Libke v The Queen

[2006] HCATrans 667

[2006] HCATrans 667

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 2006

B e t w e e n -

JUSTIN PATRICK LIBKE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 8 DECEMBER 2006, AT 10.40 AM

Copyright in the High Court of Australia

MR D.J. CAMPBELL, SC:   I appear on behalf of the applicant.  (instructed by Bartels Lawyers)

MR D.L. MEREDITH:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

KIRBY J:   Yes, Mr Campbell.

MR CAMPBELL:   Thank you, your Honour.  There are two issues raised in this application.  The first issue concerns the treatment of evidence of consent or honest and reasonable, but mistaken belief of consent, in a rape charge in circumstances where the complainant suffers from an intellectual impairment.  The physical acts, which constituted the rape charge which is count 1, were not disputed.  The prosecution had to prove lack of consent and that the applicant did not have an honest belief with regard to the existence of the complainant’s consent.  The complainant had the capacity to consent even though she suffered from an intellectual impairment and that is shown by the jury’s findings on counts 2 and 4 where the applicant was found not guilty of rape, but guilty of an alternative charge of unlawful carnal knowledge of an intellectually impaired person.  Your Honours, the situation then was ‑ ‑ ‑

HAYNE J:   Where the person who is alleged to be the victim of an offence of this kind suffers an intellectual impairment, how does the Code deal with the question of consent?  By hypothesis, the person has an impairment. 

MR CAMPBELL:   Yes. 

HAYNE J:   Is consent possible?

MR CAMPBELL:   Your Honour, the question of consent is a separate question to that of – can I start again?  It is possible for someone who has an intellectual impairment to consent.  The question is one of capacity and if they have capacity to consent the intellectual impairment may be so severe that no consent is possible.  If there is no consent possible then it is possible for a rape charge to be failed to be proved under section 349.  The question in this matter, your Honour, is, where there is not a mild but some intellectual impairment, such that consent is possible by the complainant, how that should be treated by the court.

HAYNE J:   But the question would be whether the accused was proved beyond reasonable doubt to know that the complainant was not consenting or, in effect, be reckless as to whether she was or was not, would it not?

MR CAMPBELL:   Not quite, your Honour.  In my submission, the question is that the prosecution had to prove lack of consent and also had to prove that the applicant did not have the requisite, reasonable, honest belief.  It is this question of lack of consent where there has, in my submission, been confusion in the Court of Appeal because the judgment of the majority is tainted by the fact of the intellectual impairment.

My submission is really this, your Honour; that the question of capacity to consent needs to be determined and once that is determined, as it was in this case, that the complainant had capacity to consent, then the second question is, was their lack of consent proved beyond reasonable doubt?  There should not be a blurring between the two principles.  Can I take your Honour to the judgment to show you where this has occurred ‑ ‑ ‑

KIRBY J:   If one looks at the purpose of the legislation, it is obviously here a protective purpose and it is designed to protect people with intellectual impairment.  Therefore, I am rather concerned in this case that we do not have the advantage which the jury had.  They saw your client say what did he think of the complainant and he said, “Fine,” meaning that he did not see any intellectual impairment and that she was a vivacious and attractive young woman.  On the other hand, the jury did see the complainant and they would have been in a much better position to judge, in a sense, whether the protective purpose of the statute swung into operation or ought reasonably to have swung into operation to protect the complainant in dealings with the applicant.

MR CAMPBELL:   Thank you, your Honour.  There are two issues raised in your question.  The first, that is the protection issue designed by legislation, is dealt with partly by section 216 which is set out on page 171 of the application book.  That is a section which makes it an offence of an abuse of an intellectually impaired person.  So there is specific provision with regard to intellectually impaired persons.

The second part of your Honour’s question, in my submission, dealt with the issue of honest and reasonable belief.  Did the jury, in the circumstances of this matter, having assessed the complainant, consider that, taking her circumstances into account and how she presented, that the applicant had an honest and reasonable belief with regard to the question of consent and they found that there was not one, but the question that is still alive is whether there was, in fact, lack of consent.  It is the effect of and the emphasis that should be given to the complainant’s intellectual impairment on the question of lack of consent which is the nub of this appeal, in my submission at least ‑ ‑ ‑

CALLINAN J:   Mr Campbell, can you show me where in the trial judge’s summing‑up there is a reference to the substance of the definition of an “intellectually impaired person”?  I am interested in particular in the words “a substantial reduction of the person’s capacity for communication, social interaction or learning”.

MR CAMPBELL:   Yes.  Your Honour, I am not sure that I can identify that instantaneously and I apologise for that.

CALLINAN J:   That is all right, Mr Campbell.  I am just wondering whether a direction was given about that or what was said.

MR CAMPBELL:  The end result, your Honour, is perhaps immaterial because the Court of Appeal found, in my submission correctly, that the complainant had capacity to make consent, and that is shown by the fact that the jury did not find two of the accounts of rape proved because ‑ ‑ ‑

CALLINAN J:   That may be so but it is still relevant, is it not, to the question of your client’s state of mind.

MR CAMPBELL:   Thank you, your Honour.  I apologise I cannot identify to your Honour ‑ ‑ ‑

KIRBY J:   Perhaps you can look for the answer to that during the respondent’s submissions.

CALLINAN J:   You go ahead.

MR CAMPBELL:   Thank you, your Honour.  Your Honour, the question of this blurring between consent and the complainant’s capacity to give consent is found in the judgment of Justice Williams in the Court of Appeal, beginning at page 121 of the application book.

KIRBY J:   There is a bit of a flaw in the logic of Justice Chesterman’s reasons.  He says that when you actually look to what the complainant said, she does not really complain of lack of consent, but the problem with intellectual handicap may be that that is because her verbalisation of things is not as good as that would be if she did not have this impairment of a 61 IQ.

MR CAMPBELL:   Can I take your Honour to those passages, perhaps firstly, of Justice ‑ ‑ ‑

KIRBY J:   You might want to start with Justice Williams and then come to that point because that may be a logical flaw in Justice Chesterman’s dissenting reasons.

MR CAMPBELL:   Thank you, your Honour.  Can I take you to Justice Williams, page 121, at paragraph [8] which is about point five and if I could ask your Honours to read that paragraph.

KIRBY J:   Is it 85 or 86?

MR CAMPBELL:   I am sorry.  Page 121, paragraph [8] is the approach.

KIRBY J:   Yes.

MR CAMPBELL:   His Honour there found it affected by what was her understanding, her, in effect, capacity.  Paragraph [11] on the same page, beginning three lines from the bottom, the sentence beginning:

The complainant in evidence said she did not know what the appellant meant -

and going over the page.

KIRBY J:   Yes.

MR CAMPBELL:   Paragraph [13], on that page as well, page 122, beginning about line 5, the sentence:

Though the complainant said that she understood what was being put to her ‑ ‑ ‑

KIRBY J:   Yes, we have read all this.

MR CAMPBELL:   Thank you, your Honour.  What that shows, your Honour, is a blurring, in my submission, between the issue of lack of consent and the plaintiff’s capacity to give consent.  Once it is found that there is capacity to give consent the question of lack of consent should be seen in isolation and although, I suppose, you would have to take into account some of the surrounding circumstances, in what has happened in this case is that there has been a blurring of the two between capacity, which the jury found there was, and the actual consent itself.

Your Honour, the capacity issue or at least her intellectual disability comes more into play when the next element, that is the reasonable belief element is considered because in those circumstances the jury can decide whether or not that is proved taking into account matters such as intellectual disability, how she presented and her capacity in that ‑ ‑ ‑

KIRBY J:   Do you accept that the correct way to go about a trial on this provision of the Code is to call objective evidence about the intellectual impairment of the complainant so that that fact is established objectively, but it still leaves the question of the impression to the accused and whether or not the accused would have known of these objective medical facts. 

MR CAMPBELL:   Yes, and that ‑ ‑ ‑

KIRBY J:   You do have a side complaint about the mother giving the evidence and other people giving the evidence, but it was established by medical evidence, was it not?

MR CAMPBELL:   Yes, it was established.  A Dr Attwood gave evidence in that regard.

KIRBY J:   Yes, that rather puts aside the complaints about – let us concentrate on the main issues in the case.

MR CAMPBELL:   Yes.  Your Honour, that is how the matter was seen by Justice Chesterman and the same type of approach, though different words were used by Justice Mullins at page 138, paragraph [79].

KIRBY J:   Justice Chesterman only dissented in respect of count 1, did he not?

MR CAMPBELL:   Yes, your Honour.

KIRBY J:   He agreed with the convictions on the latter counts.  They included a conviction of rape, did they not?

MR CAMPBELL:   No, your Honour.  The other two counts ‑ ‑ ‑

KIRBY J:   I see, so rape went out and the lesser offences were brought in as guilty by the jury and you have a side argument about the inconsistency in the MacKenzie sense between the verdicts.

MR CAMPBELL:   Yes.

KIRBY J:   But that does not seem to loom very large because the Court of Appeal gives a pretty good argument about the answer to that.  I am just not entirely clear.  Count 1 where rape was not found was the first incident in the park, was it?

MR CAMPBELL:   Rape was found in count 1, your Honour, and it was the first incident in the park.

KIRBY J:   That was in the park and that was a digital penetration.

MR CAMPBELL:   That is right.  Counts 2 and 4 were two counts of rape where rape was not found.  The lesser charge, the alternative charge, of unlawful carnal knowledge of a person with an intellectual disability was found to have been proved.  They were incidents which happened geographically separately from that and at a later time as well.

KIRBY J:   Yes.

MR CAMPBELL:   Your Honour, can I take you to Justice Chesterman.

KIRBY J:   What page?

MR CAMPBELL:   Beginning at page 124 of the application book.  His Honour found that the only evidence from the complainant was a phrase where she said “I kind of – I refused to let him do it.”  You will see that on that page at about point 7.  The question is “[W]hat if somebody came along?”  His Honour thought that this was an unsatisfactory statement and he explains why at paragraph [25] at the bottom of that page going across to the next page:

The complainant did not say she objected to the penetration.  She did not say she resisted.  She did not say the appellant –

Your Honours can see that.

HAYNE J:   How much of that analysis is affected by the way in which the complainant would have presented to the jury when giving the answers that are recorded?

MR CAMPBELL:   Your Honour, this is the difficulty.  Evidence as to how she presented, in my submission, would have been relevant to the question of whether or not the applicant had an honest and reasonable belief.  How she presented is relevant to the question of consent or the capacity to consent.  But having the capacity to consent, how she presented is not as relevant to the question of lack of consent.

HAYNE J:   Much turns on what weight is to be given to the words “I refused to let him do it”.

MR CAMPBELL:   Yes, and there is no evidence as to how that refusal took effect.  There are no words, there is no action.  His Honour explains in that paragraph ‑ ‑ ‑

HAYNE J:   She goes on to say:

He goes, “Why?”

That is the difficulty I have at the moment, that I do not know how she was saying this, what meaning was being conveyed.  Yes, I can read the words.  What I do not understand is what message was being conveyed when the words were uttered to the hearers, namely, the jury.

MR CAMPBELL:   My answer to that, your Honour, is the classic answer, that it, of course, has to be proved beyond reasonable doubt and if it is obscure or unclear then the element has not been proved.  Your Honour, there is also discussion on this aspect by Justice Chesterman at paragraph [31] on page 127 and on other references which your Honour has been shown to.  So, your Honour, the submission then is that the important question of law is this blurring or the difficulty in determining what matters should be taken into account with a person who has an intellectual disability where they have the capacity to consent and yet lack of consent is an element which needs to be proved in a charge such as this one.

KIRBY J:   Yes, but we would not want to have the matter come up into this Court and then the judges say there was some evidence, namely, “I kind of – I refused to let him do it” and there was the advantage which the jury had of assessing the complainant, which we just do not have.  These are points made by the Court of Appeal.

MR CAMPBELL:   My submission is this , your Honour ‑ ‑ ‑

KIRBY J:   Justice Chesterman said that does not really matter because “I kind of refused him” was a very weak statement and the other evidence of the complainant is consistent with not refusing.  That is how he came to his conclusion on that particular count.

MR CAMPBELL:   It is a statement of conclusion, “I kind of refused”, your Honour.  It is not evidence of the act which ‑ ‑ ‑

CALLINAN J:   It is very equivocal on its own.  As Justice Hayne says, though, it may have had a different complexion said orally but to read it is certainly equivocal.

MR CAMPBELL:   Yes.

KIRBY J:   You have a separate point concerning the differential verdict so I do not think you are pressing that, but you also have the point concerning what you say is the unfair conduct of Crown counsel which you say deprived your client of a fair trial.  There certainly are a few comments there by counsel, which seem to go outside the bounds.  He seems to be a man very strong on comment.

MR CAMPBELL:   Your Honour, this matter is one which is unusual because the charge was under section 216 which I took your Honours to before, but it is found at page ‑ ‑ ‑

KIRBY J:   This argument did not impress any of the members of the Court of Appeal, did it?  They all said that it was robust, vigorous, as was to be expected, but it did not cause the trial to miscarry. 

MR CAMPBELL:   Indeed, that is the case, but the difference is, your Honour, that the onus for a defence in this matter under section 216 rested on the defendant and in such circumstances where the only evidence could be that involving his own credibility and his own evidence.  A prosecutor should tread more carefully.

KIRBY J:   We know all about that.

MR CAMPBELL:   Yes.

KIRBY J:   Have you said most of what you want to say.  I am happy to allow everybody to say everything they want to say.

MR CAMPBELL:   No.  I am grateful for that, your Honour.  They are my submissions.

KIRBY J:   Yes, thank you.

MR CAMPBELL:   Thank you, your Honour.

KIRBY J:   We will hear from the respondent.

MR MEREDITH:   Thank you, your Honour.

KIRBY J:   Could you get that last point out of the way.  It does seem that some of the comments here, really they are not the tradition of Crown counsel with which I am familiar and I have sat in criminal appeals for 20 years.  I mean, for example, that comment “Hopeless” to cross‑examine you. “Hopeless” to.  He should not be making comments like this.

MR MEREDITH:   No, I concede that that is not an appropriate comment but the response from the accused at the time and the point that the Court of Appeal made is that he gave as good as he got and that he was not then ‑ ‑ ‑

KIRBY J:   But he should not be put in that position that he has to say, “You’re making comments” – (a) counsel should not conduct themselves in that way and, (b) the judge should reproof them.  It is a very serious matter, a criminal trial, and I must say I was really quite surprised at the type of questions and the repeated comments by Crown counsel.  It sets an atmosphere and a milieu in a sensitive question for trial.

MR MEREDITH:   No.  The point that my friend makes about the issue of the honesty of the accused, or at least his credibility, cannot have been said to have unfairly worked against him because the jury decided not to convict of rape in counts 2 and 4 and I think in count 5, also, took an alternative verdict, so that issues that were raised ‑ ‑ ‑

KIRBY J:   As we have been reminded, they did return one count of rape.

MR MEREDITH:   Yes.

KIRBY J:   That is sustained.

MR MEREDITH:   Yes, but the other ones they did not, so that it did not appear to have acted unfairly against him.  Whether the judge should have made a comment at that point, “If the accused handles it well enough himself then there would be no need”, if the perception was on the part of the judge or, more importantly, on the part of the defence counsel that there was something amiss then there would have been scope for an objection or a comment by the judge ‑ ‑ ‑

CALLINAN J:   That is a bit unrealistic, really.  Counsel is persistently doing this – the prosecutor – and the judge is not reproaching the prosecutor.  You look at that passage at paragraph [90], page 142 that Justice Kirby referred to.  Because the applicant quite correctly says when he is asked:

Do you want to comment?---No, you’re commenting to me -

it is a perfectly proper answer and it is a perfectly accurate description and then the court says “Whose judgement is that?” – the judgment of the Court of Appeal:

the appellant showed that he was equal to the task of making his own observation –

That is not a sufficient answer, not for me it is not.

MR MEREDITH:   No.  It may be that that is an inappropriate comment.

CALLINAN J:   And the judge should have intervened then.

MR MEREDITH:   Maybe he should have but is there any unfairness, in effect ‑ ‑ ‑

CALLINAN J:   Take it in the context of a trial about which there may be other difficulties, including in the summing‑up, in my view, that assumes a very serious complexion, a very serious aspect.  In any event, that is my tentative view about it.

MR MEREDITH:   My only answer to that is that not only did defence counsel not object but the decisions of the jury would suggest that there was not the unfairness, that in fact they were not…..by that.

CALLINAN J:   It may not have been a fair trial for that reason.  The jury may have thought that this was perfectly proper conduct because nobody told them it was not and the judge did not intervene.  Juries are not arbiters about how the case is to be conducted.  In any event, you move on to your other points.  You have my view on it – tentative view on ‑ ‑ ‑

KIRBY J:   Can I just add to what Justice Callinan said?  Looking at it from the point of view of this Court, unless courts hold the line in conduct we will lose a very precious aspect of the conduct of Crown counsel or prosecuting counsel in this country and that is where I think there is a question as to whether the Court of Appeal approached the issue correctly in judging, well, “He gave as good as he got” because it is courts that have to ultimately hold the line and set the standards, not accused facing very serious criminal charges.

CALLINAN J:   It is not a contest between the advocate and a party.  It may be an adversarial system but the actual party or a witness is at a serious disadvantage or can be at a very serious disadvantage.

MR MEREDITH:   But in the end whether a court interferes is not necessarily on the behaviour of the counsel but the effect of it and if there is no unfair effect then it is not an appropriate case to interfere and that ‑ ‑ ‑

KIRBY J:   I think we will move on to the next point but we were just signalling we did not think it was an irrelevant matter.

MR MEREDITH:   Thank you, your Honour, I take that on board.  The major complaint is in relation to count 1 and, of course, it is the only issue on which the Court of Appeal disputed.  My friend says there was a confusion about the issues of lack of consent and capacity for consent and, frankly, I would submit that that is not the case and it is clear from the judgment of Justice Mullins, with whom Justice Williams agreed, at paragraph [70] which is on page 136 of the record book.  It is probably best to start with paragraph [69].

It is clear that her Honour knew what the issues were and enunciated them in the context of distinguishing between the verdicts in count 1 and those in counts 2 and 4.  There was a distinction between the capacity to consent and whether there was a consent and/or whether there was an honest and reasonable mistaken belief on the part of the accused which the Crown would have to dispel.  On one of those grounds, obviously, the Crown bailed in relation to counts 2 and 4 because the jury returned verdicts on the lesser charges.

The point that my learned friend makes and the one that his Honour Justice Chesterman put much store in was the comments by the complainant.  His Honour is recounting them, verbatim, from the record.  The point is, of course, that even – as the trial judge said – there is the distinction between capacity to consent and then the effect of her intellectual impairment on her ability to communicate her lack of consent, both at the time and when she is recounting it to the police a week later.

When she says, importantly, “I kind of refused him” and he says, “Why?” then obviously she has, on her version, expressed that in some way.  It is not traversed by the defence principally because they were putting forward an alternate version of events which makes the argument on which Justice Chesterman placed some reliance, namely, her acceptance that she had moved so as to provide the accused with better access to her pubic area that a totally different version was put which makes it very hard for the accused then to argue that there was much to be made of that.

Importantly, the other two judges of the Court of Appeal said that you had to take into account, and the jury was in the best position to do this, what effect those words had.  It is not just that they were said but what the jury found that they meant after having seen her give evidence and, of course, hearing the expert evidence about her capacity.

CALLINAN J:   But Mr Meredith, I wonder if you could assist me with something please.  Let us assume that there is evidence – and it seems to be beyond doubt that there was – that the complainant was an intellectually impaired person, that objectively that was established.  That seems to be the position, does it not, or there is evidence capable of doing that?  Is that right?

MR MEREDITH:   Well, the expert report was he was not available – the defence wished to go ahead.  It was read into the ‑ ‑ ‑

CALLINAN J:   So it is yes.

MR MEREDITH:   It was not a real issue.

CALLINAN J:   No, but do the elements of intellectual impairment fall away completely once that is objectively established?  Are not the elements of intellectual impairment capable of being relevant to the state of mind of the accused on the issue whether there was consent being given?

MR MEREDITH:   Yes.

CALLINAN J:   Let me put to you directly what I have in mind.  Say, in fact, to the accused it did not seem, for example, that there was a substantial reduction of the person’s capacity for communication or social interaction or learning.  Now, say that was not apparent on his evidence, that that was not apparent to the accused, would he not then be entitled to some summing‑up in relation to that, if that is so?  I tell you again why I ask.  There is evidence which would suggest that this young woman was capable of communicating and to some extent of socially interacting.  I know it was not asked for, but I wonder whether there should not have been a direction which brought home the question of intellectual impairment – the elements of it - in its relevance to the issue of apparent consent or otherwise?

MR MEREDITH:   I believe the portion of the summing‑up that your Honour was asking my learned friend, Mr Campbell, about starts at page 43 of the record at point 50 and then goes over the page.  His Honour was making the distinction between the issue of the definition of “intellectually impaired person” and the issue of a perception by the accused of the complainant’s (1) capacity to give consent and, (2) whether she was in fact giving consent.

Now, the problem for the defence in asking for a specific redirection of the point was that it was notable that on two occasions the accused asked the complainant of her age, “Are you sure you are 18?” before engaging in the sexual activity at the house.  So clearly it was an issue on his mind as to her naïveté.

CALLINAN J:   I do not know about that.  I mean, physical maturity and chronological maturity may be entirely different issues from intellectual capacity.

MR MEREDITH:   Yes, but the jury had the advantage of seeing her and, importantly, seeing her later on a video of – so they knew what she looked like.

CALLINAN J:   But whether she was 17 and a half, 18, or 22, is an entirely different matter from her intellectual capacity and her apparent intellectual capacity.

MR MEREDITH:   But the jury were entitled to ‑ ‑ ‑

CALLINAN J:   You might have a young woman of 23 who looks 14.

MR MEREDITH:   Yes, but it was – see, that is the point.  The jury had the advantage of seeing her on video talking to the police a week afterwards.  They knew what she looked like then and his question then had to be taken into account as to his perception of her intellectual capacity ‑ ‑ ‑

CALLINAN J:   It may have been his perception of her physical and chronological maturity.

MR MEREDITH:   The jury had the benefit of seeing the complainant so that they could then deal with whether that was a real issue or whether it was more an issue of his perception that she was not as intellectually gifted as he was making out in his defence.

KIRBY J:   I do not think that is a fair comment.  He did not say she was intellectually gifted.  He just said she was, “Fine.”

MR MEREDITH:   No.  “Fine”, okay.  Yes, okay.  I am not saying – sorry, I should ‑ ‑ ‑

CALLINAN J:   Those directions you referred to, do they relate the elements of intellectual impairment to the state of mind in any way, or the possible state of mind in any way, of the applicant?

MR MEREDITH:   No, his Honour was making the distinction because it is an element of the alternative offence that you have to establish that she was intellectually impaired and that she was exploited.  So that is an objective issue.  His Honour was making the distinction between that and the subjective issue of whether what her obvious impairment, if it was obvious, would have upon the perception of the accused as to her consent or lack of consent.  He makes the point, do not confuse the definition with the context of – he goes at the top of page 44 of the record:

the intellectual deficit in a more general way when you are considering the question of lack of consent, consent and capacity or lack of capacity in relation to the charges of rape. 

He was making a distinction between them.  Now, of course, how she presented was the critical issue in the trial and there is a differential verdict in relation to counts 1 as opposed to counts 2 and 4, so it is a matter that the jury obviously took into account.  In the end, in my submission, a complaint by Justice Chesterman is not made out when you take into account what the jury had to see of the complainant ‑ ‑ ‑

KIRBY J:   We understand that.  We appreciate you have two main arguments:  first, that little phrase that she used and secondly, the fact that the jury had the advantage of seeing her.  But the question remains whether what is left, having regard to the entirety of the evidence, is sufficient in this case, and also, in my mind, whether the directions given to the judge were of sufficient help although it is not within the current grounds of the application, and the current grounds of the application are pretty unsatisfactory, really, trying to turn us into a second level appeal court, if not trial court.  So we will have to have some refinement of those if the matter is the proper subject for special leave.

MR MEREDITH:   Yes, the respondent has answered the grounds as drafted, of course.

KIRBY J:   The applicant does not seem to have pressed the matter of the inconsistent verdicts.

MR MEREDITH:   No, I was just going to ask ‑ ‑ ‑

KIRBY J:   We really go past that and we have really therefore got the issue of the possible question of directions, and whether the verdict is unsafe and unsatisfactory in the old‑fashioned sense, and the issue of Crown counsel’s conduct during the trial.

MR MEREDITH:   Yes.  I draw your Honours’ attention to the fact that his Honour the trial judge gave the jury a flow chart which it seems was accepted by the defence as an appropriate way to proceed and it did, in effect, lead to the differential verdict, so it was clearly that the jury understood what was being explained to them.

HAYNE J:   You said there was a flow chart.  Do we have that in the application book?

MR MEREDITH:   No, you do not, your Honours.  It can be provided.  I noted that ‑ ‑ ‑

KIRBY J:   I noted that it had been given.  We had better have it if special leave is granted.

MR MEREDITH:   Yes.

HAYNE J:   It might also be relevant to whether leave ought to be granted, particularly if the grounds are to be expanded to take account of directions.  I mean, we cannot understand the directions unless we have all of the directions and those include the written directions.

MR MEREDITH:   Yes, well, since the appellant ‑ ‑ ‑

HAYNE J:   The Crown has to insist on these things.  Applicants prepare their application books.  I understand that.  But the Crown has its responsibilities too.

MR MEREDITH:   Yes.  That was not a ground of appeal so that then we did not know that that was going to be raised.  If it had been of course we would have included that because it was obviously an essential part of the directions, but since it was not raised we did not consider it appropriate to add to the record.  I think I have covered the points ‑ ‑ ‑

KIRBY J:   I think you have.

MR MEREDITH:   The rest of what the time was going to take up was that other issue that was not pressed.

KIRBY J:   Yes, thank you.  Yes, Mr Campbell, anything in reply?

MR CAMPBELL:   No reply, thank you, your Honour.

HAYNE J:   Before you sit down.  As your grounds of appeal presently stand at page 152, the ground founded on the prosecutor’s cross‑examination, ground numbered 2, do you press ground 3 because I understood your oral address to be confined to ground 4 concerning count 1.  What is the position?

MR CAMPBELL:   Yes, your Honour.  I do not press ground 3.

CALLINAN J:   You do not press it?

MR CAMPBELL:   Your Honour, ground 4 covers count 1, not reasonable and/or unsafe and unsatisfactory.

CALLINAN J:   That is a matter for you, Mr Campbell. 

MR CAMPBELL:   Yes.

CALLINAN J:   I do not why you would abandon it, frankly, because it may be that ground 2, for example, might not be quite enough to get you there, but taken with other factors you may have an argument.  I am not saying you have, but you may have an argument that the verdicts are not reasonable or are unsafe.

MR CAMPBELL:   Yes.  Thank you, your Honour.  I would like to have some time to consider it, if that is possible.

CALLINAN J:   It is very late to be asking for that.

MR CAMPBELL:   Yes.  In any event, your Honour, I will not abandon ground 3 in those circumstances.

KIRBY J:   Yes, all right.  Anything else you want to say?

MR CAMPBELL:   I have nothing else to say, thank you, your Honour. 

KIRBY J:   We will adjourn to consider the course we will take in this application.

AT 11.24 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.29 AM:

KIRBY J:   Mr Campbell and Mr Meredith, at this stage we are inclined, before finally considering whether special leave will be granted in this application, to order that the application stand over to be re‑listed before Justice Callinan sitting alone in Brisbane for the purpose of considering the grounds of appeal which the applicant ultimately propounds in the light of the discussions that have taken place this morning in this Court. 

It will not be forgotten, first, that the applicant is not pressing a matter which was raised in the written arguments concerning the inconsistent verdicts, but the applicant may wish to consider the issue raised by Justice Callinan concerning the possible need for an added proposed ground concerning the trial judge’s directions to the jury on the requirements of section 216 of the Code and whether the directions given by the judge were adequate and satisfactory.  That, in turn, will depend upon the flow chart and any other material relevant to directions that are not in the application book. 

Counsel will be given notice by the Registry concerning the date of the re‑listing of the matter before Justice Callinan.  The applicant should, by that date, have in proper form a proposed amended draft notice of appeal which will be placed before Justice Callinan.  Thereafter the Court will announce its disposition of the application for special leave having had the opportunity of considering the transcript of the proceedings before Justice Callinan.  Do you understand that, Mr Campbell?

MR CAMPBELL:   Thank you, your Honour. 

KIRBY J:   Yes.  You too, Mr Meredith?

MR MEREDITH:   Yes, your Honour.

KIRBY J:   Very well, that is what will happen.  The Court will adjourn briefly in order to be reconstituted for the following applications.

AT 11.32 AM THE MATTER WAS ADJOURNED