H v The Queen

[1993] HCATrans 236

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S67 of 1993

B e t w e e n -

H

Appellant

and

THE QUEEN

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McHUGH J

Copyright iri the High Court of Australia 1 24/8/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 24 AUGUST 1993, AT 10.17 AM
MR T.A. GAME: If the Court pleases, I appear for the

appellant, together with my learned friend,

MR S.J. ODGERS. (instructed by T. Murphy, Acting

Director, Legal Aid Commission of New South Wales)

MR R.O. BLANCH, OC:  May it please the Court, I appear with

my learned friend, MR A.M. BLACKMORE, for the

Crown. (instructed by S.E. O'Connor, Solicitor for

Public Prosecutions)

MR GAME:  If the Court pleases, I hand up an outline of

argument.

MASON CJ: Yes, Mr Game.

MR GAME: If the Court pleases. This is an appeal from a

decision of the Court of Criminal Appeal dismissing

appeals against a conviction and sentence, the

appeal having been heard on 5 August 1992. The

appeal against conviction raised two grounds, one

concerning attempt, the second concerning

corroboration, and this application concerns
questions arising in relation to attempt only.

The appellant was indicted on six accounts of sexual intercourse with a person above the age of

10 and under the age of 16. Four of those counts

involve digital penetration, two of those involved

counts of cunnilingus. He was convicted of four

counts of attempt relating to the digital

penetration and he was convicted of cunnilingus in

relation to those two counts.

The question of attempt in the trial was first

raised following a jury question at the close of

the Crown case, and that jury question is

reproduced in the judgment of the Court of Criminal

Appeal at the bottom of page 162 of the appeal

book, top of page 163.	The trial judge, at that
time, simply indicated that he would deal with the
question later.	The question concerned the

definition of sexual intercourse and the question

of penetration.

TOOHEY J:	Why do you relate the question necessarily to the matter of attempt, Mr Game?
MR GAME:	Your Honour, only because the jury were obviously

having some concerns in relation to the medical

evidence, and it was the medical evidence which

caused the question of attempt to be raised.	I do
not think I quite put that correctly.	The question

of concern about penetration was first raised at

the close of the Crown case.

TOOHEY J: Yes, I understand that.

H	24/8/93
MR GAME:	The question of attempt was first raised at the close of the evidence and before addresses, and
that appears in the appeal book at page 118. The
trial judge raised the question whether or not two counts involving cunnilingus should go to the jury
and he resolved that question, rightly we would
concede, in favour of leaving those counts. The
Crown prosecutor then, for the first time, raised
the question of attempt.  Now, in the course of the
summing up, at page 125 - - -

BRENNAN J: Before you part from that page 118, I take it

there is some provision of the Crimes Act which

makes an attempt a verdict available on a count for

a principal offence?

MR GAME:  Yes, Your Honour, under the amendments to the

Crimes Act, section 66C provides the offence;

section 66D provides for attempt and section 66E

provides for the alternative verdict of attempt, and for some reason there is no provision making indecent assault an available alternative. So, if

that is to be treated as a statutory code, then
indecent assault would appear not to be an

alternative.

McHUGH J:  Mr Game, what is the practical significance of

this case? There is no appeal in respect of

counts 2 and 4, is there, and all the sentences

were concurrent?

MR GAME:  Your Honour, the practical significance is this:

firstly, if the Court quashes the convictions in
relation to the other four counts, then it was put

to the Court of Criminal Appeal, and I think it is

accepted by the Crown, that the appellant should be

resentenced on the other two counts.

McHUGH J:	Even though they were all made concurrent sentences?
MR GAME: Yes, Your Honour, for the reason that those

sentences were sentences which were set, having

regard to the totality principle. So that, even if

the result of this appeal is that four counts of attempt are quashed and the two counts of sexual intercourse remain, then we would submit, and I

understand the Crown concedes, that the appellant

should be resentenced in relation to the balance.

It has a practical significance because this

sentence expires in February of next year, so that

in practical terms, if the appeal were upheld it

would be unlikely that he would serve any more

imprisonment. In addition, we would submit that

the defect in the directions to the jury in

relation to credibility, as it went to the question

24/8/93

of medical evidence as it related to attempt, has

an effect in relation to the verdicts on the two

other counts, and we would put the argument in this

way: we would say that, if the jury could not be

satisfied beyond reasonable doubt as to the

truthfulness of the complainant in relation to the

four counts of penetration, digital, then how could

the jury be satisfied beyond reasonable doubt,
properly directed, as to the truth in relation to

the evidence of the complainant in relation to the

remaining two counts.

McHUGH J: Well, it has got nothing to do with attempt

though, has it? You would still have that argument

if attempt had never been put to the jury.

MR GAME:  Yes, Your Honour, but that question could be posed

in this way:  if attempt had never been left to the

jury and the jury had acquitted in relation to the
four counts of digital penetration, then a real
question - and were the jury not directed at all in

relation to the way in which the medical evidence

went to credibility, then a real question would

arise as to whether or not the verdicts could stand

in relation to the two counts.

McHUGH J: That is why I said it has nothing to do with

attempt.

MR GAME:  No, but it does in the way in which - if the four

counts of attempt go, then there are no convictions standing in relation to the digital penetration, so it arises only as a consequence of what we would

say the logical consequences of quashing the

convictions in relation to the attempt. So those

are the two ways in which we would seek to deal

with that question, Your Honour.

Now, turning to the summing up. At appeal

book, 124, the trial judge gave directions on

sexual intercourse at lines 8 to 10. Those

directions are legally correct; they are in

conformity with section 61A of the Act as it was at

the time. It has now been amended by section 61H.

They are legally correct, but plainly did not

answer in a satisfactory way the question which the

jury had previously asked about penetration but no

redirections were sought in relation to those

directions. At the bottom of page 124, cunnilingus

was defined and correctly - - -

BRENNAN J:  Now, was that definition at 124 in accordance

with the statute? You say it was.

MR GAME:  The direction at 124, line 10, Your Honour, was in

accordance with the statute as it stood at the

time, section 61A. I have the statutory provisions

24/8/93

if they are required. It has been amended and

section 61H now provides penetration being

penetration of any part of the genitalia, but that

is not the provision which was in force at the

time. Section 61A was in force and it has only

been changed in 1992.

BRENNAN J: And you have copies of that?

MR GAME:  I have copies. I will hand those to the Court. I

should say, just before leaving that, it could

scarcely be submitted that that direction

satisfactorily answered the jury's earlier

question. But as I said, legally it was correct and no redirection was sought. The way in which the case was conducted may explain that because -

and I will come to the evidence shortly, but the

complainant's evidence was very unequivocal in

relation to penetration and its extent. Page 125,

further directions on cunnilingus, lines 8 to 10,

and again those are correct directions.	Then at
125, lines 12 and following:

if you are not satisfied as to penetration, it

is open to you as a matter of the law ..... that

you could return a verdict of attempting to

commit that offence. There is no magic in the

word attempt. Attempting to commit that

offence is an alternative verdict which you

may or may not return if you found the accused

not guilty of sexual intercourse in relation

to the finger charges.

That is the extent of the directions given in

relation to attempt. After the jury retired, they
returned with a question in relation to attempt,

which is not reproduced in the appeal books, and I

will hand that to the Court.

That question was a question of whether or not

they could return a verdict of attempt in relation

to all counts, and the trial judge answered that

question simply by saying they could return it only

in relation to the digital counts, which would

indicate, at least, that the jury were very much at

sea in relation to proper directions both on

penetration and attempt.

TOOHEY J:  Mr Game, I am not clear as to how the argument is

being put. Is it being said that as a matter of

law on any view of the evidence, including the

evidence of the complainant, there could not, in

law, have been an attempt?

MR GAME:  Yes, Your Honour, that is the first submission.

24/8/93

TOOHEY J: Yes, I appreciate on paper it is the first

submission, although, by reference to your outline,

it seems to be rather geared to the inconsistencies

between the complainant's evidence and the verdict

of not guilty on the original charge. No doubt

this will be developed, but I am having some

difficulty in isolating it as a question of law as

opposed to the directions that should have been

given, having regard to the evidence.

MR GAME: Well, Your Honour, in relation to the leaving of

attempt, we would submit that attempt should not

have been left at all, and it should not have been

left for two reasons. The first is this: the

question of attempt could only arise if the jury

were not satisfied as to penetration. Absent

penetration, there is no evidence from which one

could infer intent. In these circumstances, one

would be speaking about inferring intent from a

particular act but the jury, not having been

satisfied beyond reasonable doubt as to the act of

penetration, there is no act from which one could

infer that intent. So, we would submit that the

question of attempt should not have been left at

all for reason.

The second reason, we would submit, that the

question of attempt should not have been left, is
that there is no reasonable foundation for it in
the evidence. There is certainly no foundation for

it in any evidence apart from the evidence of the

complainant. When one examines the complainant's

evidence, her evidence as to penetration was quite

unequivocal. If I could take the Court to two

passages in her evidence. Firstly, at appeal book,

page 57, the whole of the page. I will not read

it, but the whole of the page is relevant,

particularly at the bottom of the page:

His finger entering my body.

I could see it. I kept both eyes open.

And then at page 65, the evidence is, if anything,

stronger. Line 16:

Usually the whole finger.

His index or his middle finger.

See his hand moving in and out that way.

So that is unequivocal evidence of penetration, and

a jury might have had some difficulty in accepting

6   24/8/93

that evidence as a reasonable account of something

that occurred.

Now, the medical evidence of Dr Turner appears

at appeal book, page 46, and following.	Dr Turner
said she examined the complainant on
14 December 1988.	The last count of digital

penetration was on 12 December and the offences

spanned between 6 and 12 December, and there were

allegations of digital penetration on the 11th and

12th.

Then at page 48 of the appeal book, she said

the vaginal:

opening diameter was seven millimetres. These

findings were normal and consistent with the

story as given to me by Leanne.

Then the next question is, ttWhat was the history?tt:

The history we were given was that Leanne had

been subjected to some genital fondling, and

some oral genital contact.

Now that, taken literally, would be evidence of a prior inconsistent statement, and the jury were not

directed as to that. Now, the jury may have had

some concern in relation to that passage of

evidence, and they certainly never received any
directions that they could not use that as evidence

of the statements made in it but that they could

use it only in relation to the credibility of the

complainant.

Then the history, as it emerged in the trial,

was put by defence counsel and there were some

qualified answers, which appear at the top of

page 49.

DEANE J:

Mr Game, if one accepts that medical evidence, as

the jury obviously did, what do you say the result

is in so far as a charge involving penetration?

MR GAME:  Given the unequivocal evidence of penetration in

the way in which it appears in the passages I have

just read, the jury could not be satisfied beyond

reasonable doubt as to the credibility - - -

DEANE J:	I am sorry, you have misunderstood my question.
MR GAME:	I am sorry.

DEANE J: What, as a physical matter, do you say the result

of that medical evidence is in so far as the
question whether there has been digital penetration

is concerned?

H 7 24/8/93

MR GAME:  It would be highly unlikely that there would be

digital penetration in the manner in which it was

described.

DEANE J:  Which means that so far as the jury was concerned,

if they accepted that evidence and were of your

view as to unlikely, in the sense of understanding

it, there would be two alternatives; one would be

to accept the girl's evidence on the basis that she

must have been mistaken as to the degree of

penetration or, alternatively, acquit.

MR GAME:  Yes, or -

DEANE J: Obviously they accepted the girl's evidence and

concluded that on the basis of the medical evidence
she was mistaken as to the degree of penetration.

MR GAME: Well, it does not follow that they concluded that she was mistaken as to penetration, because it was

never put to them that that was a matter to which

they had to direct their attention, and it would be

very difficult for a jury to come to a conclusion

that she was mistaken as to penetration.

DEANE J:  I could not agree more, but is that not, in the

context of the way this trial was conducted, with a

bit of paper with a 7 millimetre hole and counsel's

finger, as if that was a proper or relevant test,

is that not what the jury had been misled into

accepting?

MR GAME:  Been misled into?

DEANE J: Yes, by the defence.

MR GAME:  Your Honour, they had not been misled into

anything by the defence.

DEANE J: But really, unless my medical knowledge is even

more ignorant, or is even less than I think it is,

is not the notion that because a finger going

through a 7 millimetre hole in a piece of paper cannot do it without tearing the paper a simply

irrelevant example to a 7 millimetre opening in the

vagina?

MR GAME:  Your Honour, the relevant - I may have

misunderstood the question, but the relevance of

the medical evidence was all about the credibility

of the complainant.

DEANE J: But that example plainly indicates that the

defence was: if the medical evidence is accepted,

there could not have been penetration because, look
at this bit of paper, if it has a 7 millimetre

diameter opening and my finger is pushed through

H 24/8/93

it, it tears it, and there was no such tear.	Now,
obviously the jury accepted that.	They believed

the girl, and the inevitable result was that they

decided that what she said was true, but because of

the obstruction in the opening of the vagina, there

had only been an attempt.

MR GAME:  Your Honour, she did not speak about anything that

suggested an obstruction in the opening to the

vagina. She gave no evidence of resistant pressure

or anything along those lines, so given that

hypothesis, there is no act, or there is no factual

basis from which one could infer intent in that

circumstance. Assuming she was mistaken, assuming

all of those things, the Crown case on attempt

would still necessarily fail. One has to look at

that question absent the evidence of penetration.

DEANE J: Well, your whole argument must be that it was not

open to the jury, in the light of the medical

evidence, to reach the conclusion that the girl,

who was under 16, was telling the truth but had

made a mistake as to the extent of digital

penetration.

MR GAME: Well, Your Honour, the question is not about the

extent of digital penetration; the question must be posited from the point of view of there having been no penetration at all, and that is because of the

acquittal in relation to the four counts of

penetration.

DEANE J:  Or it may be because the judge did not direct the

jury that the opening of the vagina does not

prevent penetration.

MR GAME:  It may be, that is true, Your Honour, but one

cannot found an explanation for the verdicts on

attempt on the basis of inadequate directions in

relation to penetration.

BRENNAN J: Intent in this context is an intent to do an

act; it is not an intent to produce a result as in

a murder case, for example.

MR GAME: But, Your Honour, the intent in this instance must

be an intent to penetrate.

BRENNAN J: That is right; an intent to penetrate with the

finger.

MR GAME:  Your Honour, from a factual point of view, that is

an extremely unlikely scenario in this case.	I
mean, not only is she mistaken once, she is mistaken four times.

H 9 24/8/93

McHUGH J:  Why could not the jury take the view that he had

his fingers, he was attempting, and he had his

hands in that general area and she said she was

watching him doing it and saw his fingers going in,

but they obviously did not go in far enough,

certainly to have a full thickness tear in the

hymen, but why could not a jury accept her evidence

on this? It would not surprise me in the

slightest.

MR GAME: But, Your Honour, if the jury - again, it is my

submission that it does not turn on questions such

as the extent of penetration at all. One has to

regard this question from the point of view of

there having been no penetration. So that once one

looks at the evidence divorced from the evidence of

penetration, then one would have to find some other

act. Now, she does not describe, for example, a

resistant movement of the fingers; she does not
describe the fingers meeting the hymen or the

fingers meeting the vaginal opening and there being

any resistance or anything along those lines. so

that the only evidence that one would be left with

would be evidence of genital fondling. Now that,

Your Honour, in my submission, would clearly be

insufficient for one to infer intent. Moreover,

and this is the second part of my - - -

BRENNAN J: What do you say the intent is? Intention to do

what?

MR GAME:  The intention in this instance is an intention to

penetrate. In these circumstances, it must be an

intention which is thwarted by - - -

BRENNAN J: That is an intention to penetrate the vagina?

MR GAME:	Yes.
BRENNAN J:	Not sufficient that there is an intention to penetrate the genitalia?

MR GAME:  No. The passage in the evidence of Dr Turner

which was particularly relied upon which I was

coming to before was at page 49, line 35. That is

clearly the portion of evidence upon which so much

weight was placed. There is a passage at the top

of the page also to which reference should be made,

lines 5 to 10. We would submit that in the context

of this case the question of attempt was simply

irrelevant. Either the jury was satisfied beyond

reasonable doubt as to penetration, or they would

acquit.	The question of attempt, in our
submission, simply does not arise.	What it did in

this case, particularly given the absence of

directions, was it enabled the jury into a false

line of reasoning, which was that they could accept

H 10 24/8/93

both the medical evidence and its ramifications and

they could accept the evidence of the complainant;

which brings me to the second aspect of our

argument, which is that in the context of this case

an absence to direct the jury on the elements of

attempt was fatal.

This is not actually in the order in which I

have put it in the written submissions but,

firstly, the jury - appears as No (iv) on page 2 -

would have to look at that question from the point

of view that they could not have regard to the

evidence of penetration in determining whether or

not the appellant had the relevant intent.	So that
the jury would have to look elsewhere in the

evidence to find that intent, because they had

already concluded that they were not satisfied

beyond reasonable doubt as to penetration.

Then they would have to - and I am coming back

to (ii) on the bottom of page 1 - consider the

question of what the conclusion was that they had

drawn about the complainant's evidence. Did they

find themselves in a position that they were not

satisfied beyond a reasonable doubt as to her

credit, that is to say in the truthfulness sense,

or did they find themselves in the situation where they accepted her truthfulness, but they concluded

that she was mistaken? Only in the instance that

they concluded that she was mistaken, would they

proceed to consider the question of attempt.

Then the jury would have to be directed as to

the specific factual questions which arose in the

case. Firstly, that there was no suggestion, in

her evidence, that she might be mistaken. There

was no evidence from any other place in the case

that would found an attempt. That there was no

evidence of physical resistance in the sense used

by the Court of Criminal Appeal, that is to say,

physical resistance at the opening of the vagina or

by the hymen and we would submit that the medical

evidence cannot found a conclusion that physical

resistance was, in fact, met because the

complainant did not say anything like that and we

would submit that the medical evidence is, in that

context, a commentary only on her credibility.

Then the jury would have to be directed as to the

relevant mental and physical elements of the crime

with particular direction that an act of genital

fondling, such as that referred to by Dr Turner,

could not found an intent unless the genital

fondling was done with an intention - that went beyond mere preparation and was an intention to

penetrate.

11   24/8/93

We would submit that all of those directions

would be quite fundamental in a case such as this, even assuming it should be left, and a court could

not conclude that a jury would have followed, and

understood, that line of reasoning.

We would submit, further, that the jury should

have been given specific directions that related to

the question of credibility, not only to the counts
of digital penetration, in the context of attempt

having been left, but also in relation to the two

counts of cunnilingus. That is to say, the jury

would have to consider for themselves, and

determine whether or not they could conclude that,

not having been satisfied beyond reasonable doubt

as to penetration, none the less they could

conclude that the appellant was guilty of the two

counts of cunnilingus.

So, in short, the argument that is put to the

Court is that attempt should not have been left,

for the two reasons which are given on page 1 of

the outline of submissions, both that there is no

evidence from which one can infer intent and

secondly, that it was entirely inconsistent with

the complainant's evidence and there is no other

evidence in the case from which attempt can be

found. Secondly, that in the absence of any

directions on attempt, the jury could not possibly

have understood how it arose and what ramifications

it had in relation to the case; particularly the

evidence on penetration, and the medical evidence

of Dr Turner.

As I said at the commencement in response to a

question from Justice McHugh, if the Court is

minded to quash the four convictions in relation to

attempt, but not the two in relation to
cunnilingus, then the Crown concedes that it would
be appropriate for the matter to be remitted to the

Court of Criminal Appeal for resentencing on the

two remaining counts. Those are my submissions, if

the Court pleases.

MASON CJ: Thank you, Mr Game. Mr Blanch.

MR BLANCH:  May it please the Court. I hand up an outline

of submissions.

MASON CJ: Yes, Mr Blanch.

MR BLANCH:  May it please the Court. Just in respect of the

last matter raised by my friend, if the eventuality
were a quashing of conviction in respect of the

four counts, our concession is that the matter

ought to be remitted to the

Court of Criminal Appeal for the purpose of the

H 12 24/8/93

appellant having the right to agitate, in front of
the Court of Criminal Appeal, the question as to

his sentence, bearing in mind he would then be in a

different situation to the situation he was in at

the time previously.

Our primary submission, of course, is that that situation will not arise. In those written

submissions I have outlined for the Court the
evidence in-chief given by the complainant about

penetration where the Court will see that the word that she used was the word "penetrate". My friend

has referred the Court to pages 57 and 65 of the

appeal book, which pages relate to

cross-examination of the complainant. That last

reference to page 65 goes over on to page 66, and

there is also a further description by her at

page 15 of the appeal book, of the appellant

rubbing around the vagina and penetrating.

BRENNAN J:  What was the relevant definition of "sexual

intercourse"?

MR BLANCH:  Your Honour, the definition at the time was

under section 61A of the New South Wales Crimes Act

which said, in 61A(l)(a):

penetration of the vagina of any person -

And it goes on:

with any part of the body -

et cetera. In 1992, I refer the Court to the

Criminal Legislation (Amendment) Act 1992, where

section 61H was inserted in the Crimes Act with a

view to changing that definition to read:

sexual connection occasioned by the

penetration to any extent of the genitalia of

a female person or the anus of any person -

indicated that - if I just read this passage out,	In the explanatory note to the legislation, it is
it says:

There is the possibility that the

identification of a particular part of the

female genitalia, namely the vagina, may lead

to the conclusion that the penetration of
those parts of the female genitalia which are

external to the vagina would not be sufficient

to constitute sexual intercourse. (This

argument was considered and rejected in

R v Randall by the South Australian Court of
Criminal Appeal in June 1991).

13   24/8/93

It goes on to talk about the amendments that were

introduced in 1981 in New South Wales, and the

commentary to those amendments in 1981 was that it

did not change the common law, the common law

having been expressed in the case of R v Lines,

where the same definition was adopted.

The Act then went on to provide:

It is declared that, from 14 July 1981

(being the date of commencement of the

amendments made by the Crimes (Sexual Assault)

Amendment Act 1981) until the commencement

of -

this Act that I have just been referring to:

an act has been an act of sexual intercourse

within the meaning of this Act at the relevant

time if -

it complied with the broader definition.

It was an amendment to the legislation that

was put in for more abundant caution but, in our

submission, it has always been clear that any

degree of penetration of the female genitalia was

sufficient to satisfy the test.

BRENNAN J:  I do not understand that from section 61A, and

without those other statutory provisions I do not

understand how it can be otherwise than as your

opponents submitted it to be.

MR BLANCH:	Your Honour, that was indeed the subject-matter of the decision of the South Australian Court of
Criminal Appeal in Randall, and it was also, as I
have indicated to the Court, the purport of the decision of the case R v Lines in 1844.

BRENNAN J: That may be so. The statute 61A seems to express

itself in quite unequivocal terms. Is there any

statutory material which you have which indicates

that 61A as handed to us was not the relevant

statutory provision at the time?

MR BLANCH:  No, Your Honour. Section 61A was the relevant

statutory provision at the time.

BRENNAN J: 

How penetration of the vagina can be the

equivalent of penetration of genitalia external to
the vagina, I fail to understand.

MR BLANCH: 

Your Honour, I can only rely on those decisions.

McHUGH J: It seems to be quite contrary, the difference

between rape and indecent assault. At least in my

14   24/8/93

early days at the bar, the sort of things that are

referred to in 61H would be subject of an indecent

assault verdict or count, rather than - - -

MR BLANCH: Well, yes, Your Honour, except for the fact that

there had been a line of authority - it was this

very debate that caused the legislature in

New South Wales to pass the amending legislation in

1992 to make it clear and what they have done is

declared this to have been the law back to 1981

when the new legislation was introduced on the

basis that the new legislation was not intended to

change the common law as it existed prior to 1981,

when all the legislation came in.

TOOHEY J:	Where do we find the statement as to the operation of the common law? I mean, I appreciate
you gave us some reference to it. It is not built
into the section itself, is it?

MR BLANCH:  No, Your Honour, it is not. It is set out in

the - I have referred the Court to the

Criminal Legislation (Amendment) Act 1992, and it

is set out in Schedule 1 to that Act, and at page 3

is the explanatory note setting out the history of

the matter.

GAUDRON J: Is the effect of that, that if the four offences

with which this appeal is concerned were to go back

for a retrial, the law would be as in section 61H -

the law to be applied?

MR BLANCH:	Yes, Your Honour.
GAUDRON J:	Do you suggest that section 61H determines the

outcome of the appeal otherwise?

MR BLANCH: Well, it is our submission, Your Honour, that

this amending section was merely for more abundant

caution; our primary submission is that the law

always has been.

GAUDRON J: Let us assume that that is not the case.
MR BLANCH:	Yes, Your Honour.

GAUDRON J: Let us assume section 61A meant what it said,

which seems to be a fair assumption to work on with

a criminal statute.	What then is the effect of
section 61H?

MR BLANCH: Well, section 61H would only have an effect if

there were a retrial, because it is declaratory of
the law back to 1981, so it would not have an

effect otherwise.

15   24/8/93

DEANE J: Well, I have missed something. I know you have

said ttdeclaratory''. What is the statutory

provision that makes it declaratory back to 1981?

MR BLANCH:  On page 10 of that legislation it reads in

Part 2, paragraph 3:

It is declared that, from 14 July 1981

(being the date of the commencement of the

amendments made by the Crime (Sexual Assault)

Amendment Act 1981) until the commencement of the amendment made by the Criminal Legislation

(Amendment) Act 1992 to section 61H, an act

has been an act of sexual intercourse within

the meaning of this Act at the relevant time
if the act has comprised sexual intercourse
within the meaning of section 61H, as amended

by the Criminal Legislation (Amendment) Act

1992.

So I take what the legislature to be doing is to be
going back and defining, declaring the law always
to have been since 1981 what it is now more

specifically said to be the law.

DEANE J: Well, we do not have to worry about it, I suppose,

but it must be debatable whether it has succeeded

in achieving that result by simply saying in the

schedule that something is declared. I mean, there

are arguments that you can enact, but you cannot

declare something to be that which it is not.

MR BLANCH:  Yes, certainly that may be a matter of debate,

Your Honour, but in this particular case -

DEANE J:  No, but you answered my question. I had been

looking and I had missed that.

MR BLANCH: This trial occurred in 1989, which was some

three years before that legislative amendment was

passed. But the legislative amendment was passed,

presupposed on the basis that the law always was

that and they were not actually changing the law,

they were simply declaring for more abundant

caution what the law was. As Justice Gaudron was

raising the question, it had no effect on this

trial itself. It would then only be a question of

whether it would have an effect on a retrial.

It is our submission that there is no

instruction necessary to be given to the Court of

Criminal Appeal as to summing up and the detail of summing up, because the Court of Criminal Appeal has accepted that in the ordinary course of events

one might expect that a judge would sum up on

attempt and define the elements of attempt for a

jury. The question in this case is whether the

16   24/8/93

failure to do that has necessarily caused a

miscarriage of justice in respect of those four

matters.

I refer the Court to the mechanism by which a

verdict of attempt becomes available in this case.

In paragraph 4 of the outline it is accepted that

there needs to be an intent. It is our submission

in paragraph 5 that the direction of the trial

judge here was restricted to an attempt to

penetrate because he used - he was talking about

penetration and he said to the jury, "Well, the

question here is whether there was an attempt to

commit that offence". And that offence, the

offence that he referred to, was the offence of

penetration.

So there could not be any confusion in the

minds of the jury about what the direction related

to and it then becomes a practical question as to

whether a failure to define the elements of attempt
was a fatal failure in the context of this trial

and bearing in mind the fairly clear direction the

judge gave. It is also clear that the judge

intended to come back to this point, because he

said when he was talking about this that he would

come back to the question of attempt, and then

obviously forgot to do that at the end of the trial

and was not reminded to do so.

So, it is our submission to the Court that it

is not necessary for this Court to instruct either

the judges or the Court of Criminal Appeal in New

South Wales about that because it was in the foremost of everyone's mind that ordinarily that

would certainly be the case. It was really, simply

a question of assessing whether the failure to do

the expected thing in this case was fatal to the

trial.

I have also referred to the English case of the Attorney-General's Reference, where there was

discussion about the offence of attempt and whether

the offence of attempt would be constituted by -

was there necessary to be an attempt to penetrate

physically and it is our submission that the

decision of the Court of Appeal there is correct,

that that is not necessary to establish that.

GAUDRON J: But can that be right if section 61A is read as

meaning what it says?

MR BLANCH:  Your Honour's reading of 61A -

GAUDRON J: Well, 61A requires penetration of the vagina; it

says so.

17   24/8/93

MR BLANCH:  Yes, Your Honour. As more broadly defined by

the South Australian case and the case of Lines in the 19th century, or is Your Honour restricting me

to actual penetration of the vagina?

GAUDRON J:	I see, so that is an art term, is it?
MR BLANCH:	Yes, Your Honour.
McHUGH J:	Mr Blanch, the trial seems to have been conducted

on the basis that certainly the judge directed the
jury on the basis that, what he called the four

finger charges, were based on the evidence that the

accused penetrated her vagina with his finger or

fingers; that was the issue, and the jury acquitted

on that issue.

MR BLANCH: Yes, Your Honour.

McHUGH J:  So that must carry with it that he did not put

his finger or fingers in her vagina. What other

evidence is there then that he attempted to do

that?

MR BLANCH: Well, Your Honour, the actual evidence of the

attempt that the Crown must rely on in these

circumstances is the evidence that she gave and

that is the evidence that I pointed at right at the

beginning, and that is penetration.

McHUGH J: But her evidence was evidence that he did insert

a finger and if you reject that there is just no
evidence, is there?

MR BLANCH: Well, except, Your Honour, that it is possible for the jury to have formed the view that because of the other material in the case, the medical

evidence and the demonstration with the piece of

paper, they were concerned enough about that that

it brought a doubt in their minds as to whether

there had in fact been penetration, but it is our

submission that does not necessarily mean that they

must then acquit of both attempt, or that there is

no evidence of attempt, because they could very

easily come to the conclusion that she was

mistaken.

McHUGH J: Well, the difficulty is that passage at 65/66,

when she said, "He put the whole finger in".

MR BLANCH:	Yes, Your Honour, yes, and she actually saw the finger going in, that is true. There is this to be
said about that, that if her evidence is read in-
chief, it is one thing. If her evidence is read in
cross-examination, it tends to be another thing, in the sense that she was 15, I think, at the time of the trial, and a couple of years younger at the

18   24/8/93

time that the offence occurred. So, she was

obviously being cross-examined. I would expect

that she was being cross-examined on the basis that

the cross-examiner was aware of the medical

evidence and was looking at that and the answers

that might come from that for the purposes of

attacking her credibility with the jury at a later

stage.

The only answer that I can give to that is

that that was a question of fact for the jury,

looking at her giving her evidence and making some

sort of an assessment of her. It may be that by

the time she was getting cross-examined about those matters she started to be more positive or react in

a particular way to the questions. Of course, that

is the strongest point that can be made against her

evidence because that is a fairly graphic

description of what happened.

But then, by the same token - going back to

Your Honour's earlier question - it is our

submission that none the less it is still open to

the Crown to rely on all those other acts that she

saw occurring as an attempt because, it is our

submission also, as I said earlier, that the judge

very clearly isolated it as an attempt to penetrate

that was being spoken of. The jury could not have

been in any doubt that they were looking at an

attempt to penetrate.

BRENNAN J: Well, that is the real problem, is it not? I

mean, for my part, as is presently advised, I would

have thought there was the strongest case for a

jury to draw an adverse inference of an intention,

whatever the medical evidence might be, and that

just as a matter of practical fact. But, none the

less, should there have been a direction to the
jury that they should have been satisfied beyond
reasonable doubt of the existence of such an

intention?

MR BLANCH: Well, Your Honour, the answer to that obviously

is, ".Yes", but no one would have denied that. It

would appear that the trial judge, himself,

probably intended to do that, in any event, and

forgot. The Court of Criminal Appeal was aware of

the fact that that ought to be done, but then, in

our submission, then rightly focused on the
question, "Well, bearing in mind that it ought to

have been done" - it was not done - "is that
necessarily fatal in this case?" In our

submission, the Court of Criminal Appeal did not

err in coming to the conclusion that they did, for

the reasons that they gave, that it was a very

clear direction to the jury. It could not, in all

reality, mean anything other than an attempt to

19   24/8/93

penetrate, and there was all of that evidence, the

evidence of what she said she saw, allowing for the fact that some doubt may rise about her credibility

from the fact that she seemed to be telling a more

graphic story and gave a more graphic description

in cross-examination.

DAWSON J: But you keep saying "attempt to penetrate".

Penetrate what?

MR BLANCH: Penetrate the vagina, Your Honour, as defined in

South Australia and by the common law.

DAWSON J: Well, that means penetrate the genitalia, but

that is not what the section is talking about.

MR BLANCH:  Yes, I understand that, Your Honour. The

section says that now, Your Honour.

DAWSON J: Yes, and says it has always said it.

MR BLANCH:  Yes, and said it has always said it. I do not

know whether the declaration by the New South Wales

legislature that that is what it has always meant

has any bearing on this Court's interpretation of

what it did mean.

DAWSON J: At the time of the trial?

MR BLANCH:  Yes, Your Honour.

TOOHEY J: But you seem to baulk at persuading us that even

in the way in which the section was framed

originally it extended to genitalia, although you

have referred to South Australian decisions, or
decision, to that effect. But are you putting an

argument to us that on the statute, as it was

framed at the time, vagina extended to genitalia?

MR BLANCH:  Yes, I am, Your Honour. That is the decision of

Randall in South Australia and it is the

decision - - -

TOOHEY J:	Can you take us to that?
MR BLANCH:	Yes, Your Honour.

MASON CJ: But it does not say that, does it? It is not

really a decision on the meaning of "vagina", is

it?

MR BLANCH:  No, not in that term. It is reported in

MASON CJ:  If it is not a decision on the meaning of that,

how is it going to help us?

H 20 24/8/93

MR BLANCH: Well, I am sorry, Your Honour. I will just go

to the statutory provision in South Australia:

"sexual intercourse" includes -

any activity consisting of:

penetration of the vagina of any person or

anus of any person.

I think, Your Honour, that it is relating to that.

I think it does relate to vagina, Your Honour, as

extended.

MASON CJ: In the headnote, does that first holding really

reflect what they decide?

MR BLANCH:  If Your Honour goes to page 383, in the middle

of the page:

That would have the advantage of avoiding the

practical difficulties to which I have

referred. It would also accord, I suspect,

with the ordinary person's understanding of
what is meant by vaginal penetration in this

context. I would hold, therefore, that

"penetration of the vagina", for the purpose

of par (a), is sufficiently proved by a

penetration of the labia.

BRENNAN J: That is a proposition which is as astonishing in

law as it is in medicine, I should think?

McHUGH J: It appears that Mr Baron-Parker directed a jury

to that effect in Lines in 1844.

MR BLANCH:  Yes, Your Honour, and Lines is the case that I

was referring to earlier when I was reading out the

statutory definition. The point of it is that, in

terms of the 1981 statute in New South Wales, when

that expression was used, it was used in the

context of an understanding of how the law had
stood for a very long time.	And that has been
reinforced since in South Australia.	The problems
that Your Honour - - -

DAWSON J: That is the common law, and the common law had no

definition.

MR BLANCH: Well, indeed so, Your Honour, but the common law

was understood, at the time of the 1981

legislation, to have a certain meaning, and then

the 1981 legislation in New South Wales was blessed with a commentary by the author of the legislation,
where specifically it was stated that it was not

intended to change the common law as it was then

understood. It did not say anything more than

21   24/8/93

that.	By inference, that adopted the decision in
Lines.

The very reason that Your Honour has asked

these questions, those similar questions, of

course, arose prior to 1992, and it was thought

that it was time to put those questions to rest by

way of statutory provision and the statutory

provision was introduced, but introduced against a

background of Lines having been decided a long time

before and Randall having been decided in the

intervening time. So that in terms of decided

cases, the decided cases were all in one direction.

DAWSON J: It mainly has difficulties because if, in giving

the definition which he did in accordance with the

statute as it then was, the trial judge was meant

to be saying, and should have been understood as

saying it, "any penetration at all was sufficient",

and the jury's verdict, on that direction, held

that there was not any.

MR BLANCH:  I am sorry, Your Honour, "the jury's

verdict - - -"?

DAWSON J: The jury's verdict was to the effect that there

was not any.

MR BLANCH:	Yes.
DAWSON J:	So that if you understand that definition to mean

what you say it does, then, on the basis of that

definition, there was not any penetration at all;

you would just take the jury's verdict and say it

is - - -

MR BLANCH: That would certainly be so, Your Honour, however

in a practical sense it is not so because, in our

submission, the trial judge did not define

"penetration" - - -

DAWSON J: Yes, he did; he did it in terms of the statute

and you say the statute means something, which it

does not appear to us it does.

MR BLANCH:  Yes. Your Honour, I was going to go on to say,

he did not define "penetration" in terms of the

statute as interpreted, so that the jury if - I

mean, on one view of the matter, if the jury had

been directed in accordance with the statute as it

is understood, and the'jury was obviously concerned

about that because they came and asked a question
about it, then the whole business of the

penetration of the hymen was totally irrelevant and

there would not have been any point in talking

about the tear in the hymen or the demonstration
with the piece of paper, even if that were relevant

22   24/8/93

in any event, and that is the situation. But I can

hardly come here and say, "Well, that is what the

judge should have done; he did not do it. The

accused, on that basis, had a bonus at the trial",

which he did, because that was the way the law was

interpreted in New South Wales at the time because

of those various decisions.

So if the trial judge had directed the jury in

those terms - well, the matter had never been to the Court of Criminal Appeal in New South Wales, but it had been - well I have indicated the

authorities before, so the Crown's position most

certainly would have been, at that stage, that that

extended definition was the proper definition to be

given.

DAWSON J: If he had given the extended definition, the

appellant might have had a different cause of

complaint.

MR BLANCH: Well, yes, that is true, Your Honour. The

legislation has deprived us of the opportunity,

perhaps, of a definitive judgment about the meaning

of section 61A as it stood between 1981 and 1992.

But those are the problems that arose and that is

the reason for it but, in our submission, if the

directions had been given on the law as it stood at

the time then one might have assumed - it is a

reasonable assumption - that he would have been

convicted of the four offences of penetration.

There would not have been any concern about the

question of attempt. But that is not what happened

and it is a matter of looking at the trial as it

has turned out.

DEANE J: Mr Blanch, I notice that at pages 124 to 125 the

trial judge, in effect, says that the complainant's

evidence, including, presumably, the evidence about

the extent of penetration, should be understood on

the basis that she used the word "vagina" to refer

generally to the female genitalia.

MR BLANCH:  Yes. I see that he has done that, Your Honour,

but he seems to have done that in the context of

the other two charges and without ever really

addressing this question. I would have expected

that if a judge of the District Court in New South

Wales had specifically addressed this question then

the definition that he would have given as to

penetration would have been that broader

definition. I do not know that - - -

DEANE J:  I was directing your attention to the relevance of

that in terms of interpreting the complainant's

evidence, including the evidence of a full finger.

23   24/8/93

Was anything said about the angle of the finger in terms of -

MR BLANCH:  No, Your Honour.

DEANE J: Well then, what is inconsistent, as I understand

you conceded to me, between her evidence of the

full finger and the medical evidence, if one takes
the medical evidence as excluding effective

penetration of the vagina?

MR BLANCH:  I do not concede that it is inconsistent,

Your Honour. I mean, there is another piece at the

top of page 49 in the doctor's evidence where she talks about stretchability of the hymen. I think

it was Your Honour who observed, during my friend's

argument, that the piece of paper is really

irrelevant to this question.

DEANE J:  Was anything said to the jury about the

distinction between the full diameter of the body

of the finger and the tip of the finger?

MR BLANCH:  No, Your Honour. Not as far as I know. I have

not seen the addresses, but as far as I know - - -

DEANE J:  No, I meant in the judge's direction.

MR BLANCH:  No, no. But the most that can be said about

that - and I think my friend said this - that the

evidence that the doctor tended to detract from the

version given by the complainant. That is

certainly true but that does not mean, of course,

that she could not have been telling the truth.

But there was not very much said about that to the

jury in the context of the trial.

In some ways the issue in this case is whether

there has been a miscarriage of justice, or the

verdict is unsafe and unsatisfactory, because of

the lack of definition for the jury. However, in

our submission, it is not, and for the reasons that

I have given; it was a very simple issue that the jury took into the jury room: did he attempt to

penetrate with his finger on those four occasions?

And in our submission there was evidence that he

did and the jury was satisfied beyond reasonable

doubt that he did, and bearing in mind the way the

directions were given, and in all the other

circumstances, it is not surprising that the jury

would have had some doubt about penetration, but

that is just an attempt to rationalize the verdict

after the event, but it is not a surprising verdict

in view of the directions that were given.

But, in our submission, that does not mean

that there is then no material upon which they

H 24 24/8/93

could have returned a verdict of attempt; not does

it mean that they misunderstood, in any way, in
this case, in the peculiar circumstances of this

case, what an attempted penetration was, and it is

for those reasons we would submit to the Court that

the verdict is not unsafe or unsatisfactory and the

conviction should be allowed to stand.

BRENNAN J:  If there should be any defect found in the

directions given by the trial judge, do you have anything to say as to whether there should be an

order for a retrial?

MR BLANCH:  Your Honour, I think I would say this, that if

there were an order for a retrial, no retrial would

occur. The Crown would not take the matter back to retrial. There are two circumstances, Your Honour: the first is that he received a sentence of - I

think he is a man of 45, or a bit older, with no

prior convictions who has now served over two years

and is due for release - he is presently in a low

security prison, due for release in February, I

think, next year. Then, of course, the second

circumstances is, hand in glove with that, of
course, is the fact that to go to a retrial would

mean the complainant having to come back again this

long after the event - she was 13 in 1988, so she

is 18 now - to have to come back and go through all

this again, and the other thing, of course, is that

there are still the two counts of cunnilingus, the

two convictions on the counts of cunnilingus which,

in our submission, should remain. There is no real

basis for attacking those convictions at all.

It may be, however, that if the convictions

were quashed on the other four, the question of the

sentence should be looked at again by the Court of

Criminal Appeal, in the context of two convictions

rather that six. It would then be a question for

the Court of Criminal Appeal in New South Wales,

whether that made any difference to the sentence

that he is serving, but -

BRENNAN J: Would that require any order to be made by this

Court?

MR BLANCH: Well, yes, it could be, Your Honour.

BRENNAN J:  Do you say that it does?

MR BLANCH: Perhaps I misunderstood Your Honour's question.

I was saying that this Court could look at the

question of - I would consent to the Court dealing

with the question of sentence, if the Court saw fit

to do so, bearing in mind that it is a situation

where he has been in custody for such a long time,

25   24/8/93

and it now the end of August, and the date of his

release from Kirkconnell prison camp is - - -

BRENNAN J: What do you suggest should be done? If the

appeal on the four digital counts were allowed, I took your submission to mean that we ought not to

order a retrial, so that it would be a quashing of

those four convictions.

MR BLANCH:  Yes, Your Honour.

BRENNAN J: That would leave the other two convictions on

foot and the sentences on foot also.

MR BLANCH:	Yes, Your Honour.
BRENNAN J:	What is the jurisdiction for this Court to do

anything further?

MR BLANCH: Well, there is not any, Your Honour, because

there is no application for leave to appeal to this

Court to deal with the question of sentence, but it

would leave the appellant in the situation where he

is due for release in the middle of February,

14 February, I think.

BRENNAN J: Well then, he could apply to the New South Wales

Court of Criminal Appeal.

MR BLANCH:  He could apply to the New South Wales

Court of Criminal Appeal for a variation in the sentence.

TOOHEY J: That is all he could do, could he not, as the

notice of appeal is presently framed?

MR BLANCH: As it is presently framed, Your Honour. Whether

there is any mechanism by which my friend could

lodge an application now for the Court to deal with

the question of sentence, and if the Court were

prepared to deal with that, then I would have no

would obviously be the speediest possible way of objection to that being dealt with, because that dealing with the question of sentence at this
stage.

On the other hand, preferably, the matter

ought to go back to the Court of Criminal Appeal

where all the relevant reports can be dealt with and assessed, but obviously that ought to happen

very quickly, if those first four convictions are

quashed, because otherwise he would not get any

benefit of any possible reduction. On the other

hand, it may be that the Court assesses that there

should not be any reduction, but that is a matter

that he has the right to have ventilated before a

court. May it please the Court.

26   24/8/93

MASON CJ: Yes, thank you,Mr Blanch.

MR GAME:  If the Court pleases, in relation to the Crown's

submission to the effect that the verdict is not

unsafe and unsatisfactory, in so far as it is

relevant, we would found our case on the absence to

direct on that portion of section 6 of the

Criminal Appeal Act which concerns errors in

directions, and we would say that this is not an

appropriate case for the application of the proviso

for reasons such as that identified by the Court,

and Justice Brennan individually in Domican's case,

that is to say, one could not reasonably conclude

that the jury would necessarily have come to the
same conclusion were they properly directed.

In relation to the Crown's submission which went to the effect that somehow or another the

appellant got a bonus from the way in which the

directions on penetration were left, we would

submit that that is really quite irrelevant, given

the way in which the case was conducted, which was

that she gave unequivocal evidence about

penetration, and he said that it did not occur.

So, this question about whether or not the labia

were contemplated within the vagina, within sexual

intercourse, really does not advance my friend's

case at all.

In so far as the Crown said, "Well, there are these other circumstances from which you can infer

an attempt", and he referred to the medical

evidence and the piece of paper, that evidence, in

our submission, is quite irrelevant to that

question because that evidence founds on the

question whether or not there was penetration.	The
jury used that evidence and concluded that there was not penetration, but once that evidence has

been used in that way, it is quite beside the point

to use that evidence - or it is illogical to use

that evidence - to infer an attempt.	The fact is
that once the penetration has gone, there are no	facts, there are no circumstances from which one
can infer the attempt, with particular regard to
the mental element of it. Those are the
submissions we make in reply.

DEANE J: Mr Game, can I ask you this? What would be the

most important element of a further direction on

attempt to that contained on page 125, which you

see as not having been given in the particular

circumstances of this case?

MR GAME: Well, the directions which appear in 2(a) (ii),

(iii) and (iv), commencing with (iv), and in

descending order (ii) and then (iii).

H 27 24/8/93

Now, finally, with respect to the question

concerning resentencing, I must confess I had not

anticipated that that might arise in relation to

the orders, but I would ask for leave to amend the notice of appeal to include a subparagraph (iv) in the orders sought, that the sentences in relation

to counts two and four be quashed, and the

appellant be resentenced on those offences.

DEANE J: If I can just take you back? (iv), (iii) and

(ii), which you identify, contain no legal element

of direction?

MR GAME: That is in (v), Your Honour, and clearly that

would be - the question you asked was, "Which would
be the most important," (v) would have to be given

and (v) would be important - - -

DEANE J:	Or (v) is the only legal element missing?
MR GAME:	Yes, yes.

DEANE J: Thank you.

MR GAME:  I beg your pardon, yes, I should have said (v) as

well.

TOOHEY J:	Mr Game, the way you expressed the additional provision a moment ago would have to be couched,
obviously, in terms that if the Court were to quash
the conviction on the four charges, then there
should be reconsideration of sentence - - -
MR GAME:	Yes.

TOOHEY J: But, you have not mounted any argument as to why

the sentences on the other two charges should be

interfered with. Is not that a matter, really, for

the Court of Criminal Appeal?

MR GAME: Well, I think it would probably be more

appropriate if the Court of Criminal Appeal dealt

with that question, Your Honour, but the order that

I am really seeking to secure is one that enables

the appellant to go back to the Court of

Criminal Appeal to ask it to resentence in relation

to the balance rather than to go back in a vacuum,

so to speak, without any - - -

TOOHEY J: But you did not appeal against sentence, did you,

before the Court of Criminal Appeal, on those two?

MR GAME:  Yes, we appealed against sentence and we submitted

in the Court of Criminal Appeal that if the court

quashed these four attempts but did not quash the

other two, then the court should resentence upon

28   24/8/93

the basis that those concurrent sentences were

imposed, having regard to the totality principle.

TOOHEY J: Perhaps I put the question too badly. Did you

appeal against the sentences in respect of the two

counts not presently before us, independent of what

the court might do in regard to the other four

counts?

MR GAME: Well, we put our submissions in relation to

sentence in two ways: one way was the first way I

have put which is that if some counts went and

others stayed, then the others should be
reconsidered and, although the court appeared to

accept that submission, or at least the court was

silent when that submission was put to it. In

relation to the second argument that was put in

relation to sentence, we submitted that having

regard to his prior good character and so forth,

although the overall sentence was sustainable, the

minimum term should have been somewhat less and the

additional term somewhat longer, and that argument

was rejected by the court.

So there was not a special argument put in relation to those two counts but it was clearly

contemplated that there would be resentencing in
relation to those two counts if the court accepted
the submissions. But the appellant did not get to

first base on either conviction or sentence in the

Court of Criminal Appeal.

I did put an argument to the Court at the

commencement and I accept that it is somewhat

difficult to put, but the question does arise, and

I would have to concede it has not been adequately

reflected in the notice of appeal, as to whether or

not those other two convictions should stand in the

light of the failure to direct on credibility as it

goes to the two counts of cunnilingus.

TOOHEY J: But you are moving to another and quite different

area now, are you not? Are you suggesting that the

Court should now entertain an appeal against the

convictions themselves on the other two counts?

MR GAME:  That is the submission I put the Court at the very

commencement of my submissions today on the basis

that, in effect, that having quashed the four

attempt convictions, the verdict would be a

compromise verdict in relation to the balance.

TOOHEY J: Well, I know you said something that sounded a

bit like that - I wondered at the time - but given

the notice of appeal and the balance of

your argument, it did not occur to me that you were

challenging the other two convictions as well.

29   24/8/93

MR GAME: Well, Your Honour, I did put an argument to that

effect in the special leave application. I concede

that I have some considerable difficulties with it,

but it is put, none the less.

TOOHEY J: But the first difficulty is to make clear your

position, is it not?

MR GAME:  My position is that all of the verdicts should be

quashed for this reason: that the court, having determined that the four attempt verdicts should

go, it would indicate a compromise verdict if the

balance were sustained. Those are my submissions

in reply, if the Court pleases.

MASON CJ:  Do you want to make any submission in relation to

what last fell from Mr Game?

MR BLANCH: Well, Your Honour, only to say, as I think I

said briefly in my argument, that nothing has been

put that casts any doubt at all on those two

matters.

MASON CJ: Yes, thank you. The Court is reserving its

decision in this matter. The Court will take a

short adjournment in order to reconstitute for the

next case.

AT 11.50 AM THE MATTER WAS ADJOURNED SINE DIE

H 30 24/8/93