LFS v The Queen

[1989] HCATrans 251

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No Pl3 of 1989

B e t w e e n -

LFS

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

BRENNAN ACJ
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

LFS

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 24 OCTOBER 1989, AT 9.50 AM

Copyright in the High Court of Australia

P1T2/l/DR 1 24/10/89

11R P.S. BATES:	May it please the Court, I appear for the appellant in this matter. (instructed by Claudio
Russo Shaw)

11R M.J. MURRAY, QC: If it please Your Honours, I appear for

the respondent with my learned friend,

11R K. PETTIT. (instructed by the Crown Solicitor

for Western Australia)

11R BATES:  Your Honour, just is an application by the

appellant for leave to appeal against convictions

on three accounts of incest, contrary to

section 197 of the CRIMINAL CODE Western Australia.

There is only one ground of appeal now pursued

before Your Honours and perhaps I should refer
briefly to that before I proceed further. If I

could refer Your Honours to the appeal books - - -

BRENNAN ACJ:	Do you have any notes of argument, Mr Bates?
11R BATES:	I beg your pardon?
BRENNAN ACJ:	Have you prepared any written notes of argument - - -
11R BATES:	Yes I have - - -
BRENNAN ACJ:	- - - or have they been handed up?
11R BATES:	Your Honours should have a list of my outlines of

submission.

BRENNAN ACJ: Yes, thank you, Mr Bates.

11R BATES:  The only apology I have to make, Your Honour, at

this stage is that the authorities that I seek to

quote from are in the process of being photocopied and should be along any minute but that should not

detain the Court. Your Honour, if I could deal

with the aspect of special leave first. If I may

refer Your Honours to the application book and

in particular to paragraph 7 of my affidavit

which is contained at page 163 of the book where,

in paragraph 7, I set out the grounds upon which I

rely in seeking special leave to appeal.

Your Honour, in my submission, the point of

law which is raised today is a matter which is

likely to cause the courts in this State some problems

in that there is a conflict of judicial authority

as to the outcome of that particular point of law.

Perhaps I could refer Your Honour to page 153 of

the appeal book which is a transcript of an appeal

which came before His Honour Mr Justice Brinsden

for mention.

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TOOHEY J: Just before you do that, Mr Bates. You said that

it was intended to pursue only one ground of appeal

if special leave were granted.	Can you identify
that for us?

MR BATES:  The point of law which I would intend to pursue is

that where a count on an indictment alleges one

specific offence it is not open to the Crown to lead
evidence of a number of acts which amount to the
actus reus to that offence and then invite the jury

to convict on any one of those acts led in evidence.

Your Honour, in my affidavit, I set out a ground of

appeal. Unfortunately, that was incorrectly stated

and that is to be found on page 161 of the book at

the top of page 161.

• The defence do not allege that the indictment

was bad for duplicity. What the defence are alleging

is that evidence was led of a number of acts

constituting actus reus of the offence and the jury

were told that if they were satisfied that one

such offence had occurred within the time parameters

mentioned in the indictment then they should

convict. It is that point which the appellant is

appealing against today. So, what we are saying

in effect is that the indictment alleges one

specific offence but evidence was led of a number
of offences within the same time frame and the jury

were invited to convict if they found any one of

those number of offences proved.	That is a basis
of the appellant's appeal today.

BRENNAN ACJ:  Perhaps you will show us the portion of the

summing up which is particularly offensive to the

argument which you wish to adduce?

MR BATES:  Yes, Your Honour. If I could refer you to my

submissions. I refer you first of all to page 4 of

my submissions and that evidence was led for the

Crown by the victim, JAS, and she was asked about

the acts of sexual intercourse which had occurred

and she went on to give the evidence which is

detailed in paragraph 21 of the appeal book.

BRENNAN ACJ:  Mr Bates, before you continue, Mr .....

has pointed out to me that there may be some question

as to whether any orders should be made for the

prohibition or the publication of names involved.

MR BATES:  There was a suppression order made at the initial

trial, Your Honour, so I make application for the

names of the victims in this matter to be suppressed.

BRENNAN ACJ:  It would have to be the names of the victims

and the - - -

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MR BATES:  And the complainant because, of course, the victims

could be identified from the appellant.

BRENNAN ACJ:  What is the power to do that, do you know?

MR BATES: Well, in this State, it is contained in the

EVIDENCE ACT, Your Honour. I am not sure what - I

presume that the High Court could exercise powers

under the Western Australian EVIDENCE ACT.

BRENNAN ACJ: That is perhaps a substantial assumption.

Perhaps we will hear if Mr Murray has anything to say on this application first.

MR MURRAY: If it please, Your Honours, it would be proper, I

think, to deal with it in terms of the EVIDENCE ACT

• section 36C which gives a court, dealing with the

particular sexual assault offence of which this

would be an example, power to - well, it prohibits,

in fact, the publication of matters likely to lead

members of the public to identify the complainant
or the school of which the complainant attends and

so it is a matter which is dealt with by the

legislation except that the Court may give leave to

override that sort of general statutory prohibition.

TOOHEY J:  That assumes that the statute would operate at

all times.

MR MURRAY:  Yes, and certainly it is the habit of the press

locally to treat it as if that is so without any

technical points being taken about it.

BRENNAN ACJ:  Yes, well, the Court will order that there

should be a suppression of the names of the

complainant or of the applicant otherwise than by

initials.

MR BATES:  Your Honour, if I may, I would like to just take

you through the factual basis for the appeal: namely,

matters which were led at the initial trial. Then

I would like to take Your Honours to the law, as I

see it, which impinges on that factual basis. If

I may refer Your Honour initially to page 6 of the

appeal book, at paragraph B? This was an exchange

which took place in the absence of the jury prior to
the trial where the defence counsel were seeking
leave to adjourn the proceedings to enable further
particulars of the indictment to be obtained. At

paragraph B there is a statement by senior counsel

for the Crown and he states:

The Crown is alleging, as I have indicated

to counsel for the accused orally, that in each of those 3 years there was one act of sexual intercourse by the accused with the girl in question which constitutes the

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alleged offence. It can't be particularised

as to any particular

month and that is why it is pleaded in each

count on a date unknown between the beginning

of the year and the end of the year. When

Your Honour has regard to the fact that the defence has had available to it the full depositions which sets out exactly the

testimony which the girl is to give, Your Honour

will observe that really the girl was quite

young at the time; that she has recounted that
there were continual acts of sexual intercourse
over those 3 years and the Crown has elected

to charge one in each year.

BRENNAN ACJ:  Mr Bates, was there any evidence of particular

acts, other than the first act, which was sufficient to identify any of those acts as being discrete from

others? Or, is the fact that the first act was

described and the rest were simply described as

acts which took place in subsequent years?

MR BATES:  There were at least two distinct acts described in

the evidence of JAS, Your Honour. There was the

first act that she describes and then she did

mention later in her evidence that she recalls an

act of sexual intercourse occurring when her father

dressed in his wife's clothes. So there was a

particular incident then which impinged itself on

her memory. So, there were two specific acts of

sexual intercourse that she described and the other

acts she simply said that intercourse occurred

approximately once every two months throughout the

period contained in the indictment.

DAWSON J: And in relation to those two specific acts, did the

Crown identify those as being acts upon which they

rely to the exclusion of others?

MR BATES:  The Crown, Your Honour, did not identify any

specific act upon which it relied to constitute the

actus reus of the offence. The Crown led evidence

of these acts of sexual intercourse and the jury

were invited that if they found that one such act

of intercourse within the time parameters was proved

then they should convict.

GAUDRON J; On that same area, Mr Bates, as to the second act,

was there any evidence as to whether it was or

was not within any particular time period?

MR BATES:  No, Your Honour. Perhaps it would be easiest to

take Your Honours to that particular piece of

evidence. It is the evidence of JAS which starts at

page 21 of your application books. The main

evidence of the sexual intercourse is to be found

at the top of page 21 where the witness said:

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That first occassion upon which intercourse occurred, are you able to say anything more

about it, what effect it had on you?

She said:

I remember telling him it was hurting me

and him saying not to worry, "It won't in a

minute as soon as you get used to it" and I

was crying.

Then it goes on, at page 22:

After that first occasion, were there any

further acts of intercourse?---Yes. There

were further acts but I cannot remember all

the details of them or when they were.	I
have blanked them out.

Then she goes on to give that evidence.

Are you able to tell the members of the jury

how often during those years until you left

home such acts occurred?---Actual sexual

intercourse wasn't too often, but it was a

couple of times.

A couple of times every how often?---Every

couple of months ..... a year.

TOOHEY J: That is not quite the way it reads, is it?

Every couple of months for a year.

MR BATES:  "Every couple of months for a year", yes, Your Honour.

And then at the bottom of page 22 where counsel

for the Crown was examining Miss Sas to her father

dressing in her mother's clothes - the final three

paragraphs on page 22:

What happened on those occasions?---He used to

ask whether I thought he looked good, what I

reckoned.

With any sexual activity on those occasions?---

Yes, there was.

What sort of things?---The first one I can remember, he actually inserted his penis after

that.

And so, they were the allegations made by the

complainant of the actual acts of sexual intercourse.

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TOOHEY J:  You mean, not only in respect of the first·- the

period the subject of the first count, but are you

saying that was the entirety of the evidence in

relation to each count?

MR BATES:  That was the entirety of the evidence in relation

to actual sexual intercourse which, of course, was

what he was charged with. So, the evidence, in

effect, Your Honour, is that there was the initial

act of sexual intercourse when she was about nine;

then this intercourse occurred, as stated on

page 21, on a fairly regular basis and the other

specific incidents of sexual intercourse which

were recalled	was when the father dressed up in
those clothes.

BRENNAN ACJ:  Do you say that any of that evidence was

inadmissible?

MR BATES:  Your Honour, I did not conduct the initial trial,

I should say, but I have not really addressed my

mind to whether or not that was admissible at trial.

DAWSON J:  You say you would really only determine the question

of admissibility when you have some focal point by

reference to which you could pose the question?

MR BATES:  Yes. This evidence was not led as similar fact

evidence, or anything like that. It was led, in

my submission, as elements of the actus reus of

the offence with which the accused by charged.

DAWSON J:  Once you had identified the actus reus you then

could, perhaps, say that the other evidence was admissible as similar fact evidence but until

you knew what was being alleged as the actus reus

you did not know what was similar fact.

MR BATES: Well, this really is the basis of the appeal - - -

DAWSON J: That is the way you put it.
MR BATES:	- - - that the accused simply does not know which

of the specific acts led in evidence he has been

found guilty of and it may be, Your Honour - - -

DAWSON J: Or, for that matter, which juror found him guilty

of which particular act.

MR BATES:  As I was going to say, Your Honour, because one

does not know whether one juror found one specific

act proved and another juror - there might have

been no unanimity or consensus on the part of the

jurors as to any one specific act of sexual

intercourse and, really, that is the - - -

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BRENNAN ACJ:  Mr Bates, if I could ask you, as it were to

transpose yourself at the bar table to the

role of prosecutor: what particulars might have

been furnished which would overcome this problem?

MR BATES:  I appreciate the Crown's problems. Mr Justice Kennedy,

in his judgment in this matter, on appeal, said that the problems of the Crown should not be visited upon the defence and His Honour went on to state that the

accused had numerous problems in having to defend

unspecified allegations. So, my approach would be

that, really, in this particular case, the Crown have

problems because we are looking at an offence which

occurred eight years previously when the girl was

very young and so - - -

DAWSON J: Well, they had two specific occasions which they

did not adopt as being the occasions in question

MR BATES: That is correct, Your Honour. I accept that the

Crown had problems. I do not dispute that. What

I am saying is that, if I can adopt the terminology

of His Honour Mr Justice Kennedy, the Crown should

not visit their problems on the defence and that is

what happened. The Crown were unable to

particularize their indictments as to time

accurately and so they simply left it to the

defendent to defend the matter as best he could,

given that the offence occurred eight years

previously; and given that the offence alleged was

within a time frame of 12 months.

BRENNAN ACJ: But,really, that argument is tantamount to

this, is it not, that no conviction is possible

on this evidence?

MR BATES:  Yes, Your Honour, The indictment was bad. If I

could - - -

BRENNAN ACJ:

It was incurable on your argument because of

the Crown's problems, is that right?

MR BATES:	Yes, it was incurable and it was bad.	If I could
DAWSON J: Could "I	just take that up.	Why was the

indictment bad? It may be that the way the Crown

presented the case was insupportable but you can

allege an offence - a single offence - occurring

between certain dates but you have got to identify

the offence.

MR BATES:  Yes, Your Honour, but, in my submission, there

are - well, if I could refer Your Honour to a

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brief paragraph in Archbold's "Criminal Pleading

and Practice" - the learned author - at chapter 1,

paragraph 66, says:

An indictment is defective not only when it is bad on the face of it because of

duplicity or because particulars disclose

no offence but also -

and he goes to cite three occasions and the third

of those occasions is:

when the evidence led in support of the

indictment discloses more than one offence.

And they cite as authority for that proposition

REG V JONES and others, the Criminal Appeal Reports

which is contained in my list of authorities.

DAWSON J: It is a curious way of putting it because the

indictment is not bad on the face of it, it is only

when you go to see the way in which the Crown

presents it case do you retrospectively, as it were,

see that the indictment is bad.

MR BATES:  Yes, Your Honour, but in the case of REG V JONES,

the Court adopted the view that once the evidence

was led as to a number of offences within a specific

time frame then the Crown should be put to its

election as to which of the offences it wished to

rely on.

DAWSON J: Quite.

MR BATES:  So, at that stage, in my submission, the indictment

becomes voidable in a sense and it is up to the

Crown then to elect.

BRENNAN ACJ:  Does your argument come to this: that what the

Crown should have done, or what should have

happened, is the Crown should have been put to its

election and, having regard to the nature of the

evidence which was adduced, the Crown should have

been required to say that it was relying upon the

first, second, third, fourth, fifth or sixth act

of intercourse in that particular year.

MR BATES:  Yes, Your Honour.

BRENNAN ACJ:  So that the miscarriage of justice that has

occurred consists in the non-specification of one
of those acts, assuming that there were six in a

year.

MR BATES:  Yes, Your Honour. That is our complaint.

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BRENNAN ACJ:  Now, having regard to the nature of the evidence,

I leave aside the evidence in relation to the first count, and I put this to you: is there any

substantial miscarriage of justice? Is the evidence

capable, in the circumstances, of giving rise to a

substantial miscarriage of justice?

MR BATES:  There was, in my submission, a substantial miscarriage

of justice in the sense that the way the indictment was

framed and the way the matter proceeded precluded

the appellant from relying on alibi evidence. The

Crown raised the issue that we did nothing but simply

deny that the offences occurred and there was a

straight conflict of evidence between the appellant

and the victim. And the Crown raised the issue that

we did not plead any substantive defence, such as

alibi, but I would put to Your Honours that, in a

situation such as this, the appellant was faced with

insurmountable problems to establish an alibi. He

had, in effect, to - in order to establish an alibi -

he would have had to produce evidence as to where

he was every day of the year in a period which

occurred eight years previously. In my submission,

he was simply deprived of any opportunity of

producing alibi evidence because of the way that

the matter proceeded.

BRENNAN ACJ:  If the matter had proceeded in the way of identifyir~

the first to the sixth acts of intercourse in a

particular year, it would still have been impossible

to adduce alibi evidence, would it not, unless he

was away for a period in excess of three months of

the year?

MR BATES: Obviously, the more accurately the alleged offences

were defined then the easier it would have been for

the appellant to have produced alibi evidence but, in the way the matter was presented, it was simply impossible for him to do so, in my submission.

And so, to that extent - - -

DAWSON J: In other words, although the complainant might not

have been able to identify the date that there was

a specific incident referred to, the accused might

have been able to identify a date and thereby

present alibi evidence.

MR BATES:	Yes, the accused was a member of a number of clubs - the rifle club and, of course, they had trips
away from home. It may have been possible - I am
only speculating, of course - but it may have been
possible for him to have identified - in relation to
a specific allegation, it might have been possible
for him to have produced evidence that he was not
around at the time. But, what I am putting to the

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Court is that he was denied the opportunity of doing

that because of the way that the matter proceeded.

So, to that extent, in my submission, there was a miscarriage of justice and, of course, a further miscarriage of justice really arises out of the autrefois convict argument although, I would submit,

that that is, in a sense, a side issue. I do not

base my appeal on the basis that the accused cannot

plead autrefois convict:  I base my appeal on the

basis that he was simply convicted of an unspecified

offence.

TOOHEY J:  Say that in this case the complainant had given

evidence of one act of sexual intercourse in respect of each period the subject of each count and no more but had been unable to identify, with any sort of

precision, when that incident had occurred other than

that it had occurred within the time frame of the
12 months: would there be any complaint about the

way in which the trial was conducted?

MR BATES:  No, Your Honour, we could not then complain because

we would know the specific incidents upon which we

were convicted and that would eliminate the

autrefois convict argument.

GAUDRON J: It would also have dramatically altered the

directions to the jury?

MR BATES:	Yes, Your Honour.
TOOHEY J:	So, is your complaint then that the indictment,

having alleged in respect of each period a particular

incident without specifying that incident, that no

evidence should have been led other than as to one

incident in respect of each 12 month period?

MR BATES: Yes, Your Honour, because that might well have had

an effect on the jury's perception of matters

because these other acts of sexual intercourse were

no~ in my submission, led as similar fact evidence:

they were led as examples of the actus reus. So the

jury were receiving answers -

McHUGH J: That is not so clear, is it? Evidence of the

other sexual activity was, on the authorities, be
admissible to show evidence cf a guilty passion

or to show evidence of the relationship between the

parties, would it not?

MR BATES: Well, Your Honour, in my submission, that would not

be the case, with respect, because there was

evidence led about indecent assaults which surrounded

the sexual intercourse. That was adduced as

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similar fact evidence and, of course, I accept what

Your Honour says that that evidence would go to

support the charge of carnal knowledge and that

evidence would show a guilty passion. But the

evidence of actual sexual intercourse is not - I

mean, it is put to the jury as a possible

actus reus, so, in my submission, it is put to the

jury on the one hand as the actus reus of the

offence with which the man is charged. How can it

be equally put to the jury as similar fact evidence

of the offence charged?

McHUGH J: Well, that may be a problem in this particular case

because of the way the Crown elected to conduct the

case but, in principle, there would be nothing

. .	wrong with the Crown leading evidence of other acts of sexual intercourse for the purpose of proving
a particular offence, would there?

MR BATES:  I accept that, Your Honour, if the accused was

charged with one specific example and the other acts

of sexual intercourse were led purely as similar

fact evidence, but that is not what occurred in this

case, in my submission.

McHUGH J: Yes, I appreciate that.

MR BATES:  In this case, really, I mean, if it was considered

as similar fact evidence, in a sense it was left

to the jury, sitting in the jury room at the end
of the trial, to determine whether a particular

piece of evidence was similar fact evidence or

whether it was supposed to be the actus reus of the

offence.

McHUGH J: Well, is your complaint this: that if the Crown

tomorrow indicted this accused on two offences of

incest and they particularized them as one, being

the first occasion where the girl gave evidence

about it hurting; and the second, the occasion on

which her father was dressed up in her mother's

clothes, then you would not know whether you could

plead autrefois convict or even autrefois acquit

in respect of that.

MR BATES: That is one of the complaints: that as a

conviction has been handed down it would place the

accused in that position if any further offences

of this nature were charged in relation to the

same time frame.

GAUDRON J:  Mr Bates, in so far as whether any of these acts

occurred was in issue at the trial, it may be that

the decision of this Court in HOCK does not fully

support your answer to Justice McHugh as to the

admissibility of the evidence.

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MR BATES:  I am afraid, Your Honour, that I am not familiar

with that decision. All I can say is that there is

judicial authority to support the position that I

am taking, substantial judicial authority.

GUADRON J:	Yes, your concession that the evidence would have been admissible, evidence of other sexual acts would
have been admissible, may not be well founded to the extent that whether or not those acts occurred was in
issue in the trial and different considerations may
then come into play as to admissibility, different-
from those which come into play when the occurrence of
those acts is not in issue.
DAWSON J:	In other words, you have to establish the similar facts before you can rely on them.

MR BATES:  Yes, Your Honour. The question of whether these

other acts of sexual intercourse were similar fact or

not was never an issue at the trial and my submission

is that they were tendered, as I said before, as

elements of the actus reus. Had they been tendered

as similar fact evidence, then no doubt argument would

have taken place at trial as to the admissibility of

those facts, but, of course, that never took place

because the issue was never raised. The only

argument as to similar fact evidence concerned the

acts of indecent assault and masturbation, et cetera,

which are alleged in evidence, which occurred as

surrounding or peripheral matters to the acts of sexual

intercourse and that was adduced to show - - -

BRENNAN ACJ:  This is an interesting argument now, but the

fact is that when the evidence was tendered at the

trial there was no objection to it. It was tendered

without objection and without reference to the basis

on which it was tendered, is that correct?

MR BATES:  I have to say, Your Honour, there was no objection

taken at trial.

DAWSON J:  But was there an objection to the course that the

trial was taking?

MR BATES:  The objection was taken by counsel for the defendant

prior to the empanelling of the jury when he complained
about the lack of particularity in the indictments and

sought an adjournment in order to compel the Crown to

produce further particulars and his application was

rejected. The particular matter which is the basis of

this appeal today really arose out of argument in the

appeal.

McHUGH J: Well, except at the bottom of page 8 counsel seemed

fairly close to taking the point - paragraph (e) on

page 8.

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MR BATES:  This was the only substantial argument as to the

admissibility of evidence or otherwise in the
argument which took place prior to the empanelling of
the jury which is to be found on those pages of the

appeal book.

TOOHEY J:  There is another aspect to it, is there not,

Mr Bates, that in the end it would seem that only two acts of intercourse were identified with any attempt

at precision, albeit that there were three counts in

the indictment?

MR BATES:	That is correct, Your Honour.
TOOHEY J:	Is it possible to say of those two acts into which

of the three periods, one, or other, or both, must

have fallen?

MR BATES: Clearly the first offence fell within the first time

period. We are unable to say with precision as to

when the second offence relating to the dressing up

in his wife's clothes occurred.

TOOEHY J:  When you say with precision you mean it is not

possible to say in respect of which of the three

periods it occurred?

MR BATES:	No, Your Honour.
BRENNAN ACJ:	The second act, as you refer to it, is that

based on page 22D because, if so, it appears to be

occasionally he did this?

MR BATES:	It is based on lines E and Fon page 22 and then the top of page 23.
BRENNAN ACJ:	That is not a single event, is it?
MR BATES:	JS said at the bottom of page 22:

actually inserted his penis after that.

The first one I can remember, he

My reading of that was that she was saying that the

fir~t time he dressed up he actually inserted his

penis.

TOOHEY J: As to the first count on the indictment, there being

an identifiable act of intercourse said to have

occurred within the period specified in the indictment,

do you have any complaint about the conviction on

that count?

MR BATES:  Yes, Your Honour, because although evidence was led

on that particular incident, evidence was also led

of other offences of intercourse within that period

of 12 months and the appellant does not know which of

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the acts of sexual intercourse the jury found him

guilty of. It may be - of course, one can assume

that the jury found him guilty of that first act

because that was the one which was put to them in

greatest detail, but that is only an assumption.

DAWSON J:  The Crown did not specify that first instant as

being the one on which it relied in relation to

count 1 in the indictment, did it?

MR BATES:  No, your Honour. The further problem which arises

out of the drafting of the indictments is that
counts 2 and 3 overlap by a period of 47 days and

so it is not known whether - if the jury found an

act of sexual intercourse occurred within that period

of 47 days the appellant does not know whether that

was the finding which convicted him on count 2 or

whether that was the finding which convicted him on

count 3. Of course, as I mentioned earlier,

Your Honours, one can speculate, one can take a

common sense approach and say the jury would have
found the incident which was put to them in the

greatest detail but, in my submission, the

conviction shoul<l not stand on the basis of

speculation after the event.

DAWSON J:  The more likely thing is the jury said, "Well, he

did it on one occasion or another. We don't have to

bother about when", because that was the way in

which - - -

MR BATES:  That would be the most likely approach. The

totality of the evidence was such that they were
prepared to convict him on the basis of all three

counts.

BRENNAN ACJ:  This is where I have the greatest difficulty at

the moment, Mr Bates. I can see all the logical and

technical arguments which you advance and which, to

my mind, are rooted in sound principle which are

designed to protect individuals from miscarriages of

justice, but having regard to the presentation of

this case and the way in which it was done, whether

your argument be right or wrong, I do not at the moment

understand how it was that your client has suffered

any injustice.

DAWSON J:	There is none.
MR BATES:	Your Honour, my only submission is that a man should

be convicted according to law and my submission is

that he was not convicted according to law.

BRENNAN ACJ:  Yes, well that is a good argument, or a good

answer, I think. That is it, is it?

MR BATES: It has to be, Your Honour. I mean, if one reads

through the totality of the evidence one may well

PlTJ/3/HS	15	24/10/89
LFS

take the view that prison is the best place for

the appellant but my position on behalf of the

appellant is that he was simply not convicted

properly in accordance with legal principle and,

therefore, he should be retried for whatever.

DAWSON J:  And there is authority which establishes that on

occasions when you just do not have a trial at all

in the sense that the procedures are so departed from,

that in itself is a sufficient miscarriage of

justice.

GAUDRON J:  And, in any event, objection was taken. At

various points objection was taken to the lack of

particulars, to the admissibility of the evidence in

the form that it - - -

MR BATES:	Yes, Your Honour.
GAUDRON J:	Was there objection to the summing up?
MR BATES:	I do not think there was, Your Honour.
BRENNAN ACJ:	Yes, Mr Bates, is there anything further you

wish to put?

MR BATES:  Do Your Honours wish me to take you through the

authorities which support the proposition that I am

putting to the Court?	I have citedthe authorities in
my outline of argument.

BRENNAN ACJ:  Do you wish to add anything to them?

MR BATES:  I do not wish to add anything to them. I simply

put to the Court that there is substantial authority

for the propositions that I am putting to the Court

and there are various extracts from the cases which,

in my submission, are pertinent to my argument.

They are in my outline of submissions. If Your Honours wish me to deal with them orally I will.

BRENNAN ACJ:  No, we can usefully read them for ourselves,

thank you, Mr Bates, but what would be of assistance

is when your photocopies arrive if they can be handed

up so that we can see them in their context.

MR BATES:	Yes, I apologise for that, Your Honour. In that case, Your Honour, I have nothing further to add at
this stage.
BRENNAN ACJ:	Mr Murray.
MR MURRAY:	If it please the Court, I pass up to Your Honours an outline of the respondent's submissions.
Your Honours will see that I have really developed
an argument at a number of stages and, if I may, it
is perhaps convenient to deal with them briefly in the order in which the outline proposes.

PlT3/4/HS	16	24/10/89
LFS

In the first place we sought to address the

issue of the form of indictment as a piece of
criminal pleading as to whether it was adequate 1n

those terms.

BRENNAN ACJ: 

Perhaps you might let us have a look at the notes

of argument first, Mr Murray, before you proceed to
develop them.

MR MURRAY: 

Yes, certainly.

BRENNAN ACJ: 

Yes, Mr Murray.

MR MURRAY:  If it please Your Honour. Your Honours, you will

see the one thing we have not addressed in the outline
is the question of the admissibility of evidence and

we did that on the basis that the extent of the

objection that was taken at trial, apart from the

fact that the matter was not sought to be raised anew

by way of application for special leave to this Court.

The matter was one dealt with as it arose in the

Court of Criminal Appeal in accordance with the

application of what we would conceive to be ordinary
principle and so far as the matter was the subject of
objection at trial it was that objection to which the

Court has drawn attention which is to be found at page 8 of the papers, which was concerned not with

the admissibility of evidence of a number of unspecified

acts of intercourse in the sense that they would constitute

the offence of incest as between father and daughter but

is respect of the admissibility of the surrounding

material which was generally described as being

evidence of indecent assault.

Whether that was an accurate description of

the way in which the matter was developed at trial
or not is a matter of no moment, but it was that

material to which objection was taken and dealt with

by the court at trial. So the matter is to be approached,

in our respectful submission, upon the basis that the

evidence produced at trial contained the degree of

would submit to Your Honours that the matters before	particularity which was possible to give and we	the Court, if they do not include a question of
duplicity of indictment, really fall to be dealt
with upon the basis of uncertainty in terms of the convictions recorded and so we would propose, if we
may, to develop it in that way and that is the way
we think that the point at issue is sought to be
developed in the draft notice of appeal, that we
started with a proposition which, I think, now seems
to be accepted, that the indictment was valid on its
face and in no sense implicit as to the way in which
it was presented and, indeed, that it accorded with the
obligations by way of pleading which the CRIMINAL CODE
of this State would impose upon the prosecution, simply
giving those particulars which were within the
prosecution's power in relation to the way in which the offence was committed.

PlT3/5/HS	17	24/10/139
LFS

One starts with a proposition in that regard that

under the CRIMINAL CODE provisions, as at common law,

the question of the particularity with respect to
time or date is not, prima facie, a material matter

unless it becomes so either by way of presentation

during the course of the proceedings or by way of

some other factor associated with the trial and that

would be the way in which the Code would develop it,

particularly in respect of the provisions of

sections 582 and 590 of the Code which are simply

formulated in those sort of terms.

BRENNAN ACJ:  But they are in relation to individual offences.

This is a case where, on the evidence, the charging of

a single offence within a lengthy period of time

necessarily referred to a, or possibly referred to a
series of acts and therefore the problem is one of

inherent duplicity.

MR MURRAY:	I am sorry, sir?
BRENNAN ACJ:	The problem is one of inherent duplicity, having regard to the evidence.
MR MURRAY:	Our submission would be that it would not be seen to

be a matter of duplicity because clearly each count

in the indictment refers to one act.

BRENNAN ACJ:	Which?
MR MURRAY:	That was impossible to say, of course.
BRENNAN ACJ:	Well then that means that the count in the indictment applied indifferently to a number.
MR MURRAY:	And, in our respectful submission, it would then be of vital importance that the trial judge should direct the jury in a way which would ensure that their
conviction remained certain, that they were making a
choice to find an act of the character referred to in the indictment which occurred within each period.

BRENNAN ACJ:  Why should the trial judge so direct when the

Crown had refused to elect?

MR MURRAY:  If it please Your Honour, the answer to that question

would lie, in our submission, in the need to ensure

certainty of the conviction. The Crown was unable,

in any meaningful sense, to elect in respect of any

matter.

BRENNAN ACJ:  Could it not have said first, second, third,

fourth, fifth or sixth?

MR MURRAY:	It would have added nothing for the Crown to say, year 1980 11 •	"We rely on the first occasion which occurred in the
PlTJ/6/HS	18	24/10/89
LFS

GAUDRON J:  You could have elected in terms of the two acts

of which specific evidence was given if you could put

them in different time periods.

MR MURRAY:	Which we were unable to do, if it please Your Honour.
GAUDRON J:	Or you could have framed your indictment quite

differently. You could, for example, have over the period

of the two years nine months alleged two acts of

incest being those of which you were able, in the

end, to adduce evidence as to specific events.

MR MURRAY:  Yes. One would have had to extend the period out,

upon my understanding of the evidence, to a period of

about four years.

GAUDRON J:  Yes, but having done that, notwithstanding the

difficulties inherent in it, the defendant would at

least have known what he was supposed to answer to.

MR MURRAY:  Well, if it please Your Honour, no suggestion of

prejudice arose out of the fact that the indictment

was not presented differently in that way.

GAUDRON J:  But is not duplicity, whether based on uncertainty

or otherwise, essentially a matter of prejudice?

MR MURRAY:  If it please the Court it would be so, if uncertainty

were established but, in our respectful submission, the
way in which the matter was presented to the jury by

His Honour the trial judge prevented any such problem

and, as we have submitted, no question of duplicity

in the formulation of the indictment in any count

arose. Each was capable only of referring to an

act of incest occurring within the nominated period

and Your Honours, I think, do not require me to go

back to the evidence that was given by the complainants

and it appears solely between pages 20 and 23 of the

papers relevantly but it is clear that there was an

incapacity, for example, with respect to the first occasion as it appears she was describing when the

only thing that distinguished it was that her memory

of it was that it caused her pain.

There was an incapacity to nominate even whether

that occurred during 1980 or at some time during 1979.

TOOHEY J:  Mr Murray, is it right to say that there was no

other evidence from which it would be possible to

identify either of those events or any event by
reference to the one year period specified in each

of the counts?

MR MURRAY:  The totality of the evidence with deals with that

is that which appears between pages 20 and 23 of

the papers, if it please Your Honour.

TOOHEY J:  Thank you.

P1T3/7/HS	19	24/10/89
LFS

MR MURRAY:  The difficulty, if one gets past that first act,

which one could not do, as to when it occurred, is

to then be confronted with her evidence which I think
some members of Their Honours on the Court of Criminal

Appeal thought might have led to a conclusion that it

happened once every couple of months or approximately

six times a year but not even that is clear with any
degree of capacity to enable the Crown to indict
with respect to any particular month or any particular
period of months, or any particular period during

the year.

McHUGH J:	Mr Murray, was it not open to the Crown, after the evidence was led, to elect as to what particular act
was relied on, even if it was identified only by the
transcript, then a conviction could be drawn up in general terms but if subsequently an issue arose of
autrefois convict or autrefois acquit, that issue,
if necessary, could be tried by reference to the way
the trial judge had directed the jury, but here you
have not got the faintest idea what this accused has
been convicted of or acquitted of, perhaps.
MR MURRAY:	Your Honour, you have precisely, in our respectful

submission, you have the accused convicted, the

applicant convicted of one act of incest during

the period of - three acts of incest, in total, one

during each period nominated in the indictment.

McHUGH J: 

Yes, but supposing he was put up tomorrow and charged

with incest in relation to the evidence at page 21 of
the record about the first occasion and that was

identified.  Now, could he pleade autrefois convict

in respect of that or autrefois acquit?

MR MURRAY: 

If the charge was of such an offence committed during the period covered by the three counts of this

indictment,yes, he could, and I should say immediately

that I make that observation to Your Honours that it is

made simply upon the basis of the general formulation of the capacity to make that plea within the CRIMINAL

CODE and we discovered no authority in which the

prosecution had attempted to bring such a charge and

been confronted by a plea in circumstances of a

conviction like this but if one goes to the Code the

operative provision is section 17. Perhaps I might

take Your Honours  there immediately because it is,

in our respectful submission, a good way of testing
whether there was any prejudice or difficulty which

was occasioned by what we would assert were certain

convictions during the period.

BRENNAN ACJ: 

I suspect, Mr Murray, that if you were able to

bring this within section 17 you might establish

beyond all reasonable doubt the validity of the complaint

that is made in-chief by the appellant.

PlTJ/8/HS	20	24/10/Sq
LFS

MR MURRAY:  If it was to be brought within section

BRENNAN ACJ:  If you were able to bring this within section 17

you can only do it on the footing that he might have

been convicted on this indictment of an offence for

which he was not convicted on this indictment.

MR MURRAY:  I see what Your Honour means. With our

respectful submission, it is not to be developed 10

that way at all with respect to section 17, with

respect. The submission we would make is that he

has been convicted of an offence committed during

the period and it is impossible to say with any more particularity than that when it was convicted and so

there would be - - -

GAUDRON J:	But not a specific offence?
MR MURRAY:	Yes, a specific offence, Your Honour, one committed

within that period.

DAWSON J:  A separate offence but not a specific one. You

cannot specify which it was.

MR MURRAY:  I do apologise. Your Honour is absolutely right,

of course, a separate offence but not a specific
offence because there was a total incapacity to

provide any specificity, if that is a word, in

relation to it.

GAUDRON J:  If you cannot charge a specific offence, whether

specified by way of particulars or otherwise, I wonder

how you can prosecute.

MR MURRAY:  Well, I think, with respect, Your Honour is right.

~ cannot see that one could.	I think the consequence
lS - - -

GAUDRON J:  But must that not be so in any event? You cannot

charge people, can you, with crimes at large?

MR MURRAY:

Indeed, Your Honour is absolutely right, with

phrase which said that these were charging crimes at
large, but crimes were charged with as much
particularization as was possible and the trial was
handled in a way which prevented any prejudice arising

respect, but we would not agree with a descriptive

by reason of the form of the indictment. Perhaps I

should go back to just deal with section 17 of the

Code by making the submission that it falls directly

within the wording of the provision which provides:

a defence to a charge of any offence

to show that the accused person has

already been tried and convicted or
acquitted upon an indictment on which

he might have been convicted of the offence

with which he is charged.

P1T3/9/HS	21	24/10/89
LFS

Your Honour Justice Brennan, if we might, takes

the point upon us that does that not mean that one LS

asserting that in relation to this indictment that

can only apply simply because one cannot identify

with which particular act he has been convicted.

BRENNAN ACJ:  Now, if you proposition is right - and let us

say that there were two acts in the first period,

he has been convicted of one - on your argument he

can plead section 17 when he is charged with the other.

MR MURRAY: If it was presented in this way, yes. If one could

say that there were certainly two acts within a

particular period Your Honour would be right, in our

respectful submission.

. .

BRENNAN ACJ:  The hypothesis is that in relation to the first

period he might not only have been convicted of the

offence of which he was convicted, a conviction which

you seek to uphold, but he might have also been

convicted on the other charge which comes now within

section 17.

MR MURRAY:  That the jury may have convicted him of the two

offences on one count.

BRENNAN ACJ:  Might have convicted him. That is what section 17

says.

MR MURRAY:	He was in jeopardy of conviction.
BRENNAN ACJ:	Yes, therefore the count was demonstrably

duplicitous.

MR MURRAY:  In our respectful submission, that would not be so.

The count simply alleges the commission of one offence during the period and there may, in the circumstance

that Your Honour presupposes to me, in our submission,

be cause for concern in relation to the certainty of

conviction, if that truly is a different matter, but

it seems to us to be convenient to deal with it

separately in that way. In other words, it is not a

matter which goes to the propriety or validity of

the indictment. It is a question which goes to whether

or not one can say with clarity of what he has been

convicted and all that is required for the purposes

of section 17, in our submission, is to know that he

has been convicted of an offence of incest which has

occurred within that period. Then he has ample

protection in relation to any other charge which may

be brought.

Now if, in the alternative, the Crown had in this

case elected to rely upon the first act of incest which

occurred within any period, I suppose the Crown might

then subsequently lay a fresh indictment which

particularised the second such act in the period but

PlTJ/10/HS	22	24/10/89
LFS

it did not choose to do that and therefore, in a very

real sense, without in any way making uncertain the

nature of the conviction, in our submission, accorded

adequate and full protection from an autrefois point
of view, and our submission is that the applicant
cannot draw any strength or support by referring to

problems with respect to autrefois convict. The

problems do not, in our respectful submission, exist

and it is simply by reason of the question of the jeopardy at which he was placed at conviction in

relation to a particular form of indictment.

Now, we have been able to find but one, I think,

authority which may be of assistance in relation to the type of case with which the Court is presented

and that is the authority of CONLEY, (1916) VLR 639.

It is a decision of the Full Court of the Supreme

Court of Victoria and it was a case of unlawful carnal knowledge on which the presentment was much tighter

than was the indictment in this case. As Your Honours

will see from the headnote, the charge was:

that the offence was committed

"in the month of July ..... "

It is convenient then to simply look at the headnote
to illustrate the way in which the problem arose during

the course of the presentation of the evidence because

it was that during the particular period - and again

it seems to have been a problem which was caused by

incapacity to produce evidence from the victim

alleged in a more tight form various acts that occurred

and it could only be said that one must have occurred

during the month of July, but the evidence, as the
headnote notes, and as is developed at more length in
the judgment, did not distinguish any one of these

occasions from any other which is indeed the position

which had occurred here.

Now the submission that was made was that it was a question of duplicity and the way in which the court

dealt with it, in the judgment of the court delivered

by the Chief Justice at pages 643 particularly and

following - it is to be picked up really in that last
paragraph on page 643, and there is a reference at the

top of the following page to the evidence which is

summarized in the headnote, and so as the argument

was developed it was dealt with by Their Honours in

that last paragraph in their conclusion:

But in the present case the charge 1s merely that the prisoner committed an offence in the month of July 1915. In

the matter of his defence the prisoner

was at no disadvantage. Assuming that

he was entitled to ask that a particular

date should be specified, he did not do

PlT3/ll/HS	23	24/10/89
LFS

so and was content to take the

presentment as it stood. He was not

embarrassed or prejudiced at the trial.

We therefore think that the pleading

was sufficient, and the proof was

according to the pleading and, therefore,

as the pleading was not demurred to,

there was good proof of a good pleading.

In our respectful submission, the same sort of answer ought to be given in this case and the question really fell to be dealt with upon a motion to quash the indictment and the capacity which the Code allows in

respect to an accused person in that regard is

articulated in section 614, if I may take Your Honours

to that. The ground is one of two, either that the

form of the indictment:

is calculated to prejudice or embarrass

him in his defence to the charge, or

that it is formally defective.

Now, formal defect was not available in these

circumstances, in our respectful submission.

(Continued on page 2~

PlT3/12/HS	24	24/10/89
LFS

MR MURRAY (continuing):  What was being said in what was formulated

as a motion to adjourn the trial so that particulars
might be provided was that there was some difficulty in

that regard, but as it developed, and as the evidence

was presented, it appears quite clear that there was no

such difficulty and there was no such prejudice or

embarrassment in the defence by reason of an incapacity

to particularize on a particular occasion; an offence

committed on a particular occasion rather than simply

a reference to the separate offences which were charged.

Each of the - - -

DAWSON J: Surely there is an embarrassment in having to defend

yourself in relation to an 1.mspecified and indeterminate number

of offences as opposed to one which is identified, to

which you can direct your attention. I cannot think

of any greater embarrassment.

MR MURRAY:  I must not let Your Honour's observation pass, with

respect, without picking up the reference to an

"irdeterminate number of offences". The number was

determined at three; no more and no less -

DAWSON J:	No, no, perhaps "offences" - "occasions" - an indeterminat,
number of occasions, any one of which might constitute
the single offence charged.
MR MURRAY:	Yes, and one wa:s dealing with a period of sane years before,

and it was quite clear during the evidence that there

was - I mean, the girl herself was unable to be any

more specific about these occasions, except that some

elements of indecency had occurred in a· shed out the

back of the house, and then, acts of intercourse

occurred during periods when she and her father were
alone in the house inside the house. N:Jw there was

never going to be any more particularization in terms

of evidence than that and, in respect of the occasions,

to have chosen the first such occasion in the year, or

anything of that description, advanced the matter not

one jot, in our respectful submission.

The accused always was going to be faced with a

situation,upon the presentation of this material, that

would leave the.time and date uncertain• lhless it is

to be - - -

DAWSON J:	The time and date do not matter, but the occasion, I am
certain, that is the important thing. In other words, what you are saying, the Crown was going to put its case on the basis that he did it on one occasion or
another, and it does not matter which, and that is an
embarrassing situation for the accused.

MR MURRAY: Well, the question, I suppose, that would arise under

section 614, is whether the Crown was entitled to present

a case in this form because the conclusion - - -

P1T4/1/FK	25	24/10/89
LFS

DAWSON J: Section 614 does not tell you anything about that.

Maybe the accused could have moved to quash the

indictment, but really the first s_tep was, was it not, to

ask for particulars which would specify~ not

necessarily in relation to time, but specify in relation

to the occasion, which were the offences which were

alleged, and if those particulars were not sought and the

trial proceeded, then it was proper for the Crown to

be put to its election and if it either gave particulars

or elected then there would be no embarrassment, but

the accused did all he could do in the first instance,

which was to apply for particulars, and he was

denied them.

MR MURRAY: Well, the submission we have made about that, of course,

is that there was an incapacity to provide particulars -

DAWSON J: That might mean there was an incapacity to prosecute.

MR MURRAY:  Well, it would be the conclusion that one would be

driven to, if it please, Your Honour.

DAWSON J: But, the basis for a prosecution cannot be that they

cannot do it the right way and therefore they can do it

the wrong way.

MR MURRAY:  If it please the Court, we would really, with respect,

take issue with the proposition that to do it in this

way was to do it the wrong way. The evidence could

never be adjudicated upon at all, unless it could be

adjudicated upon fairly in the context of the lack of

specificity which was available.

DAWSON J:	There are many cases which cannot be prosecuted for lack of adequate evidence.
MR MURRAY:	If it please the Court, if the conclusion is that

the matter could not proceed in the way in which it was

presented at trial in this case, then this would be

one such case.

DAWSON J: Yes.
MR MURRAY:	So, the choice really, in our respectful submission,

falls down to that stark observation. Either this was
a case where the indictment should have been quashed

becaus·e it could not have been remedied, and there

could have been no particularization or election in

any meaningful sense which would have advanced the

position of trial, or the matter proceeded as it did
with a contest which was not one of particular alibi,

but simply to deal with the observation that such

incidents occurred at a time when "father and I were

unobserved in the home" no other persons being present.

The defence that was put to that was, "No such incidents ever occurred. This is a fabrication upon

PlT4/2/FK 26 24/10/89

LFS

the part of the girl for various reasons which

would develop a trial". Now, there was no prejudice in

the presentation of the defence which arose out of the

form of the indictment or the lack of the available

particulars, and so our submission is that, indeed,

relevantly to - if it was not anindictrnent capable of
an amendment or capable of the provision of further
particulars to illuminate it, then it was not upon

the ground of prejudice or embarrassment in the defence

an indictment which ought to have been quashed, in our

respectful submission.

The other cases to which reference is made, and

was made before the Court of Criminal Appeal in relation
to this matter, are distinguishable, in our respectful

submission, because they deal with situations where one

can see clear prejudice and difficulty arising in the

particular circumstance of the case. I would, if I may,

just very briefly take Your Honours to those, or to just

some of them - - -

BRENNAN ACJ:  Mr Murray, before you proceed, could I just take you

back to the dichotomy which you were raising a moment

ago, as to whether this was a case which had to be

prosecuted in this way, or not at all?

MR MURRAY:	Yes, Your Honour.
BRENNAN ACJ:	Could I focus your attention on the first occasion,

because it may be that having regard to the reference

by the prosecutor to the transcript of the committal

proceedings which were in the possession of the

accused, one might have understood that particulars

were being furnished in the sense that there was one

item which was described with some particularity, and

therefore it was one of the counts that was charged?

Now, is that the way in which you put it?

MR MURRAY:	No, if it please, Your Honour, as I understand - - -
BRENNAN ACJ:

You do not suggest that the first event was one of the Crown elected to proceed on that first occasion?

those that was specified in the indictment, or that

MR MURRAY:	It did not make such an election, Your Honour.
BRENNAN ACJ:	No.

MR MURRAY:  Is that the point that you were putting to me? And

the reason for that, as I have understood it is, the

difficulty of determining when that occurred, and

whether that was an act which was - - -

BRENNAN ACJ:  That may be so. I understand your submission there.

McHUGH J:  The way it was put to the jury appears at the bottom
of 93, 94 in the sumning up where the trial judge said, the last lirn
on 93:

PlT4/3/FK	27	24/10/89
LFS

You have to be satisfied beyond reasonable

doubt that at least on one occasion during

each of these -

three -

years there was such penetration.

And, again at 94D:

Crown says there were acts, at least one act,

in each of those periods.	You must be
satisfied to that.

MR MURRAY:  Yes, and that is indeed so. But I did not think

that Your Honour Justice Brennan was drawing my

attention to that sort of proposition.

BRENNAN ACJ:  No, I was wanting to take you to thi. s proposition, that

at all events if the jury was satisfied beyond reasonable

doubt that the first event as described had taken

place, could they have convicted on this indictment

in respect of that finding?

MR MURRAY:  No, I think not because I think it would have been

impossible for them to be satisfied it occurred during·

1980. That is the short answer, I think.

BRENNAN ACJ:  Yes, so that in substance then, the

first act of intercourse was not charged in this

indictment.

MR MURRAY:  It may or may not have been, you see, Your Honour.

BRENNAN ACJ:  If it was charged, was evidence of subsequent acts

within the fi.:i:st period admissible, and if so, on what

basis?

MR MURRAY:  Our submission is that the material would have

been admissible, and was admissible and was admitted

and relied upon to establish the nature of the

relationship between the parties to assist the jury

to a conclusion that on one occasion during each
period such an act of incest occurred and to rebut

the defence of purely innocent association as between

father and daughter.

BRENNAN ACJ:  Was that evidence capable of proof, or making it

more likely that the act of intercourse on the first

occasion took place?

MR MURRAY:  That the act of intercourse on the first occasion took place?

BRENNAN ACJ: First occasion.

MR MURRAY:  It was evidence which would support her evidence

that such an act occurred, yes, and that was the issue
to which that would necessarily be directed if one were

relying upon that first act.

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BRENNAN ACJ:  So that would be evidence of either a relationship

or a similar act.

MR MURRAY:  The subsequent evidence would, yes, be evidence within

that field of admissibility,if it please Your Honour.

BRENNAN ACJ:  But it is uncertain whether or not the first event

was charged in the indictment, or not?

MR MURRAY:  Yes.

McHUGH J: That means also that section 17 would be no defence

in relation to that, does it not - if he was now

recharged with that particular offence?

MR MURRAY: Yes,it would, Your Honour, because there would be

incapacity to determine that it was not a matter which

was covered by or within the period of the indictment

and so there would be no capacity to deal with that upon

the basis of the evidence which is now led.

GAUDRON J:	What if the complainant's memory improved?
MR MURRAY:	I beg your pardon, Your Honour.

GAUDRON J: What if the complainant's memory improved and she

could now give evidence that it was outside that period

charged: would section 17 operate then?

MR MURRAY:  No, Your Honour.

GAUDRON J: It rather highlights the problem, does it not? If the

MR MURRAY: In our respectful submission, not, Your Honour. It

simply draws the point that the autrefois plea

depends upon the jeopardy which the indictment and

the trial of it created. And the jeopardy was of a

conviction of incest within a period which commenced

on 1 January 1980 and ended with the end of the

period -

GAUDRON J: And so, if her memory now improved and she could

say, "No, that first event occurred in 1979",

section 17 would not avail.

MR MURRAY: Clearly not, if it please Your Honour. But, as I say,

the formulation of the indictment,

the point at which . . . . . arose, is demonstrated by the

fact that, as her evidence at page 20 demonstrates,

there was an incapacity to say clearly - and perhaps

that effectively answers in any event Your Honour

Justice Gaudron's point about her memory improving

at this stage, I do not know - but there was an

incapacity to say whether or not such acts of incest

or any acts of incest occurred during 1979, or she

could say that it was when she was in high school, and

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she started high school in 1979 and it was around

about that time, and that she had clearly a memory

of this first act. If I may, I will just go back to

the proposition which I was about to look at, and
to see if I could indicate to Your Honours the

circumstances in which one might well conclude that

a difficulty arose which had occasioned a miscarriage

of justice, and simply say that it was not this case.

In the outline, really I suppose, I have endeavoured to formulate it upon the basis that the difficulty

does not arise simply because the jury had no capacity to choose between different acts within the particular

period. The conviction was certain because they were

asked to all agree and be unanimous that an act

occurred during the period. The problem would arise

if there were a number of specified and specific acts

which were developed within the period as to which

some of the jury may have taken a particular view

about some of them occurring and some may have taken a

view about others, and the cases which deal with this

sort of problem are all within that sort of category

of case, and PARKER V SUTHERLAND, which I have cited

accordingly, at 116 LT 820, is really such a case.

It was a case which arose, Your Honours, under the

wartime legislation which prohibited treaty and

Your Honours will see that upon a complairt:which was

upon information which was in terms, as the headnote

notes it, that the defendant:

"unlawfully did supply certain intoxicating

liquor to persons in the said licensed

premises for consumption"-

so, looking at that it may be, indeed,that there was

one act of supply being alleged in the information

but, as Your Honours will see from the way in which

the headnote reports it, the evidence as surmnarized there indicates that there were in the end two acts of supply which were approved, and there was no

action taken in the course of trial to determine of
which there was a conviction.	So that was a case

simply, in our respectful submission, of uncertainty

because there were two clear and specific acts
which the conviction was capable of referring to, and

no capacity to say which it was, and so upon that

basis the conviction was set aside, and that is

consistent, in our respectful submission,with the

submission we make to this Court, but it was not, as

I say, this case.

JOHNSON V MILLER, in this Court,

59 CLR 467, is an even more pointed case of that

character, if one was possible, because that was a

case which was brought under the South Australian

LICENSING ACT, and the offence which section 209 of

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that Act provided, which is set out on the first

page of the report there under the headnote, as

Your Honours will see, provided an offence for the

licensee which was cotmnitted not by reason of any

act which he did but in respect of persons who

were observed to be on or to come from licensed

premises during closed hours. He had a capacity to

provide certain - they were provided to in certain

specifid defences, with respect to such a complaint,

and they were:

that the person - (a) was not on the

premises for any purpose ..... contrary to

the provisions of this Act; or (b) was on
the premises contrary to the will of the

licensee ... and that the licensee -

had taken reasonable steps to prevent him from

being there and to remove him from the premises, or

that he was there without the licensee's knowledge

and the licensee had exercised practicable diligence

to prevent that occurring.

And so, it was necessary, clearly, under those circumstances, to deal clearly with respect to the

particular occasion of the person seen to come from the

premises.	The evidence, as Your Honours see, was
simply that:

Thirty men were seen coming in or out of the premises between the times stated -

and all that was done was to present that material in

the context of a complaint which simply referred to

a certain person having come from the premises at

that time. Now, the Court held that the complaint

was rightly dismissed upon that basis because it was

defective in the particularization which had

occurred, having regard to the nature of the offence

which was being charged. Again, one can readily

see, in our respectful submission, the force of that

offence, one should not leave this topic without	decision. And, I suppose, in the context of a sexual
just simply referring to the very short note of
JONES V R,(1980) WAR - it is not the distinguished case. to which my learned friend was referring a little earlier - and that was a case, again which was a case of rape, and I think I saw that Your Honour Justice McHugh
had that case handed to you a little earlier, that
is why I thought I would mention it. It was a
different case from the one that was referred to
before.

It is only a short two-page note of the

decision. It was a conceded appeal, that one, but

the court made just very brief observations explaining

PlT4/7/FK	24/10/89
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the basis of it, and as Your Honours will see,

there was one occasion charged, two acts of rape

alleged or proved, and no election, no indication

as to which it was that should constitute the

offence cormnitted in accordance with the indictment.

Now, there one was dealing again with specific

occasions which were particularly identified, and

there was a need to make a choice between them, and

so in the failure to do that lies the force of the
observations which the court made,that in the absence of

that the conviction was uncertain and a new trial

should be ordered. But, again, in our repsectful

submission, this is not that case, and as we would have

it and submit to Your Honours, any difficulty in

relation to the question of uncertainty of

.

conviction was cured by - once one sees that there

was no prejudice, in our submission, in the way in
which the case develops, so far as the applicant

was concerned and his capacity to defend the case was

concerned.

The other point that is to be made is whether

or not it is clear that there was a certain conviction

at the end of the process, and as to that the

passages which appear in the papers in His Honour's charge to the jury are of some importance, and they

start it at page 92, by simply picking up that material which is around line A and down to line Bon that page

start at page 92 of the papers -I think two of them

which concerns itself with the fact that as the jury

were being introduced to the problem at that time

they must deal separately with respect to each of

the three charges and give separate consideration to

each charge.

The observations develop more point, as

Your Honours have observed, by the time one comes to

the bottom of page 93, in the line to which reference

has been made:	You have to be satisfied beyond reasonable
doubt that at least on one occasion during each of these years there was such penetration.

And, then a little further on, after reference to

the head-on collision at about line A:

The daughter saying it did happen on at least 3 occasions, and the accused denying

that those acts happened, or in fact any
acts of indecency happened between him and

his daughter -

and there is reference to her evidence. There is
reference at line C to reminding the jury of the

nature of the indictment - there is no particular

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date specified, and some observations about that,

including with the proposition, as we have seen,

that the Crown says:

There were acts, at least one act, in

each of those periods. You must be

satisfied to that.

And finally, as His Honour concluded his remarks

just before the jury retired, at the bottom of

page 96 between lines D and E there is a paragraph

that starts:

That nearly completes my remarks to you.

His Honour observed:

The central issues for you to determine in this case is whether on the 3 occasions cited in the indictment, the accused did have carnal

knowledge of his daughter -

and then he went on to say to them that they must

bring in three separate verdicts and that those

verdicts must be unanimous. So the jury were being instructed to be satisfied that on one occasion, an

unspecified and indeterminate occasion within each

period covered, they were unanimously satisfied that

an act of incest occurred.

I think really that was the basis upon which

the matter was dealt with by the majority in the

Full Court, and unless Your Honours have any

particular points that you require of me, I have

covered the ground, if it please the Court.

BRENNAN ACJ:  Mr Murray, would it be right to say that the way

then in which the Crown put its case and the way

in which the jury was charged, was this: that the

relationship between the father and daughter was one

of sexual connection during those three years? No

particulars are furnished as to particular dates or

occasions, but the jury had to be satisfied that

that relationship existed during that three years

and that on at least one occasion during each of

those three years an act of intercourse had taken

place?_

MR MURRAY:  Yes, if it please the Court.

BRENNAN ACJ: Well now, the question can be raised quite

starkly, I suppose, whether or not - if that is the

evidence, if that is the way the case was presented,

whether it accords with the procedural requirements

of the CRIMINAL CODE.

MR MURRAY:  Yes, indeed, Your Honour, and as to that we have

sought to develop the matter in two different stages really. The first is to see that in accordance with

PlT4/9/FK 33 24/10/89

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the provisions of the CODE and requirements of

pleading, which accord with our understanding of

the common law in this area, and I have not gone

into that in any detail, but it is dealt with in
the earlier part of the outline, that the

indictment could not be struck down for duplicity,

it was a valid and proper indictment in its

formulation as an act of pleading, and that in

relation to the presentation of the case, no particular

prejudice to which the applicant can point, developed
in relation to the presentation of the material.

The convictions at the end of the day were certain and clear, and if one tests it by the developm:nt of the

autrefois plea it had the fullest availability

imaginable by reason of the way in which the

matter was developed. If it please the Court.

BRENNAN ACJ:  Thank you,Mr Murray. Mr Bates.

MR BATES:	Your Honour, if I may just deal with two matters
raised by my learned friend.  As far as the case of
REG V CONLEY was concerned, Your Honours will see
that that particular case was heard in 1916 which
was, of course, prior to this Court's review of this type of problem in the case of JOHNSON V MILLER in
1937. In my submission, this Court dealt with the problem raised before you today in JOHNSON V MILLER
in 1937 in considerable depth and, of course, it
would be my submission that that decision should
be preferred over the case of REG V CONLEY. But in
any event, as far as REG V CONLEY is concerned,
Your Honours will see that there was a time frame of
one month specified in the indictment in that.case.
Your Honours will see that the appeal was heard within a year of the offences having been committed, so
that on its factual basis it is very different to the
present case - - -

DAWSON J: It rather appears that no objection was taken, nor

were particulars sought, does it not?

MR BATES: Well, that is the case, Your Honour, but what I would

put to the Court is that what we have in the present

case is a situation which occurred eight years prior

to trial, and was within a time frame of 12 months

and it is simply not the case that the appellant could
adduce alibi evidence: it was simply placed beyond his

capability, in my submission, because of the way in

which the indictment was framed. And, if Your Honours

look at the judgment of Mr Justice Cussen in the case

of REG V CONLEY, he says on page 646, second

paragraph:

As to the second question -

and the second question is the one which is being

ventilated before Your Honours today -

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I have some doubt, but, having regard

to the way in which the case was conducted,

and to the fact that it is clear that no

at which my learned brothers have arrived, I	injustice will be done, and to the conclusion
will say no more about it than this:

His Honour then refers to a section in the CRIMES ACT.

So, in so far as the specific point which is being

dealt with today is concerned, His Honour

Mr Justice Cussen opens his judgment on that point by saying that he has some doubt. When that case is

looked then against the context of all the succeeding

authorities an~ in my submission, it is not an

authority which should be relied upon in this case.

In so far as the matter of autrefois convict

is concerned, it is my submission that section 17 of

the CODE should be read in conjuction with

section 594 of the CODE. Section 594 of the CODE

provides that a person can be convicted of any offence -

if I could just refer Your Honours to 594. I am

trying to paraphrase it:

Except as hereinafter stated, upon an

indictment charging a person with an offence

he may be convicted of any offence which is

established by the evidence, and which is an

element or would be involved in the commission

of the offence charged in the indictment.

So section 594, in effect, allows for a lesser charge

or a conviction to be recorded against a lesser charge

where the indictment charge is a more serious offence

such as manslaughter or murder.

Autrefois convict, section 17, then precludes

a person being indicted again if he has been convicted

of a lesser charge on the same indictment. That is

my submission as how these two sections interact, and

if Your Honour looks - - -

BRENNAN ACJ:  It is not only 594, is it?

MR BATES: Well, no, it is 596 and otherswhich deal with specific

types of - - -

BRENNAN ACJ:  Other provisions in Chapter LXIII of the CODE?

MR BATES:  Yes, Your Honour. If Your Honour looks at the

authorities on autrefois convict, I have not been

able to find one which deals with a situation other

than where a person has been acquitted of a major charge and the prosecution have then attempted to

re-indict on a lesser charge, which arises out of the basis of the same indictment. In the case of

RV BARR°-l, we have sodomy and gross indecency, in

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the case of WEEDING unlawful wounding and

assault occasioning actual bodily harm, in the

case of O'HALLORAN V O'BYRNE, we have the case

of rape and carnal knowledge. So that these all

deal with situations where a person is attempting

to indict a person on a lesser offence which was

capable - upon which he was capable of being

convicted on the original indictment under provisions

such as section 594.

Now, in the present case, it is not possible for

the accused or the appellant- for the appellant to
have been convicted of the second, third, fourth or
fifth offences of incest on the indictments as
presented because the indictments only allege one
offence, so if you look at section 17, it is not
possible for him to have been convicted upon those
indictments for the second, third, fourth or fifth
offences, or subsequent offences because the indictment

only alleged one offence. And so, in my submission,

section 17 cannot apply to this particular factual

situation.

In conclusion,I would simply like to reassert the fact

that a lot has been made of the appellant's failure

to present a substantive defence. My learned friend

has attempted to distinguish the authorities cited by

myself on the basis that they include specific

defences which the accused could have availed

himself of. Again, I put to Your Honours that in

this particular case the appellant was prevented

the nature of the indictment from putting forward the

only defence available to him, namely that of alibi,

The defence of alibi is not inconsistent with the approach

he adopted at trial, namely of simple denial. The

two would run together: you would deny the offence and you would say, if it was open to you to do so, "And not only did I not commit the offence, but I was

somewhere else at the time". That second element, "I

was somewhere else at the time", was denied to my

client because of the way the indictment was framed.

So, unless I can assist Your Honours further,

there are the submissions for the appellant.

BRENNAN ACJ:  Thank you , Mr Bates . The Court will· consider the

matter and reserve its decision accordingly.

AT 11.32 AM THE MATTER WAS ADJOURNED SINE DIE

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