Libke v The Queen

[2007] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B1 of 2007

B e t w e e n -
JUSTIN PATRICK LIBKE
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 1 MARCH 2007, AT 10.04 AM

MR B.G. DEVEREAUX, SC: May it please the Court, I appear for the appellant with my learned friend, MR P.E. SMITH. (instructed by Legal Aid, Queensland)

MR D.L. MEREDITH: Your Honours, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Devereaux.

MR DEVEREAUX: Thank you, your Honour. Your Honours, the grounds of appeal fall into three categories: one relating to the cross‑examination by the Crown Prosecutor of the appellant; the second category, if you like, relating to directions given by the trial judge to the jury with respect to the element of consent and defences and including an argument about some written directions; the third category is whether the verdicts were unreasonable.

If I may move straight to the cross‑examination ground. The appellant, Mr Libke, was giving evidence in his defence at his trial in the District Court in Brisbane on some serious charges of sexual offences. He was subjected, in our submission, to questions that were likely to be confusing that contained statements against him that he was not given a proper opportunity to answer and that pitted the prosecutor against him in a personal way. He was interrupted when answering and his answers were criticised. Some questions contained statements that were ‑ ‑ ‑

GLEESON CJ: It sounds like an argument in this Court.

MR DEVEREAUX: Yes, except I am expected to be able to deal with that.

KIRBY J: Good answer.

MR DEVEREAUX: We will see how that goes.

GLEESON CJ: We will reserve our expectation.

MR DEVEREAUX: Some of the questions also contain statements that really were for address and, because of the nature of those questions, we submit the appellant could not fairly deal with those. One example was the comment, “You’re a grown up man.” The effect of these sorts of questions was likely to be that the jury thought that the appellant was unable to answer some questions and propositions put to him and so that affected his credit; and that the prosecutor did not believe him, therefore he must be being untruthful; and that he did not finish his answers perhaps because he could not; and that his answers were not good enough for the prosecutor, so then why should we, the jury, accept him?

There were other questions which attacked his character, leaving the jury to reason that he was an unsavoury person and so a person not to be believed. There were other questions which contained passages from the complainant’s interview with the police which were put to him in a fashion which, we submit, made it very difficult, if not impossible, for him to fairly answer. The danger is that the cumulative effect of all these questions had an unreasonable and an unfair effect on the jury on their assessment of him as a witness of truth. That is one aspect of it, the assessment of him as a witness of truth. The other danger in the questions is that the questions about his character distracted the jury from their task. In this trial, in which ultimately the issues became quite complex, there was a very long summing‑up, and it is because of the complex issues in the case. Subject ‑ ‑ ‑

KIRBY J: The prosecution says that he actually handled the questions pretty well and gives a couple of examples. What do you say to that?

MR DEVEREAUX: First, we say that that is not the test for whether there has been a miscarriage of justice in a case where there is a ground of appeal relating to the cross-examination of an accused by a prosecutor. And, second, we submit that in any case, on a close examination it cannot fairly be said that the appellant was acquitting himself well or handling the questions. I can take your Honours to some examples of that later, if I may.

HEYDON J: One thing that worries me is there does not seem to have been any objection. Do you point to any examples of misconduct by the prosecutor before the luncheon adjournment on the day of the cross‑examination?

MR DEVEREAUX: Yes. We could, we submit, point out objectionable material on nearly every page of the cross-examination.

CALLINAN J: You take the question that Justice Mullins has set out on page 439 in paragraph [90]. The cross-examiner says:

anyway, I’m putting to you wherever you see a situation there that’s a problem you will thrash around to try to make up some explanation for it, whether it’s a van, whether it’s next door, whether it’s rashes, whether it’s moisturiser, whatever. Whatever. Do you want to comment?-- No, you’re commenting to me.

I do not regard that as handling himself exceptionally well. It is a perfectly true observation and it is a grossly improper question. It was not a question. And then, to compound it, the prosecutor says:

Hopeless asking a question.

How you can say that the accused, who is being cross-examined by an experienced prosecutor, handled himself well and that that is an answer to this sort of conduct, I do not understand.

MR DEVEREAUX: We submit, following from the passage that Justice Callinan has ‑ ‑ ‑

KIRBY J: Where is that “Hopeless asking a question” exactly?

MR DEVEREAUX: In the judgment, your Honour?

KIRBY J: No, in the transcript.

MR DEVEREAUX: It is towards the end of the cross‑examination ‑ ‑ ‑

HAYNE J: Page 239.

MR DEVEREAUX: Page 239. Thank you. It is important to go it because, in our submission, what happened straight afterwards is instead of the learned trial judge intervening in the manner we submit he should have, his Honour then continued to invite an answer from the witness, which we submit compounded the problem. It did not help at all. I have not responded to Justice Heydon’s question about before lunchtime. I am just looking for the luncheon adjournment.

HEYDON J: The luncheon adjournment is recorded on 203.

MR DEVEREAUX: Yes. Well, if I may just work back from that ‑ ‑ ‑

HEYDON J: I see a lot of interruption on 202.

MR DEVEREAUX: Yes, there is a lot of interruption there. There is the direct ‑ ‑ ‑

HEYDON J: My point is I understand the idea that it is tactically sometimes counterproductive to object to everything that is objectionable, but the matter could have been raised in a general way in the jury’s absence without them knowing about the problem just before the resumption after lunch or just before lunch itself.

MR DEVEREAUX: Yes. With respect, I take your Honour’s point. The problem with this kind of questioning is – and this applies to the proposition that the appellant managed to handle himself – is that it is the asking of the question that does the damage, in our submission. But there is nothing I can say, no. It is clear on the record that no objection was taken, for example, over lunchtime by counsel for the appellant.

HAYNE J: But is your proposition one that, although nothing was said by counsel for the accused at trial, the judge should of his own motion have intervened in the way in which counsel for the Crown was proceeding?

MR DEVEREAUX: It is, yes, your Honour.

KIRBY J: In due course you will take us to some authority. I mean, I know you have cited some and quoted it in your ‑ ‑ ‑

MR DEVEREAUX: What I propose to do is ‑ ‑ ‑

KIRBY J: Some authority from Australia and England on the judge’s role in that respect.

MR DEVEREAUX: Yes, I will, your Honours. What I propose to do, subject to direction, is to go to some detail of the cross‑examination, but not a lot because we have put it really in our outline, and then take your Honours to the cases, not to repeat what is in our outline but to refer to a couple of the international common law cases which highlight the role not just of the prosecutor but of the learned trial judge and which help to formulate some of the formulations which the Court might be interested in working on, as it were, because the ground of appeal is simply that there was a miscarriage of example.

In, for example, the New Zealand case of Roulston that court, as it were, formulated a test along the lines of whether there was a danger that the jury were improperly affected, and that was picked up in the Western Australian decision. It is a question for the Court whether there should be some sort of formulation adopted when the ground of appeal is as it is in this case.

KIRBY J: I mean, you are approaching it in the correct way. You are laying the factual ground and then we will come to the principle, but it is difficult to formulate a general formula because of the fact that judges do not want to say things that will stop a robust cross‑examination and make everybody tongue-tied. On the other hand, there are principles and limits, and especially in our tradition of the prosecutor for the Crown who is not conventionally taken to just be another litigant. It is a model litigant.

MR DEVEREAUX: No, indeed. We have put that in our outline and I am about to go to that right now.

KIRBY J: No, I think it is best to do what you are doing and that is give us the facts and then turn to the law.

MR DEVEREAUX: Thank you, your Honour.

KIRBY J: Is that the most egregious intervention where he says, “Hopeless asking a question”? I can think of the reaction of some judges I have known for a barrister making such a comment.

MR DEVEREAUX: In our submission, there are several other types - and that is why I opened my submissions by referring to different types of questions, but ‑ ‑ ‑

KIRBY J: In his cunning submissions Mr Meredith concedes that there were improper and wrong questions asked.

MR DEVEREAUX: For the prosecutor to say to an accused person giving evidence, “Look, I’m trying to make you understand that I’m not buying it”, in our submission, is terribly wrong. It enters personally into a dispute. It sets up the prosecutor, who in this case happened to be an experienced man.

CALLINAN J: It is also very unseemly. It is just not the way in which a prosecution should proceed. It is unseemly, it is aggressive, it is intrusive and it is unfair.

MR DEVEREAUX: Yes, it was. Not only does it have an effect on the jury, but it left the appellant in a difficult position trying to answer questions in his own trial.

CALLINAN J: It is destructive of any confidence the witness might have.

MR DEVEREAUX: Indeed.

KIRBY J: You make a good forensic point, I think, in your written submissions that it was specially a problem in this case because you bore the onus of proving the defence.

MR DEVEREAUX: Yes, in so many of the charges. In fact, in four of the charges of which the appellant was convicted he had an onus to discharge a defence, yes, and so ‑ ‑ ‑

KIRBY J: That is common ground, is it, that you bore the onus of discharging the defence?

MR DEVEREAUX: Yes, I imagine it is.

KIRBY J: You accept that?

MR DEVEREAUX: Yes. It is clear that it was common that the appellant’s credibility was an important issue in the case. Justice Mullins in the Court of Appeal said so herself and it was precisely on the point about whether he believed – what his belief was about the intellectual state of the complainant that the prosecutor, according to the summing‑up, called the appellant a liar, so there was a direct attack on his credibility on precisely the issue which was the defence that he had to discharge.

One matter which occurred to us since we wrote the outline in the cross‑examination was it was put as a fact to the appellant that when he went to the complainant’s house he parked his car down the road. No doubt it was the prosecutor’s design to address the jury on his being furtive and therefore being guilty. It was put to him, again we submit wrongly, by referring to what the complainant had said and it was put that she had said he parked down the road. In fact, she did not see the car. Her evidence in the police interview was that she did not see the car but that she asked him where the car was and he said it was down the road and he admitted that he said that, but it was an important point because it was put wrongly to the appellant and he was strongly challenged on it. May I take your Honours to that. In the record at page 198 at point 30 it begins with the question:

For example, the girl says you parked your car down the road?‑‑ Yes.

Now, if your Honours look then to the bottom of the next page to 199, point 55:

you have heard her say you parked your car down the road?-- Yeah.

We concede that the appellant is adopting this but in fact it is clear that he is not handling the questions well because she did not say that.

Did you tell her you parked your car down the road?-- No, she said –

and he goes into an explanation about when this conversation was between them. It was:

When she was closing the blinds –

The prosecutor intercedes there:

This was when you and she were in the heat of passion, was it?‑‑ No.
She asked where your car was?

And there is sarcasm there which we submit was uncalled for, but coming back to the point, at line 20 the appellant says that he was asked where the car was and he concedes he said:

“It’s down the road.”

That is put back to him and then at line 30:

Yes, it is. I put to you your car was in fact parked down the road because you wanted to keep as discreet as you could your presence at her house?-- Well, I was parked next door.

So, that became the issue and it became an issue of some importance.

Over at 237, your Honours, at about line 10 it is again put:

I put it to you, you left your car down the road, in fact, left the car down the road?

There is no evidence of that for the prosecutor to put it as such a fact, but he perhaps has misunderstood what the complainant told the police.

HAYNE J: Sorry, I am just not following obviously. At page 200, line 20, does not Mr Libke say that he was asked, “Where’s the car?”, and that he replied, “It’s down the road”. What is the point you are now making?

MR DEVEREAUX: The point is that evidence was about a conversation between him and the complainant at her house and he admits that he told her it was down the road. The point is that it was put to him as a fact by the prosecutor that it was down the road when, apart from what your Honour has just referred to, there is no evidence that in fact the car was down the road and it is his evidence at trial that it was parked next door. It is put again to him as a fact, as I am taking your Honours to now, at 237 at line 10:

I put it to you, you left your car down the road, in fact, left the car down the road?-- No.

The evidence of the complainant, in her interview with the police, and starting, your Honours, at 374 of the record at the top of the page – this is police questioning the complainant – she says in an answer:

I didn’t see his car at all.

She says a similar thing at about line 42:

I didn’t see his car. I said to him where his car was.

So there is a series of questions which really is ultimately consistent with what he said that she asked about his car and he said, “It’s down the road”. The point is that she did not see the car down the road but that was put to him as if she had said it as a fact and it set up an opposition between the appellant and the complainant and the disadvantage is that the prosecutor was putting an unfounded assertion of fact which, of course, had the implication, useful for the prosecution, that the appellant was being furtive and therefore he was guilty.

KIRBY J: I think that is a rather weak point given that he told her he parked down the road. If it is furtive to park down the road, whether she saw it or he told it, it is not differential. It does not seem your strongest feather.

MR DEVEREAUX: It is not, but ‑ ‑ ‑

KIRBY J: I think your first thoughts were best.

MR DEVEREAUX: Thank you, I should have sat down after them.

KIRBY J: No, you have to elaborate them.

MR DEVEREAUX: Your Honours, I have already addressed the point that Justice Mullins in the Court of Appeal considered that the credibility of the appellant was crucial and I have referred to the prosecutor making the attack in his address which is referred to by the learned trial judge in the summing‑up at 334 when, putting to the jury the Crown case, his Honour said, about line 10:

The defendant’s evidence was just lies, so said Mr Copley. Certainly lies when he said he didn’t realise that there was anything wrong with Sabrina.

I am addressing a point now with respect to the defence which the appellant had an onus of discharging. The defence was in the first place that he believed on reasonable grounds that the complainant was not intellectually impaired. Our submission is that there were reasonable grounds for such a belief and if that is so, then for the jury to reject and convict him the jury had to simply not accept his evidence when he said that he had that belief.

GLEESON CJ: Mr Devereaux, can I ask you a question about that provision of the statute and what it means. Does the defendant have to show that he thought about the question and entertained a belief on the subject? Where does that statutory provision leave somebody who never even directed his mind to the question whether the 18‑year‑old woman was intellectually impaired?

MR DEVEREAUX: Our submission in answer to that is that – and we do not have authority on the point – it does not require positive evidence. He does not have to get in the witness box and say, “Having spoken to her, I formed the belief ‑ ‑ ‑

GLEESON CJ: But what is the fact that the jury has to decide? Does the jury ‑ ‑ ‑

MR DEVEREAUX: I am sorry.

GLEESON CJ: What is the proper direction, if any, to give to a jury against the possibility that they conclude that he just never thought about the matter?

MR DEVEREAUX: The direction is simply that he has to satisfy the jury that he believed. That is the plain words of the section ‑ ‑ ‑

GLEESON CJ: What if he just did not think about it?

MR DEVEREAUX: And that it is open to them, in our submission, to draw an inference that he held that belief even though he does not expressly say so.

GLEESON CJ: I think I am trying to get you to explain to me what is the meaning of the concept of “belief”. Most people in their communication or interaction with other people do not turn their minds to the question whether the other person is intellectually impaired unless they think there is some reason to do so.

MR DEVEREAUX: Yes.

GLEESON CJ: If I have a conversation with somebody who up till then has been a complete stranger to me and somebody says to me later, “Did you believe that that person was not intellectually impaired?”, 999 times out of 1000 my answer to that question would be, “I never thought about it.” In that situation, for the purposes of the statute, do I have a belief that the person was not intellectually impaired?

MR DEVEREAUX: What would be in question then would be: what was your state of mind with respect to whether the person was intellectually impaired?

GLEESON CJ: If any.

MR DEVEREAUX: If any.

KIRBY J: Is not the answer to the Chief Justice’s question that because of the very privacy‑invasive, dignity‑invasive, potential of sexual assaults, intercourse, contact, that the law lays down certain requirements. One of them is a requirement as to age and another is a requirement as to mental incapacity to consent, and that Parliament by these provisions effectively requires that people do give thought to whether or not the person is of an age that can consent and is of a capacity mentally to give consent. Your client did I think check the age of the complainant.

MR DEVEREAUX: He did.

KIRBY J: Is it not the purpose of these provisions in the Code that they require that if there be any doubt at all, they are supposed to be satisfied that the person is of capacity to give consent both by their age and by their mental capacity?

MR DEVEREAUX: We submit that in the circumstances of this case, because of the inquiry made, there is sufficient evidence that this appellant did turn his mind to that question.

GLEESON CJ: I am sorry.

MR DEVEREAUX: We submit that because of the inquiry made that Justice Kirby was referring to just now, there is sufficient evidence that the appellant did turn his mind to the question ‑ ‑ ‑

GLEESON CJ: What question?

MR DEVEREAUX: As to whether the complainant was an intellectually impaired person.

GLEESON CJ: What was the inquiry?

MR DEVEREAUX: He asked her about her age, essentially, and the ‑ ‑ ‑

GLEESON CJ: Are you suggesting that he might have had some doubts about her intellectual impairment?

MR DEVEREAUX: That is what was raised by the Crown. He checked with her her age. His evidence about that was that he believed that that was the legal age for consent to sexual activity.

GLEESON CJ: All I was intending to suggest for your comment – and it does not seem to have been an issue. It is not an issue that is addressed by the trial judge and it does not seem to be an issue raised in argument, but it is a puzzle to me. There is a big difference between the question whether somebody does not know that another person is intellectually impaired and the question whether somebody believes that the other person is not intellectually impaired.

MR DEVEREAUX: Yes. My answer to your Honour the Chief Justice’s question is that if the answer is, “I had never considered it,” but then were pressed, “Well, what did you believe? Did you believe that this was a person who was not intellectually impaired or did you believe this was a person who was intellectually impaired? ‑ ‑ ‑

GLEESON CJ: “Or did you have no belief at all on the subject?”

MR DEVEREAUX: Indeed. We are dealing though here with criminal responsibility, and it is our submission that it could not be sufficient to convict a person, except to the extent that the provision establishes absolute liability, and that is arguable, I suppose, against us. But otherwise one is criminally liable for an act when there was no belief ‑ ‑ ‑

GLEESON CJ: I was just intending to raise a question of construction of the Queensland statute and perhaps you can come back to it again at some convenient time if you want to. It does seem to be a question relevant to your argument that the verdicts were unreasonable.

HAYNE J: If you are returning to it, for my part I would be assisted by any comparison that you say can or cannot be drawn between what I will call the intellectually impaired provision and the age provisions. I have in mind especially section 215, “Carnal knowledge with or of children under 16”, and I would be assisted by what, if any, light is to be shed on that provision by section 229, which provides that:

Except as otherwise expressly stated, it is immaterial, in the case of any of the offences defined in this chapter committed with respect to a person under a specified age, that the accused person did not know that the person was under that age, or believed that the person was not under that age.

Now, there is evidently a number of steps that would have to be taken if you were to gain any assistance in understanding the intellectual impairment provisions and it may be that some or all of those steps are steps that should not be taken but, if you are to return to it, I would be interested in what, if any, comparison may be drawn with that other area.

MR DEVEREAUX: Can I start that conversation now by referring to section 24 of the Code which is the mistake provision. Do your Honours have that? Yes, it is in the respondent’s outline. It is attached to the respondent’s outline.

GLEESON CJ: As usual we have a few pages from the Code.

MR DEVEREAUX: Yes.

HEYDON J: Which reprint is the correct version of the Code from?

MR DEVEREAUX: It is reprint 4.

CALLINAN J: I have reprint 6, but it is earlier than that, is it?

MR DEVEREAUX: I am sorry, your Honour.

CALLINAN J: I have reprint 6, but it is reprint 4, is it? Are you sure about that?

MR DEVEREAUX: Yes, there has been no relevant change, in our submission, but it was reprint 4 that was the official reprint at the time of the offences.

KIRBY J: There have only been four reprints of the Code since 1899?

MR DEVEREAUX: There have been unofficially four…..but no, there has been more since four. I cannot tell your Honour what we are up to. The point with section 24 is that it sets up a defence of honest and reasonable mistake under the Code. Section 24 is part of Chapter 5 which - provisions all apply unless expressly or impliedly excluded to all sections of the Code.

HAYNE J: That is where 229 would be operating.

MR DEVEREAUX: Yes, and 229, as your Honour Justice Hayne has pointed to, expressly excludes the defence of mistake in section 24 with respect to age in the offences where the age is the essential criterion. It does not do the same with the criterion of intellectual impairment in section 216 but it is hard to mount an argument that by implication section 24 is not necessarily impliedly excluded because in section 216 a positive defence, if you like, is provided for for the defence.

HAYNE J: And a view of that positive defence provision would be that the accused must demonstrate that he or she positively turned their mind to the question of intellectual impairment, otherwise the defence is not available. Whether that is right or wrong I have no idea.

MR DEVEREAUX: With respect to the other grant of appeal which relates directly to the manner in which the defence was put to the jury, we make this submission, that the trial judge was required to direct the jury that if they were satisfied that the appellant believed she was not a person needing support, then he was to be acquitted.

GLEESON CJ: But what does it mean to say that you believe that a person is not somebody who needs support? What is the concept of “belief” involved in that context?

MR DEVEREAUX: It must, we submit, simply be a reference to the state of mind of the person at the time ‑ ‑ ‑

GLEESON CJ: Do you have to think about it? What if you just do not think about it?

KIRBY J: Perhaps the answer is that you then do not get into the area of the defence because the offence is objective, as I understand the Code: is the person intellectually disabled? That I think was proved by scientific evidence or medical evidence. Then, in order to get out of that objective offence, you have to establish the mental element effectively.

MR DEVEREAUX: And we submit that in this case that was done.

GLEESON CJ: What was the defence case? Was the defence case, “I thought about whether she was intellectually impaired and I concluded she wasn’t”, or was the defence case, “It never occurred to me for a moment that she might be intellectually impaired”?

MR DEVEREAUX: It was not the latter but it was not put as positively as the first formulation.

GLEESON CJ: If it was the former, where is the evidence that your client turned his mind to the question of whether this girl was intellectually impaired and what was it that made him turn his mind to that question?

MR DEVEREAUX: At 196, at the top of the page at the end of the evidence‑in‑chief the appellant was asked:

At any time . . . did you at any stage think she was sexually – I beg your pardon, intellectually impaired?-- No.

GLEESON CJ: But that answer is completely consistent with the possibility I am putting to you, which was he never turned his mind to it.

MR DEVEREAUX: Yes. Earlier in the examination‑in‑chief, at page 180 there is a series of questions from about line 10 when he was asked:

tell me more about her. How did she appear to you ‑ ‑ ‑

KIRBY J: Where is this, 180?

MR DEVEREAUX: This is 180, about line 10, your Honour.

How was she talking to you?-- Fine. She was friendly, confident. She – she seemed fine. She was attractive. I just – we just were talking.

GLEESON CJ: You may ultimately have an argument about the construction of the section which solves any difficulty about this, but I would have thought it would be an extremely risky line for the accused to take at a trial like this to say, “Well, I wondered about whether this girl was intellectually impaired and I came to the conclusion that she wasn’t.” It is not hard to predict what this cross-examiner would have done with that.

MR DEVEREAUX: Yes, but that gives rise to the very difficulty with the concept that the Court is raising here.

CALLINAN J: Mr Devereaux, I understand that the onus was on your client, but did the prosecutor take up anything along the lines the Chief Justice was asking you about that he put to the appellant that it was obvious that the girl was intellectually impaired or anything to that effect?

MR DEVEREAUX: Yes.

CALLINAN J: Where do we find that?

MR DEVEREAUX: It starts at 217. At the top of page 217 in the cross‑examination it was put in this form:

Now, did it ever occur to you that this girl, apart from her Asian appearance and the accent, was retarded?-- No, I didn’t know she was retarded.

And for the next two questions and answers.

CALLINAN J: Yes. At the top of the page:

did it ever occur to you that this girl, apart from her Asian appearance and the accent, was retarded?

MR DEVEREAUX: Yes.

CALLINAN J: That is a curious question, but ‑ ‑ ‑

GLEESON CJ: Was he not questioned about the school she went to?

MR DEVEREAUX: Yes.

GLEESON CJ: She went to a special school.

MR DEVEREAUX: Yes.

GLEESON CJ: And he, the accused, had actually gone to a school that was located quite close to the special school.

MR DEVEREAUX: He said he knew the school because he had been to a TAFE in that area but he did not know that it was that kind of a – that they had special needs students.

GLEESON CJ: Yes, but ‑ ‑ ‑

CALLINAN J: She never told him that it was a special school?

MR DEVEREAUX: No. There is a long list of things that he was not told put to her in cross‑examination which we have referred to, but at the top of 217 the prosecutor is putting it directly to him that he, the appellant, knew, in the words of the prosecutor, that she was retarded and his answer was “No.”

GLEESON CJ: Subject to what your opponent has to say, I see the strength of your criticisms of the conduct of the cross‑examination but I do not think failure to comply with the rule in Browne v Dunn is one of them.

MR DEVEREAUX: No.

CALLINAN J: Mr Devereaux, if you go down that page though to about line 42:

Anyway, as you say she was very competent. You said the word two or three times she was very competent. What did you mean by that?‑‑ She seemed confident.

MR DEVEREAUX: Yes. So the state of mind of the appellant was explored in that sense. He was asked what his impressions of the complainant were. She was confident, she spoke easily. They conversed with each other. They talked to each other for about a half an hour on the second occasion. She was obviously not Australian born or of overseas parentage and it was established that she had a Malaysian parent and she was born in England. They had that kind of discussion.

CALLINAN J: Over the page too at page 218, the prosecutor pursued questions about her demeanour and her speech.

MR DEVEREAUX: Yes. From and including about line 9 down to line 21, “Nothing unusual about” her, line 25 ‑ ‑ ‑

KIRBY J: Where is that?

MR DEVEREAUX: Page 218, your Honour, line 21.

CALLINAN J: The prosecutor might have proved that he turned his mind to her – to this matter.

MR DEVEREAUX: Yes, the prosecutor came back to it.

CALLINAN J: He might have filled in a gap for the defence.

MR DEVEREAUX: He might well have. The prosecutor comes back to it with another set of questions at 235, about line 20 down to line 40 where again the appellant asserts “I didn’t know she was intellectually impaired” in answer to a question.

GLEESON CJ: Did the prosecutor ever say to him, “Did you think about whether she was intellectually impaired?”

CALLINAN J: He says at line 19:

Alternatively, I put it to you that, in any event, you knew and had every reason and, in fact, did know, that she was of much less than normal intellect?

That seems to be an overstatement anyway. Is not the general norm taken to be 70 and she was 61, I think. Is that right?

MR DEVEREAUX: I am sorry?

CALLINAN J: The intellectual quotient. I think the psychologist said that she had an intelligence quotient of 61 and 70 was generally regarded as the cut‑off point for normality.

MR DEVEREAUX: Yes.

CALLINAN J: The prosecutor is putting there that she had much less than normal intellect, but that is not the real point. The real point is that it was put that the appellant had every reason to believe, or to know, that she had less than normal intellect.

MR DEVEREAUX: Yes. This issue was very squarely and firmly put and, as Justice Callinan has pointed out, perhaps the clarity of the belief is made clear.

CALLINAN J: I mean, he answered a question with a question, which he should not have done, I suppose, but he says, “How do I know she is an intellectually impaired person?” I noticed the trial judge intervened there.

MR DEVEREAUX: To stop him asking questions.

GLEESON CJ: It seems to me to be a very tricky defence to handle, this one.

MR DEVEREAUX: That is the difficulty. What more can one do than what this appellant did, which was to say, “I met her, I interacted with her, we spoke ‑ ‑ ‑

GLEESON CJ: “I had no reason to doubt her intellectual capacity.”

MR DEVEREAUX: Indeed.

GLEESON CJ: Well, what I am asking you as a matter of construction of the statute is whether acceptance of the proposition that somebody had no reason to doubt her intellectual capacity equals belief that she had no intellectual impairment. That is a question of statutory construction.

MR DEVEREAUX: I have not, at the moment anyway, got the answer.

GLEESON CJ: Anyway, you might like to come back to that.

MR DEVEREAUX: Just may I finally though finish the traversing of this issue by the prosecutor with the appellant. It continues on to page 237 from about line 48, where that issue is raised again of the awareness of the intellectual impairment.

KIRBY J: Was this before or after the evidence of the complainant was before the jury?

MR DEVEREAUX: This cross‑examination?

KIRBY J: Yes, this would have all been after.

MR DEVEREAUX: It was after, yes.

KIRBY J: So the springboard from which the cross‑examining prosecutor was proceeding was that he knew and the jury knew what the appearance of the complainant was. Justice Williams in his reasons said that he had viewed part of the tape and it is part of the record in the proceedings.

MR DEVEREAUX: It is.

KIRBY J: I have looked at the tape. I have not sat there because it quite a lengthy tape. I will seek your assistance on what one can make of this but when I saw it, my impressions were that the complainant was very confident and very talkative and did have a stammer of some kind but she did not have the immediate outward appearance of someone who obviously had a mental handicap.

CALLINAN J: I watched some of it too. I could not even detect the accent, but she certainly did not seem to have any trouble with comprehension when she was being interviewed by the two police officers.

MR DEVEREAUX: Indeed. There are examples one can pick out from the interview where some of the words and some of the exchanges were quite telling, in our submission. For example, there was an occasion where the police officer is asking her to describe the appellant and to describe his shirt. It seems, I submit, that the police officer is trying not to lead her into a description of the shirt, particularly into the word “collar,” but in fact the complainant describes the shirt as “collared,” “it was a collared shirt,” which is a sophisticated enough word. Certainly ‑ ‑ ‑

CALLINAN J: This is a question for the jury, I suppose, plainly what they made of the tape, but if – the situation may be that we have to review it. This is direct evidence under section 93A of the Evidence Act, is it not?

MR DEVEREAUX: Yes.

CALLINAN J: But there was something that I found a little curious you may be able help me about, and this was when I read the transcript of the video interview. There seemed to be I thought rather needless repetition by the police officers or invitations to repeat over and over again what had happened. I mean, I am surprised that there was not an objection to that because the tendency must be to reinforce everything and to give a complainant an opportunity to rehearse over and over again her evidence. Is this the standard practice in these types of cases, do you know?

MR DEVEREAUX: The questioning manner or the failure to object?

CALLINAN J: The first.

MR DEVEREAUX: The first, the questioning manner. Yes ‑ ‑ ‑

CALLINAN J: Is this police practice to do this?

MR DEVEREAUX: Yes. There are courses where police are trained in this kind of questioning ‑ ‑ ‑

CALLINAN J: I can understand that, but do they as a matter of practice keep on asking them the same questions to get them to repeat the same details of the alleged offence?

MR DEVEREAUX: I do not feel equipped to really answer that well enough for your Honour except to say this. What occurred, it seems, in this case was that the people who interviewed the complainant were not the investigating officers. They were called in because they were meant to be especially trained to do that.

CALLINAN J: They were some special squad, are they not?

MR DEVEREAUX: Yes, so that it was quite an exploratory interview from their point of view, it was very open.

KIRBY J: They start by very properly making her feel comfortable, talking about the German shepherd dog and things of that kind, as it were, to settle her down but she came across as a very talkative and confident person.

MR DEVEREAUX: Indeed. There is a point in the interview where the police are discussing with her the letter that she wrote to her former school teacher and the officer is looking at the envelope and asks her a question and she pre-empts the question. He asks her something like, “And how did you know”, and she said, “The address. I got the address from my school diary”. She was able to watch what he was doing and pre-empt his question. He was not pointing at the address. So there are signs and little opportunities in the interview to see that she indeed was quite a capable person when it came to social interactions.

KIRBY J: But as against that, the jury had hours of – I think there are four tapes altogether and I imagine the jury must have had to sit through the lot, and fairly clearly the prosecutor’s cross-examination was from what appears to be a standpoint, “I’ve seen it, you’ve seen it and she’s obviously an intellectually handicapped person and you should’ve known that”. What do we as an appellate court make of all that, given that the jury sits through the whole thing, hears all the evidence and is in a superior position to us to evaluate the suggestion which is inherent in the cross-examination of the appellant?

MR DEVEREAUX: At the end of the trial there was no argument about whether in fact the complainant fitted the description of an “intellectually impaired person”, so it became a question of whether he could establish the belief or whether they had that issue.

GLEESON CJ: That is the problem.

MR DEVEREAUX: The same position provides here or in the Court of Appeal. It was common that indeed she was intellectually impaired. It came down to whether in that case he had discharged the onus on him under section 216.

GLEESON CJ: Which is why it is important to understand what he had the onus of actually showing.

MR DEVEREAUX: Yes.

KIRBY J: It cannot be the onus of getting a medical certificate from a psychiatrist as to her IQ, so it is obviously something less than complete scientific knowledge of her state. It has to work in the real world of the community.

MR DEVEREAUX: Taking into account too in this case that she was an 18‑year‑old girl, not younger, and quite a tall, fully developed person.

GLEESON CJ: The question is whether he has to show that he thought about something that most people do not think about in their communication with other people.

MR DEVEREAUX: Yes, and the practical answer to the question, we submit, must lie in examining the interaction between the two people but for the moment, beyond that I cannot go further. We have made submissions now going to the detail of the cross-examination and we have put a lot of the detail in our outline. I have made the submission, your Honours, that the credibility of the appellant was crucial and so it led to a miscarriage of justice.

We have pointed out in our outline the statement by Justice Hulme in the New South Wales decision of R v Scott [2004] NSWCCA 254 at paragraph 93, it is in page 13 of our outline that:

In a case where an accused’s credibility is of importance, it is very difficult to conclude that an illegitimate attack, apparently successful, on that credibility has not deprived that accused of a chance of acquittal.

That leads me to the authorities. We have referred in our outline to earlier decisions of this Court which, because they are there, I do not propose to read from those. In our list of decisions is Randall v The Queen [2002] 1WLR 2237, a decision of the Privy Council from a trial in the Cayman Islands, I take your Honours to page 2241. The heading on that page is “Fairness” and there is quite a long passage about fairness in the trial and the duties of prosecutors, particularly that commences just above point G, “The duty of prosecuting counsel”, and there is a reference there to the Canadian decision, which I guess is Boucher v The Queen, your Honours.

Over the page at 2242, there is the start of this passage which we specifically draw your Honours’ attention to:

The jury’s attention must not be distracted from its central task of deciding whether, on all the evidence adduced before it, and on all the submissions made, on the judge’s legal direction and summing up of the evidence, the guilt of the defendant is or is not established to the required standard.

We submit that is relevant with respect to the parts of the cross‑examination that attack credibility and character.

KIRBY J: Which paragraph are you reading from?

MR DEVEREAUX: On top of page 2242. Does your Honour have the report?

KIRBY J: Yes.

MR DEVEREAUX: Paragraph (2). Then throughout that paragraph there are various other statements headed by Roman numerals. The first is at about point B:

(i) Evidence should ordinarily be given without interruption by counsel . . . (iii) While the duty of counsel may require a strong and direct challenge . . . there can never be any justification for bullying, intimidation, personal vilification or insult or for the exchange of insults between counsel . . . (iv) Reference should never be made to matters which may be prejudicial to a defendant but which are not before the jury.

There was perhaps a minor example in this case but we put it before the Court anyway where the prosecutor in a throwaway line referred to the Dean brothers because the appellant referred to a person called Dean and the prosecutor intervened and said, “It could be the Dean brothers for all we know.” Now ‑ ‑ ‑

KIRBY J: Who are the Dean brothers?

CALLINAN J: Notorious demolition contractors in Queensland.

MR DEVEREAUX: It is a demolition firm known for demolishing publicly recognised buildings at night‑time.

GLEESON CJ: Mr Devereaux, does the Queensland Bar have rules about the conduct of prosecutors?

MR DEVEREAUX: Yes, and the Director of Public Prosecutions has guidelines and there is quite a lot of common ground there.

GLEESON CJ: Are they relevant to our task?

MR DEVEREAUX: We have not produced that, your Honours. I have not looked at them.

KIRBY J: I think we had better have them.

MR DEVEREAUX: Yes.

KIRBY J: If they are made under statutory authority we had better know that, but even if they are not under statutory authority they would be the kind of thing that would be engraved on a prosecutor’s heart, one would think.

MR DEVEREAUX: They would be made under the authority of the Director of Public Prosecutions Act and they are, by the way, not that we have it here, but they are in the three‑volume loose leaf commonly referred to in Queensland, Carter’s Criminal Code.

KIRBY J: I am sure you have that at your elbow, but a Justice of the High Court does not necessarily go to bed with the Queensland Criminal Code.

MR DEVEREAUX: No, your Honour. Still at page 2242 of Randall, may we just point out this other passage to your Honours at about point G, paragraph (3):

It is the responsibility of the judge to ensure that the proceedings are conducted in an orderly and proper manner –

and so it goes on. Now, in particular, may I take your Honours to page 2251 of that report. Paragraphs 28 and 29, we submit, are quite relevant and, in particular, this point which we would concede at about four lines into the paragraph:

Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction.

We take two points from that. One is that of course we concede that there will be cases where there will be wrongly asked questions which do not undermine a trial, but it is important wherever there is such that there be proper judicial direction and in this case there was none. In paragraph 29:

The crucial issue in the present appeal is whether there were such departures from good practice in the course of the appellant’s trial as to deny him the substance of a fair trial.

That was the formulation of the Privy Council in this case, which may be of interest to the Court. Now, a little further down in that paragraph between points E and F:

While none of the appellant’s complaints taken on its own would support a successful appeal, taken together they leave the Board with no choice but to quash the appellant’s convictions.

I simply read that because we would submit in this case too that it is the accumulation of the errors which we submit led to the miscarriage of justice.

KIRBY J: Are the errors that you rely on those that you have set out in your written submissions and referred to today in your oral submissions?

MR DEVEREAUX: Yes, your Honour.

KIRBY J: There is nothing else?

MR DEVEREAUX: No thank you, your Honour.

CALLINAN J: Could I just ask you this. I have not made a comparison, but are all of the ones upon which you rely contained in Justice Mullins’ judgment?

MR DEVEREAUX: No.

CALLINAN J: There are further ones?

MR DEVEREAUX: There are.

CALLINAN J: So that her Honour’s references are only examples?

MR DEVEREAUX: Indeed. It is one of our written submissions that the error at Court of Appeal level is that ostensibly in any case the court did not examine all of the relevant material. What we have done in our outline, your Honours is ‑ ‑ ‑

KIRBY J: In fairness to her Honour, the criterion of “Did it deny the person a fair trial” is a very evaluative criterion and therefore, in a sense, you have to read the whole of the cross‑examination and then form a judgment about it. A judge cannot set out the whole of the cross‑examination which in this case was quite long and in other cases will be much longer, so that her Honour was probably just giving examples of the type of thing you were complaining about in the Court of Appeal.

MR DEVEREAUX: Yes.

KIRBY J: That is why it is important if there are particular matters that are egregious examples that her Honour does not refer to, that they be drawn to our notice.

MR DEVEREAUX: Yes. What we have done in our outline is at page 11 referred specifically to the passages of the judgment of Justice Mullins and then after that, starting at the bottom of page 11 and going over we have made a list of some of the other items of cross‑examination which we submit were objectionable. Included in them are some of the more serious breaches, we submit, for example, item (d) on page 12, expressing an opinion, “Look, I’ve heard all that. I’m trying to convey to you I’m not buying it.” Anyway, I will not go through them all there. We have separated those out for the Court.

HAYNE J: What are we to make of what happened at trial on the defence side? Was there any objection to this? Was there any request for direction?

MR DEVEREAUX: No.

HAYNE J: Was there any protest?

MR DEVEREAUX: There was occasional protest. There was no substantive protest.

HAYNE J: But even the interjection “Let him answer it” which is, after all, not unknown in a trial.

MR DEVEREAUX: No. I am answering your Honour from memory and with a broad brush, so in that respect the answer is no, there was no firm objection, no interventions designed to cut short this style of cross‑examination.

KIRBY J: Your excuse for that in your written submissions is that defence counsel do not like to be objecting in cross‑examination because it makes them look as though they have something to hide, but on the other hand the prosecutor says in this Court that counsel appearing for your client at trial was an experienced criminal barrister.

MR DEVEREAUX: Counsel for the appellant was an experienced criminal barrister. There was a lot of experience in the room. None of it seemed, in our submission, to help the appellant. The judge was an experienced criminal lawyer but he had not actually been a judge very long. The prosecutor was the most senior of all of them and one may fairly read a degree of deference in the conduct of both defence counsel and the judge in the trial. We answer that point that way but also to reiterate the earlier point which is that the problem is the asking of the question. The damage is done when a prosecutor, particularly one of seniority, asks the damaging questions which are inadmissible. That is as much as I can say about how the Court should deal with the failure to take objection below.

Your Honours, I have taken the Court to Randall. I said I would read from Roulston which is a New Zealand decision. May I take your Honours briefly to it – R v Roulston [1976] 2 NZLR 644. It was a case of an unlawful killing. Its facts do not really matter very much at the moment. At the end of the judgment on page 655 at about line 50 this conclusion is reached:

In the circumstances it has been necessary to consider with particular care the possible effect of the remarks – Whether they may have improperly influenced the jury.

Then in this particular case the court went on to find, given the very helpful directions by the learned trial judge, there was not a miscarriage of justice. But it is that formulation that we sought to bring to the Court’s attention; whether the remarks may have improperly influenced the jury. That sort of formulation was picked up in the Tasmanian case of McCullough v The Queen [1982] Tas R 43 ,which is in our outline by reference and I do not propose to read from it today.

That in turn was referred to in the Western Australia Court of Criminal Appeal in the decision in Paterson v The Queen (2004) 28 WAR 223. Now, it is quite a long judgment but in the judgment of Chief Justice Malcolm, who was then Chief Justice, at page 244, his Honour starts to address the ground that related to the conduct of counsel for the prosecution and sets out principles which are commonly stated in the cases that we have put before the Court. He refers to McCullough at the bottom of 245 and in fact at the top of 246 quotes a passage from McCullough which had picked up that test from Roulston.

I do not propose to read any of that now to your Honours but to bring it to your Honours’ attention down to the reference to Whitehorn at paragraph 99 on 246. There is a fairly neat, we submit, collection of the principles in the judgment of Justice Steytler at page 274 of this report, from paragraphs 217 and 218.

KIRBY J: This is in Paterson, is it?

MR DEVEREAUX: This is still Paterson, your Honour, at page 274, paragraph 217 in the judgment of Justice Steytler, including these statements about four lines down – the prosecution counsel is being referred to:

has an overriding duty to ensure that the prosecution case is fairly and properly presented . . . and should not fight for a conviction or seek to persuade a jury to convict by means of the introduction of prejudice or emotion -

I will not keep reading, but the formulation used by Justice Steytler at the end of the paragraph is:

such as to lead to the conclusion that there is a real risk that the conduct complained of may have influenced the jury to convict the accused in circumstances giving rise to a miscarriage of justice -

which is a formulation that fits neatly with the Criminal Code’s grounds of appeal which is the standard form, grounds of appeal for ‑ ‑ ‑

KIRBY J: Yes, but on the next page at paragraph 228, his Honour refers to what Justice Yeldham said in Tripodina that it is “the duty of counsel appearing at the trial to take objection” and to the extent that we just gloss over and ignore and forget that defence counsel have not taken objections, we really just encourage and entrench this failure to note matters at trial.

CALLINAN J: With all due respect though that is absolutely correct, but surely the judge owes the highest duty of all to ensure a fair trial.

MR DEVEREAUX: Perhaps that is the fuller answer to the question that Justice Hayne was asking me before about what the court is to make of the failure to object. We refer to that, to the duty of the trial judge to ensure the fair trial and ‑ ‑ ‑

KIRBY J: But one does get a bit of an impression in a rather long judicial life that there is less noting of points, less recording of objections, less challenging of things. It would be an awful thing if our Bar in Australia became pusillanimous and overborne or too concerned at taking points and it just does seem to be a very frequent – the things that are argued in this Court very rarely are raised in the trial.

MR DEVEREAUX: Yes.

HAYNE J: This leads to a point I should perhaps have raised earlier. We do not have a transcript of addresses, do we?

MR DEVEREAUX: No, your Honour.

HAYNE J: In particular we do not know whether the accused counsel went to the jury saying, “You saw how he was bullied. You saw what a performance the Crown put on and you saw how he stood up to it. What has he got to hide? Nothing.” I have not the slightest idea how counsel for the accused addressed at trial, but can we get hold of the addresses? Is there a tape that can be transcribed?

MR DEVEREAUX: There would be and so we could, but we can draw, and what we do know from the record about addresses is what the trial judge told the jury in summing‑up. His Honour did complete his summing‑up with summaries of the arguments of both counsels going to substance. Will your Honours just bear with me, I would like to find that. The summing‑up in the record at page 330 is where his Honour starts to tell the jury in summary form what the defence submissions were. There is nothing in there to reflect a submission along the lines Justice Hayne was just putting to me.

I was referring to authorities, if I may keep moving, having taken your Honours to Paterson. In our reply we refer the Court to a passage in the judgment of Justice Brennan in Alister v The Queen (1983‑1984) 154 CLR 404 at 465 and may I take your Honours to that now. There his Honour said, about halfway down:

However, I do not think that the improprieties in the cross‑examination occasioned a miscarriage of justice in the present case. Each accused forcefully repelled the cross‑examiner’s suggestions, and the absence of an appropriate objection may well have been a deliberate tactic by the defence. The defence alleged that groundless suspicion of the Ananda Marga had induced Seary and the police to fabricate the evidence against the accused, and the unsubstantiated suggestions in the cross‑examination gave verisimilitude to the defence case. The form of the cross‑examination was, in this sense, grist to the defence mill, and it cannot be relied on now to show a miscarriage of justice.

A number of issues arise out of that passage, we submit. First, by comparison with the present case, the appellant did not manage to forcefully repel questions put to him by the prosecutor. But more to the point, this was not a case where the question being asked by the prosecutor was, as it was in Alister, “grist to the defence mill”. There could be no advantageous adoption of the conduct of the prosecutor in this case. The only explanation for the failure to take objection to it at trial includes the sorts of things I have already discussed about not wanting to interrupt.

We raise that because the Court of Appeal in this case, and the respondent, employ as a basis for arguing against a miscarriage of justice that this appellant was able to handle the cross‑examination and we have made the submission that that is not relevant. The alternative is, if it is one of the relevant circumstances that goes into deciding whether there has been a miscarriage of justice in a particular case, it is not so in this case because it can be distinguished from cases such as Alister v The Queen where what occurred in cross‑examination was the defence case being highlighted. Your Honours, those are my submissions on that ground and, so, if I may move on.

KIRBY J: Has the Privy Council decision been referred to in Australia since it was delivered?

MR DEVEREAUX: We have not checked that, your Honour. We will check that, your Honour.

KIRBY J: That is easy enough to do, that will be done.

MR DEVEREAUX: May I move to the next ground, which we have dealt with in our outline, which relates to the directions on consent. With respect to count 1, the rape, and of course the other rape counts, there was a question of whether the complainant did not consent. Specifically, though, only count 1 survives. There was no direct evidence that the complainant did not consent. She did not say so to the appellant, she did not say so in the police interview although being asked directly whether she said no, she said she did not and she did not say so in the witness box. So it was for the jury, in the Crown case, to infer from all the circumstances that, in fact, there was no consent.

Now, Justice Chesterman, in the Court of Appeal in this case collected some of the circumstances which his Honour thought tended towards there being consent. They included that the appellant had asked the complainant “Do you want to have a bit of a fool around?” and she said yes. That included that she turned towards him, she agreed in cross‑examination, to make it easier for him to get his fingers to her vagina; that she later walked with him to his car to say goodbye and that she gave him her phone number so he could telephone her. Those are collected in Justice Chesterman at 422 and 423 of the record. I will not go further to them.

To support the verdict on the other hand, in the Court of Appeal, Justice Mullins and Justice of Appeal Williams concluded that it was, in effect, open to the jury to infer the lack of consent from all the circumstances. Justice Williams – it is in the record at 418, your Honours, in paragraph [10] which is towards the bottom of that page, referred to the appellant as being the “sexual aggressor”. Justice Williams considered that given her intellectual capacity the complainant might not have understood the appellant’s suggestion about fooling around and that there was the differences in their age, which was marked, and their life experience.

Justice Mullins also referred to a number of circumstances including the age difference, that the encounter was in a public place, that there was a lack of prior relationship, that the complainant did not know the appellant was going to be there, that there was a sense of artificiality about the meetings, that the act of penetration which resulted in count 1 was opportunistic, that the complainant must have seemed friendly and chatty and that appellant’s question about fooling around did not specifically direct the complainant to his intention of putting a finger in a vagina.

Now, there were some directions to the jury on the issues of consent. If I could take your Honours to them. Page 246 of the record – sorry, before I go to that, at 246 is where his Honour gives the jury a general direction which is regularly given early in the summing‑up about drawing inferences. This is the only place in the summing‑up where the jury were given directions about drawing inferences from established facts and it was given in the general introductory part of the summing‑up.

Now, the directions specifically with respect to consent start over on 267 just below line20. His Honour reads the definition, part of the definition of “consent” with reference including to “cognitive capacity” and gives the jury some directions about it being a subjective state of mind, et cetera. Then over the page at 268 directions include a discussion about the process of cognition and what cognitive capacity might mean. At the top of 269 his Honour says this:

You must consider the evidence to determine if consent was given or withheld. If you are left in a state of doubt, that is, whether the Crown has not proved beyond reasonable doubt that there was withholding of the consent, then in respect of the counts of rape you must acquit the defendant.

GLEESON CJ: They did in fact acquit in respect of ‑ ‑ ‑

MR DEVEREAUX: Two of them.

GLEESON CJ: ‑ ‑ ‑ two of the three counts of rape.

MR DEVEREAUX: Yes. Before I go to our complaint, what happens then is the judge directs the jury to some evidence. His Honour says at about line 15 or 20:

you should consider the evidence to assist you to determine this issue –

and refers again to whether she is capable of giving consent and then at the bottom of the page says, line 48:

This is some of the evidence that you might look at to make that determination.

He refers to the letter which the complainant wrote to her teacher, the circumstances of the video interview with the police, that she is now 21 and that the jury were to judge the issue at the time of the offences and then on page 270, directions in the middle of the page about other features which really go to the question of capacity to consent.

KIRBY J: Can the differential verdicts on the rape counts be explained by reference to the evidence that your client had difficulty in maintaining an erection and penetration, or what is the explanation of the differential verdicts?

MR DEVEREAUX: There could be several.

KIRBY J: You do not have a ground of appeal before us that complains of inconsistency of the verdicts?

MR DEVEREAUX: No. Perhaps the strongest explanation is that the circumstances of counts 2 to 5 ‑ ‑ ‑

GLEESON CJ: He was there by her invitation.

MR DEVEREAUX: By her invitation at her home.

HAYNE J: With a request to bring protection.

MR DEVEREAUX: Yes. She took her own clothes off and they had what perhaps to all objective observers looked like consensual sex or attempts at it in various positions.

CALLINAN J: She had said at the committal that she had sexual desires.

MR DEVEREAUX: Yes.

KIRBY J: But if all of those are matters relevant to the other counts why are they not relevant to the count on which she was convicted as to her capacity to consent?

MR DEVEREAUX: We do not pursue an inconsistency argument simply because of the ‑ ‑ ‑

KIRBY J: Because in a sense he then had more time with her and would have had more time to observe any observable incapacity on her part or mental handicap.

MR DEVEREAUX: Yes.

GLEESON CJ: It was not a question of capacity, was it? It was a question of whether or not she in fact consented. As the case ultimately went to the jury there was very little doubt, was there, that she actually had the capacity to consent - her behaviour in relation to the occasions of the second and third rape counts?

MR DEVEREAUX: Yes, they spoke of capacity to consent on the second occasion, yes.

GLEESON CJ: Yes. But, as I understand the reasoning in the Court of Appeal on this point of supposed inconsistency they said the events, the subject of the second and third counts of rape, happened on an occasion where she invited him to be present, appeared to in every respect enthusiastically co‑operate, whereas in relation to the first count it could have happened so quickly that she just did not anticipate what he was going to do.

MR DEVEREAUX: Yes.

KIRBY J: So if the flaw, on the other hand, is mental handicap and his failure to prove the fact that he did not appreciate that handicap then that would be even more visible in the later counts than in the first count where the encounter was momentary and only a matter of half an hour or so.

MR DEVEREAUX: Yes. This does give rise to ‑ ‑ ‑

HAYNE J: It is the very momentary nature of that first event which presented the jury question of whether she was consenting, is it not?

MR DEVEREAUX: Yes.

HAYNE J: No question of capacity, ultimately, is seen as intruding. It is whether he opportunistically penetrated her without her consent?

MR DEVEREAUX: That is, with respect, a reasonable way to view the verdict but the Crown left the case, it seems on all counts, including on the question of capacity or lack of capacity.

GLEESON CJ: What is your complaint at the moment about the directions? Your ground of appeal in this Court is that the directions on consent were inadequate.

MR DEVEREAUX: Yes.

GLEESON CJ: What is your complaint about the directions on consent?

MR DEVEREAUX: Our complaint about the directions is that there was no direction that the jury were being invited to infer the question of lack of consent from circumstances and so they were not given a standard circumstantial case direction, according to Peacock v The Queen. They simply were not. The only direction, as I said, they were given about making inferences was early in the summing‑up in the general introduction. What the judge did not tell the jury was, “the Crown requires you to infer lack of consent, from all the circumstances” then the judge did not give them a list of the circumstances. Some of these were elucidated in the Court of Appeal and then the judge did not say to the jury, “Now, before you can find him guilty on the basis that there was no consent you must be satisfied that the lack of consent is the only reasonable inference open on those circumstances.” None of that was done and that is ‑ ‑ ‑

GLEESON CJ: Was that direction asked for?

MR DEVEREAUX: No. May I move to the next point about the directions which is the directions relating to the defences.

GLEESON CJ: Now, I think we can come to the question of construction that we were looking at a little earlier because we need to understand what the defences actually were. If you go to section 216 of the Criminal Code, subsection (1) makes it an offence:

to have unlawful carnal knowledge of an intellectually impaired person –

That seems to be a matter of objective fact.

MR DEVEREAUX: Yes.

GLEESON CJ: It seems to have, at that stage, nothing to do with anybody’s state of mind.

MR DEVEREAUX: Yes.

GLEESON CJ: And then section 216(4) creates a defence and it is a defence if you prove:

that the accused person believed on reasonable grounds that the person was not an intellectually impaired person –

What is the state of mind that constitutes belief on reasonable grounds and, in particular, does it require that an accused person actually advert to the matter, because if it does, there was no evidence in the present case that your client thought about whether this girl was intellectually impaired. Indeed, it might have been a very dangerous thing for him to raise.

MR DEVEREAUX: Can I answer that ‑ ‑ ‑

CALLINAN J: I do not mean to interrupt, but I do not necessarily, speaking for myself, accept the second proposition. I am not too sure, and I have an open mind about this at this stage, that the prosecutor did not bring out, in those passages that we earlier were taken to in cross‑examination, that there was some consideration of this girl’s mental capacity.

MR DEVEREAUX: With respect, I adopt that and say further that this was addressed in the examination in‑chief in the passage I have referred to.

GLEESON CJ: What is your submission on the construction of the section? Is it necessary, in order to make out that defence, to advert to the question because unless we get that clear we are going to dissolve into confusion.

KIRBY J: I would think there would be law on this.

MR DEVEREAUX: It seems…..but that that is it that the accused person must advert to the state of intelligence of the person he is interacting with.

GLEESON CJ: You say that, do you?

MR DEVEREAUX: Yes. I feel there is no room to move.

CALLINAN J: What about this that you read it, and I am not suggesting this is necessarily right, that you read on reasonable grounds that the accused person had reasonable grounds if there were no indications or manifestations which would suggest an intellectual impairment. Is that not one arguable basis, it may not be the right one, but you do not have to put all of your eggs in one basket. You can accept the Chief Justice’s proposition and you can perhaps argue this as an alternative.

MR DEVEREAUX: It establishes the reasonable grounds.

GLEESON CJ: I am not putting this as a proposition. I do not know, but I am afraid I do not see any discussion of this subject either in the judgments in the courts below or in the written submissions. This is a piece of Queensland legislation that I have never read before. Is there any law in Queensland on this question?

MR DEVEREAUX: My learned friend, Mr Smith, is reminding me of a decision in Shetty v Queensland. Shetty was convicted of a recently enacted provision of the charge of, with intent, using the Internet to procure a sexual offence and that section which is 218A of the Criminal Code had certain provisions which defined and set up a defence that it was a defence to prove that you had certain beliefs.

In that case in Shetty, he said to the police that he did not turn his mind to the age of the person that he was apparently communicating with - it was one of those cases where the police were pretending to be an under‑age girl – and that he therefore held no belief that the person he was dealing with was under age. It was held, leaving aside the defence provision, which allowed a defendant to establish a belief to the contrary, that there was a belief element in the offence. The difference here is that in the 218A charge there is a belief element so that it satisfied, or was for the Crown to prove that the defendant held the belief and it was a sufficient answer for the defendant to say he held no belief because he did not accept the things that he was being told over the Internet.

GLEESON CJ: If you succeed in your first ground of appeal and we send this matter back for a new trial, the new trial judge is going to have squarely face up to this question.

MR DEVEREAUX: Yes.

GLEESON CJ: Now, as I say, I have not looked at any other provisions of the Queensland Code that might bear on the construction of this provision. I have seen other legislation not dissimilar. For example, it used to be the law in New South Wales that it was a crime to have carnal knowledge of a female under the age of 16, but it was a defence if you could show two things: the first is that the female was in fact 14 or over, and the second was that you believed on reasonable grounds that she was 16. I may not have stated that legislation accurately, but that seems to me to be a cognate sort of provision.

MR DEVEREAUX: Yes. We have looked at the New South Wales provisions to some degree and, in any case, what we have found is an offence which actually requires knowledge so that it is part of the Crown case to prove that it is not an absolute offence at the moment.

HAYNE J: It seems to me to be a logical distinction that is capable of being drawn between having no reasonable ground to believe somebody is impaired, one case, and having reasonable ground to believe that someone is not impaired. Now, it seems to me that they are logically distinct. At some point we need to know what you say 216(4)(a) means. At least for my part I need to understand what you say is the relationship between 216(4)(a) and the general responsibility provisions. At the moment I have an impression, perhaps wrong, that we never become engaged in the general responsibility provisions, that we should be looking only at 216(4)(a). But that is a very much untutored impression.

MR DEVEREAUX: Our submission to the point is that section 24, which is the mistake provision of the Code, does not apply because it is impliedly excluded by the defence provision in section 216. That in fact means that the Crown need only prove that there was unlawful carnal knowledge of an intellectually impaired person and that there is then an onus on a defendant to demonstrate a belief and ‑ ‑ ‑

GLEESON CJ: Does demonstrating a belief require demonstrating that you adverted to it?

MR DEVEREAUX: My answer to that, your Honour, is that the answer must be that the jury should be satisfied that he held the belief and the means to that end could be various routes.

GLEESON CJ: But what does it mean to say that he held the belief?

MR DEVEREAUX: Yes. Well, it can only mean that he adverted to it. There are two separate questions. There is the reasonable grounds question and then there is a question of whether he held the belief.

GLEESON CJ: It is a problem. I am not setting out to manufacture an argument for you, but I understand the way you look at the matter, although, if you want to reconsider the matter after we have concluded our argument because it does not seem to be a matter that has been adverted to before, then you might want to put in some written submissions on the subject and your opponent might like an opportunity to reply. The difficulty about it – and this may only be a matter of legislative policy, not legal construction – is that this postulates a belief in something that most people never think about in ordinary social intercourse. Unless they are alerted to the existence of some problem, they assume that the person they are dealing with is of reasonable intellectual capacity.

MR DEVEREAUX: That is so. That is why, to deal with the question in evidence, there were broad open questions in evidence-in-chief: “How did this person strike you? What was she like?” because that is all the person can practically say to reflect this requirement. I accept that is not an answer immediately to your Honour’s concern, but practically speaking that is the only way an accused can deal with it.

CALLINAN J: Mr Devereaux, can I just ask you this? Assuming that there has to be some adverting to it, as the Chief Justice has raised as a possibility, can you think of any way in which an accused could satisfy this defence without giving evidence himself?

MR DEVEREAUX: No.

HAYNE J: That is the difficulty of the reversal of onus, is it not?

MR DEVEREAUX: That is right.

HAYNE J: Once the defendant has the onus the defendant is looking at the box ‑ ‑ ‑

MR DEVEREAUX: I am sorry. The only ‑ ‑ ‑

CALLINAN J: Except when states of mind – I mean, onus with respect to a state of mind may be a different matter. Like mistake under section 24, once there is any reasonable suggestion of it raised then the onus is upon the Crown to refute it beyond reasonable doubt, but you are talking about the state of mind of an accused person.

MR DEVEREAUX: Yes. May I qualify my answer this way? Arguably, if a person – if you were interviewed by the police and he gave to the police ‑ ‑ ‑

CALLINAN J: Yes, you might then be able to point to some evidence which the police tender in the record of interview.

MR DEVEREAUX: Because although it is an out‑of‑court statement it nonetheless is evidence in the case and the section provides it is a defence to prove. It does not ‑ ‑ ‑

CALLINAN J: You have given me an example of the kind that I - I had not thought about an obvious example and you bring it up.

MR DEVEREAUX: Now, as I said a minute ago, to the moment our submission is, as I have just outlined to the learned Chief Justice, that to the moment we concede that there must be some kind of aversion to the question. I would welcome after today the opportunity to put in further submissions.

GLEESON CJ: Yes, so would we. What is the difference between paragraphs (a) and (b) of subsection (4)?

MR DEVEREAUX: The first, for a start, requires proof of a belief, and the second requires a more objective assessment of whether what occurred was sexual exploitation. The belief is only in part (a).

GLEESON CJ: Just at the moment I am not sure I understand paragraph (b).

MR DEVEREAUX: It is quite circular, paragraph (b).

GLEESON CJ: Is there some kind of parliamentary history that throws light on this? Is there a second reading speech, for example, that might tell us what they were getting at? Is there some precedent for this? Is this legislation that is common in other States now?

MR DEVEREAUX: The words “sexual exploitation” are in the New South Wales legislation that we have discovered but the ‑ ‑ ‑

KIRBY J: That does not look at though it was in Sir Samuel Griffith’s first Code.

GLEESON CJ: No, this only came in in the 1980s, I think, this legislation, did it not?

MR DEVEREAUX: Yes, I think it was 1989.

KIRBY J: But there must have been some provision for mentally handicapped people. I mean, that was quite common in criminal law.

MR DEVEREAUX: Yes. Mr Meredith says he has the history in the previous law. I would hopefully, because I have not looked at it, prefer to leave that to him to take to your Honours but I can hand that up now.

GLEESON CJ: If you would prefer to deal with it in the written submissions then by all means do so.

MR DEVEREAUX: Thank you, your Honour.

GLEESON CJ: But it is not a provision the meaning of which is absolutely clear.

MR DEVEREAUX: No.

HAYNE J: Considering the earlier legislation you might consider whether any of that earlier legislation was founded on the premise that those of intellectual impairment were likely to be in care, whereas now those with intellectual impairment may well be in the community and living in the community.

MR DEVEREAUX: Yes. The trial judge did give the jury quite some substantial direction about the question of exploitation. In fact, one of our complaints in this ground of appeal is that the judge did not give the jury any elaboration on paragraph (a) but spent his time talking about objectively whether this was sexual exploitation.

GLEESON CJ: One of the things you will need to address in your written submissions is whether the fact that he did not give the jury any elaboration on paragraph (a), meant that the summing‑up was to your advantage.

MR DEVEREAUX: We submit that it was to our disadvantage.

GLEESON CJ: You will have to say in your written submissions what you say the judge should have told them about paragraph (a) when he was elaborating on that.

MR DEVEREAUX: Yes.

KIRBY J: It can only be to your disadvantage if the first premise, that is to say the mental handicap, was demonstrated then the onus is on you and you have to prove that you get within one of the defences so if that is not understood then you are sunk because the objective element is proved and you bear the onus, as I understand it is agreed, to establish the defence and that makes this curious because the mental element is really switched to you.

MR DEVEREAUX: Yes, and with respect to the question in theory about the meaning of the section when it requires proof of a belief I am at the moment stumped, but in the setting of this case we have made the submission that there is evidence of the belief and so the question does not immediately arise in the context of this case. That is why we then move to what directions were given by the judge in accordance with ground 5 which is a rather long ground.

GLEESON CJ: Yes, and you may be right about that but if we send this case back for a new trial and we agree with you that the trial judge in this case did not give adequate directions we are going to have to indicate what directions the new judge should give.

MR DEVEREAUX: Yes, your Honour. May I move to that ground and elaborate on it now. That is ground 5 which relates to the directions given on section 216, the defence. It is important first to note that four of the five charges of which the appellant was convicted were offences under section 216 where he had this onus. His evidence – I have really taken the Court to the evidence from the appellant as to his belief both in‑chief and in cross‑examination but there was also evidence drawn in cross‑examination of the complainant at 118 of a rather long list of things that the appellant did not know. Starting just below line 20 these questions were put:

You didn’t tell him that you were doing a special educational course, did you?-- No, I didn’t.
You didn’t tell him what subjects you were doing?-- No.
You didn’t tell him that you had any difficulties or disabilities –

So there is a set of negative questions there. The jury were to take into account, in our submission, what the appellant had perceived and be guarded against what he did not know and using that against him. The trial judge’s directions, your Honours, on this point commence at 307. His Honour had warned the jury during the summing‑up that there was a defence to which he would come. He comes to it at 307, about line 40 and starts to explain it to the jury. On 308 at line 30 his Honour states, in effect, the provision in the Code:

It is a defence to prove that the defendant believed on reasonable grounds that the person was not an intellectually impaired person. I have directed you about what “intellectually impaired person” means.

In fact, his Honour had twice read the definition of an intellectually impaired person earlier. Then referring to paragraph (b) his Honour says:

Or it is a defence to prove that the act that was the offence –

Then he goes on, but, in effect, towards the bottom of the page:

did not in the circumstances constitute sexual exploitation of the intellectually impaired person.

He then goes on to discuss sexual exploitation for a page and a bit and then at 310 comes back to paragraph (a), again, we submit, just to state the section, where his Honour says at line 15:

I’ll return now to say something very briefly about the first defence. Its operation is fairly obvious. That the defendant believed, on reasonable grounds, that the person was not an intellectually impaired person.
It is for you to judge in relation to that defence and in relation to the defence of no sexual exploitation of the complainant, if I can call it that. It is for you to judge what the defendant believed. In the first case the defence is that the defendant believed, on reasonable grounds, that the person was not intellectually impaired.

His Honour then goes on, again, to talk about the sexual exploitation. No elaboration at all is given to the jury about how they are to tackle the defence in section 216(4)(a).

HAYNE J: What factual issue had been joined in the course of the trial that the jury should have been told to consider and resolve in determining the defence of belief?

MR DEVEREAUX: There was no specific question asked of the appellant or led from him that enumerated the elements of intellectual impairment, its definition. There was a broad assertion by him, mainly in answer to questions in cross‑examination, that he did not believe she was intellectually impaired. Then, in any case, our submission is and the ground of appeal is that the judge should have directed the jury that intellectual impairment contains a number of ingredients in its definition joined conjunctively ‑ ‑ ‑

HAYNE J: A judge is not to give a disquisition on the law. A judge is to tell the jury, “Here’s the issue. Here’s the legal standard against which you resolve it. It’s a matter for you.”

MR DEVEREAUX: Yes, and so the judge should have directed the jury, in our submission, that if they are satisfied on the balance of probabilities that the defendant believed on reasonable grounds and the following words I take from the definition, that the complainant’s “capacity for communication, social interaction or learning” was not substantially reduced or that the complainant was not a “person needing support” then he must be acquitted.

So the judge needed to tell the jury, “If you’re satisfied one of these things, the defendant must be acquitted”. The practical effect, for example, is that if the jury is satisfied that the defendant believed, on reasonable grounds, that the complainant was not a person needing support then he was to be acquitted and our submission is ‑ ‑ ‑

HAYNE J: I understand that but when the judge did it, what reference would the judge give the jury to the evidence that would found the judge giving the direction? The difficulty I see in the proposition at the moment and that I want help about is that we do not seem to have a joinder of factual issue where the judge can say, “Look, the accused said this. He was asked this in cross‑examination. There’s a question about did he believe that this was a person who needed support”, or whatever the element may be.

MR DEVEREAUX: Our answer in that is to step back a little bit, if we may, and say this that this was a defence which was open to an accused person and was relied on. It was incumbent on the judge to put it fairly and fully to the jury, whether or not there had been specific claims made by the defence as to particular elements of it, in our submission, otherwise the case is not being properly put.

It was open in this case, without any particular submission even from defence counsel, for the judge to say to the jury, “If you’re satisfied that the accused believed on the balance of probabilities that the complainant was not a person needing support, you must acquit him.” For that purpose you might look at what we saw of their interactions. There she was in a park with her dog in the off-leash area. She walked. She spoke. She gave evidence about using public transport. She invited him to her home. There were many aspects of the evidence which might have been relevant had this direction been properly given and I say that while conceding that it was not specifically joined in issue by the defence in any particular.

The judge did not tell the jury that the only direct evidence on this point was from the appellant, it was his sworn evidence, and it was his belief that was decisive not some objective view about whether one could reasonably believe that she was not intellectually impaired. In that regard we have referred the Court to the decision in Marwey v The Queen which is a decision about the self‑defence provisions in Queensland but where there is a subjective view based on reasonable grounds.

Those are the submissions on that ground. It is the problems which we have referred to in those directions to the jury which are compounded by the written directions that the judge gave to the jury. The written directions, if you like, are in the record book, starting at 449 and following up to page 453. His Honour there set out, for example, at 449 the count of rape. If the jury find not guilty, then they go to an alternative charge of unlawful and indecent dealing. That was the alternative in this case because it was a rape by penetration of the vagina with the finger. It was not a carnal knowledge rape. So that was the alternative.

Count 2, 450, the first alternative was section 216, which was having or attempting to have carnal knowledge on an intellectually impaired person. His Honour referred the jury to that provision first as an alternative. It is a little confusing, with respect, to put the “OR” between the two. It might have been more correct to put an arrow from “Has unlawful carnal knowledge” across to the “Attempts” but no point is made of that, and then the judge referred the jury to a second alternative charge, which is also an offence under section 216. This handout was given to the jury early in the summing‑up ‑ ‑ ‑

KIRBY J: Again, no objection to it?

MR DEVEREAUX: No, indeed it was canvassed earlier in the trial where the judge foreshadowed using the document and there was no objection.

KIRBY J: Presumably it was read on the basis that the issue on the count of guilty or not guilty required at that point the interposition of any defences, but you say the omission of the explicit reference to the defence deprived you of the advantage of having in the jury’s hands a document that specifically directed their attention to that issue?

MR DEVEREAUX: That is so, yes. May I come back to that after I take your Honours to how the judge put this document to the jury. At 254, about line 45, his Honour told the jury – and this is fairly early in the summing‑up which commenced at 12.52 pm on 27 April:

This document I have just handed out is not meant to frighten you.

KIRBY J: What page is this?

MR DEVEREAUX: This is page 254, your Honour. His Honour introduces the document by saying this:

I want to move on now, ladies and gentlemen, to some directions I want to give you about the law that applies and the charges -

and then introduces the document and takes the jury through the document. Now, I concede immediately that when taking the jury through the document his Honour tells them that he will later be explaining the elements of the offence to them. For example, at page 256, line 33, his Honour says:

I will explain in some detail what the ingredients of that charge –

are and his Honour makes similar comments at the next page, 257, about line 30; 258, about line 12 and 259 at the top of the page. So that is where his Honour is taking the jury through the document.

His Honour makes similar comments at 262, line 29. Then what happens at 263 at line 35, his Honour starts to take the jury in detail through the offences and then returns to the document, only right at the end of the summing‑up, and that is at 338, which is the next day, and it is really the last thing the judge does that the jury is taken to the document and again, over a number of pages, takes them through how the verdicts are to be given. The jury retired at 12.04 pm and returned a verdict at 4.34 pm. So they were out for some four hours but that would have included lunch.

The argument is briefly put that the document did not contain any reference to the defences which are open and the judge did not direct the jury, as we have set out in our outline we submit he should have, that the document was supplementary to and not in substitution for oral directions. The danger is that so much attention was concentrated on this document during the deliberations.

GLEESON CJ: One of the things that you will deal with in your written submissions on this defence under section 216 is whether or not it would constitute a belief of the kind referred to in paragraph (a) if an accused said, and this was accepted, “I believed she was a normal healthy person. I did not ask myself whether her ankle was all right or whether her left arm was all right or whether her mind was all right. I just believed she was a normal healthy person.” You might want to, in the interests of your client, address that possibility.

MR DEVEREAUX: Thank you, your Honour, we will.

GLEESON CJ: I notice that that defence under section 216(4) is mirrored in section 208(4). Was section 208(4) relevant to this trial?

MR DEVEREAUX: It was, strictly speaking, it was. I hesitate because the judge obviously formed the view that the sodomy was not fairly proved and, in effect, warned the jury against a finding of penetration and therefore directed their attention principally to the alternative offence to section 208. So I cannot say, but from memory, and I am sorry, your Honour, there was not much discussion of the defence under section 208.

GLEESON CJ: Presumably sodomy is excluded from carnal knowledge in 216 because it is dealt with more severely in terms of penalty and that is dealt with in section 208.

MR DEVEREAUX: That is right. In fact, what I just said is not entirely correct because what the judge did with the defences was, a number of times during the summing‑up, referred to his upcoming comment about a defence which applied to various counts and then he dealt with it at once. So in that way it would be said that he dealt with it as a defence to 208 because he was dealing with it as a defence to several of the charges.

CALLINAN J: Mr Devereaux, when you are responding to the Chief Justice just remember that you can put submissions in the alternative with respect to construction. Could I also remind you of the matter that Justice Hayne put to you about the differences between, in effect, a negative and a positive approach to them. Also, I have an impression that there were similar provisions in Queensland about knowledge of age. Indeed, I think they were everywhere, but similar provisions in Queensland. They were in the Criminal Code in Queensland.

MR DEVEREAUX: Yes, there are.

CALLINAN J: So there must be authority in Queensland as, no doubt, there is also in New South Wales.

MR DEVEREAUX: Yes.

GLEESON CJ: Yes. I must say, as I sit here, I would be embarrassed if anybody asked me what the law was in New South Wales about how you went about making that defence. I know what you used to do in practice. You would say she did not have a school uniform on and had the lipstick and so forth, but I cannot at the moment think of a case that dealt with the question of precisely how you went about establishing that defence. There must be cases on it.

MR DEVEREAUX: The embarrassment is all ours. But except to deal with it in that positive sense, a belief that he was dealing with a person of ordinary, reasonable, average intelligence must, we would submit, amount to a belief that on reasonable grounds she was not intellectually impaired.

GLEESON CJ: I would guess that nine times out of 10 what a person confronted with this charge and trying to make out this defence would say and would want to say and maybe all a person could say is, “I thought that this was a healthy person and I had no reason to question the person’s intellectual capacity”.

KIRBY J: That is, in effect, what your client did say, is it not?

MR DEVEREAUX: It is, yes.

KIRBY J: He said she looked all right.

MR DEVEREAUX: Yes.

GLEESON CJ: We might have to decide whether that, if made out, constitutes the defence.

MR DEVEREAUX: Yes.

KIRBY J: A problem for you may be that the jury which had the advantage of seeing the complainant and the tape at some length must have concluded that she did not look all right.

MR DEVEREAUX: One answer to that, your Honour, is that the court, as did the Court of Appeal, has the advantage of the tape, which is quite lengthy, and is in a better position than a court often is ‑ ‑ ‑

KIRBY J: You have dropped your voice. I cannot hear you.

MR DEVEREAUX: I beg your pardon. The court is in a good position to make that independent assessment because of the existence of the tape. The other issue that that raises is the jury needed to be guarded against taking advantage of their long experience of the complainant when assessing whether the accused had an honest belief based on reasonable grounds back at the time of the offences given his more limited experience of her.

CALLINAN J: Mr Devereaux, I am sorry to take you back to just one matter of fact, but in your submissions you say that the prosecutor “put a serious assertion of fact to the appellant without any apparent basis” at 237. What was that assertion of fact at 237? Is it:

I suggest to you you may well have known exactly where that girl lived even before you met her the second time down in the park?

Is that what you say – you do not need to expand on it. I just want to know.

MR DEVEREAUX: No, it is that point.

CALLINAN J: Thank you.

MR DEVEREAUX: Putting to him and in that form:

I suggest to you that you may well have known –

leaving that issue out –

exactly where that girl lived ‑ ‑ ‑

HEYDON J: Is your objection one of form? Counsel is entitled to seek an admission but there are some ways in which admissions are sought which are not correct ways of putting a question. Is that your objection or are you suggesting that this is a suggestion put when the questioner knew very well that the evidence was the other way?

MR DEVEREAUX: I cannot go that far, but there was a question put where there was apparently no basis whatsoever in fact for the suggestion.

HEYDON J: But does there have to be a basis? Cannot the question simply be is it so or is it not so, and if you say it is not so we will talk about something else.

CALLINAN J: It was put, “I suggest to you”, not ‑ ‑ ‑

MR DEVEREAUX: It was indeed.

HEYDON J: I mean that is an objection of form.

MR DEVEREAUX: Yes.

HEYDON J: I am just trying to work out whether that is your objection or whether there is any other limb to the objection.

MR DEVEREAUX: It has been pointed out to me that the objection is to the putting of a question for which there was no apparent basis. That is the objection we have so far made.

KIRBY J: Could I just ask you, going back to that passage in the Privy Council decision, could you just look at that next question?

I’m suggesting to you that you preyed upon this girl . . .
I put it to you that you preyed upon her knowing, knowing that she was disabled?

Now, would that be impermissibly insulting or is that merely an attempt to put to him for his response what was the essence of the exploitation element?

MR DEVEREAUX: It does fit the category, in our submission, of an insulting question. It is certainly inflammatory language to put that he was preying upon this girl and it builds on and compounds, in our submission, the problem in the earlier question.

HAYNE J: But there is a defence in play of no sexual exploitation.

MR DEVEREAUX: Yes.

HAYNE J: Exploit/prey. I understand there is a difference.

MR DEVEREAUX: The evidence was that the girl, the complainant, gave him her address after what happened in count 1 which was their second meeting. That is when she gave him her address and telephone number. Nowhere in the Crown case was there any evidence, and if there was, we would submit it ought to have been led, but nowhere was there any evidence that he had prior knowledge of her whereabouts or that he had preyed upon her. It is an extraordinary, in our submission, proposition to put and inflammatory and damaging and it was put, in our submission, with no basis, and there is also the question of its form.

With respect to the last ground of appeal which asserts the unreasonableness, I propose, subject to direction from the Court, to say little, but to rely on what is on our outline. There is one matter which is not fully aired in our outline but is, I submit, raised as a result of something said in the respondent’s submissions. The case at Court of Appeal level was really dealt with on the basis that the jury must have found that the complainant had the cognitive capacity to consent and so it then became a question of whether she did consent or whether there was a mistake on the accused’s part which could not be removed by the Crown. It is not impossible, put in the positive.

The verdicts are consistent with the jury finding that the complainant did not have cognitive capacity to consent on this basis, that after she had invited him to her house, and considering what happened there, the jury would have had a reasonable doubt about the appellant’s honest belief that she had cognitive capacity, whereas at the park, given their history, he might have had no reasonable and honest belief about her lack of cognitive capacity, if that is what the jury found.

If that is right then there is a basis on which he was convicted on count 1, on the basis that she lacked the cognitive capacity. If that is right, that goes to the question of unreasonableness because, we submit, that evidence of her lack of cognitive capacity was insufficient. There was expert opinion read into the record, a report of a psychologist. It really defined and gave evidence of intellectual impairment as set out in section 216. It included statements such as the complainant had a social interaction age of 8 to 10 years. There was no discussion in the evidence about what that meant in terms of cognitive capacity to consent.

On the question of cognitive capacity the judge left to the jury other aspects of the evidence, such as the letter the complainant wrote and the opinions and experience of her teacher and her parents. In the results, there being no expert opinion about whether the complainant lacked the cognitive capacity to consent, we submit a verdict on that basis would have been unreasonable.

It cannot be good enough for the appellant to have been convicted of rape on the uneducated guess of the jury about her cognitive capacity without the assistance of direct evidence on the point, expert or otherwise. Now, having said that, with respect to the grounds of unreasonableness, and I am in the Court’s hands, but we simply rely on what is in our outline. Thank you, your Honours.

GLEESON CJ: Thank you, Mr Devereaux.

KIRBY J: Now, Justice Chesterman dissented, but only on the rape count.

MR DEVEREAUX: That is so.

KIRBY J: Your attack, as I understand it, is more general than his Honour’s dissent.

MR DEVEREAUX: Yes. It is difficult – I do not mean by way of sharing a problem with the Court – but I mean to formulate the proper test for a ground of appeal based on unreasonableness when there is a positive defence on an accused. The standard formulations that have been adopted in the Court, since particularly M v The Queen, refer to whether it is open to the jury to convict, whether it was open to the jury, in a sense, to not have a reasonable doubt. What is behind that formulation, certainly in the cases that have come before the Court, has been the question of the Crown’s duty to prove a case beyond reasonable doubt. This is a different sort of case.

So in attempting to formulate an unreasonableness ground on the charges where the appellant had a positive defence to prove, we simply submit that he did that. He gave sworn evidence which, subject to the discussion that the Court has had today, did prove that he had a belief and, objectively speaking, there were reasonable grounds for such a belief and those reasonable grounds are found in the sorts of things that have been raised today, such as the manner in which the complainant was able to conduct social interaction, talk to the police, give evidence, and other things which have not been mentioned today such as insist that questions be repeated for her and insist that cross-examining defence counsel not keep asking her the same questions.

So there were reasonable grounds, we submit, for a belief under section 216. He gave evidence of that belief and that was the only sworn evidence on the point. What is against that is that the Court may be of the view that it was open to the jury to simply not accept his evidence about the belief and that is where we get back to the conduct of the prosecutor and the directions given on that defence.

GLEESON CJ: Thank you, Mr Devereaux. Yes, Mr Meredith.

MR MEREDITH: Your Honours, in relation to the question that your Honour the Chief Justice asked, which seems to be the starting off point for interpreting the legislation that was relevant to most of the convictions, in my submission, the section requires a positive belief that the person was not intellectually impaired. That is the defence of section 216(4).

I would concede that if you came to the conclusion this is an intelligent person, a positive belief about that, then you would satisfy that the person was not intellectually impaired. It is the obverse, if you thought that you could have an intelligent conversation with them, therefore, the inference being that they could not be intellectually impaired but you would have to advert to it, merely saying that you did not think there was anything wrong with them. “I didn’t think about it. I didn’t notice anything that was wrong with this person” would not provide you with the defence.

The legislation is a piece of protective legislation that would be more onerous than most defences because it aims to protect the intellectually impaired people so once the Crown has proved that the victim is intellectually impaired then the accused would have to prove, to escape conviction, if the jury is otherwise satisfied, would have to have a positive belief about the person.

GLEESON CJ: Yes, but it has to be a belief upon reasonable grounds. What is the relationship between paragraphs (a) and (b) of section 216(4)? To put it another way, what is (b) covering that (a) is not?

MR MEREDITH: They are disjunctive so that even if you believed on reasonable grounds the person was not intellectually impaired, even if you did not have that belief or even if you had a positive belief, it did not objectively amount to sexual exploitation. It might cover the situation where the jury regarded the complainant, for the purposes of the section, as really the initiator so that there was not a degree of sexual exploitation, that he or she impugned the…..offender to do the things that occurred or if the offender was someone who was also intellectually impaired.

GLEESON CJ: Yes, I suppose it is important to bear in mind that people who might be charged with these offences are not necessarily themselves adults or unimpaired people.

MR MEREDITH: Yes, they could be young or they could be impaired. My reading of it was that that was what that was directed towards, that someone who was young or intellectually impaired would have a defence. Of course the discretion to prosecute would probably determine that it is not a live issue because there would not be a prosecution unless the Crown did not know that the accused was intellectually impaired.

KIRBY J: Given that we do know from the medical evidence that the complainant had an intellectual impairment, then the hypothesis upon which the appellant was convicted of the offences of which he was convicted was that in respect of those he must have made out a defence.

MR MEREDITH: I do not follow. He did make out the defence. He did not because he was convicted of them. You mean, why he was not convicted of rape on counts ‑ ‑ ‑

KIRBY J: Yes.

MR MEREDITH: There were two grounds, either that she – well, clearly the circumstances in the house suggested that she was quite welcoming.

KIRBY J: Throughout it all, she was intellectually impaired?

MR MEREDITH: Yes, but there is a difference between cognitively ‑ lacking the cognitive capacity to make consent is different from being intellectually impaired. As his Honour pointed out, you would have to not know what the nature of the act was, and she clearly did know the nature of the act – or, the jury had clear reason to believe that she did from what she said in the interview and what she said in evidence, that she knew what occurred in the house. Although it went to the jury on the basis that she did not have the cognitive capacity, it seemed clear that the Crown failed on that ground. As my friend pointed out, in my outline I posit the possibility that the jury decided she did not have cognitive capacity ‑ ‑ ‑

GLEESON CJ: He was acquitted of two charges of rape?

MR MEREDITH: Yes, that she may not have had the cognitive capacity but that he did not know that she did not have the cognitive capacity, and in the first one she did not consent, and he knew she did not consent, or could not ‑ ‑ ‑

GLEESON CJ: Intellectually impaired people can consent?

MR MEREDITH: Yes, that is what I am saying. The difference between lack of cognitive capacity and being intellectually impaired, so that there was a way of stepping through which explains how she could in fact lack cognitive consent and the verdicts be as they are, but the Court of Appeal, and I suggest the more sensible view is that she did have the cognitive capacity to consent.

GLEESON CJ: I mean, of course, some intellectually impaired people can consent. It depends on the degree of impairment.

MR MEREDITH: Yes, that is so. It is less onus for the Crown to prove that someone was intellectually impaired than to prove they did not have the cognitive capacity to consent.

KIRBY J: Now, 216 only applies to – it says that it applies to an offence defined in this section, and that is an offence of unlawful carnal knowledge.

MR MEREDITH: And indecent deal. Section 216(1) is “unlawful carnal knowledge”, section 216(2) is “unlawfully and indecently deals”, and then (2)(b) is, “procures”.

KIRBY J: But does it apply to a case of rape?

MR MEREDITH: No, this defence is – you only come to this, as his Honour explained, because it was carnal knowledge, if rape was not made out.

GLEESON CJ: This is a lesser offence?

MR MEREDITH: This is a lesser offence, and you would only come to it on this indictment because he was charged with rape, but if the jury had rejected rape, either on the basis that she did have the intellectual capacity to consent, and there was consent ‑ ‑ ‑

KIRBY J: So in the case of the offence of rape, the issue of the relevance, if any, of intellectual impairment must be wrapped up in the issue of consent or mistake?

MR MEREDITH: Yes, section 1 of the Code defines “intellectually impaired” as provided in section 229F, so it applies to the whole of the Code. Rape does not include those words, but “intellectual impairment” would be a relevant – as your Honour says – consideration determining whether she did in fact consent or whether the accused believed that she was consenting.

GLEESON CJ: Is Reprint 4 the relevant reprint of the Code?

MR MEREDITH: Reprint 4 was at the time of the offence, 5 was at the time of the trial and 6 is now ‑ ‑ ‑

GLEESON CJ: Which is the relevant one?

MR MEREDITH: In my submission, they are all relevant because there was not any material difference them over this period.

GLEESON CJ: That depends on what you think is “material”.

MR MEREDITH: Yes, I am sorry.

GLEESON CJ: We sometimes want to construe provisions in a statute by reference to other provisions in the statute. The bane of our existence is getting our hands on the legislation in the form that is relevant to the case in front of us, because cases that come to us almost always concern events that occurred some years ago.

MR MEREDITH: Yes, and this was a little earlier – I mean there was a bit of a gap between the offence and the trial.

GLEESON CJ: So is it Reprint 4?

MR MEREDITH: Reprint 4 for the offence, Reprint 5 for the trial and Reprint 6 for the present.

HEYDON J: Surely what is relevant is the events in issue?

MR MEREDITH: Yes, as long as there is no distinction between the two.

HEYDON J: There might be some procedural thing which would affect the trial but on these substantive questions of criminal responsibility, it must be No 4?

MR MEREDITH: Yes. Well, on my reading of the relevant sections, as I have looked at them through the period, was that there was not any material difference. I do not think there was any actual difference in the sections that are outlined in my outline. If your Honours consider there are other sections that might be relevant I cannot speak to those.

KIRBY J: How did the common law deal with issues of mental incapacity? Is that discussed in any case?

MR MEREDITH: You are asking the wrong person, I am sorry, your Honour.

KIRBY J: How did the Code originally deal with the issues of mental incapacity?

MR MEREDITH: It seems that the section prior to 1989 was a totally different style and in fact the offence was knowing that someone was intellectually impaired, so there was an element that the Crown had to prove that the offender knew. I have the section, if I could hand it up?

GLEESON CJ: Thank you, and is there any parliamentary history that indicates what they were trying to achieve?

MR MEREDITH: I am trying to find that, your Honour. I have sent my clerk to find the second reading speech in relation to the ‑ ‑ ‑

GLEESON CJ: Your opponent will have 14 days to put in the written submissions he is going to put in, and then you will have a further 7 days after that to respond to them.

MR MEREDITH: Yes, your Honour.

KIRBY J: By inference, the purpose was to put it on the accused to demonstrate that he had an excuse, as distinct from requiring you to prove, perhaps from the appearance of the complainant, that the person was mentally handicapped.

MR MEREDITH: Yes, the onus, it would seem, shifted in 1989 with the amendments. I have not seen the second reading speech so I cannot say definitively, but it would seem that it was a desire to buy protective legislation for people of – I have five copies here – and I have included section 1 to show that the word “imbecile” is not defined and then I have included section 215 as it was – that was the equivalent section:

Any person who . . .
(2)Knowing a woman or girl to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of her;

is guilty of a misdemeanour -

It is a defence to either section – this is rather odd – that:

the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years.

GLEESON CJ: What did you have to do to establish that belief?

MR MEREDITH: It would be that you would ‑ ‑ ‑

GLEESON CJ: Did you have to say, “I wondered how old she was and thought she was over 16”.

MR MEREDITH: You would have to have a positive thought about the age. You would have to advert to it and decide that she was 16 on reasonable grounds.

KIRBY J: Where is the provision in relation to “imbeciles”?

MR MEREDITH: There is not. That is why I include the definition section.

KIRBY J: It has “idiots”.

GLEESON CJ: And “imbeciles”.

MR MEREDITH: Yes, “imbecile” or “idiot” and that was not defined. The notations to the Code at the time suggested that there were other pieces of legislation that were useful in determining what an imbecile or an idiot was, but obviously it is very much a 19th century term that would no longer be appropriate. The offence, particularly as it is, was created in 1989. I hand up five copies of the section as ‑ ‑ ‑

GLEESON CJ: Before you pass from section 215, there is a small puzzle I have about it. It creates two offences: one relating to a girl under the age of 16 and one relating to an idiot or an imbecile, right?

MR MEREDITH: Yes.

GLEESON CJ: Then it says:

It is a defence to a charge of either of the offences firstly defined in this section to prove that the accused person believed, on reasonable grounds, that the girl was of or above the age of sixteen years.

How is that a defence to the second offence?

MR MEREDITH: It meant that if you thought she was above 16 it did not matter that she was an imbecile.

HAYNE J: Is that right?

It is a defence to a charge of either of the offences firstly defined -

Two offences are defined in 215(1), namely having or attempting to have. Is that not the way it works?

MR MEREDITH: I hope so because it does not make any sense otherwise. You are probably right ‑ ‑ ‑

GLEESON CJ: No, it does not make any sense unless it means that.

MR MEREDITH: Unless it means that, yes. Well, if the first ‑ ‑ ‑

GLEESON CJ: So there was no defence to a charge of contravention of 215(2) and that was because knowledge was an element of the offence.

MR MEREDITH: Yes, so you had to prove that the offender knew that the woman or girl was an imbecile.

KIRBY J: That was applicable whether the victim was a woman or a girl?

MR MEREDITH: Yes.

KIRBY J: So this qualifying element was that the person was an idiot or imbecile.

MR MEREDITH: Yes. The Crown had to prove that she was and then prove that the accused knew she was, so then the amended offence, as it is now, has obviously changed the onus.

GLEESON CJ: Those two expressions, at least to me, sound a lot stronger than “mental impairment.”

MR MEREDITH: Yes. I would have thought that they would have encompassed something that was – they were, it seems in the past, technical terms. They fell into pejorative use, I gather, and therefore lost their ‑ ‑ ‑

GLEESON CJ: I can understand why they fell into disuse but you do hear the expression “borderline” used a lot in discourse in relation to this matter.

MR MEREDITH: Yes.

GLEESON CJ: The legislature seems to have, in 1989, raised the bar.

MR MEREDITH: Yes.

KIRBY J: It broadened the net and it shifted the onus.

MR MEREDITH: It broadened the net and raised the bar in relation to escaping the charge in the sense that ‑ ‑ ‑

GLEESON CJ: Is there anything in the current legislation about degree of intellectual impairment that brings it into operation?

MR MEREDITH: No, it just ‑ ‑ ‑

HAYNE J: Surely in 229F(b). You have some very difficult value judgments there, I would have thought. In (b):

substantial reduction . . . needing support -

One wonders what that invites attention to.

MR MEREDITH: Well, it raised its head in this case in that the complainant was said not to be able, by her mother, to catch buses at any distance and was unable to count money ‑ ‑ ‑

CALLINAN J: Or count money and things.

MR MEREDITH: Yes, and I think it is directed towards that. I mean, I do not – it is a very wide term.

GLEESON CJ: There was a good deal of evidence in this case directed towards whether the complainant could get a job and I think the evidence was the only job she had ever managed to get was, in effect, within the family.

MR MEREDITH: Yes, where she obviously worked because she needed support not only to get to the job but how to deal with it and to restrict what duties she might have.

CALLINAN J: The school tried to place her in unpaid work experience, I think.

MR MEREDITH: Yes, but from what the teacher, Mrs Brandenburg, described it would not have been very demanding.

CALLINAN J: No, and it certainly was not paid, anyway.

MR MEREDITH: No. I hand up those cautions.

GLEESON CJ: Thank you.

MR MEREDITH: We will, between now and the – we may not be able to provide it today. There were some problems. The second reading speech was not electronically available. If we have it, we will produce it, but I do not know. In 1989 the changes to the Criminal Code in relation to sexual offences was quite broad and it introduced the offence of maintaining, so I do not know that the second reading speech might have descended to this offence, but we will see.

Just then returning to the outline, the principal submission in relation to the first ground is that it is a concession that a number of things were said and the form of the questions - there were a number of a things that were said that were inappropriate and the form of the questions was inappropriate and certainly the comment by the prosecutor “Hopeless asking a question” was definitely inappropriate and said to be improper because it was a comment.

GLEESON CJ: It was not just a comment made in the course of the cross‑examination. It was the comment with which he concluded his cross‑examination.

MR MEREDITH: Yes, and then he was invited by the judge to continue – to, in effect, explain what you are doing. He declined the opportunity. As the accused pointed out, it was a comment and the learned trial judge gave the appropriate directions at the beginning of the summing‑up about what is evidence and that the addresses were not evidence, they were just argument, so those ‑ ‑ ‑

KIRBY J: Did the judge give directions specifically addressed to the nature of the cross‑examination or the comment?

MR MEREDITH: No, I cannot point to any, and though it was raised with my learned friend, it was not asked for, and there may have been good forensic reasons that the defence counsel might have regarded his client as quite adequately dealing with the issue and therefore there was no perceived unfairness, and to then ask for a direction on the point might be counterproductive.

Now, I know in the special leave application either your Honour or Justice Callinan said that the accused is not required to handle himself as opposed to – he should not be called upon to be able to defend himself. That is true, but this Court only interferes if there is unfairness, and if there is not unfairness, no matter how inappropriate the questioning is, then there are no grounds for this Court to interfere in the decision.

If the reading of the verdict is that there was a doubt or an acceptance of the defence case that she was cognitively able to give consent and did give consent in counts 2 and 4 then the jury cannot have rejected everything the accused said on the point. They must have accepted to some extent what he said and it would seem that then, if that is the reading of the decision, it is difficult for my friend to point to the unfairness as it actually – manifesting itself in the decision of the jury.

KIRBY J: But you have to meet the point that it was doubly important in this case because of the fact that the accused bore the onus.

MR MEREDITH: Yes, but in this case he did not really attempt to discharge it. He said she was fine and when pressed by his Honour to explain this, this is examination in‑chief, to fill it out as to what he meant by “she was fine”, he did not elaborate and I suggest that is evasiveness.

KIRBY J: It might be because of the point raised early in the case today by the Chief Justice that there was just nothing in her conduct that made him think otherwise than that she was just a normal person of her age.

MR MEREDITH: Except I suggest that the tape indicates that that is just not so. Your Honours, both Justice Callinan and yourself, suggested that she appears confident. Yes, she appears confident, she is confidently talking nonsense a lot of the time and you listen to it carefully and she is not making ‑ ‑ ‑

KIRBY J: A lot of young people talk nonsense, though, and talk it constantly.

GLEESON CJ: Not only young ones.

MR MEREDITH: No, but there is jumping of ideas that would indicate this person is not normal.

CALLINAN J: Mr Meredith, let me tell you I have not seen all the tape, I have only seen a few minutes of it, but I have read all of the transcript of it and it does not strike me, by any means, that she is talking nonsense from time to time which really leads me to another question. Is it a standard practice to conduct repetitious interviews of the kind which, it seems to me, were conducted here? She was asked to give the same account two or three times of just about every incident. That rehearses it in her mind and when it goes before the jury it probably reinforces her assertions about it.

MR MEREDITH: She was not – I do not ask your Honour to point out particularly but my impression was that the police were asking the questions because they were not getting enough detail as to what she was saying was occurring. In some sense there is a catch-22 for this offence. If she is intellectually impaired, then the telling of a narrative is going to be a real problem and the police legitimately are trying to get her to give them details because at this stage this is determining whether there is going to be a charging ‑ ‑ ‑

GLEESON CJ: I think the police were brought into this because she was intellectually impaired.

MR MEREDITH: Yes, and they then have to determine (1) whether the events that she says occurred - whether there is something to investigate or it is a flight of fancy, or that, even if she was intellectually impaired, it did not raise its head because she did things that meant that the accused would have a defence under section 216.

GLEESON CJ: Is that a convenient time, Mr Meredith?

MR MEREDITH: Yes, it is, your Honour.

GLEESON CJ: We will resume at 2.00 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Mr Meredith.

MR MEREDITH: Thank you, your Honours. Before I proceed any further I have copies of the second reading speech in relation to the 1989 Act.

GLEESON CJ: Thank you.

MR MEREDITH: I hand those up. I believe the relevant portion appears at page 3255, the number is in the top right‑hand corner of that page, and as far as I can find, the relevant portion in relation to this section appears at about two thirds of the way down the page starting:

Major changes are proposed to ensure the appropriate protection from sexual abuse of those members in our community who are intellectually impaired.

It goes to the end of the page. I do not know that it is of a great deal of assistance but that is what was said. I also have a page out of the Director of Public Prosecutions Guidelines, current ones from the Queensland Director of Public Prosecutions Guidelines. Cross‑examination is point 39. I also have a portion taken from the Legal Profession (Barristers) Rule which was the rule claimed under the Legal Profession Act 2004.

KIRBY J: May it not be useful for us to have some of the earlier provisions which I would feel sure probably make some reference to the special requirements of fairness on the part of prosecutors?

MR MEREDITH: I can arrange for that. I will get those, but I thought the request was in relation to cross‑examination.

HAYNE J: In addition, as to the general obligations of counsel, attention might be paid to the decision of Mr Justice Gray in Strange v Hybinett [1988] VR 418 at 424. His Honour gathers together a number of the classical statements of the obligations of counsel, that if counsel have absolute privilege, as they do, they have obligations that go with them.

MR MEREDITH: Thank you, your Honour. I also hand up that segment of the Legal Profession (Barristers) Rule 2004 as relates to prosecutors. It starts at paragraph 63 and goes on to paragraph 75.

GLEESON CJ: These are Queensland rules made under what statute?

MR MEREDITH: Under their Legal Profession Act 2004. I think they have been drafted by the Bar Association of Queensland effectively. Now, do your Honours want me to return to the specific complaints my friend has made or – my concession is that there are a lot of things that should not have been said but that it did not result in unfairness, and I could just ‑ ‑ ‑

HAYNE J: What do you say is the principle or standard against which we are to measure what you acknowledge were – I use the word neutrally - “inappropriate” questions, comments and the like?

MR MEREDITH: The test is, as my friend was pointing out, that there has to be – individual comments might be objectionable but not have an unfair effect. Cumulatively, they may or may not have an unfair effect, and in the end it is a judgment by the Court of the effect of the accumulation of those errors or overstepping of the mark by the prosecutor. The Privy Council in the case from the Cayman Islands was saying that sometimes it will not, but unfortunately in this case we say it does. So the test does not seem to be clearly defined. It seems to be an opinion of the appellate court as to the cumulative effect.

HAYNE J: I referred to Strange v Hybinett because that was a civil jury case in which counsel for one party described, I think, what the – it must have been the plaintiff was doing, and the claim made by the plaintiff as “a rort”. The court held that there had to be a retrial, comment was inappropriate, ill‑founded. The jury were likely to have had that firmly in their mind, no fair trial. Now, are we to get any guidance – not from the particular facts, of course, but from that approach or that kind of approach to the way in which jurors may be affected by what happens at trial if counsel act otherwise than in accordance with accepted standards?

MR MEREDITH: I do not know all the details, because merely saying that it was a rort might, on its own, not amount to it, but in the context of the trial it might be – it may have been the only issue, and asserting what you are trying to prove might be impermissible because that was the whole purpose of the trial if there was to establish that it was the dishonest ‑ ‑ ‑

HAYNE J: Here the difficulty you have is that the prosecutor said, amongst other things, a comment to the general effect that the accused man was not persuading him.

MR MEREDITH: Yes, but that was clearly a comment of his position and while impermissible, it was made clear to the jury that it was their decision on the facts. I mean, the standard warning in a criminal trial by a trial judge that it is their decision alone as to the facts, and opinions are not evidence, I can merely rely on that because if every trial was aborted because a prosecutor or a defence counsel, for that matter, expressed an opinion, then we would rarely have convictions upheld.

There has to be some licence and the cases that my friend referred to allowed for that. It is not just that there is a breach, there has to be an opinion of the appellate court that it amounts to unfairness not merely that someone was acting unfairly. I cannot remember which of the ones my friend referred to but one of them was that if not too high a standard was required, that is that if there was any breach meant that there was a cause for retrial then we would never have successful trials.

I cannot be more specific than that because the authorities my friend has referred to, which I think are the appropriate authorities, never descend to a hard and fast rule. All the comments eventually say, “No, we didn’t think this was bad enough”, or “Yes, we did think this was bad enough”. I cannot assist you any further than that other than the cases my friend referred to, for instance, the Western Australian case where the prosecutor put things which he had evidence to know was untrue and it is clear unfairness and that was castigated and was of sufficient ground.

My friend cannot point to that. Even the one where he says the - parking down the street, it was pointed out it was not his strongest point, I will concede that. He had stronger arguments than that. The prosecutor was summarising some of the evidence and it was not an unfair one.

KIRBY J: You see, we only get a number of cases and one does not want to be too precious but defending the very special traditions of the Crown, in my experience it has almost always been a model litigant and I think that is a very special feature. Going through my mind is the fact that in some States the position of the Crown has been removed and the State has taken over but it may be an important point to make at this stage that the role of prosecutors in Australia is a very special one and the traditions are very longstanding and they are common even to countries like Cayman Islands and Australia. These are very great traditions and when you get a case we have to think, “Does this meet the standards that really should be observed in courts throughout the nation?”

MR MEREDITH: My point is that even if your Honours came to the conclusion that it did not meet the standard that would not necessarily decide the issue on the ground. It has to be not that he was acting “unfairly” but that it resulted in unfairness and if it does not result in unfairness ‑ ‑ ‑

HAYNE J: The statutory ground is that on any other ground there has been a miscarriage. It has to rise from the level of miscarriage otherwise the statutory ground of appeal is not engaged.

MR MEREDITH: Yes, so your Honours could make admonitions about it. I do not mean just words, I mean that your Honours could make some comments about it but it might not ‑ ‑ ‑

KIRBY J: The problem is one never knows how things influence a jury and, therefore, you have to really try to work it out in your own mind, especially in a case where the accused bore an onus which is, itself, not all that common, whether this could have been to his unfairness and caused an unfair trial.

MR MEREDITH: Yes, I concede that that is important in a case such as this where the accused bears an onus, and this is an impression that your Honours will have to gain from reading of the complainant’s evidence and seeing the videotape if you wish to do that, but in fact the jury was in the position of deciding that not only was she intellectually impaired, but it was obvious that she was.

If that is the case, and I submit that that clearly was the effect of the evidence and the position the jury would have taken, then that issue does not become so important because the jury can decide, “Look, we’ve seen her give evidence. He had the opportunity to speak to her for half an hour before the very first incident and then he had subsequent opportunities and he should have realised”, and so when he claims that he had a belief to the contrary they would reject that because it was not a reasonable belief, it is not a belief that could be reasonably held on the evidence that they had before them.

In that sense they were in a better position than your Honours because they saw her gave evidence and she is three years older, but your Honours have the advantage of seeing, as they did, how she presented within a short period of the alleged incidents. So while I can make the general concession that because he bears the onus that is an important issue, but it does not amount to a miscarriage of justice because the jury were in the position to make the decision that they did.

Unless your Honours have some other questions, I should move on to ground 2, the failure to adequately direct the jury on the question of consent re cognitive capacity, intellectual impairment. My submission, as I have put in my outline, is that he did properly address this issue. There was a distinction between the two of them and he made it clear that the cognitive capacity was a different thing from intellectual impairment although they naturally overlap. It would seem from the view of the Court of Appeal and a logical viewing of the decision of the jury that they decided she did have the cognitive capacity to give consent but clearly did not – sorry, was intellectually impaired and that he did not have a defence to that.

Now, in my submission, a circumstantial direction was not necessarily appropriate in this case. What they were looking at was, more accurately, the circumstances in which it occurred, that is, in relation to cognitive capacity it only relates to count 1, that this occurred after a short meeting in public when there was little opportunity for there to be a discussion about what was to happen and when he says, “Do you want to fool around,” her evidence was that she did not understand what he meant, so that a direction on consent in this case did not call for a circumstantial direction as in Shepherd. It was, in my submission, properly covered by his Honour’s directions.

Apart from a full statement of that I do not know if there is any need to go any further than that. I should point out no request was made for such a direction. The direction was seen to be appropriate in the circumstances by the defence counsel and, in my submission, he was correct to take that view.

The third ground, in my submission, is a somewhat stronger ground for the appellant. The defence did provide – his Honour was clear to define the two parts to it, but the definition of “intellectually impaired” was conjunctive so the defence could be disjunctive. It was one or the other.

Now, I concede he did not say at the point when he directed them specifically about the defence that he went to disjunctive description of it, but he did on two previous occasions when giving the definition of the offence make it clear that there were two parts to it, that it had be the intellectual impairment resulting in both communication problems and a need for support.

CALLINAN J: He did indeed, I agree, but there was not any dissent to specifics. There was not any emphasis upon the conjunctive aspect of it and there is a disjunctive aspect too, but there is no explanation about that and it may have been sufficient, but the fact is there was no explanation about that, and also, there does not seem to have been any attempt to relate, for example, any difficulties about social interaction to the evidence.

The trial judge does not seem to say, “Well, in that context you have seen the video tape of the complainant and that provides some evidence of her capacity for social interaction, and you might have regard to that and you might have regard, for example, to the way in which an easy relationship was able to be established at the park”, all of those sorts of things. It is just all said in a vacuum and it may be that you do not really understand how the definition can operate unless you understand or know the sorts of facts in respect of which it is to operate. It may provide some evidence one way or the other about that.

MR MEREDITH: Yes. He deals with the definition starting at the appeal record 282, at line 20 – well, actually he starts the page before at 281 at line 50.

CALLINAN J: You correct me if I am wrong about that.

MR MEREDITH: Yes. I am just going through it and seeing because I know he dealt with it there and again. Pointing out just the point that your Honour conceded was made it is at about line 42 on page 282 he says:

results in, 1, a substantial production –

I am sure it means reduction –

of the person’s capacity for communication, social interaction or learning and results in the person needing support.

CALLINAN J: Which is just saying what it is, of course.

MR MEREDITH: Yes. The second time he deals with it is at 298.

CALLINAN J: Just reminding on what the definition is.

MR MEREDITH: Yes, in relation to the defence he points out at page 309, line 18 onwards and particularly in the next paragraph:

You might consider issues such as any inequality between the parties which were known to the defendant, such inequalities being inequality in terms of age or mental or intellectual capacity -

and then goes on. On the following page, 310:

the behaviour of the complainant as it was reasonably and honestly believed to exist by the defendant -

and then goes on further in relation to exploitation. He then deals with what exploitation was in a factual way on 311, line 29 onwards, what use they may make of the ‑ ‑ ‑

CALLINAN J: I am sorry, is that 311?

MR MEREDITH: Page 311, line 29 and then he finishes up with reminding of lack of the – while the onus is on the defendant he had, in effect, one or the other.

CALLINAN J: Thank you.

MR MEREDITH: If the trial judge was required at the point that he explains the defence, as opposed to explaining what the definition of an intellectually person was that he had to point it out again disjunctively, that is the impairment of the ability to communicate and needing support, if it is required that he do it at that stage then he has not done that. I concede that. In my submission, it was not needed because he had made it clear in the definition that there were two parts to it, that it was not required to do it again, but if your Honours take the view otherwise then I could – and there has been a failure to direct on that point then I do not know that I could rely on the proviso because if the defence is not properly put then it may not fulfil the requirements of the proviso but if ‑ ‑ ‑

KIRBY J: Does that apply to all of the grounds of appeal?

MR MEREDITH: No, only to this one in that I would submit that the – I would concede that if you do not – if your Honours take the view that he did not properly put the defence then I do not know that I could rely on the proviso.

GLEESON CJ: He dealt with the defence beginning on page 308, line 30.

MR MEREDITH: Yes. My position was that because he has given the definition he has dealt with the problem but if your Honours took the view that he has not when he gets to specifically putting the disjunctive part of the intellectually impaired person, as opposed to the exploitation then – there are two parts to 216(4) but within the definition of “intellectually impaired person” there are two parts of the definition. Now, if he has adequately dealt with that elsewhere but your Honours are of the view that he should have done it again and he has not then I would concede that but I say that he did not have to do that in these circumstances.

I move on to then the flow charts and I deliberately call them flow charts. They are not directions. They were not designed to be directions. As his Honour pointed out, they were designed to and did set out to the jury the logical sequence with which they had to approach the counts before them. It was an appropriate use of printed material. He made it absolutely clear that they were not directions on the law. They were a means to an end and, in fact, reminded them that this is how you approach it and this is important about when we come to ask you for your verdicts, what the scheme is going to be.

CALLINAN J: Defence counsel, I think, said that they were useful, did he not?

MR MEREDITH: Yes, and he had a look at them before his Honour summed up.

KIRBY J: Normally, because the onus is on the Crown to put it in this way is quite logical, you take the steps, but in this case exceptionally the accused had an onus to establish a defence and the complaint is that the written document and a flow chart showing the steps along the way to the consideration will loom very large in the jury’s deliberation because words have disappeared into the ether but they have this document and it is taking them through the steps. It just does not happen to mention the step that is helpful to the accused.

MR MEREDITH: Yes, but it does not mention section 24 either in relation to count 1 and, in my submission, it is ‑ ‑ ‑

KIRBY J: It is a question of the balance of it and it is partly a matter of impression.

MR MEREDITH: That is one where you could say that the defence counsel was in a very good position to determine the issues in this case and did not object to this. If the offences had been put down without the defence, then, yes, I would concede that there would an unfairness, but that is not the case here. They were in the same position as what the law was as to what the defence was, that is, what he had told them, not what was written down. But he went through it very carefully as to here is what you consider at this point, here is what you consider at this point, so the jury knew when they get to decide guilty or otherwise on count 1 or count 2 or count 4 particularly what steps they had to go through. It could hardly be said to be unfair when they are in the same position about what the law was as they were about what the defences were.

I would submit that the jury would have been in a much worse position and much less able to deal with the complicated issues that were before them if they had not been given this, that they were in a much better position because of this. I am sure the defence counsel would have been happy – well, he was, he did not object and he seemed quite accepting of it – that it was appropriate that this sort of flow chart, that did not pretend to be anything else, be provided to them so that they could use it as a coat hanger on which to hang each of the process that they were asked to deal with in relation to each count. It would have made it much easier then to remember which part of the law applied to which section and which charge.

Finally, in relation to the unreasonableness of the verdict, the only point on which the Court of Appeal disputed, as has been pointed out earlier, was on count 1, and it is was on the evidence of effectively on consent. The complainant had in fact claimed in the interview – it is a matter then for the jury to determine what they thought of it, but she had said that she did not consent to him touching her. On page 378 about line 18 – this is in relation to the touching in the park which amounted to count 1, the digital penetration:

I asked him at first like what he was doing and I kind of –

and then she stops –

I refused to let him do it. He goes, “Why?” and I didn’t answer him at first because I don’t know why -

One, she is claiming not only did not she want him to do it but she said so. Now, the jury had to have a look at that in light of all of the evidence but it is not as though there was no evidence on the point, but the important thing was that the circumstances in which it occurred, that is, they had been talking and all of a sudden he says, “Would you like to fool around?”, and she says, yes, claiming that she did not know what he meant, and then he does this before, as Justice Mullins said, there was really an opportunity to determine what was going to happen, the jury was entitled to come to the conclusion that she was not consenting, and importantly, that he would have known that.

Now, I know that the Court of Appeal was split on that, but in my submission, the analysis by the majority is to be preferred, and at that stage, of course, the accused had been speaking to her for half an hour, so he was in a position to know a great deal about how she communicated and anyone who talks to someone else for up to half an hour learns a great deal about them without knowing specifics about them, just the way they communicate and manifest their intelligence or lack of it and by what they say.

It is my submission that when you watch the tape of this that is patently obvious that there is – to use the vernacular – something wrong with this girl that was obvious to anyone who spoke to her for any length of time. It is my submission you get that from just reading it, but it is even more strongly the case when you have a look at the tape and the Court of Appeal took that view in relation to the intellectual impairment.

Then in relation to the same, but it is a different point, but in relation to the remaining counts it could hardly be said to be unreasonable for the jury to come to the conclusion that not only was she intellectually impaired, about which there was no argument and was conceded as I point out, in my submissions, that his Honour pointed out during his summing-up that the defence counsel had conceded that that was the case because now his point was, obviously, now we have heard from Dr Attwood, we know that is the case, distinguishing it from the position of his client who did not have the advantage of hearing Dr Attwood’s evidence read out on that point.

Although my friends go into some detail as to what the evidence was of intellectual impairment, Dr Attwood’s statement was read to the jury. It was by agreement that there would be no cross‑examination so there was not an admission because I suppose the accused was not in a position to make an admission, not being an expert in that sense but there was no contest on the point. Then, there was no contest that each of the events occurred. Of course, there was the issue about sodomy but that something of a sexual nature had occurred was not in issue.

It then became a question of whether the defence applied because once the act occurs and it is proved that the complainant was intellectually impaired, then the onus is on the accused, opposed to what the law was previously that I handed up before lunch about there being, under the old section 215, knowing that someone was an imbecile. The onus was reversed and then the jury had once again the advantage of having seen the complainant give her evidence and taking into account what had been conceded by the accused that he had spoken to her for half an hour on the occasion before the first offence occurs, that he was therefore in a position to know and that the jury would reject especially as all he said about the point was, even when pressured by the judge to expand upon it when he said, “She was fine”, he could not, or more importantly would not.

The point of course is that it would have been obvious to the jury that anyone who had spoken to her for the length of time that he admitted that he had would obviously come to the conclusion that she was intellectually impaired. Not only was it true, but it would have been obvious that it was true. With that, in my submission, these are not unreasonable verdicts.

KIRBY J: Where is the latest statement of the test about the obligation to reach one’s own conclusion on all of the evidence by this Court concerning the test to be applied for unreasonable verdicts?

MR MEREDITH: I do not know what the most recent one - I did not ‑ ‑ ‑

KIRBY J: It was M, was it not?

MR MEREDITH: I am sorry, I will not agree to it because I do not know but I did not think that there was any dispute about the ‑ ‑ ‑

KIRBY J: There may not be, but we do not live in this world the whole of our lives and it does help to go and have a look at the criteria. Eventually, as Justice Hayne says, it has to rise to the level of the statute but there have been formulae that have told intermediate courts how they are supposed to consider this.

MR MEREDITH: Yes.

KIRBY J: I think M v The Queen was one of them, was it not?

MR MEREDITH: Yes. This Court rarely intervenes, interferes or – your Honours would know this better than I do, I suppose, but it is not unsafe and unsatisfactory as it used to be or unreasonable is not – if it is the only ground it is not something that usually attracts the attention of this Court because ‑ ‑ ‑

KIRBY J: It leads to a different thing on the snakes and ladders, does it not? An unreasonable verdict leads to acquittal whereas the other errors lead to a retrial.

MR MEREDITH: Yes, though as I understand the way that the appellant has put forward the case, it was the effect of the cross‑examination that produced – colours the final ground. I do not know that – I am sure that they would say that you would – that on its own that the state of the evidence without any comment by the prosecutor would be insufficient to justify it but the real thrust of it was that way. If your Honours agreed with that then that would call for a retrial, not an acquittal.

This is a case that if I was to fail on defending the verdict of the jury then this would be a matter for a retrial. Of course your Honours might think on the state of the evidence that you could still send all of them back for retrial but be unsatisfied as to the conviction on rape and send back on the lesser charge, but I suggest that is not the case.

Now, I have covered all the points that I wish to at this stage. I will have a look at the transcript to see what your Honour the Chief Justice specifically asked the parties to address and apart from, I think, the first reading speech, if it turns up anything, I think that is all the material that we would want to place before you. It would just be argument on the points that your Honour raised before lunch.

GLEESON CJ: Thank you, Mr Meredith. Yes, Mr Devereaux.

MR DEVEREAUX: Your Honour the Chief Justice asked the question with respect to paragraph (b) of section 216(4) and what it covers that paragraph (a) does not cover. Among other things what it covers, your Honours, is the situation where an intellectually impaired person is in a relationship, an intellectually impaired person who can consent to sexual activity is in a relationship with somebody. It would then be said, all other things being equal, that that was not exploitation. That is the sort of thing ‑ ‑ ‑

GLEESON CJ: I think Mr Meredith also gave a plausible suggestion which is not very far removed from yours and that is where the accused is an impaired person.

MR DEVEREAUX: Indeed, yes. Now, my learned friend Mr Meredith referred to a passage in the interview between the complainant and the police where she used that phrase that she kind of refused to let him do it. That was dealt with, we submit, thoroughly by Justice Chesterman at AB 421, paragraphs 25 to 27. I do not propose to take your Honours to it, but we submit that Justice Chesterman dealt with that.

Finally, over lunch we have turned up with respect to a charge of having unlawful carnal knowledge of a girl under the age of 17 years a 1962 Queensland case reported – it is R v Logan [1962] QWN 3. In that case, as the headnote reads:

It is a defence to a charge of having had unlawful carnal knowledge of a girl under the age of 17 years that the accused believed on reasonable grounds, without knowing all the facts, that she was of consenting age.

In that case there were these questions and answers:

Q.       You didn’t make any casual conversation with her about age?
A.       Never.
Q.       Never at any time?
A.       Never, never discussed it.
Q.       It had not occurred to you?
A.       Well, it didn’t have to, she looked adult, she acted as an adult and she looked an adult.
Q.       She acted as an adult?
A.       In her actions as regards intercourse and that, she knew what she was doing and knew how to behave herself.

So those sorts of questions and answers in evidence.

CALLINAN J: Is that the Court of Criminal Appeal?

MR DEVEREAUX: That is a good question, with respect, your Honour. It is the Court of Criminal Appeal. The judge is Mack J and Justices Wanstall and Stable agree with the short judgment which is to this point, that:

At no time did the prisoner in any express terms say he had a belief at all. The nearest he went was to say that he had assumed the girl was seventeen or eighteen definitely more than seventeen

and that that was sufficient evidence to go to the jury on that question. What that does, and we will of course look into this further for the Court, but it highlights the difficulty in this particular case. The age cases are not necessarily useful or good analogies because in the age cases what the defence has to prove is a positive belief in a particular age, whereas what is required in this case is, in effect, proof of a belief in a negative, that is, proof of a belief that the complainant was not intellectually impaired.

HAYNE J: Does that have a temporal element, namely, that that belief, whatever its content may be, is held at the time of the conduct said to constitute the offence?

MR DEVEREAUX: You would have to, I assume, yes.

HAYNE J: Thus, if an accused person were to say, “I believed she was a normal healthy person” or some statement to that effect that may simply provoke a series of inquiries in cross‑examination of a kind which did not happen here, about whether that is an attempt to reconstruct or a recollection of a then existing state of belief following conscious…..to the issue or is it simply a turn of phrase intended to convey, “Look, there was nothing that I now know of which alerted me to the possibility” – all of those possibilities floating about.

MR DEVEREAUX: Yes.

HAYNE J: I do not expect you to answer them now, but it will be of assistance if you bear them in mind when preparing what you do in writing.

MR DEVEREAUX: Yes, thank you, your Honours.

GLEESON CJ: Mr Devereaux, one other thing, when the matter finally went to the jury, and I think you have been asked about the addresses and it has been pointed out to you that we do not see them, do you know was there a live issue before the jury as to whether the complainant did have an impairment?

MR DEVEREAUX: Does your Honour mean whether it was, in effect, conceded?

GLEESON CJ: Whether it was part of the defence case? Did the defence ‑ ‑ ‑

MR DEVEREAUX: No. I can answer, I think, what your Honour’s question is, is that it was conceded, in fact defence counsel is quoted as saying something like, “We all know now that she was intellectually impaired”.

GLEESON CJ: Thank you.

CALLINAN J: Except he did put in the word “now”?

MR DEVEREAUX: Yes.

CALLINAN J: I think he referred to Dr Attwood, or Mr Attwood, was it, being a psychologist.

MR DEVEREAUX: That is right. By the time it went to the jury there was no issue about the fact that the complainant was intellectually impaired.

GLEESON CJ: You really would not need to go past the letter that she wrote to Mrs Brandenburg to reach that conclusion, would you?

MR DEVEREAUX: That is a matter for the jury, yes.

GLEESON CJ: In the end it was not really a matter for the jury, in the sense that nobody tried to persuade the jury that she was not impaired?

MR DEVEREAUX: Yes.

KIRBY J: But one matter that would be for the jury would be whether or not it would have been obvious to your client, and that depended a bit on the impression the jury would derive from the appearance of the complainant, both in person and on the video?

MR DEVEREAUX: Yes.

KIRBY J: That is the problem I have with the suggestion, if that is what it is on the unsafe and unsatisfactory argument, that this Court could enter a verdict of acquittal, because you bear the onus on the defence, and whatever you say that has to be weighed by a jury which has its own judgment to make including by reference to the appearance of the complainant?

MR DEVEREAUX: Yes.

KIRBY J: So how could one, even if one found errors in the way the trial was conducted and the way the prosecutor conducted himself, how could one reach a conclusion that this was a matter that required the entry of a verdict of acquittal?

MR DEVEREAUX: With respect to ground 1, the rape, we effectively submit that the reasoning of Justice Chesterman was proper and an assessment of what the majority did shows that they did not address certain specific elements that Justice Chesterman did effectively deal with. That is all in our outline. That is effectively our argument on the unsafe ground.

KIRBY J: So you only contend that the unsafe or unsatisfactory is on the remaining count of rape.

MR DEVEREAUX: We do not formally concede the others but it is very difficult, as we did in fact say in our written outline, to argue an unreasonable argument with respect to the others where it was no doubt open to the jury on all of the available material to reach a view that there were not reasonable grounds.

KIRBY J: And you heard what I said and I think Justice Callinan also said something similar about the impression of the tape. Mind you, that may have to be qualified by looking at much more of the tape than I have had the chance to look at now. Do you want to say anything more about the tape and the impression that it gives?

MR DEVEREAUX: No, I spoke a little about that this morning. What should be considered about what one says on the tape is that at the beginning of the tape, the complainant laughs a lot in a nervous manner, so there is an amount of giggling which is very naïve, perhaps ‑ ‑ ‑

CALLINAN J: They are talking about how she got a dog and how she played with the dog and took it walking.

MR DEVEREAUX: Indeed, and it settles down to a lengthy, even discussion, in our submission, between police investigating a serious case and her. But, no, with respect, I do not want to say anything more about it, it speaks for itself, we submit.

GLEESON CJ: Thank you, Mr Devereaux. We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.

AT 2.53 PM THE MATTER WAS ADJOURNED

[2007] HCATrans 84

1 March 2007