JPM v The Queen

[2020] HCATrans 115

[2020] HCATrans 115

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S8 of 2020

B e t w e e n -

JPM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 AUGUST 2020, AT 1.30 PM

Copyright in the High Court of Australia

MS G.A. BASHIR, SC:   May it please the Court, I appear with MS G.E.L. HUXLEY of counsel, for the applicant.  (instructed by Condon Legal)

MS T.L. SMITH, SC:   May it please the Court, I appear with my learned friend, MR B.A HATFIELD, for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

NETTLE J:   Yes, Ms Bashir.

MS BASHIR:   Your Honours, we seek an order that the time limit in rule 42 be dispensed with.

NETTLE J:   Is that agreed to, Ms Smith, or opposed?

MS SMITH:   No, it is not agreed to, your Honours.

NETTLE J:   Is it opposed?

MS SMITH:   Yes, it is opposed.

NETTLE J:   Thank you.  We will hear the argument and decide in the course of that.  Yes, Ms Bashir.

MS BASHIR: Your Honour, in this matter, in our submission, first addressing the special leave questions found at application book 175, paragraph 4, that is:

What is the appellate task when a ground asserts that a failure to give an Azzopardi direction constitutes a miscarriage of justice?

There referring to Azzopardi v The Queen (2001) 205 CLR 50, and also:

Is it necessary for evidence to be led . . . as to the subjective reasons of counsel, if any, as to why an Azzopardi direction was not sought –

In our submission, there are two exquisite ironies in the manner that the majority dealt with this grant of appeal.  The first exquisite irony was it is erroneous on an appeal about silence at trial to use the silence of trial counsel on the appeal to fill a gap or lend weight to a Crown submission of objective advantage.  If I could take the Court to application book 144, paragraph 191 of the Court of Criminal Appeal’s decision, that is the majority decision, your Honours will see halfway through the paragraph the Crown’s submission:

that where no evidence has been adduced on the appeal –

from trial counsel:

the Court would more readily conclude that there was an informed forensic decision made –

In our submission, that is an erroneous way of dealing with the appeal and, in our submission, it can be seen that the failure of there being an affidavit on the appeal was taken into account against the applicant.  So, if the Court turns to application book 154 at paragraph 221 one sees even in the final conclusion that it is the absence of an explanation from trial counsel in that with that absence the court is:

disposed to accept that it was a rational choice of trial counsel not to seek a direction –

So as high as “that it was a rational choice” and further what I will come to is the erroneous test being imposed that in those circumstances it is not open to the applicant to now complain there has been a substantial miscarriage of justice.

NETTLE J:   Prima facie, there is a rational choice for not seeking an Azzopardi direction in many cases, is there not?  I mean, you do not want to draw the jury’s attention to the fact.

MS BASHIR:   Your Honour, if I could come to that.  The second exquisite irony, in our submission, is that it is fundamentally incorrect to reason that the giving of an Azzopardi direction would undermine the giving of an Azzopardi direction.

NETTLE J:   I do not know about that.  You must have been at any number of trials where you think to yourself do I really want this sort of direction given to the jury.

MS BASHIR:   Your Honour, I have not found myself in that position personally but could I say, your Honour, that even in Azzopardi at paragraphs 9, 44 and 51, even in the dissenting judgment of Justice Gleeson, it was recognised that juries are aware that accused people can give evidence on oath if they wish to and to say nothing – if they say nothing juries may use silence to the detriment and that is how paragraph 51, the seminal passage in Azzopardi corrects – commences by recognising that.  So, your Honour, in our submission, it is clear that the failure of trial counsel – appellate counsel to have an affidavit on full trial counsel was used.

Could I also just take your Honours to paragraph 83 at application book 112.  Again, what is referred to is:

the absence of any explanation from trial counsel –

and it is in those circumstances that the ERISP directions are looked at and then, again, at 199, which is at application book 147, your Honours will see that a submission on the objective – when one looked objectively, forensically within the context of the trial - is dismissed at the end of that paragraph where her Honour said:

Without any explanation from experienced trial counsel . . . the submission that there was no conceivable forensic advantage –

does not carry any weight.

NETTLE J:   I take that to mean that her Honour conceives that there are conceivable forensic explanations for not seeking such a direction.  Since there is nothing to the contrary, she is not persuaded that there is an absence of it.

MS BASHIR:   Your Honour, even if that were so, in our submission it is not determinative of the ground that there is no subjective explanation from counsel, and one needs to go on to consider whether there has been a miscarriage.  However, it is our submission that Justice Adamson correctly dealt with this at paragraph 269, which is at application book 169, and that is that silence of an applicant’s counsel on an appeal, there should not be any speculation from the silence on the appeal.

Your Honours, further to that, going on to another point – and, your Honours, further to that, we rely on what her Honour Justice Adamson has held in paragraphs 270 to 273, and in particular her Honour deals with the suggestion that the directions in this case were sufficient to address silence, and finds that they did not address silence at all.  None of the prohibitions on the adverse manner of reasoning, which is why an Azzopardi direction is required, were addressed in this case.  That is at the bottom of 272 and 273.

Just going back to the tests that were applied in this case, at application book 151, at paragraph 213, is the statement that the question for the Court was whether an Azzopardi direction was essential.  In our submission, one can read into the finding that there was not a miscarriage that that test was the test that was applied, rather than looking to see whether the failure to give such directions in the trial meant that there was a miscarriage of justice in this particular trial.

In order to do that, one would look through the funnel of did Weissensteiner apply, did Wilson apply, was there some direction that captured the prohibitions on how a jury should not reason in relation to silence.  Also there was a grafting on in this case of the decision in Le, which is the Victorian Court of Appeal’s decision, (2016) 308 FLR 486, even though the Jury Directions Act applies there which passes specific requirement on to trial counsel to seek such directions.  One can see in the final line of paragraph 221, which I have already taken the Court to, where it is held:

it is not open to the applicant now to complain that there has been a substantial miscarriage of justice.

One can see the mirroring of the findings in Le at paragraph 44, which uses the language of the Victorian proviso provision, which is different from our common form proviso provision and casts an onus on the applicant, as does section 15 of the Jury Directions Act, which is specifically referred to in that same paragraph of Le, at paragraph 44.  Her Honour did not refer at all to the finding at paragraph 35 of Le that the Jury Directions Act had wrought significant changes, including in relation to Azzopardi in that jurisdiction.  In our submission, it was an error for her Honour to so reason. 

In this case, furthermore, it is not an advantage for directions to be given on the onus of proof, such as were in the ERISP direction, and one can see quite clearly if one goes to where that direction was given at pages 16 and 17 of the application book that it is in the context of the onus of proof and nothing to do with the silence of the accused that the directions that are referred to in the Court of Criminal Appeal’s judgment at 188 before the ERISP direction is given - it is on page 17 of the application book at about line 19 down to about line 42, and furthermore exactly the same direction is given in relation to the wife, whose testimony was heard in the Court.

Further to that, there is repeated reference to the cross‑examination of the complainant, if one turns back to pages 13 and 14 of the application book, at about lines 18, then at 50 on page 13, over on page 14 at line 20 and line 29, and of course, in this case, there was the recording of the complainant, the pre‑recording, so outside of the courtroom, and then played to the jury, so her cross‑examination was played. 

The jury knew the difference, and if the Court turns to application book 44, the Court will see at line 20, the question - it is at lines 20 and at line 40 - where the jury distinguish between the video with the police and the cross‑examination, and then the video with the accused.  So certainly, rather than, as Justice Simpson found, that the jury may have been alerted to the difference in the evidence, the jury were well and truly alert to the differences in the evidence. 

Your Honours, in relation to that ground, that was all that I had to say.  If I could move on, because I am halfway through my time, to the next proposed ground, which is the unanimity grounds.  It is our submission that where evidence is not relied on as tendency or context evidence, a unanimity direction is required once a child complainant gives evidence of touching, in this case, on more than one occasion, or an act occurring on more than one occasion referable to a single count.

That is the correct application of S v The Queen and authorities concerning the unanimity of verdicts such as Lane v The Queen.  This is particularly important where evidence of children is given in sexual assault and sexual touching trials - we call indecent assault “sexual touching” in this State now - and where the language of the child is both adopted in questioning of the child, used to describe that evidence in the trial, and also in trials where evidence is pre‑recorded. 

Your Honours, in this case, the evidence at trial, the Crown closing and the trial directions all raise the real possibility that the jury were not unanimous as to the act.  The term “touching” was used to describe an indecent assault in the record of interview and other acts of indecent assault on different occasions in evidence of complaint and also in cross‑examination were described in the evidence of the complainant. 

So it was not just one touching which could have happened on between dates.  This is clearly how the evidence was understood at trial that there was positive evidence of indecent assault on the first night, the Christmas lights night, and the last night of the sleepover, and that was how it was understood at trial. 

Could I ask the Court to turn to application book 40 at line 40, and this is a summary of defence counsel’s closing address and one can see immediately that defence counsel is closing on the basis that she had:

claimed she had been assaulted on other sleepovers. 

Now, that is just - to encapsulate if I could take the Court to application book 99, at paragraph 54 your Honours will actually see the questioning about what was called the “Christmas lights” occasion and over the page at 100, when it was put, at line 11:

Q.       And [he] didn’t touch you that night?
A.       Yes, he did.  That was the Christmas night.

That is seen all the way down in that paragraph.  Furthermore, on 106 - this relates to the last time and the complaint to the mother that she was touched, that is, indecently assaulted on that last night, and one can see the cross‑examination at 106 to 107 and, furthermore, if one turns back to 105, one can also see put to the complainant that she was not touched on that night, and one sees that in the Christmas lights too.  So counsel was putting to the complainant each of these occasions as separate occasions.

The Crown closed on the basis that there was opportunity to commit the offence at every sleepover.  If the Court turns to application book 134 in the Court of Criminal Appeal’s judgment at 157, the extract is there and at about line 24 the Crown says:

Nothing’s going to change it, it happened every time [she] stayed over, a sleepover, he had opportunity every time, clean opportunity.  Nothing stood between him and the path into that room to be alone with [DE] in every occasion . . . Opportunity.

Then there was no unanimity direction given by the trial judge, so back at application book 35 is where the unanimity direction is given at about line 21.  A direction was instead given that the jury did not have to agree on the same reasons for their verdict and that they could rely on different evidence so long as they agreed that he was guilty.

GORDON J:   Ms Bashir, can I ask two questions about that?

MS BASHIR:   Yes, your Honour.

GORDON J:   That counsel at trial accepted the “between dates” charge being left?

MS BASHIR:   Yes, your Honour.

GORDON J:   And, secondly, there was no request or objection to the fact that no such direction was given?

MS BASHIR:   Yes, your Honour, that is correct.  But, your Honour, in our submission, that does not preclude, particularly if a unanimity direction should have been given in the case, and that is clear from S v The Queen.  Here, the Crown’s submission that he did not need to prove precise dates and the trial judge’s directions as to dates seen at application book 37 to 38 at the bottom of the page – sorry, it starts at line 20 – they are essentially told that they did not have to be satisfied of peripheral details, and at the bottom of the page “just those essential elements”, and then it is linked to the address on opportunity over at 38. 

Your Honour, also I would refer to application book 25, at summing‑up 20.  In our submissions, if one goes to S, first of all there does not need to be a lack of specificity in relation to evidence of touching.  It does not defeat the operation of S when it comes to the need for a unanimity direction.  In that case, all that was said was that the act happened every couple of months and it was still a requirement.

Your Honours, here, if one goes to S v The Queen (1989) 168 CLR 266, one can see in Justice Toohey’s judgment at page 282 that while the Crown does not need to specify the date, even when there is a lack of specificity of evidence, they do need to specify the occasion. This is in the face of no complaint at trial in S in relation to this particular matter and if that does not happen, the result is a fundamentally flawed trial – that is at 283.

The jury should have been directed to direct their attention to a particular occasion.  So here what was called “the [JH] night” or “the Christmas lights night” or “the last night”, the unfairness, the prejudice to the accused in a case such as that is precisely what is seen at application book 37, that all of the details that are said to attach to one specific occasion become completely stripped out and it may be even left down to the bare act.

That is not what S v The Queen, in our submission, requires.  It requires that surrounding circumstances attach to the occasion in order that an accused person can properly test the evidence at trial.  In our submission, pre‑recorded evidence makes it all the more important that there is a necessity for unanimity in the context of surrounding circumstances, that being linked to a particular occasion because the Crown gets to see the cross‑examination before they open to the jury.

Otherwise, what can occur is the stripping away of what are, in truth, surrounding circumstances following cross-examination to include only those that were not challenged or resiled from in cross-examination, where it can indeed be stripped down to the bare allegation of touching, and that leads to an unfair trial.  So it is highlighted in these kinds of trials, in our submission.  In our submission, this decision is contrary to S and one can see it at AB 130, paragraph 148 and also in the inconsistent findings over on the next page.  Thank you, your Honours.  I think my time is up.

NETTLE J:   Thank you, Ms Bashir.  Yes, Ms Smith.

MS SMITH:   Your Honours, I propose to address the issues in the same order as my learned friend in that I will deal with the second ground first, which I can refer to in short as the Azzopardi direction ground.  The majority of the Court of Criminal Appeal was able to discern in the particular circumstances of this case, that objectively there was a forensic advantage in an Azzopardi direction not being given.  So, what were the particular circumstances of this case that led to such a conclusion?

The starting point is the fact there was a detailed record of interview from the accused, which had been tendered by the prosecution in this case.  That detailed record of interview included clear general denials by the accused of any touching of the complainant whilst at the same time confirming other details including the close relationship with the complainant and her family and the fact that there were sleepovers that had occurred at his home.

Many of those matters were generally ultimately not controversial at the trial in terms of the circumstances and there was that clear denial that was contained within that record of interview having been confronted by police with the details of the allegation that had been made by the complainant.  It was observed by the CCA that significantly in relation to the record of interview the accused was in no way challenged by the police in terms of his denial of offending. 

In terms of the trial when one comes to the closing addresses, the Crown made limited reference at all to the record of interview in their closing address whilst in the case of the applicant’s senior counsel, she referred in closing address to the record of interview as demonstrating that the applicant was “open and forthright”. 

So, then, what were the directions that were given to the jury in relation to the record of interview?  Well, as Justice Simpson observes in the judgment at paragraph 4 and that is application book 86, her Honour makes the observations that the directions concerning the recorded interview all but equated those answers with evidence.  That is a key feature of this matter.  You have clear general denials in the record of interview.  You then have directions being given that all but equated the answers in the record of interview with the evidence. 

There were detailed directions given to the jury on the presumption of innocence and the onus of proof and there was emphasis on the fact that there was not an obligation on the accused to do anything more and, again, if I refer to that observation as contained within Justice Simpson’s judgment in paragraph 4. 

Can I take your Honours please to application book 168?  It actually sets out the directions that were given in relation to the record of interview.  At the bottom of that page, which is paragraph 266 of the CCA judgment, this is just the best extract in terms of how the issue of the record of interview arose.  Your Honours can see at the end of that second paragraph that immediately prior to turning to the record of interview, her Honour the trial judge had stated:

There is no obligation whatsoever on the accused to prove any fact or issue that is in dispute before you.

Having made that statement, the trial judge then directed the jury that here members of the jury:

the accused gave a version of events.  He took part in a recorded interview with investigating police.  And, of course, you are aware that he denied the offending.  The accused is entitled to rely upon that account and ask you to take that into consideration with the other evidence called by the Crown.  The accused is not required to prove that this account is true. 

It then goes on.  Your Honours, the jury were, therefore, being invited to take into account the record of interview in the same way as any other evidence they had heard in trial.  No distinction was drawn to their attention about the record of interview.  It was treated as having the same status as every other piece of evidence. 

Importantly, distinctions in relation to the record of interview could have been highlighted by the trial judge.  The trial judge could have pointed out in accordance with this Court’s decision of Mule that such statements in the record of interview have not been made on oath and that they have not been tested by cross‑examination.  That did not happen in this case.

Instead, the applicant had the advantage of the trial judge’s directions in relation to how the jury could use the denials in the record of interview in a completely unqualified way.  The fact that the record of interview had no different status was reinforced again by a subsequent direction that the trial judge gave the jury after they asked to view the complainant’s record of interview. 

If I can please take you to application book 52, your Honours will see – sorry, if I take you to CCA paragraph 189, which is – yes, 189.  I apologise, it is application book 143.  Your Honours will see that this is the terms of the additional direction that the jury was given after there was a request for them to actually view the evidence of the complainant.  The trial judge actually at that point, directed the jury that:

I must warn you that you must be careful not to give the evidence any greater weight than you would any other part of the evidence in this case.  It is one part of the evidence and you must, in relation to this trial, consider all the evidence when making your decision, and in particular you must also give consideration to the accused’s account when he spoke to the police and in which, of course, he completely denied touching [DE] in a sexually inappropriate manner.

So, your Honours can see there is the part that has been highlighted by Justice Fullerton that is in bold which is of significance because there is, in one breath, reference to the evidence of the child and the next it is saying you also have to give consideration to the accused’s account.

This, again, reinforced that there was no real distinction between the two.  There was no difference in their status.  As Justice Simpson stated overall concerning the record of interview the jury was told all but those answers are to be equated with sworn evidence.  To quote Justice Simpson, at paragraph 5 of the judgment, they were “powerful directions”.

It is submitted that when you have answers in a record of interview, all but equated to sworn evidence, then the impermissible reasoning process identified in Azzopardi does not as readily arise.  Further, in the particular circumstances of this case there was a real risk that the giving of the Azzopardi direction would have undermined those powerful directions and drawn attention to the different status of the answers given by the applicant in the interview.  Given those particular features, the majority concluded that, objectively, there was a potential advantage that could be discerned.

Furthermore, having discerned that there was, objectively, such an advantage, the Crown submits that when Justice Fullerton’s observation that paragraphs 218 to 221 - which were referred to by my learned friend – are read in context is that, having discerned objectively a forensic advantage her Honour was simply saying that she would then infer that counsel had rationally acted for that objectively discerned forensic advantage.  She goes on to make the observation that she is fortified essentially in that view by the fact that there was no evidence that counsel had not acted for that advantage, the Crown submits is what has occurred in this instance.

In relation to the first ground of appeal, the CCA correctly found, given the way in which the trial was conducted, on behalf of the Crown and the accused, and the directions of the trial judge, that there was no real possibility that different jurors might have had regard to different occasions of indecent touching in mind when returning the verdict of guilty.  This is because the CCA properly found there was only one episode of touching described by the complainant in her recorded interview with police, which was played as her evidence‑in‑chief.

The Court of Criminal Appeal also correctly found that the earlier complaint by the child to her parents did not involve complaining of multiple acts of touching, but rather, also, that one single occasion.  So the overall status of the evidence was, prior to cross‑examination, that there was one single incident of indecent assault that the child had complained of to her parents, and which she repeated and elaborated on in the record of interview with police. 

A “between dates” was preferred by the Crown because whilst the Crown indicated it was probably one particular sleepover, that could not be established with absolute certainty, which was why the timeframe was preferred which encapsulated all of the sleepovers.  Time was not treated as being of essence at the trial.  Prior to cross‑examination, senior counsel confirmed she was in a position to meet the Crown case of a single act of touching on a “between dates” basis. 

It was only then, in cross‑examination, that for the first time there emerged evidence of multiple occasions of touching and, significantly, before those multiple occasions arose, the first thing that senior counsel did in cross‑examination was commence by questioning the complainant in order to confirm that she had only told police that she had been touched once, and that that occurred when she was in Year 1.

So having secured that confirmation from the complainant that there was only one occasion of touching, as per her interview, senior counsel then moved through the other occasions of the sleepovers and in so doing she put on the proposition to the complainant on each occasion that “He didn’t touch you, did he?” on that particular occasion.

It was clear, as the CCA said, that it was apparent that the reason the senior counsel was doing this was for the purpose of providing a basis for a submission that the child kept on returning to the house on multiple occasions despite her allegation of touching having already taken place, and that that undermined the reliability of her account more generally.

However, when asking questions about two of these other sleepover occasions the complainant gave at certain points positive answers that she was touched.  However, senior counsel did not ask the child to identify or describe the touching on those two nights, or when or where or how the touching occurred, or what it entailed.

This is in stark contrast to the recorded interview which formed the basis of the evidence‑in‑chief that was very detailed, that included the description of where the incident occurred, what was occurring at the time in terms of the child feigning sleep, what position she was on the trundle bed, what position the accused was, in terms of kneeling beside the trundle bed, what the nature of the touching was, which involved a demonstration by the complainant and a description of him having touched underneath her pyjamas, underneath her pants, touched her vagina with two fingers in a circular motion.

There were all of those details present in respect of the incident that was in the recorded interview that formed the basis of the Crown case.  Contrast - these two occasions which emerged for the first time in cross‑examination are no more than essentially – “He didn’t touch you on that night?”  “Yes, he did.”  That is the extent of it.  That is the evidentiary basis for these multiple occasions that form the very basis of this ground of appeal. 

The Crown says in those circumstances it is hardly surprising that there was no calling for an election by the Crown on behalf of senior counsel, and that senior counsel proceeded, as did the Crown Prosecutor, unsurprisingly, to focus in their closing addresses on the single incident of indecent assault that the child had complained of to her parents, which she had then repeated and elaborated in on the record of interview.

The Crown Prosecutor clearly relied upon the incident that was the subject of the record of interview.  At no point in the closing address did the Crown Prosecutor make any reference to those additional two touchings, if I will call them that, those fair statements, he did not touch you, yes he did, in the closing address at all. 

The Crown’s address focused on the record of interview and the detail – what was actually described, taking the jury carefully through the relevant questions and answers that formed the basis of the single charge that was before them.  The CCA found that it was clear that the way in which the case had been run at trial by the Crown, including the Crown’s closing address was on the basis that the charge that was on the indictment was clearly anchored in a single incident described in the recorded interview with the child.

We come to the defence closing address.  Again, senior counsel focuses on the one incident that is the subject that is described in the recorded interview of the child.  She does refer to the other two occasions of touching that arose in cross‑examination, but she does so merely as illustrations of the child’s unreliability.  She points to them to say that it is inconsistent with her having told police that it happened on only one occasion.  She points to the fact that in relation to one of the occasions the child went from saying - this is the last sleepover - the child went from saying “I don’t remember, no he didn’t touch me” to “Yes, he did touch me”.  She invited the jury to find that those contradictory versions indicated the child’s willingness to agree to almost any version of events as evidence of unreliability. 

So senior counsel used those answers in cross‑examination to illustrate why the child was unreliable, and that is clear, in terms of the portions of the closing address that are extracted at application book 116 and 117.  You come to the summing‑up.  Her Honour directs the jury – this is at application book 27 – in accordance with the complainant’s description in the record of interview.  When going through the essential elements that were required to be proved by the Crown there is reference to the fact that – and this is the words ‑ the jury would appreciate that it relates to the alleged touching of:

what the child said was on her private parts, her “wee wees” has been referred to on the outside of her vagina and under her pyjamas and under her underwear –

or skin.  Where is that description only found?  That description is only found in the record of interview.  It is not found in the occasions that came out in the course of the cross-examination.  That description or act is actually found only in the record of interview with the child from question and answer 232 onwards.

When summarising the Crown’s submissions, the trial judge specifically referred the jury to the relevant parts of the record of interview that had been relied upon by the Crown as founding the charge.  Did the judge refer to these two other occasions of “He didn’t touch you?  Yes, he did”?  Well, the only place in which she referred to it was when summarising the submissions of the defence counsel and she did so by saying ‑ this is at application book 40 – she did so by reminding the jury of the fact that the submission had been made as follows, that senior counsel had ‑ this is at about line 40:

Also asked you to have regard to the cross-examination wherein –

I will just say “DE”:

claimed she had been assaulted on other sleepovers despite telling the police that it had only occurred once.

That is the only reference to this concept of the additional occasions that emerged in cross-examination.  Was any direction sought at trial?  Well, the Crown says, surprisingly, that no, no direction was sought.  No direction of the kind now complained of was required to be given by senior counsel at trial and, as indicated by the CCA, this is a further indication that in the context of this trial and the way in which it was conducted such a direction was simply not called for.

The absence of an application for the direction further tends against finding that this suggested risk was present.  Upon a corrected analysis of what evidence there was before the jury on the other occasions of touching and the way the case was conducted by both parties it is clear why no such direction was sought or required in the circumstances of this case.

The fact is the other instances of the touching attracted no comment from the Crown, were referred to only peripherally by the defence counsel in the context of her challenge to DE’s reliability and credibility, attracted no direction from the judge and the judge only reminded them of the use that had been made of those other occasions by senior counsel, namely, that it undermined the unreliability of the complainant.  Thank you.

NETTLE J:   Thank you, Ms Smith.  Ms Bashir, is there any reply?

MS BASHIR:    Your Honours, if I could deal with the S ground first – that is the one that has just been addressed.  First of all, in relation to the last night, the last night was part of the complaint.  So, if one goes to application book 31, there is the complaint to the mother.  This is the very first complaint said to have happened on the last night, and a demonstration done in relation to the last night.  That then changes in the interview of the child to be the first or the second night.

So, in our submission – and then it is revived, the last night is revived because of the answers of the child which are found at 106 to 107, which specifically relate to what she told her mother happened on the last time she stayed there and the child then says again:

True, true, true.

This leads to another submission in answer to the Crown in relation to inconsistent findings as to other acts of touching.  When one looks at application book 130, paragraph 148, at the very end:

It remains the fact that the only incident of indecent touching the child ever described or demonstrated was the incident she described initially to her parents and then later in the JIRT interview.

Well, even that on its face raises the two occasions of touching, that is, the last occasion and what was called the first occasion.  Your Honours, here, the CCA found in that same paragraph it was understandable that defence counsel did not ask when, where, how and why and in any case, in S v The Queen¸ the lack of specificity is what invokes the need for unanimity.  It is what means that there is prejudice to an accused.

Your Honours, if I could take the Court to what Justice Toohey said at page 280 of S.  In that case, there were no specifics given.  The Crown did not identify one occasion, as in our case, and nor did the judge in the summing‑up, nor did the trial judge in this summing‑up and “No re‑direction was sought”.

The Crown should have identified the occasion and in the summing‑up there should have been a unanimity direction.  Justices Gaudron and McHugh at page 286 describe specifically the prejudice that would have not occurred had there been an opportunity to test credit, as there would have been if the occasion had been specified and referred to in relation to the surrounding circumstances.

Your Honours, we say that is exactly what happened in our case.  The Crown Prosecutor did invoke every opportunity - I have taken the Court to that - and every sleepover and failed to nominate an occasion and there was no direction and this raised the risk, that is, the theoretical risk that the real possibility that the jury did not perform its function reaching a unanimous verdict or either that they pooled the occasions or, your Honours, that they simply did not concentrate on a specific occasion at all.  Now, turning to the Azzopardi ground - sorry, your Honour?

NETTLE J:   Ms Bashir…..

MS BASHIR:   Sorry, your Honour?

NETTLE J:   Carry on…..

MS BASHIR:   Turning to the Azzopardi ground and Justice Simpson at paragraph 4 of the judgment, in our submission, it is absolutely no answer to Azzopardi.  In Azzopardi at paragraph 50, that is the very paragraph before the seminal paragraph, it was held that the judge’s duty is to give whatever warnings may be appropriate about impermissible or dangerous parts of reasoning and warning a jury against drawing impermissible conclusions from the fact that an accused did not give evidence in a trial is a direction by the judge that a jury is required to follow.

Here, directions on the onus of proof or on what we call NZ, or to use the High Court case of Gately, they do not address silence of the accused at all.  They only address the onus of proof.  It is in the context of – they are directions that are necessary at trial - the onus of proof and Gately if a complainant’s evidence is being played again to a jury.  They are not advantageous directions.  So, it cannot be, in our submission, correct to say that they gave the accused an advantage in the trial. 

Also, the evidence was not treated as at the same status from the outset of the summing‑up at application books 8 and 9.  Your Honours will see that the trial judge started at line 20 on 8 saying:

that evidence can take many forms . . . oral evidence or testimony of the witnesses, and you also have the exhibits –

and at the bottom of the page, the interview of the accused is an exhibit in the trial.  There was no advantage, your Honours, and an Azzopardi direction, in our submission, could not undermine the direction of an onus of proof or NZ directions that would have complemented them.  My time is up. 

NETTLE J:   The applicant requires an extension of time but we see no point in granting one.  We are not persuaded that this application would enjoy sufficient prospects of success to warrant the grant of special leave.  The application is dismissed.

MS BASHIR:   If the Court pleases.

NETTLE J:   Thank you, counsel.  Adjourn now.

AT 2.17 PM THE MATTER WAS ADJOURNED