Hamilton (a Pseudonym) v The Queen

[2021] HCATrans 109

[2021] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S24 of 2021

B e t w e e n -

HAMILTON (A PSEUDONYM)

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
KEANE J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 JUNE 2021, AT 10.00 AM

Copyright in the High Court of Australia

MR H.K. DHANJI, SC:   May it please the Court, I appear with my learned friend, MR D.R. RANDLE, for the appellant.  (instructed by George Sten & Co)

MR H. BAKER, SC:   May it please the Court, I appear with my learned friend, MS B.K. BAKER for the respondent.  (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Dhanji.

MR DHANJI:   Thank you, your Honour.  Your Honours, from the moment the charges were read to the jury panel, prior even to the empanelment of the jury, a matter likely to strike potential jurors was the fact that it was alleged that the appellant had committed offences against three different complainants, indeed, not just offences but sexual offences against three different complainants.  By the time the jury was empanelled, it would have been apparent to the jury that, indeed, each complainant was a child and, indeed, each complainant was a child of the appellant.  That is a difficult starting position for an accused person. 

Application had been made by the respondent to rely upon tendency reasoning with respect to some of the evidence.  As your Honours would be aware, no application was made for separate trials and that was a legitimate forensic decision made by the appellant’s counsel as a result of a positive case brought by the appellant based on the possibility of concoction as between the complainants, and in particular, concoction at the instigation of the appellant’s former wife.

In the event the application, and it should be noted that the application brought by the respondent was for the admission of tendency evidence with respect – tendency evidence for a tendency purpose, I should say, the evidence of child 3 and child 5 was sought to be relied upon as, effectively, cross‑admissible, and evidence of child 3 and child 4 with respect to evidence they gave with respect to child 5, that did not form part of the indictment, was also sought to be relied upon.  There was not, at any stage, an application to rely upon the evidence of child 1 as being cross‑admissible with respect to the other complainants.

The ruling in relation to that application was deferred until close to the close of the case, shortly prior to addresses.  A consequence of that was that the jury had before them all of this evidence, and at no stage through the course of the trial was there anything said to the jury about any potential limitation with respect to the evidence before them. 

In the course of the summing‑up, no direction – and the respondent accepts no direction was given directly prohibiting the jury from engaging in tendency reasoning.  As we have pointed out in the various submissions, this Court has long recognised the natural inclination towards tendency reasoning in cases involving multiple complainants, and particularly where the allegation is one of sexual offending.  We have referred to the statement of his Honour Justice McHugh in BRS v The Queen:

criminal courts take it as axiomatic that, where the evidence reveals a criminal convictions or propensity of the accused, there is a real risk that the jury will reason towards guilt by using the conviction or propensity. 

Your Honours will see that set out at paragraph 3 of our written outline.  The statement in BRS of Justice McHugh is not some sort of outlier.  It comes on the ‑ ‑ ‑ 

KEANE J:   Of course, Justice McHugh did go on to say that:

Because that is so, the trial judge must give a clear direction to the jury as to the use that they can make of the evidence.  However, it does not follow that the failure to give a direction always constitutes a miscarriage of justice. 

MR DHANJI:   No, and we have accepted that there is no universal rule that there must be such a direction in the case of multiple complainants.  But, his Honour did go on to find that there was in that case – and, indeed, his Honour went on to find that despite the forensic advantage to the accused and his Honour’s view that the accused may well have had a better chance of acquittal without the direction that was not sought, there was, nonetheless, that risk of impermissible reasoning.  That underscores the significance of that risk. 

KEANE J:   But Justice McHugh in that case concluded that there was no miscarriage of justice.  He was in dissent.  But that was his view – is that not right?

MR DHANJI:   With respect, I am not sure that is correct, your Honour.  I am hesitant to argue against your Honour without it right in front of me, but I do not believe that that is the case.  It is in our joint book of authorities, volume 3, and your Honours will find BRS at tab 7 at page 61.

KEANE J:   I am looking at 309 where his Honour sets out – after his Honour has set out what the proper direction would have been, his Honour said:

Directions to this or similar effect would in my opinion have been far more damaging to the appellant than the course which the learned trial judge took.

MR DHANJI:   Yes.  Indeed, despite that finding when your Honour goes over to page 61 at about line 30, his Honour said this:

However, despite the summing up, there remains a real chance that the jury not only remembered and accepted the evidence of W –

W was, of course, the other boy:

but concluded that his evidence combined with that of the complainant made it highly probable that the appellant was a homosexual who preyed on his pupils and had committed the acts with which he was charged.

In other words, he had a tendency to behave in a particular way:

Although I think that the course which the judge took was by far the most advantageous course that could be taken from the appellant’s point of view, the fact remains that a proper direction would have avoided the risk of use of the forbidden chain of reasoning.

KEANE J:   I am sorry, you are quite right.  It was Chief Justice Brennan who was in dissent.

MR DHANJI:   That is so.

GLEESON J:   But, in any event, BRS seems to be quite a different fact pattern from this case.  Is it very unusual to have a single trial where you have three biologically‑related complainants to the accused?

MR DHANJI:   From the point of view of practitioners in the District Court of New South Wales it is not extraordinary.  I mean, speaking anecdotally, I suppose, the more common case is the step‑parent but I am not sure that that advances the argument one way or the other.  But it is worthy of pause to note that one of the difficulties that arises is unfortunately certainly trials involving - or indictments involving multiple complainants are relatively – I hesitate to use the word “commonplace”, but it does ultimately raise the issue that what was relatively ordinary to the practitioners in the room would certainly not have been ordinary to the jury.

The difficulty that one has in criminal cases, of course, is always needing to remind oneself to step out of what one is familiar with and attempt to put oneself in the place of the jury and how the jury would experience the matters that they are hearing.

GLEESON J:   The reason I was asking was I am wondering whether or to what extent the defence case invited tendency reasoning as to the likelihood of concoction?

MR DHANJI:   Well, not so much, with respect, tendency reasoning, but rather a circumstantial case that relied upon various aspects of unreliability across the complainants, the animus of the former wife towards the appellant and a potential, therefore, doubt with respect to his guilt on the basis that the complainants had been, in essence, put up to the task by the former wife.

But even so, there was nothing in that defence that – and even if one was to call it an argument with respect to a tendency to go along with the mother and, with respect, I am not sure that that is right – but that did not in any way permit the Crown to have to its advantage tendency reasoning in the other direction.

Indeed, we have done the analysis with respect to his Honour Justice Beech‑Jones’ likely parts of reasoning and one can see that even if one got to that point of rejecting concoction for whatever reason there is still the next step of determining the reliability of the individual complainants and at that stage the spectre of tendency reasoning looms large.

EDELMAN J:   Mr Dhanji, just before you move on could I just take you back to page 310 in the BRS decision of Justice McHugh, and the passage beginning with:

Although I think that the course which the judge took was by far the most advantageous course –

Is that type of reasoning relevant only to the proviso rather than relevant to the miscarriage of justice question and, if so, why?

MR DHANJI:   Your Honour, in our submission, it is relative to the miscarriage of justice question in the third limb of section 6(1) and the reason we say that is this.  We accept, as is put by the respondent, that we are in the third limb and insofar as the third limb picks up errors or irregularities in a trial, clearly if there was no prospect of a jury engaging in an impermissible form of reasoning one could not say that there is an error or irregularity in the trial, but the moment one accepts that as a result of the absence of a particular direction there was a real possibility of an impermissible reasoning process then the rules of evidence procedure or a proper trial have not been followed because of that and there is therefore a miscarriage of justice within.

EDELMAN J:   Does that not then mean, though, that issues about whether or not what was done was actually more advantageous even though there was a risk of impermissible reasoning, whether what was done was more advantageous or conferred a benefit upon the accused person – that is the type of reasoning that would then be seen in relation to the proviso rather than in relation to miscarriage of justice.

MR DHANJI:   Yes.

EDELMAN J:   So the reason that Justice McHugh is not in dissent is because what he is saying then about the course that the trial judge took being the most advantageous course is those would have been matters to be considered only in relation to the proviso, not in relation to whether or not it was an impermissible course of reasoning?

MR DHANJI:   Yes.

EDELMAN J:   Thank you.

KEANE J:   But Justice McHugh was not talking about the proviso, was he?

MR DHANJI:   Yes, if I can take your Honours back to 303, his Honour sets out the question at the beginning of his reasons:

The question in the appeal is whether the appellant’s convictions constituted a miscarriage of justice by reason of the omission of the trial judge to direct the jury on certain matters even if that omission gave the appellant a better chance of acquittal –

Now, then going to his Honour’s consideration ‑ ‑ ‑ 

KIEFEL CJ:   Well, his Honour is saying there was error.

MR DHANJI:   That is right, that is right.  With respect, the – and going to page 61 of the book, page 310 at line 38, in the paragraph beginning “However, despite the summing‑up”, at about line 38 his Honour there says:

Because there is a real danger that the jury may have used the forbidden chain of reasoning, there has been a miscarriage of justice in the technical sense of that term.

In using that language, “the technical sense of that term”, I apprehend his Honour is drawing attention to miscarriage of justice in the sense of the third limb in section 6(1).

KEANE J:   Why is it not clear?  There is no reference by anybody, any of the judges, to the proviso.  Why is it not clear that they are talking about miscarriage of justice in the sense of an error, because there was otherwise no error on the part of the trial judge, the trial judge not having made any mistake in terms of rejecting an argument wrongly that was put to him?

MR DHANJI:   Your Honour, that is not an easy question to answer, with respect, but ‑ ‑ ‑

KEANE J:   But it is right, is it not, that there is absolutely no reference by any of the judges to the proviso?

MR DHANJI:   Yes.

EDELMAN J:   Although one does have the language of inevitable conviction, which becomes a bit awkward if inevitability of conviction gets moved from the proviso limb into miscarriage of justice.

MR DHANJI:   Certainly at this stage, while I appreciate it obviously being MRAZ and numerous other cases with respect to miscarriage of justice and substantial miscarriage of justice, the same attention had not been given to the issue as has been done in recent times.  But one explanation is likely to be that the difficulty in a case like this of applying the proviso, so in circumstances where if there was no reliance by the respondent on the proviso – and one could well understand that there might not be - and indeed this was a case in which the sentencing judge expressed some disquiet with respect to the conviction and, in that context, it is unlikely that there was reliance on the proviso and the matter is effectively determined on the basis of the real possibility of impermissibility amounting to miscarriage of justice within the third limb.

The authorities to which we have referred – and we do not suggest we in fact put everything before the Court - the issue – or indeed there seems to be little issue as between the parties as to the natural tendency of a jury to engage in tendency‑type reasoning, certainly unless some direction is given against that type of reasoning.  But I will just, if I might, briefly go to De Jesus which is in volume 4 of the book of authorities. 

This is a decision that followed on from this Court’s decision in Sutton v The Queen, and we have made reference to Sutton v The Queen, and your Honours will appreciate the various statements in Sutton v The Queen upon which we rely are strictly speaking obiter, but they came to the fore in De Jesus.  If I can take your Honours to page 257 of the book and the reasons of his Honour Chief Justice Gibbs, beginning in the right‑hand column about ‑ ‑ ‑

STEWARD J:   Could you give the Australian Law Journal Reports page number if you have it.

MR DHANJI:   I am sorry, your Honour, it is (1986) 61 ALJR 1. His Honour notes that – this is in the right‑hand column at about paragraph C:

in the present case neither counsel referred the learned judge to the more recent judgments of the House of Lords in Reg. v. Boardman –

or to the decision of this Court in Sutton v The Queen.  His Honour then goes on to refer to the decision of the House of Lords.  At about paragraph E there is a reference to speech of Lord Hailsham in which his Lordship said:

“Strictly speaking, it was submitted that each boy’s evidence was inadmissible in considering the other charge.  This is somewhat surprising, since, of course, in that event there should have been separate trials . . . ” –

His Honour then went on to refer to the speech of Lord Cross and, in particular, if I can just draw out the passage from the speech of Lord Cross beginning at the very bottom of page 2 of the report, where his Lordship said this:

If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons.

His Lordship went on to speak as to the need for separate trials.  There is reference to the similar view expressed by Lord Wilberforce, this is about line 20, and then reference to his Honour the Chief Justice’s own reasons in Sutton v The Queen, about paragraph C, where the Chief Justice said:

“Before us it was accepted by counsel for the prosecution that where an accused is charged with a number of sexual offences, the charges should not be tried together if the evidence on one count is not admissible on another count.

His Honour ultimately in Sutton gave approval to that position.  His Honour then went on to refer to the reasons of Justice Brennan as his Honour then was in Sutton v The Queen, and if I can pick it up beginning at around paragraph F on the page, his Honour said this:

Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice.  Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not.  Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.

His Honour the Chief Justice then went on to say, with respect to those observations, in the next paragraph:

This is a general statement, not limited to sexual cases, and so viewed I respectfully agree with it.  Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.  For that reason, I adhere to the view which I expressed in Sutton v The Queen.

As I said, that view is at joint book of authorities 175, and in essence was the need for separate trials in relation to sexual offences, but the aspect of that, which we would stress, is his Honour is clearly careful to stress the need for separate trials particularly in relation to sexual offences, because they fall into a particular category where the prejudice is high. 

Now, bringing it to this case, not only do we have sexual offences, and the assumed prejudice, but we have sexual offences against children, and we have sexual offences against children who are indeed the appellant’s own children, and so the level of prejudice, one might think, is at the very upper end of the scale.

Now, the consequence of these considerations would be that if the evidence is not cross‑admissible there would be separate trials unless, for some reason, there is not, and in this case, there was not because there was no application, and that was, as I said at the outset, a forensic decision, and a legitimate forensic decision, which we do not take issue with. 

But that having occurred then, clearly enough, there was a need to guard against the prejudice to the extent that it was possible, and at the very least what was required were clear directions given in the summing‑up, and as I have indicated, as a result of the way in which the trial unfolded, it was not available to the trial ‑ ‑ ‑ 

KIEFEL CJ:   Not so much “unfolded”, it was a strategy.

MR DHANJI:   Yes.

KIEFEL CJ:   It was a defence strategy to have all of the evidence put before the jury, join the dots, and attempt to show that the wife had put the children up to making false complaints.  There was no – there was a decision not to seek separate trials.  There was a decision to seek a separate consideration direction and a Murray direction, and in light of this strategy, it is just a little difficult to understand that defence counsel had not turned their mind to whether or not a tendency direction was necessary and put it to one side.  This is a carefully‑considered strategy.

MR DHANJI:   With respect, your Honour, if I can just go back.  When I speak of the way the trial unfolded what I was coming to was the fact that no determination as to cross‑admissibility was made until shortly prior to addresses.

KIEFEL CJ:   That was with the consent of both Crown and defence.

MR DHANJI:   That was with the consent of both the Crown and the defence.

KIEFEL CJ:   So what the jury ‑ with the evidence of quite some time no one seeks an anti‑tendency direction.

MR DHANJI:   That is right, but the point that we make, of course, is that by that stage the idea that the jury would be dependent upon an invitation to engage in tendency reasoning as opposed to exercising or being prone to the natural inclination to engage in tendency reasoning ‑ ‑ ‑

KIEFEL CJ:   Defence counsel might have well thought that an anti‑tendency direction would not be the way that you would want the jury to approach the matter, given the holistic approach that the defence was pursuing.  An anti‑tendency direction really would not have assisted, in fact it might have distracted the jury from the exercise that defence wanted them to undertake.

MR DHANJI:   With respect, your Honour, there would have been no disadvantage.  Certainly in the Court of Criminal Appeal, the reasons given for the majority by his Honour Justice Beech‑Jones did not suggest that there was any forensic advantage to the appellant in not seeking such a direction and, in our submission ‑ ‑ ‑

KIEFEL CJ:   You are quite right, that is probably putting it too highly, but what this Court is concerned with, as was the Court of Criminal Appeal, was what one might infer from the fact that defence counsel chose not to seek an anti‑tendency direction.

MR DHANJI:   Yes.

KIEFEL CJ:   The point really is whether or not it can reasonably be inferred that defence counsel considered there was not a sufficient risk.

MR DHANJI:   Your Honour, with respect, we take issue with the formulation that defence counsel chose not to seek an anti‑tendency direction.  I appreciate that his Honour Justice Beech‑Jones formed the view that a deliberate decision ‑ ‑ ‑

KIEFEL CJ:   Yes, he did.

MR DHANJI:   ‑ ‑ ‑ had been taken.  But there is some difficulty in coming to a conclusion that a deliberate decision had been taken.

KIEFEL CJ:   Why?

MR DHANJI:   In the absence of any forensic ‑ ‑ ‑

KIEFEL CJ:   No one is suggesting that defence counsel was in some way not competent or – it is the nature of this evidence that you turn your mind to tendency directions or not.  It was certainly concerned that the Crown should not have tendency direction, so these are matters that are clearly going through the mind of defence counsel.

MR DHANJI:    Can I say this.  He was concerned – whilst it is expressed in terms of concern that the Crown might have tendency directions, the real concern must only have been with the jury’s reasoning.  The directions are only a step along the way to the way in which the jury ultimately reasons.  So, the concern must always have been that this appellant – who was accused at that stage – not have the jury engage in tendency reasoning against the appellant. 

Now, in that light, there was opposition to the Crown’s notice.  There was acceptance of the anti‑tendency directions that were given with respect to the context evidence, but silence with respect to the other aspect of the Crown’s notice, and, indeed, tendency reasoning more generally including child 1. 

In our submission it is difficult to draw any inference that there was a decision made in the circumstances and the reason we say that is in the absence of any forensic advantage there is simply no reason not to have such a direction.  Given that there is no reason not to have a direction and given the concern that tendency reasoning was a logical and available rational mode of reasoning, it is difficult to conclude positively that a decision was in fact made. 

KEANE J:   But if you are asking whether one can conclude positively that a decision was made not to seek it, what do you make of the fact that there was actually a decision made to seek it and obtain the Murray direction?

MR DHANJI:   Well, clearly that was something ‑ ‑ ‑ 

KEANE J:   How can one say that counsel who sought the Murray direction somehow or other overlooked the question of whether it was to the advantage of his client to have a further direction given?

MR DHANJI:   Well, there is one potential ‑ ‑ ‑ 

KEANE J:   That just seems to beggar belief.

MR DHANJI:   Well, there is one potential clue to this, and, before I come to it, can I just perhaps say this.  In our submission, even if one goes down this path and there is a determination that a positive decision was made, in our submission that decision was wrong and, indeed, certainly in ‑ ‑ ‑ 

KEANE J:   But people make wrong decisions about the conduct of trials all the time.

MR DHANJI:   Yes.

KEANE J:   That is what the adversarial system is about.

MR DHANJI:   Yes, although if one goes to a case such as BRS where, in that case, highly experienced criminal counsel conducting the trial sought, and was clearly mindful, of the various tactical decisions being made, did not seek the direction in circumstances where there was a forensic advantage leaving open nonetheless the possibility of impermissible reasoning, one still was left with miscarriage of justice. 

KIEFEL CJ:   Defence counsel might have thought there was not much of a risk, not the least because the Crown was not running a case – its potential to run a case on tendency had been removed by the trial judge at the behest of the defence.

MR DHANJI:   Yes.

KIEFEL CJ:   So the Crown was not putting forward a case of tendency.  That might have been just as influential with defence counsel.

MR DHANJI:   Your Honour, it may have been but again, if it was, that really amounts to, with respect, an error on the part of defence counsel because ultimately, as the respondent accepts, the position of defence counsel is not determinative.  It may in some circumstances give some form of indication as to the atmosphere of the trial or what was thought to be important.

KIEFEL CJ:   Perceptions of risk.

MR DHANJI:   Perceptions of risk.

KIEFEL CJ:   And very well placed to assess them.

MR DHANJI:   Well, with respect, well placed ‑ ‑ ‑

KEANE J:   In a case in particular where the defence is running a case that the children are all lying - each child is participating in a plan to tell lies at the behest of their mother.  They are all of them disposed to do that.  Why would, when you have this big case, why would you not think that when you have the welter of directions that had been made, including the Murray direction, why would the defence not think, “Well, we don’t need to complicate this further and we particularly don’t need to draw attention to the feebleness of argument by reference to tendency when it’s our case that all these children are telling lies as part of a conspiracy to which they have given their assent”?

MR DHANJI:   Your Honour, the defence never abandoned the idea that, quite apart from any positive case which was sought to be brought, the Crown nonetheless needed to satisfy them that the various complainants were honest and reliable.

KEANE J:   I understand that, but the only defence – sorry, an anti‑tendency case, anti‑tendency argument, does not guarantee acquittals on all 10 counts.  That is the thing about the anti‑tendency argument.  It might be a fallback, it might succeed, but it works on the assumption that the jury may well conclude that some of the offences are made out.  The only strategy that, if it works, guarantees an acquittal on all 10 counts is the principal strategy that was run.

MR DHANJI:   Your Honour, can I respectfully take issue with the premise that it only works if the jury is satisfied in relation to some of the counts, because this jury was entirely uninstructed, so there was no issue about any level of burden of proof with respect to allegations not concerning the particular count, and as to how they might be used. 

KEANE J:   But the whole theory of anti‑tendency reasoning is, “Don’t think because one charge is made out he’s the sort of bloke who might do the other things as well”.

MR DHANJI:   With respect, your Honour, that is at a level where there is a finding – I accept that, certainly, if there is a finding, well, then the prospect of tendency reasoning looms even higher, and that is right, but there are really two responses.  If, for example, there was a finding in respect of one child, and tendency reasoning was then engaged in with respect to others, that is sufficient to amount to a miscarriage of justice within the third limb, and that is a possibility that cannot be excluded in the circumstances of a case like this.

But even before one gets to any positive finding, one starts with the reality that there is a multiplicity of complaints by a multiplicity of children, and so when one is even evaluating the concoction case brought by the appellant, one is in the territory of needing to – well, there is the potential for the jury to, in fact, dismiss the concoction case on the basis that this is – the three children have brought allegations he is the type of person that would engage in this sort of conduct, and so therefore we do not believe in the concoction case.  That is really just another way of saying that one cannot try and unpick these things on the basis that juries can be assumed to engage in a sort of linear analysis of this case as against that.

KEANE J:   We are not trying to unpick it retrospectively.  What we are looking at is the view from defence counsel’s perspective at the trial, and the view from the accused’s perspective, and the accused runs a strategy that, if it succeeds, means acquittal on all 10 counts.

MR DHANJI:   Yes, but that does not mean he abandons the prospect of acquittal on some counts.

KEANE J:   Well, actually it might.

MR DHANJI:   Well, with respect, I accept that, if one could say that there is a forensic advantage, and one is in the territory of saying, well, there is no miscarriage of justice in the sense of an unfairness because of a rational, tactical decision to the advantage of the appellant, but one is not in the territory of a rational forensic decision to the advantage of the accused, in this case.  One is simply looking at the question of the natural tendency of jurors to engage in tendency reasoning, and the fact that it was left open. 

One needs to come to, I suppose, the analysis of the summing‑up and the directions that were given, because we accept at once that it may be that, in a particular case, having regard to particular facts and particular directions given, one is able to say, well, look, there is no real possibility, but that is a long way from this case and ‑ ‑ ‑ 

EDELMAN J:   Mr Dhanji, is it possible that the jury could have reasoned in a way which said, well, individually we are not satisfied beyond reasonable doubt that the offence occurred in relation to – the offences occurred in relation to any child, but when one looks at the number of complaints in relation to the number of children collectively we are now satisfied that some or all of the offences, maybe even one of the offences had occurred.

MR DHANJI:   Absolutely, your Honour, yes.

KEANE J:   That would not be right, would it?  They could not do that consistent with the Murray direction.

KIEFEL CJ:   That is right.

MR DHANJI:   The Murray direction, with respect, your Honour, did not exclude the jury.

KIEFEL CJ:   The separate consideration direction.

MR DHANJI:   Nor did the separate consideration direction.

EDELMAN J:   The next question I was going to ask was then it is practice in New South Wales for trial judges to give both a Murray direction and an anti‑tendency direction?  Is that in the Bench book?

MR DHANJI:   Your Honour, I cannot answer the question as to whether it is in the Bench book, but I would be surprised if it is – if it is not, it should be, would be our first position.  Indeed, I would be surprised if it is not.  But one has to go to the directions, and I have already indicated in response to your Honour Justice Keane the fact that defence counsel did not, at any stage, abandon the idea that if the concoction case failed the jury nonetheless would need to consider the position.  That is clear from the outset of the defence closing address and your Honours do not need to go to it, but it is pages 45, 46 and 47.

GLEESON J:   Mr Dhanji, at paragraph 118, Justice Beech‑Jones identifies what he says is the risk of impermissible reasoning.  I just wonder at some stage if you could address whether he accurately identified that risk?

MR DHANJI:   Yes, your Honour.  Can I indicate that in our submission his Honour, with respect, did not and can I perhaps approach it this way.  As I said, the appellant did at no stage abandon his position that the Crown needed to prove no matter what they made of the defence case the case against the – the various cases against the appellant.  The summing‑up, if I can take your Honours to core appeal book at page 8 and you will see there the commencement of his Honour’s summing‑up and, at the top of page 9 of the book, his Honour says this all, I should say, relatively orthodox:

The principles of law that I will explain to you shortly are principles which you must accept, and you must apply them to the facts of the case as you find them to be.  The facts, of course, as you are well aware by now, are matters entirely for you.  I have nothing to do with your decision about the facts of the case, or your verdicts.  I have nothing to do with whether you accept or reject any or all of the witness’ evidence, or what you reject or accept as truthful or untruthful, reliable or unreliable, or what inferences you might draw from the evidence.

So, as I say, it is orthodox, but it is made plain to the jury as to what the respective roles are, and their role with respect to the findings of fact.  Importantly, his Honour goes on to say this.

You have seen the witnesses give evidence both in the witness box and by audio visual link and pre‑recorded evidence in the way prescribed by legislation, and it is a matter for you to use your common sense and experience of human affairs in judging each of those witnesses and determining the manner in which you would treat their evidence.

You have heard addresses from counsel for the Crown and Mr Russell for the accused, and you should consider those submissions and give them such weight as you think fit in the light of the evidence.

Stressing effectively to the jury that, whilst they have addresses from counsel, it is ultimately up to them and it is up to them using, as I say, their common sense.  That is again stressed over the page at paragraph 5 of the summing‑up where his Honour said this:

You bring to the jury room your common sense and your ability to judge your fellow citizens, and the concentration of your varied experience of life, and your individual abilities and wisdom, and common sense is the critical foundation of the jury system and has been for 200 years or so in this State at least.

So the exhortation to the jury is very much from the outset to emphasise their role as the factfinders, their role as factfinders to act consistently with directions that are given but, subject to any such restriction, to use their common sense.  So when one puts an exhortation to the jury to use their collective common sense against the simple reality that we have three complainants each making allegations of sexual‑type offences against their father there is, in our submission, unless very clear directions are given, the real risk of the jury engaging in tendency reasoning.

Now, put against us and relied upon in the Court of Criminal Appeal were particular directions.  Justice Macfarlan in the Court of Criminal Appeal of course considered those matters and was of a view that they did not exclude the risk and we respectfully adopt his Honour’s reasoning.  If I can take your Honours to the particular directions relied upon, what has been described as the separate consideration direction appears at page 26 of the book and what his Honour told the jury there at paragraph 48 is:

As I said to you at the start, there are ten separate trials being conducted here.  There are ten counts.  The trials are being heard together for convenience, because there are a number of common parties, in relation to the complainants and the accused, but you must give separate consideration to each count.  That means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some counts, if there is a logical reason for that outcome.

His Honour then went on to give what is generally understood or known as a Markuleski direction.  But that, insofar as it has been described as a separate consideration direction, did not tell the jury a great deal other than they needed to give separate consideration and make a separate determination with respect to each count on the indictment.  But it told the jury nothing of – well, I will do it in two steps.

The first matter is this – that is not in the terms in which a separate consideration direction is ordinarily given, because the standard separate consideration direction is that set out by Justice McHugh in KRM.  The standard direction that his Honour refers to is at page 117 of the third book of authorities, paragraph 36, where his Honour said this:

It has become the standard practice in cases where there are multiple counts, however, for the judge to direct the jury that they must consider each count separately and to consider it only by reference to the evidence that applies to it -

That second limb of the – what is generally referred to as a separate consideration warning, was not given in this case.  So, it is really not a direction that tells the jury other than, in essence, they do not return a verdict of guilty to the indictment as a whole – or verdict of guilty or not guilty – they do not return a verdict, rather, they have to return verdicts with respect to each of the individual counts. 

But it says nothing in of the restriction in relation to the consideration of those counts, and indeed, even if the second limb of that direction had been given – that is to say, you can consider it only by reference to the evidence given in relation to that count, even that would not have been sufficient because as his Honour Chief Justice Gleeson then, in the Court of Criminal Appeal said in Mitchell, and this is in the fourth book of authorities at tab 14, what his Honour said there at page 270 of the book at about line 25:

The directions given about considering the charges separately and returning separate verdicts are standard directions given in any case where there is more than one charge against an accused person.

EDELMAN J:   Sorry, which page are you reading?

MR DHANJI:   Page 270 of volume 4 of the book of authorities, where his Honour said:

The directions given about considering the charges separately and returning separate verdicts are standard directions given in any case where there is more than one charge against an accused person.  They are not inconsistent with the possibility that in reaching their separate verdicts the jury may consider the totality of the evidence in the case as relevant to each charge. 

So, there is nothing, particularly in the separate consideration direction that was given here, to direct the jury as to the fact that they were not to consider the totality of the evidence.  The other direction that is relied upon was the so‑called Murray direction.  Now, what his Honour said there – and it begins at the top of page 39 of the book, paragraph 24, at about line 12:

Firstly, whenever the Crown seeks to establish the guilty of an accused with a case based largely or exclusively on a single witness it is important that the jury be told that you should exercise caution, and that is what I am doing now.  You have to exercise caution before you could convict the accused on any count because the Crown case largely depends on you accepting the reliability of a single witness.

Now, whether tendency reasoning is available or not, that is a true statement.  The case, of course, depends largely on accepting the reliability of a single witness.  How one determines that reliability and what other evidence one brings into play with respect to that determination, of course is another question.  Then his Honour goes on to say:

For example, [child 1] is the only witness to . . . the counts –

and then goes on to refer to the other complainants.

Now, a statement that those particular complainants were the only witnesses to particular events does not in any way indicate that they are the only evidence with respect to those particular matters.  Indeed, to read it in that way would be inconsistent with the summing‑up more generally because, of course, there was evidence admitted with respect to other allegations concerning child 5, for example, evidence given by child 3 and child 4, and that was referred to as context evidence.

Your Honours will see at page 13 of the book there is reference – or there is a heading which refers to “Context evidence”, and there is discussion of the nature of the evidence and the use to be made of it and at page 15, paragraph 19, a warning that it could not be used as tendency evidence.  But it was, nonetheless, evidence that was available in the evaluation of the evidence given by particularly child 5 with respect to the consideration of matters as to which he was the only witness in the sense of a person who actually directly witnessed the events.

So that direction back on page 39 cannot be read as in any way excluding the jury from consideration of evidence beyond the individual witness and, indeed, that is actually made explicit because over the page on page 40 his Honour says this, from the top of the page:

I am not suggesting that you are not entitled to convict the accused on any count on the evidence of a complainant, clearly you are entitled to do so, but only after you have carefully considered the evidence and satisfied yourself that it is reliable beyond a reasonable doubt.  In considering the complainants evidence in each case and whether it does satisfy you of the guilt of the accused you should, of course, look to see if it is supported by any other evidence.

So, in those words, the jury are given to understand that – and again, whether tendency directions, whether tendency evidence was available or not, there was still a need to be satisfied beyond reasonable doubt of the account of the particular complainant with respect to the particular event, and so there is nothing inconsistent about saying that you need to be satisfied of the complainant’s account with the idea that you can bring into that evaluation evidence beyond that complainant and the jury are, in fact, directed explicitly that they should look to do so. 

When one comes to the Court of Criminal Appeal’s‑ or the reasoning of his Honour Justice Beech‑Jones in the majority in the Court of Criminal Appeal, one sees at paragraph 113 - this appears on page 117 of the book - his Honour, in his consideration of the particular case, begins with the statement, having analysed some of the authorities, in particular KRM ‑ his Honour says:

It follows that, notwithstanding the statements of McHugh J in KRM, there is neither a requirement or even a presumption that in all cases in which multiple counts of sexual assault involving different victims are tried together then, unless the evidence in respect of the counts is admissible as tendency evidence on the other counts, an anti‑tendency direction must be given such that a failure to do so will amount to a miscarriage of justice –

This forms his Honour’s starting point for the analysis of the particular directions given in this case and that, in our respectful submission, was an unsound starting point because his Honour got to this point by noting that the observations of Justice McHugh in KRM were obiter dicta, and whilst that is so, KRM was a single‑complainant case, that mattered little in the context of the statements in BRS, De Jesus, Sutton, Roach, all to similar effect.  So distinguishing KRM on that basis was not a sound basis upon which to start.

Going back in his Honour’s reasons, it begins at page 114 of the book, where his Honour sets out the introduction, at 106, sets out the passage relied upon in KRM, sets out at 107 that KRM involved the one complainant, and the comments relied upon were not essential, in other words, obiter dicta, and then his Honour went on to refer to numerous cases in the Court of Criminal Appeal at 108, 109, 110 through to 112, and each of those cases, with the exception of Lyndon referred to at 111, were all single‑complainant cases. 

Lyndon was the one case that was a multiple‑complainant case, but it was an entirely different situation.  In Lyndon, the allegation was effectively – was two complainants but effectively a single incident, that is, offending alleged to have occurred in the presence of each complainant at almost the same time.  One can well understand why in a case like that the factual situation was sufficiently different that the risk of tendency reasoning was not that as discussed in De Jesus, Sutton and the like. 

So, the basis upon which his Honour reached the conclusion at 113 that there is not even a presumption was, in our respectful submission, unsound and, indeed, inconsistent with the various authorities to which we have taken the Court in the submissions on behalf of the appellant. 

GLEESON J:   So, are you saying that the Court should confirm that there is a requirement or are you saying it is a presumption?

MR DHANJI:   A presumption.  We have accepted that there is no universal rule and, indeed, I think it is Justice Brennan in Sutton who refers to – gives the example of a case where the only evidence against the accused is the confession of the accused to assault against multiple complainants.  I might be wrong about where I am getting that from, but I will check that.  But one can understand the example. 

In a case like that we have a single issue, that is the truthfulness or otherwise of the confession.  But, similarly, we do not take issue with the decision in Lyndon in that where you have a single incident involving the two complainants and so, on that basis, we have accepted from the outset that there is no universal rule.  Indeed, his Honour Justice Macfarlan accepted as much in his Honour’s dissenting reasons but whilst acknowledging that there cannot be a universal rule and, indeed, I think it is fair to say that there is obviously a risk ‑ ‑ ‑

KIEFEL CJ:   It is an assessment to be made in each case, is it not, of the risk and as Justice McHugh said in BRS whether there is a real chance that without the direction a conviction might result.

MR DHANJI:   That is right and so it is not unlike ‑ ‑ ‑

KIEFEL CJ:   That is not really a presumption.

MR DHANJI:   It is not unlike every other area of the law in that it is difficult to predict what factual situations might throw up.

KIEFEL CJ:   It does not leave much room for a presumption to operate, does it?

MR DHANJI:   Well, whether one calls it – well, I have accepted ‑ ‑ ‑

KIEFEL CJ:   You probably perhaps mean by that that a trial judge should turn their mind to it.

MR DHANJI:   Yes, and, indeed, turn their mind to it but in a particular context or with a particular understanding and that particular understanding is the acceptance that, as Justice McHugh said, criminal courts regard it as axiomatic that there is a natural tendency to engage in tendency reasoning.  So, if one is hesitant to use the word “presumption” it might not matter a great deal because if one is launching from a start point that it is axiomatic that juries will engage in tendency reasoning ‑ ‑ ‑

KIEFEL CJ:   But it does not necessarily follow it will happen in every case, and a lack of direction does not mean that there is a new trial and ‑ ‑ ‑

MR DHANJI:   That is right ‑ ‑ ‑ 

KIEFEL CJ:   It is just so fact dependent on how a case is run. how the Crown is presenting their case or how the directions are given. 

MR DHANJI:   Yes, yes – I was trying to agree with your Honour.  We do agree, and that is why we accept there is no universal rule, but insofar as one gets to the point where, and we accept – and I will keep trying to agree – we accept that it is fact dependent – but the reason I hesitate is that it is going to take a relatively unusual set of circumstances such that one can look at a particular case involving multiple complainants alleging offences against a particular accused on different occasions, it is going to take a particular type of case before one is able to say the risk of tendency reasoning was not present in this case.

EDELMAN J:   The language of presumption is misleading, but it is an attempt to try to guide trial judges towards the general rule – or the usual rule that should not usually be departed from unless there are specific or good reasons to do so, and the reason why the rule is usual is the dangers of tendency reasoning.

MR DHANJI:   Yes.  That is, with respect, the point we would make because you simply cannot reconcile the strength of the statement in this Court as to that natural inclination, but here, we have the additional factor of course in terms of whatever one makes of the approach of defence counsel, it comes on the back of a summing‑up that was not prepared by the trial judge.  We have made in addition the point that the trial judge in this case was found to have abdicated his responsibility for that summing‑up.  So, one is in the territory of not looking at the position of defence counsel in relation to correcting or seeking further directions with respect to a summing‑up that has been given by a trial judge who has independently turned her or his mind to ‑ ‑ ‑

KIEFEL CJ:   There is nothing to prevent defence counsel from seeking a direction, regardless of who drafted the summing‑up - nothing. 

MR DHANJI:   No, we accept that, but when one is – well, our position is put this way and that is we of course cannot resile from the fact that defence counsel could have asked, and if he had asked indeed probably would have received the particular direction.  We do not accept that one could infer that a deliberate decision was made, but even if a deliberate decision was made, that is not the end of the matter, because of course there is still the need for the evaluation as to whether there was the risk. 

Now, in many cases it may be that defence counsel’s position is informative and that one can look at a potential risk that is not particularly grave.  In the context of defence counsel not being concerned about the risk one might conclude that that all can be put together or adds up to a sound conclusion that there was no such risk, but in a case like this, having regard to the nature of the risk and that natural tendency to engage in tendency reasoning, really nothing from the attitude of defence counsel could particularly assist in regards to assessment of that possibility.

KEANE J:   Mr Dhanji, if in this case defence counsel had said, “Your Honour, we ask your Honour to give a Murray direction and we expressly ask your Honour not to give the usual tendency direction”, if the judge had not acceded to that last request and had nevertheless given the direction, would the defence have a ground of appeal on the basis that they had not been allowed to run the case as they wished?

MR DHANJI:   No, your Honour, because none of that would prevent the defence from running the case as they wished and there is no reason ‑ ‑ ‑

KEANE J:   What if the accused were then convicted on four of the 10 counts?

MR DHANJI:   Still no, your Honour, because the jury have had the Markuleski direction, the jury have had the arguments with respect to ‑ ‑ ‑

KEANE J:   But the accused has not been allowed to have the trial run on the trial that they wanted to have run.

MR DHANJI:   With respect, your Honour, there would be nothing in the giving of a direction against tendency reasoning that would allow one to reach the point that one could say the defence has not had the trial that they would want to have because directions against tendency reasoning are simply directions that prohibit the jury employing a particular type of reasoning towards guilt.  Now, that can only be to the advantage of the accused.  Insofar as concoction might be run ‑ ‑ ‑

KEANE J:   What about the possibility that he is convicted of some but not all – why can he not say, “I wanted to have my shot, that all or nothing”?

MR DHANJI:   If he is convicted of some and the equation was all or nothing, the result of that would presumably – would have been he would have he would have been convicted of all.

KIEFEL CJ:   If a tendency direction had to be given, it would require the trial judge to direct the jury to go through each of the charges sequentially.  Correct?

MR DHANJI:   Well, with respect, the jury did have to go through each of the charges sequentially.

KIEFEL CJ:   Yes.  Could you explain to us how you would see the tendency direction – what shape it would take?  What would the trial judge have additionally told the jury to do?

MR DHANJI:   The trial judge would have told the jury that they are hearing in the circumstances of this case allegations made by three different complainants that are being tried together for reasons of – well, that they are being tried together but they nonetheless need to be satisfied with respect to each of those complainants, that they should not reason that, by virtue of the allegations made by one complainant, the accused is the type of person that is more likely to have engaged in such conduct as against another complainant.  They should not reason that the accused person is, by virtue of the multiplicity of allegations, more likely to be guilty of all the allegations.

KIEFEL CJ:   I think we get the general idea, Mr Dhanji.

MR DHANJI:   Yes.

KIEFEL CJ:   Does that not detract it somewhat to the defence case?  You might say that it is no major disadvantage, but does it not detract somewhat from a defence case which says to the jury we would really like you to consider the whole of the evidence towards the likelihood that this is all being put together by a wife who is seeking to harm the accused?

MR DHANJI:   No, with respect, because that concoction case is a case to which the appellant was entitled.  It may be that the jury would be in a position to reason by virtue of aspects of unreliability across various complainants, it made it more likely that that concoction case was correct, but by the very same token, the jury might also be minded to actually combine the various complainants, and indeed the similarity of the accusations made by child 5 and child 3 to say that, in fact, the concoction case is less likely. 

So it actually infects at each stage.  It is not a situation where one can say that the jury would have considered the concoction case quite independently from any view that they formed as to the complainants.  These things are all happening as part of a reasoning process by which the jury are using their common sense.  They are considering ‑ ‑ ‑ 

KIEFEL CJ:   Well, they would be considering the concoction case, in a sense, separately, because the trial judge would be explaining that this is the defence case.

MR DHANJI:   Yes.

KIEFEL CJ:   So they are being invited to view it as quite separately, and it would be in relation to how the Crown put its case that the tendency direction would be gone through.  So the jury would be asked to take two different views and say these are both manners by which you may reason, and they are different.

MR DHANJI:   But the jury were all – it was always open to the jury, in rejecting concoction, to have regard to the multiplicity of complainants.  So it is – clearly enough, tactically, the manner in which the appellants sought to deal with the multiplicity was to say that there was concoction, but, particularly where there is aspects of similarity as between, for example, child 3 and child 5, there is the potential to say, well, not only has he got a tendency to assault his own children, but he does it in a particular way, and so we do not think that that is redolent of concoction, and, in fact, we use that multiplicity to reject the concoction argument.

But quite apart from that, even if they were being dealt with separately, clearly enough, in this case, one got to the point where the jury rejected the concoction argument.  They did not regard it as a significant possibility.  They then proceeded to convict on each count in the indictment, and so that second step having – even if one were to break it down and say, well, there is certainly – the jury would have followed a second step in terms of reasoning to guilt, there was still the likelihood, or at the very least the real possibility that the jury would have relied upon the multiplicity of complainants.

Indeed, insofar as one is using particular reasoning, or is careful in relation to particular reasoning, dependent upon whether it is reasoning towards guilt or otherwise, the Markuleski direction is an example of that, and that is if the jury find one count to be not made out the jury are instructed to use that in relation to other counts with respect to consider that at least in their assessment of the reliability of other counts against that same complainant.

So it does not operate in a kind of logically different way when one is looking at potential tendency reasoning across multiple complainants.  There is a reasoning towards guilt process that the jury must engage in before they could return the verdicts that they did, and as part of that reasoning towards guilt process one cannot exclude the real possibility that the jury were influenced by the presence of multiple complainants and engaged in tendency reasoning to the disadvantage of the appellant.

KIEFEL CJ:   I see the time.  The Court will take its adjournment.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIEFEL CJ:   Yes, Mr Dhanji.

MR DHANJI:   Your Honours, before the adjournment I took your Honours to some aspects of the summing‑up where his Honour made clear to the jury that they were to use their common sense and approach the matter effectively utilising that collective common sense. 

If I can take your Honours to an aspect of the closing address of the Crown - and this is in the respondent’s further material and the Crown Prosecutor’s address begins at page 5 - the Crown – and I am not suggesting for a moment that there was a deliberate attempt to encourage the jury to engage in tendency reasoning but the simple fact of having three complainants had the result that even speaking about the case it was inevitable there was going to be reference to the situation globally.  So, the Crown begins the address at line 24:

issues for you to decide in this case ‑ ‑ ‑

KIEFEL CJ:   I am sorry, which page are you at, Mr Dhanji?

MR DHANJI:   Page 5 of the respondent’s further material. 

KIEFEL CJ:   Yes, thank you.

MR DHANJI:   It begins at line 24:

the issues for you to decide in this case is whether the accused indecently assaulted his children –

children 1, 3 and 5:

You heard a lot of evidence about the background to this family and the family dynamics.  Some of this evidence may assist you and some of it the Crown submits may distract you. 

Then, the prosecutor said this:

Ultimately, what you need to decide is whether the children –

child 1, child 3 and child 5:

were truthful and reliable about being touched indecently by their father.

As I say, that is, in a sense, a sort of inevitable way of which something is going to be framed, an inevitable way in which discussions in the jury room are likely to take place and an inevitable way the question is going to be asked.  Again, at line 40, the sentence beginning towards the right‑hand side of the page:

But again, what the Crown asks you to look at is the evidence of what these children –

that is globally, said:

how did they say it?  When did they say it?

Again, you have this sort of global consideration.  Now, true it is that the Crown Prosecutor then went on to consider each child in turn but that is hardly surprising because, of course, there was separate evidence given by each child and there was a need to do that and the jury, no doubt, understood that was a process that needed to be done.  Coming to the end of the address, the position is reiterated – this is at page 40.  What the Crown says there at line 20:

You would reject [the appellant’s] evidence entirely and you would reject it on critical issues involving his children and once you reject him in the way in which he dealt with his children, whether it be physically or decently, you put his evidence to one side and you go back to the Crown case and you work out whether you’re satisfied that those three children told you the truth.

The Crown then concludes with a submission as to each of them telling the truth.  Now, again, that is all consistent with an approach where one accepts that there is separate consideration of the counts – they obviously have to return different verdicts, but inevitably they are going to be aware of - and consciously or unconsciously – and those words are important and we would stress to your Honours the significance of the fact that one is talking about conscious or unconscious influence, and so one is not necessarily looking towards particular encouragement or particular directions - but even insofar as there are express statements made, one can see from the address of the Crown that the nature of a case like this is one is inevitably going to be drawn to looking at the fact that globally there are three complainants and one is looking to determine the accuracy of the individual complainants in a context of the fact that they are one of three. 

Insofar as defence counsel did not take issue with the absence of the particular direction – now, we have spent some time making submissions to the effect that one could not draw a conclusion that a positive decision was made, but to an extent one needs to underscore or emphasise the fact that ultimately what one is talking about is not so much what is in the mind of trial counsel, of course, but the objective reality or the objective test with respect to miscarriage.

That is why we say, well, ultimately, in a sense, if defence counsel had a particular view it does not much matter because that view, we say, was wrong because when one goes back to the authorities there is an acknowledgement and that acknowledgement accords with reality – a common everyday understanding – that if you put a person in a room with three complainants making allegations there will be a level of prejudice against that person, and part of that prejudice will be the natural tendency to engage in tendency reasoning. 

But to the extent that one is in a sense engaged in an inquiry as to what actually happened at trial and what was in the minds of various participants there is also potentially a further clue in that we have made the point that insofar as defence counsel took a position it was not the ordinary situation – that is the trial judge having turned her or his mind to the summing‑up, determined what was necessary and then, as in essence an additional level of scrutiny of the summing‑up, that is, the role of defence counsel in protecting his client’s interests, one is in a situation where – and as we have pointed out, relying on the reasons of Justice Kirby in KRM – that there are many considerations that come into play in terms of ability, exercise, competence and, indeed, just plain oversight, and it is difficult to draw positive conclusions, particularly in a case such as this where the authorities – one can put it this way, I suppose.

If one is looking to the approach of defence counsel, if defence counsel the night before the summing‑up was given read De Jesus, it is inconceivable that he would not have, having read that and informed himself or reminded himself of the concern which the courts acknowledge with respect to the dangers of tendency reasoning, it is inconceivable that he would not have made the application.  But as we have said, his silence comes in a context where there was no independent thought given to the issue by the trial judge.

If I could take your Honours to page 93 of the core appeal book ‑ and this is within the reasons of his Honour Justice Macfarlan ‑ and what his Honour said or what his Honour pointed out – it perhaps begins on page 92, there is a heading “Ruling on tendency evidence”, and his Honour sets out the application and aspects of the argument and the ruling.  At paragraph 23 at the bottom of page 93, Justice Macfarlan points out this:

His Honour’s reasoning did not expressly refer to the first aspect of the Crown’s notice, namely, the cross‑admissibility for tendency purposes of the evidence of the Third and Fifth Children concerning the counts in the Indictment relating to them.  Nevertheless, the decision operated as a rejection of all that the Crown sought in its notice.

So, if one is minded to engage in a process of trying to understand the approach or the thinking of those at trial and, in our submission, one does not need to get to that point, indeed one ought not, but there is a hint here at what may well have happened, and that is despite the acceptance that the evidence sought to be led by the Crown in its tendency notice was relevant and, indeed, had substantive probative value, there was a rejection but the rejection was framed only in terms of the evidence that was not on the indictment, and the actual counts on the indictment and their use as tendency evidence was never directly dealt with.

So it leaves large the possibility that, in a sense, his Honour’s oversight at this point has actually followed on and, in a sense, the thoughts about tendency reasoning with respect to the counts on the indictment have fallen off the radar or, to put it another way, insofar as the directions were given with respect to not engaging in tendency reasoning they responded only to the judgment, but the judgment, as is pointed out by his Honour Justice Macfarlan, was deficient.

So, one can potentially understand that, getting to the end of the trial and what had no doubt been a difficult and hard‑fought trial, the directions were given, seemed to conform to the rulings, the ruling that had been given, but with a failure to appreciate that the ruling that had been given had not actually dealt with an aspect of the notice. 

But, as I say, ultimately one is looking at an objective test, and in looking at that objective test, there is nothing in the way in which the defence ran its case that would allow one to say that there was not a real risk of tendency reasoning, and I appreciate I have said this already, but put simply, ultimately the jury was required to reason towards guilt.

In reasoning towards guilt, tendency reasoning was a logical and rational means of reasoning at the jury’s disposal, using their common sense, either at the stage of rejecting concoction or at a stage of having rejected concoction independently and then reasoning towards guilt simply based upon the evidence in the Crown case, as to which there were real attacks with respect to the reliability of the various complainants. 

So, in other words, there was, in a sense, at any stage of the process, and ultimately, when one is talking about prejudice, part of the difficulty is the influence that is, as I say, conscious or unconscious – so we do not even know - the jury themselves might not even know at what stage of the process they are being affected by the simple fact that there are these multiplicity of complainants.

If I can then perhaps just go back to where I was in the reasons of his Honour Justice Beech‑Jones, and I took your Honours to what we say is effectively the starting point at 113, his Honour sets out there what we say is the foundation which fails to have regard to the relevant authority.  His Honour then, from 114 onwards, considers the particular case, and in particular has regard to the separate evidence direction and the Murray direction. 

Now, I have already addressed your Honours with respect to those directions.  His Honour’s assessment of those directions, we say, comes from a place where insufficient weight has been given to the dangers, but quite apart from that, we do not – in our submission, his Honour was not correct to say, as he did, for example, at 117, that:

the Murray direction precluded a juror from reasoning that they could convict the accused on any count concerning a particular child even though they had doubts about the honesty and accuracy of the evidence of that child because of their acceptance of the evidence of another child and what that evidence might demonstrate about the applicant’s tendencies or propensity.

In other words, it is simply not right to say that that direction excluded satisfaction as to honesty and reliability of one child based upon what the jury knew of the appellant, having regard to evidence of other children against him and as a matter of common sense, indeed it was more likely that a particular child was honest or accurate in circumstances where there was evidence that the appellant had done something similar on another occasion.  Even beyond the Crown’s tendency notice, it was more likely that the accused engaged in conduct with respect to child 1 in circumstances where in effect there was evidence that the man was a sexual deviant. 

In reaching his conclusion, his Honour at 118 indicated that:

there remained at least a theoretical risk that the jury might reason from, say, its acceptance of the evidence of the Third Child that they should conclude that the Fifth’s Child’s evidence was honest and accurate -

I have already I think gone over the reasoning process and his Honour is right.  There was a risk.  In our submission, it was more than a theoretical risk and his Honour’s use of the word “theoretical” there, as we say, is clearly informed by the starting point his Honour took at paragraph 113 based upon his Honour distinguishing KRM as obiter.  So when his Honour went on in paragraph 118 to say:

I do not regard that risk as sufficiently material to give rise to any obligation –

that was in circumstances where that risk had not been assessed with regard to authority, and his Honour’s conclusion there:

To use the language of Basten JA in Lyndon, “[t]his was not a case in which the jury was likely to reason impermissibly on the basis of a tendency [of the applicant] to act in a particular way -

As we have already pointed out, whilst one can pick up a particular case and one might legitimately reach that conclusion, insofar as his Honour has borrowed from the language of Justice Basten, Lyndon was a very different case and it was, as we have already said, a case where one can look to the facts and say well, that is why we do not have the universal rule.  His Honour then went on at 119 to consider what his Honour found to be a deliberate decision but ‑ ‑ ‑

GLEESON J:   Mr Dhanji, just before you go to 119, you have said that the risk that is identified in the first sentence of 118 was not theoretical, but do you accept that that is a complete statement of the nature of the risk?

MR DHANJI:   No, with respect.

GLEESON J:   What more is it that constituted risk?

MR DHANJI:   Well, his Honour is there in fact even in terms just giving an example to say acceptance of the third child, that they should conclude that the fifth’s child evidence was honest and reliable.  Now, before one even got to acceptance of any child, there is the real possibility that the jury reasoned, well, we have three children here, on the basis that we have three children, and that indicates to me sitting here in judgment that there is a real prospect that this man is some form of sexual deviant who is inclined to sexually interfere with his own children, and from that starting point I then consider any of child 1, 2 or 3 and I find that I am satisfied with perhaps one.

One might then have the possibility that using that positive finding there is an engagement in a process by which that positive finding is used with respect to the other children, but it is not easy to formulate the various ways in which one might engage in impermissible reasoning because it can happen with respect to any child. 

The jury might have been particularly impressed with the demeanour of one child.  The jury may have had concerns about some of the objective reliability of another child but then used the other children to, in effect, paper over those difficulties or at least patch those difficulties.  But what I would stress is that it does not – and then I think I said earlier that it might even be used to say well, we do not accept the concoction case because we actually have three complainants here.  Perhaps if it was one complainant, the mother might have put the child up to it, but we are looking at three children.  That is more indicative to us of a particular tendency on the part of the appellant than to concoction at the behest of the mother. 

KIEFEL CJ:   Mr Dhanji, it is a fact that the jury were given a Murray direction and this Court would assume that they followed the direction.  What do you say of his Honour’s reasoning in paragraph 120 where his Honour weighs the risk of the jury reasoning from the Murray direction into tendency which is really the path - at least, a path that you would say they might take?  What do you say of what his Honour concludes there?

MR DHANJI:   Your Honour, it is, I think, answered by the point I made earlier this morning and illustrated in this way.  Even if tendency reasoning had been allowed and a direction had been given to the jury that they could use a tendency that they found in support of a particular allegation, the jury would still need to be satisfied that the relevant child was honest and accurate in their evidence with respect to the particular count. 

In other words, what I am trying to say is that no matter how one approaches it, at the end of the day with respect to each count, the jury needed to be satisfied as to the honesty and accuracy of the individual complainant with respect to the individual count.  In considering that question, the real issue was, well, what do we bring to bear in making that determination.  As I have already said, there was a lot of evidence in this case that was common across the various counts. 

The jury was, indeed, directed specifically in terms of other evidence that they could use.  So, at no stage could one properly read the summing‑up and, indeed, if the jury read the Murray direction as being a direction that confined them only to considering the evidence of that child with respect to that count, they would not have been following the directions given by the trial judge. 

The trial judge made it clear, both in the Murray direction that they were looking to see what other evidence supported the particular complainant and they were to ‑ in the, for example, context evidence direction and other directions and in the evidence generally in relation that was common to all counts with respect to, for example, living arrangements and circumstances.

So in no world could a jury be properly following the Murray direction by limiting themselves only to the consideration of the evidence of a particular complainant.  The direction serves only to make it clear to them that when coming to the ultimate determination they have to be satisfied of the reliability of the particular account, but they can determine that reliability having regard to evidence beyond that child, that is what they were specifically told.  His Honour makes the point that:

In contrast, counsel for the applicant was free to, and did, invite the jury to “join the dots” –

and we accept that that was an approach taken by defence counsel, but to an extent, one can see that that, in fact, is apt to heighten the risk, because the jury are being invited to a holistic approach with respect to potential of concoction, and there is the potential for the jury not to understand that they cannot take a similar approach in favour of the Crown, that they can look at the whole of the Crown case.  So, far from alleviating the risk of the jury using other complainants in support of a particular complainant, the approach of the defence actually heightened that risk.

Again, this is all in the context of a jury receiving instructions to use their common sense, being told by the one side to look at the entirety of the evidence.  The idea that, simply because they are told that before they could find guilt on a particular count, they have to be satisfied of the complainant’s evidence on that count, does not address the prospect of the jury bringing to bear evidence beyond that complainant.  So his Honour went on, towards the end of paragraph 120, this is at about line 40, to set out what his Honour described as:

the most likely paths of reasoning that were adverse to the applicant and consistent with the directions given to the jury did not involve tendency reasoning.

As we have pointed out in our written submissions, and the respondent has not taken issue with the analysis, his Honour’s likely paths of reasoning did, in fact, leave open tendency reasoning.  So, insofar as his Honour has sought in this part of his reasons to, in a sense, give himself comfort as to the unlikelihood of tendency reasoning, a logical analysis of that approach, in fact, does not assist the reasoning, and in fact, if anything, of course highlights the point that we have sought to make, and that is the difficulty, of course, is that the nature of tendency reasoning, the natural attraction towards tendency reasoning, combined with the real dangers, and there is – we have not said a great deal about the nature of those dangers, but they are referred to repeatedly in the various authorities - there is an extract of Justice McHugh in Pfennig, in terms of the dangers of such evidence and such reasoning, and the dangers of it being given too much weight, all of which sits, in a sense, with the natural inclination, that is, the natural inclination not only to engage in the type of reasoning, but the natural inclination to actually give that type of reasoning more weight than it properly deserves, and, of course, indeed, that is why we have these threshold rules in 97 and 101 of the Evidence Act.

But the point that I am really making here is a simple one, and that is no issue has been taken with the analysis in our written submissions that in fact those parts of reasoning do involve tendency reasoning, but quite apart from that, in our submission, there is an artificiality in assuming that there is this linear approach by a jury with respect to this reasoning process.  We say again that, indeed, the nature of this type of problem is one that is wont to sort of permeate a process in ways that even the jurors themselves would not necessarily be able to articulate.

So, his Honour then goes on from there, in essence, to reject the Crown’s argument, which was in fact the primary argument put up in the Court of Criminal Appeal, that some forensic advantage was gained, but as has been made clear his Honour – and we say in that respect correctly – rejected the proposition that there was any forensic advantage to be gained.

So insofar as one is talking about some form of forensic decision‑making, one can look at it through the prism of the analysis in TKWJ, and it is really in that circumstance – TKWJ is talking about forensic decision where there is potential forensic advantage or disadvantage, viewed objectively one cannot analyse this as being other than a sort of one‑sided equation.  There was really nothing to be lost in the obtaining of a direction and everything to lose in not having the direction.

Insofar as one looks to the approach of trial counsel, we accept – and we have put in the joint book of authorities De Silva v The Queen – it is at volume 3, page 85 but the particular passage is at page 98 of the book and in that particular passage the plurality ‑ ‑ ‑

KEANE J:   What paragraph, please?

MR DHANJI:   I am sorry, paragraph 35.

KEANE J:   Thank you.

MR DHANJI:   It is a simple point, and your Honours will appreciate this, but what is said there is simply this:

The failure of counsel to seek a direction is not determinative against successful challenge in a case in which the direction was required to avoid a perceptible risk of the miscarriage of justice.  The absence of an application for a direction may, however, tend against finding that that risk was present.

I do not know that the debate has proceeded on, with respect, any other footing.  But the point we stress, of course, is it is not determinative – and we have made reference to the reasons of Justice Kirby in KRM and Doggett as to the multiplicity of reasons as to why there may be no application.

Finally, if I can perhaps just stress to your Honours from passages in BRS v The Queen at page 46 of volume 3 of the joint book of authorities, the reasons of Justice Toohey at about line 20.  Having analysed the circumstances his Honour said:

In all the circumstances, a failure by the appellant’s counsel to ask for directions designed to exclude any reliance on similar facts or propensity is not an answer to the defects in the summing up.

To similar effect, Justice Gaudron at page 53:

As already indicated, there was a real risk that the jury might use W’s evidence -

Justice McHugh, I think, has already dealt with but we rely particularly on what was said at 61.  Then Justice Kirby’s reasons at page 82 at about line 40. 

Now, we accept, of course, that those conclusions are all based upon analysis of the particular case, but one does need to come back to this case and perform the analysis in relation to this case, but in performing the analysis in this case one does need to start from a foundation recognised in Sutton, De Jesus, Roach, rather than the position taken by his Honour

Justice‑ Beech Jones at paragraph 113 having only considered KRM in this Court and distinguished it as not binding. 

One does – having started from that position – need to look at the directions that were given and really what is relied upon in an attempt to say or exclude the risk of impermissible reasoning, the separate consideration direction, which at no stage limited the evidence that the jury were to have regard to and in that regard, I do note that his Honour Justice Beech‑Jones did rely upon the written directions that were given.

They are set out in the core appeal book at page 62 and following.  Your Honours do not need to turn that up, but it is fair to say that there is nothing in those directions that limits the consideration of the evidence but rather would have been properly understood by the jury as no more than the particularisation of particular events relied upon by the Crown. 

So, there was nothing in the separate – so‑called separate consideration direction – and nothing in the Murray direction that operated to dissuade the jury from engaging in tendency reasoning all in the context in which one needs to understand the position of the lay jury hearing allegations by multiple complainants. 

Indeed, insofar as the jury was given a direction with respect to not engaging in tendency reasoning by virtue of what was described as the context evidence, the natural inference from that was that tendency reasoning was in fact otherwise permissible because it was only excluded in relation to that specific evidence – and that character, I should say – and that was the inference that Justice Macfarlan found was to be drawn at paragraph 40 of his Honour’s reasons, and that is at page 99 of the book.  Those are the submissions for the appellant.

KIEFEL CJ:   Yes, thank you, Mr Dhanji.  Yes, Mr Baker.

MR BAKER:   Thank you, your Honours.  If I can begin where the appellant left off, which is to recognise that in this case the question is an assessment of whether or not there is a miscarriage of justice based on the circumstances of the case.  As the appellant has said through his submissions, it is very fact‑dependent.  It is very much going to depend on how your Honours assess the circumstances in this case based on the way in which the cases were run and the directions that were given.

There is an additional relevant aspect to this case and that is that the appellant’s counsel at trial did not ask for the anti‑tendency direction.  That was a deliberate decision.  The appellant states that there is no sound basis for determining that.  The respondent states that that can be assessed based upon the defence counsel’s conduct during the trial.  Defence counsel was very active in this case.  He successfully resisted the admission of the evidence as tendency evidence.  He also made a deliberate forensic decision that the indictment should not be severed.  He ensured that an anti‑tendency direction was given in respect of the uncharged acts and he also secured a favourable Murray direction which extended to including the evidence of the complainants’ mother, which is somewhat unusual.

EDELMAN J:   Mr Baker, you have heard the suggested formulation by Mr Dhanji of what the anti‑tendency direction would have looked like.

MR BAKER:   Yes.

EDELMAN J:   If one were to add to that perhaps the obvious, that the trial judge were to direct that none of these remarks should be taken to suggest that you cannot consider the totality of the evidence when assessing the concoction defence, is there any rational reason why the defence then would challenge whether evidence could be used for tendency purposes, but not seek an anti‑tendency direction?

MR BAKER:   So, firstly, there is no reason why a direction could not have been crafted, an asymmetric one which, as your Honour has identified, that could have been given.  The question in this appeal is not so much whether it could have been given but whether, in the circumstances, there was a miscarriage of justice as a result of an assessment that there is a real chance that the jury impermissibly reasoned.  So, that is the first thing I would say.

In terms of is there a reason why defence counsel would not have asked for it.  In the particular facts and circumstances of this case, the respondent says that ‑ and I do not want to put it too highly to say that there is a forensic disadvantage or anything of that sort, but it clearly could have distracted the jury.  It could have been a distraction in the way that they approached the particular case the defence very specifically sought to run.  So, to answer your Honour’s question directly, the question of why counsel would not have asked for it must be assessed in those circumstances. 

EDELMAN J:   Can you just explain in a little bit of detail how that distraction would work?  How the jury would be distracted away from the defence case?

MR BAKER:   Yes, so as the respondent put in paragraph 70 of the written submissions which is taken from Justice Beech‑Jones’ analysis where he:

did not accept that the failure to seek an anti‑tendency direction secured the particular forensic advantages nominated by the Crown –

on appeal.  But he did find that:

the directions that were given left defence counsel “free to . . . invite the jury to ‘join the dots’ and conclude that each of them (and their mother) were lying” –

So, in other words, the giving of an anti‑tendency direction which would have directed the jury that they had to determine the credibility and reliability of each complainant separately had some potential to detract from the primacy of the defence contention that the jury should consider all of the evidence when assessing whether the complainants had a motive to lie.

EDELMAN J:   But it would do so even if it were given in the asymmetric way that you mention. 

MR BAKER:   If it was given in the asymmetric way it could have been crafted to cater for that but whenever you give additional directions or directions which can be complicated it does add another element to the complexities of a trial and it is always available for trial counsel to look at the circumstances of the case, look at the directions that were given, which I will take your Honours to shortly, and make a decision that in those circumstances I am going to make a deliberate decision that it is not necessary for that to be done.

We can always, I think, agree that things could be – you could be more prudent, you could decide to do things in a different way, but the respondent’s position and submission in this Court is that ultimately it is a question of whether or not in these circumstances there was a real chance of the jury impermissibly reasoning in that way such as to result in a miscarriage of justice.

Perhaps if I can move to the question of even if there was no forensic disadvantage, defence counsel did not consider that there was a risk, and that is essentially, I think, the stronger position in the submission that the respondent makes, which is when defence counsel was making decisions in this case, defence counsel was able to read how the trial had gone, read what had been secured, and assess whether or not there was a risk to his client.  And that risk has to be assessed in terms of the way in which the various factors took place in this trial, and in the respondent’s outline of oral argument we have set out the key aspects of that when turning to this particular trial.

The first aspect that I would like to turn to is this question of the approach the Crown and defence took in their closing addresses.  Mr Dhanji took your Honours to those closing addresses, but I would like to return to those because of the three relevant aspects, being how the cases were run, the overall effect of the directions, and how it appeared when viewed as against the failure of defence counsel to seek that direction.

Clearly, the respondent’s submission is that this closing address by the Crown Prosecutor is in stark contrast to that in BRS, because what the Crown Prosecutor did was to carefully take the jury through, in a rather orthodox way, each of the pieces of evidence, and each of the complainants, in a separate and confined way.

GLEESON J:   Mr Baker, do you accept as a starting position that where you have three child complainants who are the biological children of the accused, all else being equal, there is a high risk of tendency reasoning?

MR BAKER:   There is a risk.

GLEESON J:   Not a high risk?

MR BAKER:   It would depend on the facts and circumstances.  So in the abstract, it is difficult to answer whether there is a high risk.  You would need to have a look at the particulars of the case, as here.  So where you have three counts, not three children on the indictment, there is certainly a risk.  How you would assess that risk in terms of whether it is high, medium or low will depend on all of the circumstances.

GLEESON J:   But would you agree, for example, that the fact that they were biological children would heighten the risk?

MR BAKER:   Having the biological children would heighten the risk, because of the familiar relationship with the accused, and the access that he would have to those children as a result of that.  So there are aspects of the fact that the children here were biological children of the accused, which would go and feed into this question of risk.

GLEESON J:   The fact that they were children, would that have heightened the risk?

MR BAKER:   As opposed to young adults?

GLEESON J:   Yes, or adults.

MR BAKER:   The age and how dependent they were or how much control the accused exerted over them may be relevant to an assessment of the way in which the jury looked at those counts.

EDELMAN J:   Well, the Crown ran an argument this should be admissible as tendency evidence.

MR BAKER:   Yes.

EDELMAN J:   So the Crown must have at trial taken the position that there was a substantial similarity.

MR BAKER:   Well, the Crown took the position that it had significant probative value as between the two male – the sons.  So I do not wish to appear that I am trying to avoid the use of the word “high”, but there was a risk.  But to answer it in the abstract without looking towards the different factors, there is a risk and ‑ ‑ ‑

GLEESON J:   You do not think, for example, that you could say just on the basis that there were multiple complainants who were children who were the biological children of the accused alleging acts of indecency, that the starting position for a judge directing the jury would be that there ought to be anti‑tendency direction?  That is too broad?

MR BAKER:   From a starting position, should there be an anti‑tendency direction?  It would depend on what other directions.  But if the evidence is there before the jury and there is a risk, then it is always available for the trial judge to do that and whether it is best practice or prudent to do that, I think that is certainly the case.  But in this particular case the question in the absence of that being given is whether or not this Court is of the view that there was a real chance that the jury impermissibly reasoned in that way. 

That is why I set out to come back to the circumstances of this case, which the respondent’s submission is that you would need to look at the way in which it was run, the way in which the Crown did advance its case.  The Crown Prosecutor was very careful to deal and address each of those complainants separately and it was no part of the Crown case that invited the tendency reasoning in that way. 

If I could take your Honours to the respondent’s further materials, the closing addresses are within that and my friend has taken your Honours to it.  But the Crown Prosecutor began certainly with a global outline of the Crown case, that is true, and assessing the defence case which your Honours might think is not so surprising given at what stage we are at in the trial to start with an overview.

But as you can see from the closing address as you move to page 7 of the document, you can see that at line 45 on page 7 the Crown Prosecutor confines firstly her approach to the first child and takes the jury to that evidence.  Importantly then between pages 7 through to 10 the Crown Prosecutor identifies the specific evidence that relates to counts 1, 2 and 3.  The Crown Prosecutor then when coming to make submissions about that evidence on page 11 at line 40 says to the jury:

The Crown says that when you look back at her evidence, you might think that she was doing the best to answer the questions that were put to her bearing in mind she’s 18 years old and you would believe her and you would believe her for these reasons –

and she sets out the reasons that the Crown submits are compelling which are:

one, she never sought to exaggerate the nature of that touching.  Two, she was consistent about how and when that touching occurred and three, the fact that she didn’t tell her mother at the time is explicable given her concerns about her father’s behaviour and what she told you about her embarrassment and shame and her belief that she would never tell anyone about those events.

Again, a very conventional and orthodox way to approach a Crown case with multiple complainants and to confine it to those, to the evidence, and to direct the jury as to what they need to consider when they consider the counts on the indictment.

That approach was the same approach that the Crown Prosecutor took with the other two complainants at the end of the assessment of the daughter’s evidence on page 14 of the materials.  The Crown Prosecutor made submissions concerning how “clear and cogent” she was when she specified the occasions and made some submissions about the truth and accuracy of what she said, ultimately submitting that they would be:

satisfied of that beyond a reasonable doubt then you may convict the accused on counts 1, 2 and 3 of the indictment.

Confining it to that evidence, the Crown Prosecutor then moved on to the fifth child and described the evidence that he gave which was relevant to counts 4 through to 8.  That evidence was set out on pages 18 and 19 of these materials where the Crown Prosecutor identified the relevant evidence that the witness gave about counts four through to 8, importantly setting out what occasion was relevant when discussing the middle occasion, referring to counts 5 and 6, referring to count 7 and 8, as the last time, and then returning to the first time that the child identified which was count 4. 

So again, you can see that what the Crown Prosecutor is doing is very much restricting the approach to the individual complainants and making some submissions about why the jury would accept in isolation what that complainant was saying happened.  The Crown Prosecutor also dealt with the third complainant, who was the third child.  The indictment was structured first child, fifth child, third child because that was the chronological order of complaints and the way in which the children complained about the conduct.

So, on page 25 of the further materials at the bottom of that page the Crown Prosecutor moved on the third child and again very carefully on pages 26 and 27 set out the evidence, finally coming to page 28 where counts 9 and 10 were set out and submissions were made about that.

The Crown Prosecutor dealt with the other witnesses, importantly including the mother, her evidence was dealt with on page 32, about line 18, where the Crown Prosecutor began by turning to the evidence given by the mother and setting out and explaining what her evidence was and how she fit into the Crown case in what evidence she gave.  The Crown Prosecutor, having dealt with those witnesses, moved on to the accused at page 36 of the materials, and made, again, what are conventional or orthodox submissions about the way in which the jury should assess his evidence, and that he is a witness like any other and the way to assess him.

So, as we can see, again, the Crown Prosecutor, in a careful fashion, has dealt with the evidence that supports the counts on the indictment separately, and dealt with the way in which the mother was cross‑examined about the motive to lie, and then responded to the accused’s evidence and his denials.

Ultimately, the Crown then came to the position to summarise the approach, on pages 40 and 41, which my friend has taken your Honours to, in which the Crown outlined and summarised what the Crown case was, and again when dealing with it around line 35 of page 40, dealing with the evidence that relates to the children, again harking back on what the Crown Prosecutor has said during the closing address about the separate nature of that evidence.  The Crown Prosecutor did deal with the defence submission about joining the dots, and response to that, because the Crown Prosecutor said:

Mr Russell told you, at the beginning of the trial, to join the dots but life isn’t a dot to do and each of these children came forward in their own way –

Importantly, your Honours will see, when I move to the defence closing, that the defence closing about joining the dots was an approach to the chronology of complaints and the way in which it evolved, rather than an overall global joining the dots – it is a submission that is made at the beginning of the trial, and then later developed in the closing address, where the defence counsel is referring to a joining of the dots, the chronology in which complaints were made, the order in which they were made.  So to complete the closing address by the Crown, on page 41, the Crown Prosecutor makes very clear in submissions about the evidence of each and what it relates to, to satisfy the jury of the counts.

The defence address begins on page 45 and if I can take your Honours to line 15, this is where we see the defence counsel talking abut the chronology that is submitted to be so important that he:

will give you a chronology which may help you as I said to join the dots, and then I will try to wrap everything up and I will also try to address the Crown arguments if I can.

So, it is that approach that is undertaken by the defence counsel in the closing address to deal with what is ascribed on page 46 of the materials about line 14:

There are unusual circumstances in this case.  You know the allegations arose only after the mother commenced family Court proceedings, that’s an important fact.  There was never a suggestion that the accused threatened any child not to reveal the allegations and indeed the accused was prohibited from even seeing or contacting the children after 29 January 2016 after he was arrested for this 29 January ball throwing incident that you will all know about and I will come to that as well.  There are many, many contradictions in the case, not just from the children and the mother but also the other evidence –

which is referred to where that refers to Mr Moffatt which was one of the aspects of the complaint.  So, the defence counsel then goes through and again in what can be seen as a very orthodox approach, addresses each of the complaints but, importantly, with a view to try to join dots in terms of the sequence of complaint and the way that it evolved during the course of the complaints and then the investigation of the matter.

The respondent’s submission is that when we look at this aspect of it we can see that it is in stark contrast to a case such as BRS where a Crown Prosecutor in that case might have referred to the predilection of children or things of that nature.  In this case, it is very clear, the respondent submits, that it was no part of not just the Crown but the defence case to stray into areas where the question of tendency reasoning might arise; it was done in a very clear and confined fashion.

Having given the closing addresses, the directions are the next aspect that I would like to take your Honours to because there are three important aspects of the summing‑up, but again in the same way it is important because we are talking about the facts and circumstances of this case to understand how the jury were directed and having regard to the evidence as it unfolded.

The summing‑up is in the core appeal book.  My friend has taken your Honours to various relevant pages but if I can return to that document.  It starts at page 8 of the core appeal book.  The first of the directions that I would take your Honours to is the direction that relates to context evidence.  It is on page 13 of the core appeal book.

In this aspect of the summing‑up the trial judge was dealing with a number of other parts of the evidence that were adduced and became relevant in the case.  Again, there was an approach by defence counsel to seek to discredit the witnesses.  The rugby ball incident was a very important aspect of that.  The accused gave his own account of what happened during that incident.

There was evidence concerning the applicant’s behaviour towards the children, which was described as “aggressive”, where he punched, kicked and smacked the fifth child and was violent and rough with the third child and the first child gave evidence that she saw aggressive behaviour by the appellant towards her brothers.  So that evidence was relevant and put before the jury to explain the delays in complaint and to assist in understanding the relationship that existed in the home.

The aspect of “other acts”, which is the way that the judge described it, related to misconduct towards the fifth child and that was detailed in this part of the summing‑up at paragraph 18.  Again, to place things in a realistic context, when we turn to paragraph 19 on page 15, we can now see that this is where the direction is given concerning this evidence and particularly the other act, where the judge says:

I must give you some important warnings with regard to the use of this evidence of other acts, that is, acts that are not the subject of a charge.  Firstly, you must not use evidence of other acts as establishing a tendency on the part of the accused to commit offences of the type charged.  You cannot act on the basis that he is likely to have committed the offences charged because there are other allegations against him.  The evidence has a very limited purpose, as I have explained to you, and it cannot be used for any other purpose, or as evidence that the particular allegations contained in the charges have been proved beyond a reasonable doubt.

Then there is a direction that you cannot substitute that evidence for the count relating to the fifth child:

You are concerned with the particular and precise occasions alleged by –

the fifth child.  The specific anti‑tendency aspect then is:

You must not reason that just because the accused may have done something wrong to –

the fifth child:

on some other occasions witnessed by –

the two other brothers:

He must have done so on the occasion alleged in the indictment.

Then if we go to the top of page 16, the trial judge makes clear that:

Such a process of reasoning would amount to a misuse of the evidence and would not be in accordance with the law.

Again, these are oral directions.  This is not a written document given to the jury.  The jury are listening to the way this is developing, having heard the closing addresses, and also then what directions come next.  So the appellant contends that the jury would have inferred that because there is a strict prohibition against tendency reasoning for context evidence, that this would not extend to the counts on the indictment and that the jury would infer that they were, in fact, allowed to employ that reasoning.

The respondent’s submission is that when we take a common sense look at this from the perspective of a juror, the overall message is the tendency reasoning is impermissible, and whilst it is said in a particular context, that is the context evidence, the language of the warning is not limited, because you can see, at page 15, line 21, the jury are instructed:

you must not use evidence of other acts as establishing a tendency on the part of the accused –

Also there was the reference to:

You cannot act on the basis that he is likely to have committed the offences charged because there are other allegations against him.

So the emphasis that the response places on this is really that, although it is confined to the context evidence, again, taking a common sense approach, having regard to what the jurors are listening to, the trial judge is making clear at this point that tendency reasoning, albeit in that context of context evidence, is prohibited, and in fact it would not be in accordance with the law.

EDELMAN J:   How does that submission fit with your earlier submission that a general tendency direction would have confused the jury?

MR BAKER:   The difference between the direction concerning the uncharged acts and the tendency direction about destruction rather than confusion is that in this particular respect the trial judge is saying that they are not to act in that way, but it is not then moving to the counts on the indictment.  I do not say that there is a great distinction in that.  I just make the point that there is - that somewhere in this at the outset, I think, a direction that they are not to engage in that. 

The trial judge then moves on to the complaint evidence and the way in which they can have regard to that.  Directions are given for each of the three complainants.  They are entitled to use the complaint evidence as evidence of the truth but also the trial judge balances that with directions concerning the delay in complaint. 

The second relevant direction is the separate consideration direction.  Before I get to the separate consideration direction, if we move back to page 25 in the materials, we can see that, firstly, the trial judge instructed the jury in relation to the defence case and that the mother had orchestrated the allegations on the basis of a motive to lie.  The jury were then properly instructed that the accused bears “no onus to prove a motive to lie” and even if they could not:

find a plausible reason for any of the complainants to lie, you should not reason that they must therefore be telling the truth.

Again, quite clearly identifying the way in which that relates to the defence case.  Then, at line 53 on page 25, the jury were then told that:

If the case turns on the evidence of a complainant you must be satisfied that the evidence of the complainant satisfies you beyond a reasonable doubt.

This is page 26, the top there:

It is your duty to decide whether you accept the evidence of a witness in whole or in part, and each complainant is no exception to that.  It would be wrong to conclude that a [complainant] is telling the truth simply because there is no apparent reason, in your view, for them to lie.

Again, here we can see that the jury are being directed to the relevant complainant, to the particular witness and the need for the jury to look at the fact that the case turns on the evidence of that particular complainant.  When we then get to the separate consideration direction in the middle of page 26, the trial judge tells the jury about the fact that there are 10 separate trials being conducted here, something – and there are 10 counts – something that a trial judge says at the opening remarks to a jury that it is, in effect, 10 separate trials running at the same time with 10 separate counts and the trials are being heard together for convenience:

but you must give separate consideration to each count.  That means that you are entitled to bring in verdicts of guilty on some counts and not guilty on some other counts, if there is a logical reason for that outcome.

The jury were then told:

If you were to find the accused not guilty on any count, particularly if that was because you have had doubts about the reliability of the evidence of one or all of the complainants then you would have to consider how that conclusion affected your consideration of the remaining counts in relation to that complainant.

As my friend identified, there is the missing second limb because what is removed from that separate consideration direction is the need to consider the count only by reference to the evidence that applies to it.  So in this direction, which is aimed at assisting the jury in how they approach the counts on the indictment, what is removed is the restriction on being able to have reference only to the evidence that applied to that. 

The applicant contends that that removal from that second limb requiring him to do that was significant.  It seems apparent that it also has been amended because we can see what is included in the separate consideration direction are the words “one or all of” and the complainants - ordinarily a separate consideration direction would be the separate consideration of the complaint itself. 

Here there seems to be some amendment to that to recognise the fact that there are multiple complainants but also that the evidence of one of the complainants could be taken into consideration when – the consideration of the remaining counts in relation to that complainant.  It is an unusual amendment.  It is not the usual separate consideration direction.  But the Crown’s submission is that it would be clearly a change that was made in order to remove the restriction on the jury considering the evidence by reference to only the evidence of that complainant.

There is a further direction concerning character, and that is found on pages 26 through to 29.  The simple point that the respondent makes about that is that it echoed the previous warning given about the impropriety of reasoning, that the accused was a person who was likely to have committed the offences charged.  That was the end of that day of summing‑up, and at the conclusion of that day, your Honours can see that there was discussion about the Murray direction at pages 33 and 34, and you can see where the appellant’s counsel made strong submissions about the need for a Murray direction.

That Murray direction was given the following morning.  It was given immediately as the jury were brought in.  Importantly, that direction informed the jury that the Crown was seeking to establish the guilt of the accused with a case - based largely or exclusively on the evidence of a single witness.  They were told that they had to exercise caution before they could convict the accused on any count, because the Crown case largely depended on them accepting the reliability of a single witness. 

Importantly, the trial judge gave an example about the daughter being the only witness to the events that make up the counts on the indictment other than count 3, where her mother says she saw the accused in bed, and then refers to children 5 and 3 as being the only witnesses that describe their allegations.

The jury were told that in any criminal trial where the Crown relies on the evidence of a single witness, the jury must always approach the evidence with particular caution because of the onus and standard of proof placed on the Crown.  The jury were told that this did not preclude them from convicting on the basis of that evidence provided they were satisfied beyond reasonable doubt that that evidence was reliable.  The jury were told also, at core appeal book page 40, line 16, that:

In considering the complainants evidence in each case and whether it does satisfy you of the guilt of the accused you should, of course, look to see if it is supported by any other evidence.

Now, this is where the appellant says that there is some concern here.  The respondent’s submission is that this was in recognition of count 3, which was the corroboration by the mother of seeing the appellant in bed with the daughter, and also recognition of the complaint evidence of each of the complainants.  So, what we have here is – read in context, the respondent says, the Murray direction is confining the way in which the jury would assess the Crown case.

There is, at paragraph 26 of the Murray direction, also what can be seen as the favourable direction asked for by the appellant’s counsel, and that was that not only should the jury be asked to scrutinise the evidence of the complainants but also the mother with great care and exercise considerable caution before convicting of the evidence of a complainant alone.

The appellant contends that this direction left open the possibility of tendency reasoning because the jury were invited to consider whether the complainants’ evidence was supported by this other evidence and, as the respondent submits, when looked in context – when viewed as a whole – the Crown submission is – the respondent’s submission is that it is confined – it needs to be read in context with the directions that precede it – and importantly what the trial judge had just recently told the jury about the daughter’s evidence and about count 3.

KIEFEL CJ:   That might be a convenient time, Mr Baker.

MR BAKER:   Thank you.

KIEFEL CJ:   The Court will adjourn until 2.15.

AT 12.45 LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL CJ:   Yes, Mr Baker.

MR BAKER:   Thank you.  I have taken your Honours to the directions and I am now at paragraph 11 of the outline of oral argument of the respondent.  The respondent makes the submission that the combined directions and the effect of that is as set out in paragraph 11, which is that the effect of the directions confines the jury to a separate consideration of each count when reasoning towards guilt, whilst leaving the jury free to consider all of the evidence when considering the defence case of concoction. 

That leaves me with the final point on the written outline concerning the defence counsel’s approach, which I have already addressed to a large extent in my submissions earlier today.  If I could move to paragraph 13 of the outline of oral argument and in closing say that my friend has taken your Honours to the relevant passage in De Silva at paragraph 35 on page 98 of the joint book of authorities. 

As in De Silva, the respondent does not submit that the failure of defence counsel to seek the anti‑tendency direction at trial is fatal to his argument on appeal.  However, the failure of defence counsel to seek the direction remains an important aspect of this appeal.  This is because the adversarial system proceeds on the basis that an accused is bound by the conduct of his or her counsel at trial.  Of course, an appeal will nonetheless be allowed where despite the conduct of defence counsel, there has been a miscarriage of justice.

But a miscarriage of justice does not arise simply because it is shown that there was a bare possibility that the jury may have engaged in impermissible reasoning and that the direction now sought would avoid that reasoning.  In other words, the question is not whether the direction might have been given out of prudence or whether trial judges should in the future give directions of this nature in a case of this type.  The question is whether there has been a miscarriage of justice that has arisen from the failure to give the direction sought. 

To demonstrate that there has been a miscarriage of justice, it is necessary for the appellant to show that there is a real chance that the jury have reasoned impermissibly in this case.  I have sought to take your Honours to the way in which the case was outlined, and those directions and the respondent’s submission is that in view of the cases conducted and the directions given, the respondent submits there is no real chance the jury reasoned impermissibly and, as such, a miscarriage of justice did not occur.

KEANE J:   Before you sit down, your opponent attacked paragraph 120 of Justice Beech‑Jones’ reasons.

MR BAKER:   Yes.

KEANE J:   Do you have anything to say in defence of those reasons, particularly the last 10 lines?

MR BAKER:   Yes.  Could I take that up, thank you.  The last 10 lines – so perhaps if I could take it from the beginning.  At paragraph 120, clearly Justice Beech‑Jones is discussing the combined effect of the directions and the finding that he made that it was confined to having the jury being required to accept the relevant child as honest and accurate in their evidence and to scrutinise each foot of their evidence carefully.  Then Justice Beech‑Jones contrasted the fact that counsel was free and did invite the jury to join the dots. 

In that context, the risk that the jury might consistently with the Murray direction reason from their acceptance of the honesty and accuracy of one child that the applicant is the type of person who would commit the offences with which he is charged and use that conclusion to support a finding that the fifth child was honest and accurate was remote, which is the submission the Crown makes in terms of the combined effect.

GLEESON J:   Do you say that that second sentence there, the contrast, is something that supports the conclusion of the remoteness of risk?

MR BAKER:   Yes, because what the respondent says is that contrasting the way in which the cases were run there was – can I move then to also take up what was asked of me which is the last 10 lines of the paragraph because I think that is where the question, the approach that Justice Beech‑Jones is taking is important. 

What Justice Beech‑Jones is doing there is saying that where the defence case was that the two were part of an orchestrated campaign to lie, when he says the most likely parts of reasoning, what his Honour is then doing is identifying the way in which the Crown case was presented and that is he says the:

paths of reasoning were a rejection of the existence of any such manipulation by the applicant’s ex‑wife and a separate assessment of each child’s evidence to the effect that they were honest and reliable ‑

If I can stop there.  What Justice Beech‑Jones is saying that in terms of that approach to the Crown case which is in rejection of this manipulation and an acceptance of the honesty and reliability of the children, that is the path of reasoning where there is tendency reasoning.  Then, his Honour goes on:

or an acceptance of the honesty and reliability of the evidence of one child as a basis for rejecting the applicant’s evidence which might then impact on an assessment of the honesty and reliability of the evidence of the other children.

Importantly, what his Honour is there focusing on is the rejection of the applicant’s account, which then, particularly where one child’s evidence, as a basis for rejecting the applicant’s account, is not about tendency reasoning, it is about rejecting the accused’s account, and then moving to consider whether or not ‑ ‑ ‑ 

KIEFEL CJ:   Is his Honour referring to distinguishing tendency reasoning with reasoning by way of credit?

MR BAKER:   Yes, and that is why the respondent says that neither of those paths of reasoning, which are the way in which the Crown case could have been accepted, involved tendency reasoning.  So that is what the respondent would say in defence of that.  Thank you.

KIEFEL CJ:   Yes, thank you, Mr Baker.  Do you have anything in reply?

MR DHANJI:   Thank you, your Honour.  Your Honours, with respect to my friend ‑ I apologise, hopefully I am a little clearer.  With respect to my friend and what has just been put, we did deal with this in our initial submissions, and those paths of reasoning do involve, or do not exclude, at the very least, tendency reasoning, because of – for the reasons that we have given earlier, and that is that, even when one is looking at this issue of rejecting the defence account, one is not doing that in a vacuum.

And insofar as one starts looking at this as a sort of concoction/not concoction case, one is straying into the dangers that, for example, the Liberato direction is designed to avoid, that you simply cannot look at it as a sort of concoction/not concoction case, but rather you have actually got to, still, even though there is a positive defence case, maintain, of course, at all times.

And particularly for a jury not well versed in the ideas of presumptions of innocence and burden of proof and the rest, and it can be seen that these are directions, obviously, that need to be given to juries and a great deal of trouble needs to be taken for them to understand those directions, not in the theoretical sense but in the practical sense, such that when they are actually applying or turning their minds to particular parts of the evidence, they are actually not losing the real content of those directions, even though they have been set out at the outset.

But if I can turn and go back to, perhaps, the start point, and I will be relatively brief.  It is put against us that one has to assess the particular case, and we have accepted that.  But, if I can put it this way:  had there been a ruling that the counts were not cross‑admissible prior to trial, and separate trials had been sought, the authority of this Court would have required that that application be granted, and the basis upon which the authority of this Court would have required the application be granted would have been the risk of tendency reasoning.

And it is not a remote or fanciful risk in most cases, and certainly not in this case, and I think the issue was raised in terms of its value in this case, and the trial judge, in ruling on the tendency application, the application to lead tendency evidence with respect to child 3, 5 and indeed 4, did find that the evidence had substantial probative value.  And so it does proceed from a position where there is rational, logical and probative evidence available with respect to a form of reasoning that was, in fact, prohibited.

Insofar as the Court of Criminal Appeal dealt with this, Justice Macfarlan assessed the risk but his Honour did so by reference to the authorities his Honour referred to at paragraph 42 and they included De Jesus and Sutton.  Insofar as Justice Beech‑Jones assessed the risk in the context of authorities as I have already said, that was in the context of distinguishing what was said in KRM.  So, when one comes back to this likely parts of reasoning process, in a sense, absent from the analysis with respect to the likely parts of reasoning is that foundational concept that there is this real danger in these sorts of cases.

If I can turn briefly to the directions that were given and the respondent relies, first of all, upon the direction given with respect to what was described as context or relationship evidence and that direction is at page 13 of the book and it proceeds over through to page 16.  But the respondent’s submission is, in essence, that whilst that direction was limited it would not have been so understood by the jury.  So, we are in a situation where we find at this level the respondent’s position becomes effectively that the jury would have misunderstood this direction.  That, with respect, is a very difficult position for the respondent to be in and that is because it is obviously contrary to authority.  I am thinking particularly of Gilbert v The Queen (2000) 201 CLR 414, particularly at paragraph 13.

So to seek to exclude a form of reasoning from the jury on the basis that they misunderstood that direction is, with respect, not a sound basis upon which an appellate court could proceed.  With respect to this direction, I should also say this:  as has been pointed out, the anti‑tendency reasoning directions were given at page 15, but it was confined to the evidence of other acts. 

Insofar as it has been put against me that there may have been perceived to be some advantage in not getting directions against tendency reasoning, no opposition was raised by the appellant’s counsel in relation to the giving of these directions, and that is of particular significance because the evidence of other acts was a very important part of the defence case with respect to both concoction and reliability, and that is because the evidence of other acts which the defence was content to have led included evidence given by child 3 and child 4 in relation to acts alleged to have been committed against child 5 as to which child 5 did not give any evidence.  So, in other words, from the defence perspective they had a significant forensic point to make as a result of the other acts not being supported by the putative complainant with respect to those acts.

Now, if there was any concern about a direction against tendency reasoning undermining the approach of the defence, it would have been in relation to that particular area that defence counsel would have been most anxious to ensure that his argument was not impinged upon, but there was no issue from defence counsel in relation to that direction being given and indeed, insofar as the direction might have been extended, it has been fairly and properly, I should say, conceded by our opponents that to extend the direction would have not been particularly complex and certainly could have been given in terms that were asymmetric; that is, worked with respect to the burden of proof on the prosecution.

Insofar as my friend has sought to rely upon the Murray direction, again, the respondent is in the territory of having to somehow give the direction a confined reading, because, of course, the tail end of the direction, look to see if it is supported by other evidence, is on the respondent’s submission directed to only very specific evidence such as, for example, the evidence of the mother in a particular case.

But it is not possible to read the direction so as to limit it in that way, and there is no basis upon which one could accept that the jury so limited it.  And similarly, the separate consideration direction, the respondent in fact accepts that it was modified to allow consideration of evidence beyond the individual complainant when considering individual complaints.

If I can just finally turn to the approach of counsel.  I was asked about the practice with respect to directions against tendency reasoning and Murray directions, and the point to be made is that the difficulty is that this is actually a relatively unusual situation, because, ordinarily, if one has a trial that involves a number of complainants being heard together in the one trial on the one indictment, that is generally because the evidence is, in fact, cross‑admissible, and the jury are given directions allowing tendency reasoning.  Ordinarily, if it is not cross‑admissible, what generally follows is separation of counts.  So it was actually a relatively unusual situation, and it is difficult in that situation to start making assumptions about what ordinary practice might be.

In distinction to that, there is the application for the Murray direction, and the Murray direction, on the other hand, is a direction that has in effect long been on the top of the shopping list of directions sought by defence counsel.  Now, either in the form of the Murray direction – some time ago, in the form of the Longman direction – now modified by statute in terms of what can and cannot be given – but it is at the top of the shopping list.  So, there is a difficulty in drawing too much, in our respectful submission, from the application for the Murray direction, in the context of

the absence of any request for the anti‑tendency – the direction against tendency reasoning.

Insofar as one sees in the bench book directions against tendency reasoning – in fact, that does not, on our lunchtime researches come up independently, but rather it is a direction that is built in to the standard direction in relation to context, and it is a direction that is built in to the standard direction in relation to bad character but does not sit alone.

So, it is not, certainly in our submission, self‑evident that it is a matter that defence counsel turned his mind to.  Of course, ultimately, it is the objective assessment and, when one comes back to the objective assessment, in our submission, the approach of defence counsel tells one very little, particularly having regard to the nature of the risk, as has been emphasised in the numerous authorities in this Court.

KIEFEL CJ:   The Court reserves its decision in this matter and adjourns to 10.00 am tomorrow.

AT 2.32 PM THE MATTER WAS ADJOURNED