORTER:   In M or Jones, which is the same as M.

GLEESON CJ:   So there is no argument in this appeal about the principles to be applied in the case of an argument that a conviction at a judge alone trial is unsafe or unsatisfactory.  The two questions with which we are concerned are one relating to section 33 and whether or not, applying the principles in M and similar cases, this conviction was unsafe or unsatisfactory.

MR PORTER:   As we would see it, if your Honours please, what would happen in this particular case is that you would find there had been errors in the judgment under section 33 and the end question would really arise on deciding whether there should be a retrial.

GUMMOW J:   It seems to me that what Justice Kirby said in Gipp about this phrase “unsafe and unsatisfactory” is just irresistible because it detracts attention.....the statutory text and that is a particularly dangerous activity where one has got.....statutory text to be matched by section 6,......  Someone has to go through the grounds in 6(1) and match them with 33 and then one comes to the proviso.  One cannot draw over that any veil by using a phrase like “unsafe and unsatisfactory”.  It is an excuse.....

MR PORTER:   As I recollect Gipp and as I recollect the section, the section does not refer to “unsafe and unsatisfactory” at all. That is right

GUMMOW J:   .....Justice Kirby.....

MR PORTER:.  Yes, I recollect.

GLEESON CJ:   The grounds of appeal did and I think that was the principal ground of appeal that was argued in the Court of Criminal Appeal.  You..... to the Court of Criminal Appeal that the verdict was unsafe or unsatisfactory.

KIRBY J:   I think the Court in M said unsafe.  Everybody has used this as a shorthand form in the statute.

MR PORTER:   That is right.

KIRBY J:   .....we should all go back to the statute.

MR PORTER:   I think, if your Honours please, with due fairness to those who preceded me in this case, when the appeal was.....to the Court of Criminal Appeal we did not have the advantage of what Justice Kirby said in Gipp’s Case.

McHUGH J:   Well, the term, “unsafe and unsatisfactory” purports to give some definition to the term, “miscarriage of justice”.  Your have got the term “unreasonable” there.

MR PORTER:   It has been a convenient shorthand for many years.

GLEESON CJ:   Can I draw your attention to the terms of your grounds of appeal before this Court, which appear on page 464 line 52.  That, I thought, was the ground of appeal.....

MR PORTER:   Your Honours, it may well be that when the special leave was granted this aspect of the matter was made far more apparent than it was in the ground of appeal, but that is what the grand of appeal refers to.

KIRBY J:   You are just using the phrase there that has been used by everyone throughout the country, but the point I was trying to make in Gipp was that led by this Court we should try to go back to the statutory language.

GUMMOW J:   Why did we ever leave it, that is what I cannot understand.

McHUGH J:   The reason we left it was it seen to the advantage of the accused, as I remember.  Well, starting with Hayes’ Case, if I remember correctly, the courts started to give some definition to “miscarriage of justice” and adopted the English phrase, “unsafe and unsatisfactory”.  It was quickly seized upon by appellate lawyers in this field and started to provide grounds for setting aside jury’s verdicts in criminal cases which, as a matter of practice, really, had not existed prior to about 1973 as you would remember......

MR PORTER:   Well, I think unsafe and unsatisfactory came very much into prominence when your Honour conducted the appeal in the Chamberlain Case and that then became the leading case on unsafe and unsatisfactory, but may I remind the Court that unsafe and unsatisfactory has been by no means limited to grounds of appeal based upon the jury’s verdict only.  I mean, a good example of that is the case of Timothy Anderson, on which your Honour the Chief Justice sat, then being Chief Justice of New South Wales, where the grounds for finding the verdict unsafe and unsatisfactory were not based upon the evidentiary deficiencies.

GLEESON CJ:   Mr Porter, would you just excuse us for a moment, please.  I understand that there is some difficulty in recording everything that is being said in here for one reason or another.  It has got nothing to do with your cold.

MR PORTER:   I see.  I am glad of that.

GLEESON CJ:   What is proposed is that we should just adjourn for a few minutes and resume hearing this appeal in court No 1.  Is that convenient to you?

MR PORTER:   If your Honour pleases, yes.

GLEESON CJ:   All right.  Well, let us do that.  We will adjourn for a few minutes and we will resume sitting in court No 1.

AT 11.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

GLEESON CJ:   Yes, Mr Porter.  I am sorry for that interruption.

MR PORTER:Your Honour, it might be of assistance to the Court if I restated our position and summed up how far I think we have got.  We say that in a case of an appeal from a judge sitting without a jury on the unsafe and unsatisfactory ground, and I have got to put it on the unsafe and unsatisfactory ground, although I concede that it would be better to come back to the strict wording of the Act.  We say that in such a case the first task of the Court is to examine the judge’s reasons to see whether pursuant to section 33 of the Criminal Procedure Act he has in fact stated the correct principles; he has in fact given himself and acted upon the necessary warnings and also, of course, to see whether there are any logical errors in the judgment and, in this case, to consider whether there was something wrong with his fundamental approach to the problem before him.  If, per chance, an error emerges pursuant to section 33 then, subject to the proviso, the Court would quash the verdict.

McHUGH J:   But why would it do that just simply because an error occurred?  Section 6 says:

that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, or that.....wrong decision on of any question of law, or that on any other ground whatsoever there was a miscarriage of justice.

The fact that there is an error is not sufficient.

MR PORTER:   I thought I made it clear, your Honour.  Perhaps I should have qualified it.  I thought I made it clear that the error would have to be one leading to a miscarriage of justice.

McHUGH J:   I see, yes.

MR PORTER:   I think that has always been fundamental law.  I would put it on the analogy of a summing up to a jury.  On the question of whether there should be a new trial or not, the Court would then have to apply the principles in M to decide whether there should be a new trial in a case such as this where there is a strong argument to the effect that the verdict was unsafe and unsatisfactory in accordance with the principles in M.  The other rider I put to it is this, that assume one had a case where the judge sitting without a jury made no mistakes whatever in his judgment.  It would still be open to the appellant to say in accordance with the M principles ‑ ‑ ‑

McHUGH J:   I do not see what M has to do with this new trial point.  If it is an M case, then you are entitled to an acquittal, not a new trial.

MR PORTER:   That is right.

McHUGH J:   What does M have to do with a new trial point?  You would only order a new trial if there had been some misdirection which constituted a miscarriage, not for M reasons but because it was a sufficient misdirection to constitute a miscarriage of justice and therefore you would order a new trial.

MR PORTER:   That is so.  But, your Honour, the position may well arise in this case that not only are there errors under section 33 but a question arises as to whether we are not entitled to an M finding anyhow.

McHUGH J:   Yes.

MR PORTER:   What I was pointing out is this:  assume we do not make the M threshold.  We are still entitled to a retrial under section 33.  That is the point I was trying to make.

McHUGH J:   Yes, I appreciate that.

KIRBY J:   You are entitled to a retrial because of section 33 and the non‑compliance with it pursuant to section 6 of the Criminal Appeal Act.

MR PORTER:   That is right.

KIRBY J:   At some stage I would be grateful if you would help me on why M, in its terms, applies to a judge‑only trial because it, of course, is based on a jury where you have no reasons, whereas when you get reasons it may well be necessary to modify some of the exposition of M.  For example, you would know that often you say, “We don’t know whether the jury would have been very impressed with that witness or would have given weight to this evidence”, whereas with a judge trial you have the reasons.

MR PORTER:   Your Honour said something along those lines in Cutter’s Case, and I am not sure I can give the reference to that.

McHUGH J: It is 71 ALJR 638.

MR PORTER:   And what your Honour was saying in that case was that it may be that the reasons given by the judge will indicate that, in fact, it was an unsafe verdict in accordance with M’s Case.  In M’s Case you are dealing with a question of where there are no reasons.  Your Honour was dealing with a different aspect to that with which I have been dealing.  Your Honour was saying, in effect, the very reasons given by the judge might assist - and I think your Honour said this rather tentatively - but might assist in deciding whether the judge’s conclusion was unsafe and unsatisfactory.  I think in those days you used that phrase.

KIRBY J:   That was before the enlightenment.

MR PORTER:   That is right.

GLEESON CJ:   That phrase is actually a statutory phrase taken from the Criminal Appeal Act 1968 of England.  It is not one that had been made up by advocates.

KIRBY J:   No, but the point I tried to make in Gipp was that we have gone past accepting English judicial phrases and a fortiori English statutory phrases and that therefore we should do well to look at our own statutes rather than a now repealed English statute.

MR PORTER:   Your Honour, to come back to what your Honour said about using the reasons to assist in a decision as to the general safety of the verdict, it is difficult to argue that one in the abstract.  In our submission, normally if there was an error in the reasons the verdict would have to be quashed in any event because of that error, and whether that error in the reasons would then assist on the further point of deciding whether there should be a new trial or not ‑ ‑ ‑

GUMMOW J:   Now, why would the error lead to the quashing?

MR PORTER:   Why would the error which?

GUMMOW J:   In terms of section 6(1) you said that there was an error of fact finding.

MR PORTER:   In the reasons.

GUMMOW J:   In the reasons.

MR PORTER:   Yes.

GUMMOW J:   How does section 33(1) work, Mr Porter?  What is being spoken of there?  It says:

may make any finding that could have been made by a jury on the question of the guilt.....any such finding has, for all purposes, the same effect as the verdict of a jury.

MR PORTER:   Yes.

GUMMOW J:   And one then applies the first branch of 6(1) to it, does one?  What are the findings being spoken about there?  They are not same things as the findings of fact in 33(2), are they?

MR PORTER:   No, your Honour.

GUMMOW J:   Is not 33(1) talking about ultimate findings?

MR PORTER:   In our submission ‑ ‑ ‑

GUMMOW J:   Provocation or self‑defence or diminished responsibility or ‑ ‑ ‑

MR PORTER:   The only finding a jury makes is guilty or not guilty.

McHUGH J:   Not necessarily.  I have been in culpable driving trials where the jury were asked to bring in special verdicts in respect of the proviso, for example, the old - I do not know whether ‑ ‑ ‑

MR PORTER:   Yes, as to whether the dangerous driving had caused the accident or the PCA had caused the accident.

McHUGH J:   Yes.

MR PORTER:   I myself have not had that experience and there certainly has been some controversy in the New South Wales Court of Criminal Appeal at least as to whether the jury should ever be asked questions.  It arose in particular in one case I had of a manslaughter where the murder may have been reduced to manslaughter either because of provocation or because of diminished responsibility or both.

GLEESON CJ:   Well, we sat a Bench of five to deal with that question about a year ago.

MR PORTER:   Yes, and, as I recollect it, the decision was the jury should not be asked special questions.  Am I correct on that, your Honour?

GLEESON CJ:   In the case of manslaughter they should be asked to explain whether they found manslaughter on the basis of diminished responsibility or ‑ ‑ ‑

MR PORTER:   So it would seem on the logic of that that it would probably be inappropriate to ask a jury the questions that your Honour Justice McHugh was talking about.  I have not heard of it being done in recent times at all.

GLEESON CJ:   Mr Porter, which is the statutory provision, if any, that relates section 6 to section 33 of the Criminal Procedure Act?

MR PORTER:   There is none.

GLEESON CJ:   So it is the concluding words of 33(1) that bring section 6 of the Criminal Appeal Act into play, is that right?

MR PORTER:   That is how it would seem to be.  I did point out to your Honours earlier that so far as we are aware there was no amendment to the Criminal Appeal Act at the time, so, in effect, section 33(1) by giving the verdict of the judge the same effect as the verdict of the jury ‑ ‑ ‑

GUMMOW J:   It is really 5(1), is it not?  The right of appeal comes from 5(1)?

MR PORTER:   Yes.

GUMMOW J:   There is the phrase “convicted on indictment”.

GLEESON CJ:   But section 6 deals with the determination of appeals.  Now, which of the particular provisions of section 6 with which we are concerned in this case?

MR PORTER:   Your Honour, firstly, you have the power to set the verdict:

aside on the ground that it is unreasonable, or cannot be supported ‑

and that is the source of the power for the M Case, unsafe and unsatisfactory:

the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice ‑ ‑ ‑

GUMMOW J:   Now, the compliance with the mandatory requirements of 33(2) and (3), does that give rise to some new species of question of law for 6(1)?  I do not know.

MR PORTER:   Your Honours, we would say, yes, it does because it is a wrong decision of any question of law but it would also be encompassed by:

or that on any other ground whatsoever there was a miscarriage of justice ‑ ‑ ‑

McHUGH J:   Well, you just contended that the M principle comes from the “unreasonable” ground, but it surely comes from the “miscarriage of justice”, does it not?  That was the problem prior to the 1970s in these criminal appeals.  The unreasonable test could never be met in most criminal cases.  There was evidence to go to the jury.  It is very difficult to say that the verdict was unreasonable because it was open to the jury to take various views, but there was lurking in the background the identity cases and in Davies and Cody v The King Justice Dixon had said that a verdict was unsafe because of the identification point, there was a miscarriage of justice and they were set aside on that basis and then the English statute of 1968 picked up unsafe and unsatisfactory and from the time of Hayes, which is about 1972 or something like that - I think it is in 47 ALJ - the courts started to use unsafe and unsatisfactory.

During the argument in Chamberlain Chief Justice Gibbs expressed the view that it came from miscarriage of justice.  I must say that was always my view that that is where it came from and it sought to give definition to that term in a particular context.

MR PORTER:   Yes.

GUMMOW J:   Now if that is right, does it not make it critical for you to satisfy us whether or not what you say is a failure to comply with 33(2) and (3), whether that is a wrong decision on a question of law, because if it is, that is a branch independent of miscarriage and independent of M, though of course, it has the proviso attached to it.  One needs to know these structural matters before one can answer the case.

MR PORTER:   But, if your Honour pleases, if the statute says that you shall do certain things, and you fail to do them, that, in my submission, would be an error of law.  I think it is fundamental law that if the law says certain matters have to be considered before a decision is reached by a judicial officer and he does not do so, that is an error of law.

McHUGH J:   Why I raised ‑ ‑ ‑ 

MR PORTER:   Would your Honour pardon me just for one moment?  We do have a bit of a problem, though, assuming that what we are referring to is a logical error rather than a legal error in his reasons, that would not be a question of law but would be any other ground whatsoever.

McHUGH J:   Yes.  Then you have to rely on miscarriage of justice on that basis.

MR PORTER:   Yes.

McHUGH J:   But that is why I put to you earlier that perhaps you need a ground of appeal that there is an error and the judge has failed to give proper reasons because the judge has not indicated that he has taken a warning into account.

GUMMOW J:    Now that is one of the footings on which you got special leave, I think. 

MR PORTER:   Yes that is so.

GUMMOW J:   It is not reflected in the document that was then filed.

GLEESON CJ:   And if you were to put on a ground to that effect, you perhaps ought to state in the ground what it was exactly that the judge should have warned himself.

MR PORTER:   I think that the notice of appeal was, in fact, annexed to the special leave papers at the time special leave was obtained.

GUMMOW J:    Well the question is, do you now seek leave, as it has been indicated, and it could be dealt with.

MR PORTER:   Well, if the Court is of the view that we need leave, well then we do seek leave.

GLEESON CJ:   Well then, what is the leave you seek, and in particular, what is the warning you say the judge should have taken into account?

MR PORTER:   Can I dictate them now, your Honour?

GLEESON CJ:   Certainly.

MR PORTER:   The trial judge, contrary to the section 33 of the Criminal Procedure Act failed either expressly or actually to - that his Honour the trial judge failed to take into account, either expressly or actually, the following warnings, namely, that because of the vagueness of the date supplied by the complainant, and the time which elapsed before the complaint was made, the appellant was not in a position ‑ ‑ ‑ 

McHUGH J:   Just a moment.

MR PORTER:   To obtain evidence to meet the complaint; that the Crown case ‑ ‑ ‑

GLEESON CJ:   Just a moment.

GUMMOW J:   It is not our primary skill, Mr Porter.

GLEESON CJ:   No, and something may turn upon the precise warning for which you contend.

MR PORTER:   Quite.  Because the Crown case depended entirely upon the evidence of the complainant, Megan Armstrong, it was necessary to scrutinise her evidence with great care before accepting it beyond reasonable doubt against the appellant’s sworn denial; that in accordance with section 165(1)(c) of the Evidence Act, the reliability of the complainant’s evidence may have been affected by her age.  That deals with warnings.  Then further under section 33, that his Honour the trial judge adopted the approach of asking whether he should reject the complainant’s evidence rather than whether, on the entirety of the evidence, he should accept it beyond reasonable doubt against the appellant’s sworn denial; that on the evidence found by his Honour with regard to the closed office doors, it was impossible to find, as his Honour did, that the appellant was lying and the complainant was telling the truth.

GLEESON CJ:   And they are additional grounds of appeal you want to raise?

MR PORTER:   No, I am dealing with the questions raised in his Honour’s reasons.

GLEESON CJ:   I thought we were dealing with an application to amend the notice of appeal.

MR PORTER:   That is so, and these are the ‑ ‑ ‑

GLEESON CJ:   These are the additional grounds of appeal you want to raise?

MR PORTER:   Well, your Honour is asking me to detail, whether as additional grounds or otherwise, the matters encompassed in ground 1 in the notice of appeal, namely, the unsafe and unsatisfactory ‑ ‑ ‑

GLEESON CJ:   But you are making an application to amend the ground of appeal by adding these grounds?

MR PORTER:   That is so.

GLEESON CJ:   Does that cover the grounds?

MR PORTER:   No, there are two more, I think, your Honour.

GLEESON CJ:   Because I am going to have to ask the Crown what he says about them.

MR PORTER:   Your Honour, did I conclude that last one?

GLEESON CJ:   Yes, you were talking about the closed office doors.

MR PORTER:   That is so.  The final one was that on the findings made by his Honour, it was impossible to find that the appellant was a liar when he said that he had not gone with the complainant on the half holiday on 6 December 1994.

MR PORTER:   The other matters, if your Honour pleases, are covered by the other grounds of appeal.

GLEESON CJ:   All right, now Mr Blackmore, do you oppose that application?

MR BLACKMORE:   I do not oppose the application, your Honour.  I am not inconvenienced particularly and I can answer them.  I do note that the first ground does not seem to ground itself in section 6(1) in any respect.

Your Honour, in this particular case, the only matter - the late complaint and the vagueness of the dates, meant that the only matter concerning which any evidence could be called by the accused was 6 December, the white van incident.  Each of the witnesses he called with regard to the white van incident were cross-examined along the lines, “Well, look this is seven months ago, how would you possibly remember that now?”  That is the very thing that Longman is getting at.  The Crown cannot have it both ways.  The Crown took advantage of the delay in putting that sort of cross-examination to the witnesses as to the white van.  The Crown cannot now say there was no need for direction.

Your Honour the Chief Justice referred to this shorthanding, and it is a pity because you use the expression Longman.  What I tried to do in stating the grounds of appeal was to point out that there are two distinct situations that cause this dilemma:  one, the vagueness of the complaint, as to date; the second, the lateness of the complaint.

These two matters on this aspect have very little to do - we are not considering them from the point of view of the credibility of the complainant.  The importance is that they make it impossible for the accused to put up a defence.  On the one occasion when he did put up a defence, as in the case of Johnston - the Crown says in effect, “Well, look, this happened so long ago, how would you be sure?”.  It is crucial, in our submission, that a Longman direction should be given.  With all due respect to Mr Justice Hunt, this was a case that called for one very strongly, because the accused was put in a situation where it was almost impossible for him to do anything other than say, “I didn’t do it”.

It was a peculiar situation because your Honours will have observed, no doubt, that not a single pupil or teacher was called to corroborate or give any sort of verisimilitude to the essential feature of the complaint at all.  No one came along to say, “We saw them walking together in the playground, we saw them walking together towards the computer room or the music room”, or whatever other room it was.  Everything was entirely dependent on the evidence of this girl.  No pupil, no teacher, and this was a pretty crowded place.  The only evidence the Crown called was with regard to the doors of the office, and it was admitted nothing wrong had happened in the office anyhow.

So it was absolutely essential, in our submission, that his Honour direct himself in very clear terms that the nature of the complaint was such and the time elapsing since the events were such that there was no way the defendant could defend himself other than simply saying it did not happen.  When he came to consider the question of the alibi, he had to consider the question that because of the delay the memories of the witnesses might not be as good as they would have otherwise been.  That was what the Crown relied upon to try and break the alibi.

It is interesting to note that all the offences were alleged to have occurred during school hours, during week days but as for that, that depends entirely on the evidence of the complainant herself and no one else.

With regard to the question as to what submission should be made to the judge, we do not know what submissions were made to the judge but in submissions we are making to this Court, the fundamental question is that the judge is under a duty.  He is under a mandatory, statutory duty and the duty is not escaped by simply saying no one asked you to give the direction.

GLEESON CJ:   No, but it may be relevant to the consequences of non‑compliance with the duty, depending on the circumstances.

MR PORTER:   That could be so but in this particular case, if your Honour pleases, the consequences of non‑compliance with the duty are extreme, in our submission.  They cut to the very crux of the matter.

GUMMOW J:   Prima facie, the statute has not been opposed.

MR PORTER:   If there has been a breach of the statute on a matter which goes to the very crux of the trial ‑ ‑ ‑

GLEESON CJ:   Then the question that arises is whether there has been a miscarriage of justice.

MR PORTER:   It is difficult to imagine that there has not been.  If he has not scrutinised the evidence of the complainant with care, if he has not taken into account the handicap of the accused, how could it be said that it is not a miscarriage of justice.

GLEESON CJ:   If he has not scrutinised it with care, of course, but let it be supposed that the breach of the statute was not saying what he did.  Let it be supposed that the judgment exposed his reasoning and showed that he scrutinised the evidence of the complainant with the utmost care.  Assume that in a particular case, not necessarily this case.

MR PORTER:   Yes.

GLEESON CJ:   There would nevertheless be a non‑compliance with the statute if he did not repeat the warning, would there?

MR PORTER:   That is so.

GLEESON CJ:   Well, now, what would be the consequence of the non‑compliance with the statute in a case of the kind I just put to you?

MR PORTER:   You would have to examine the position very carefully indeed to see whether there was a mere technical non‑compliance or whether it had consequences.  In the case that your Honour has put up, it may be that you could get a mere technicality but, in my submission, it would be a very rare case where you could get that.  It is one thing ‑ ‑ ‑ 

GUMMOW J:   It is one thing if 33 is mandatory; it is another thing if it is merely directory.

MR PORTER:   In the proposed case that your Honour the Chief Justice put up, it is one thing to say that his Honour carefully examined the evidence of the complainant with care but, if he had not given himself the direction, how is one to be sure that he really appreciated the significance of what he was doing.  A mandatory direction such as this is a fundamental to the conduct of a fair trial by a judge sitting without a jury.  To say that if he fails to comply with a mandatory requirement that really goes to the nub of the trial in a one‑on‑one case, to say that he fails to comply - that that can be a technicality, that is a big jump.

GLEESON CJ:   It depends whether you are talking about non‑compliance with subsection (2) or non‑compliance with subsection (3) or both.

MR PORTER:   If you do not comply with subsection (3), you do not comply with subsection (2).

GLEESON CJ:   That may be right but it is possible to imagine a case - I mean, Justice Hunt thought this was precisely such a case, where even assuming there had been a non‑compliance with subsection (2) there was a clear compliance with subsection (3).  Now, he may be right; he may be wrong about that.  It just demonstrates that there are somewhat different issues involved.

MR PORTER:   Well, as we would put it, section 33 establishes what you might call statutory safeguards and they are mandatory safeguards and the departure from any one of those safeguards, in our submission, must be a matter of considerable significance and, with great respect, we find it very difficult to see how you can put up a case where the safeguard has been breached but no miscarriage of justice has occurred.  I mean, it is like saying - say, a judge finds someone guilty without ever mentioning the possibility of a reasonable doubt, without ever mentioning the onus of proof, but very careful examination of the evidence and all the rest. 

In our submission, that would have to be a breach of section 33 because it goes to the very crux of the trial and even though you might imagine he might have done it, that is not good enough.  In our submission, what section 33 requires is two things:  firstly, he must expressly say he is doing it; and, secondly, he must in fact do it; and in those two respects we say the judge fell short in the three matters, the Murray direction, the Longman direction and the Evidence Act.  I do not know whether I can add ‑ ‑ ‑

GLEESON CJ:   Now, as far as the Evidence Act is concerned, does that warning require an application for a warning?

MR PORTER:   No, if your Honour pleases.  You see, the Evidence Act says:

If there is a jury and a party so requests, the judge is to:

(a) warn the jury ‑

right, but section 33 says:

If any Act or law requires a warning to be given to a jury ‑

so, in our submission, this is an Act requiring a warning to be given to a jury and a judge ‑ ‑ ‑

GLEESON CJ:   A request is made for it.

MR PORTER:   ‑ ‑ ‑ and the judge has to give it to himself and there is no need for a request because it is only if there is a jury that the request has to be made.  With respect, if your Honour pleases, we would submit that that construction of the section goes to its substance rather than gives it a technical meaning.  What section 33 seeks to achieve is that whatever warnings are required by Act or law the judge gives them to himself expressly and acts on them.

GLEESON CJ:   Thank you, Mr Porter.  We will reserve our decision in this matter and the Court will adjourn until 10.15 on Tuesday.

AT 3.17 PM THE MATTER WAS ADJOURNED