MDP v The King

[2024] HCATrans 084

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B72 of 2023

B e t w e e n -
MDP
Appellant
and
THE KING
Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 3 DECEMBER 2024, AT 10.00 AM

MR S.C. HOLT, KC: May it please the Court, I appear with my learned friend MS S.J. HEDGE for the appellant. (instructed by Jasper Fogerty Lawyers)

MR G.J. CUMMINGS: May it please the Court, I appear with my junior MR S.J. MUIR for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

MS R.J. SHARP, KC: May it please the Court, I appear with my learned friend MR T.M. WOOD for the Commonwealth Director of Public Prosecutions, intervening. (instructed by Office of the Director of Public Prosecutions (Cth))

MR B.A. HATFIELD, SC: If it pleases the Court, I appear with my learned friend MS E.R. NICHOLSON for the Director of Public Prosecutions (NSW), intervening. (instructed by Solicitor for Public Prosecutions (NSW))

GAGELER CJ: Thank you, Mr Hatfield. Mr Holt.

MR HOLT: May it please the Court, we have special leave in respect to ground 1 but need it in respect of grounds 2 to 4. I had assumed, I hope correctly, that the Court would simply deal with that in running, so to speak.

GAGELER CJ: Correct.

MR HOLT: Thank you. The appeal, as the Court knows, relates to a relevantly confined piece of evidence that was led in the trial which, for want of a better term, is referred to as the “bottom slapping evidence”. The essence of the error, in our respectful submission, is that the bottom slapping evidence was not admissible for any purpose, but that in particular it was not admissible for use as evidence of what is, by way of convenient shorthand, described as sexual interest evidence, which was the only basis upon which the jury was permitted by virtue of his Honour’s directions – the trial judge’s directions to the jury – to use the evidence.

Can I start with those directions which the Court will find at core appeal book page 35, and lines 4 to 29, which contain the entirety of the directions in respect of the bottom slapping evidence given by the complainant’s 11‑year‑old sister in this case. There are a couple of aspects of it, in light of the Crown’s submissions in this case, that really do need highlighting at this point.

The first is that, contrary to a submission that is made in writing by the respondent Crown, it is overwhelmingly clear that this was a direction to use the evidence, that permitted the use of the evidence for the purpose of sexual interest. That is, as line 10 says:

that conduct does demonstrate that he had a sexual interest in the complainant and was willing to pursue it.

It was made clear that that is the basis upon which the Crown relies on the evidence of this particular uncharged conduct and that the defendant had a sexual interest in the child. The other critical aspect of this, which we need to draw the Court’s attention to, is found at line 16, which is:

If you are not satisfied about – I should say, if you are not satisfied about that smacking on the bottom, as going to a sexual interest, then you simply put that to one side . . . If you do not accept that this other evidence proves to your satisfaction –

then the evidence cannot be used in any other way. What follows is this was a sexual interest direction that permitted the evidence to be used for that purpose, and that ‑ ‑ ‑

BEECH‑JONES J: That last thing you read, Mr Holt, you said it “cannot be used in any other way”. Where is that?

MR HOLT: It is found at line 23, your Honour:

you must not use the evidence in some other way.

BEECH‑JONES J: Thank you.

MR HOLT: What is clear from that is that the evidence was permitted to be used for a sexual interest purpose and only for that purpose. That, again, with respect to some of the submissions put against us, makes perfect sense in the context of the trial, because there is literally, in our submission, nothing in the record which suggests that the Crown, the defence, the trial judge or anybody else had a relationship or other reason for the evidence being admitted for these purposes. So, whatever might now be said about another basis for admission, which we dispute, what is clear about the conduct of this trial is that the evidence was only deployed and used for this purpose, and that the jury was specifically told that it could not be used for any other purpose.

The evidence itself and the way in which the Crown deployed it, of course, is the next foundational step in the argument, because of the way in which the Crown put its submission as to the use of the evidence as sexual interest and the way in which it sought to persuade the jury of something which the Crown now, in this Court, effectively says the jury could never have been persuaded of anyway. That is found at the appellant’s book of further materials, page 95, which is the closing submissions of the Crown Prosecutor on this point, which, again, cover only a very short portion of the transcript.

Again, it is worth perching on for a moment, because the prosecutor, although – as he said to the trial judge he would – he closed on it briefly, nonetheless closed on it in a way which was, unsurprisingly, designed to persuade the jury to accept this form of reasoning, to adopt it, and, of course, when tied in with the direction that the learned trial judge gave, the jury were told by the trial judge that they could adopt this form of reasoning. So, if we look in the way in which it was closed, with the ordinary and perfectly proper advocate’s flourish, there is a reference then to the sister’s evidence – she, of course, was 11 years old at the time – about smacking the bum:

described that this would occur when they weren’t doing anything wrong.

The logical implication being there must be some purpose other than discipline for it:

But clearly –

As the prosecutor says:

members of the jury, it was more than just an innocent “get out of the way” slap. It wasn’t a disciplinary slap. Because –

the complainant’s sister:

remembered it.

She:

found it unusual.

If I can pause there for a moment, there is a potentially seductive quality to a submission of that kind when one is dealing with an 11‑year‑old child in the same house that the sexual offending was alleged to be occurring in. The idea that an 11‑year‑old would have observed something which, as Justice Henry found and as the Crown now seems to accept at least, had the ability to be characterised as relatively innocuous, could nonetheless be seen as a little window into, from an independent source, something really significant, that is an unusual and sexualised behaviour.

Again, he goes on to make good the point, building the submission, that the complainant’s sister did not say the defendant was doing this to all the other kids. It was just the complainant. Again, one sees the quality of the persuasion. Then the proposition is put:

Maybe –

the complainant:

didn’t mention it because it pales into comparison to everything else that happened to her.

But then this is the critical point, in our submission:

But it does prove independently from –

the complainant:

in my submission to you, that he did have a sexual interest in her, and he was prepared to act on it, and that’s what he did on those other occasions.

Because if this was the complainant, of course, giving evidence of some bottom slapping with whatever implications she might have had to it, it would have been entirely innocuous in the context of the case. It would have added absolutely nothing. It is the independent quality of it coming from the complainant’s sister, an 11‑year‑old living in the same house, which is what made it have such a profound capacity for misuse and a capacity to seriously affect the result of the trial.

The prosecutor had opened this evidence, and true it is that the prosecutor did not in terms say, this is evidence of sexual interest from which propensity reasoning can follow, but what he did say at the respondent’s book of further materials at page 169 was:

Third, you’re going to hear –

the sister:

talk about having witnessed the defendant smack –

the complainant:

on the bottom, and she’ll describe that that occurred when they weren’t doing anything wrong –

The necessary implication, in our respectful submission, from that is that it was being deployed, in effect, as sexual interest evidence. There was really nothing else, no other purpose obvious in the way it was put, and the implication is that. It seems from the record that that is the implication the defence counsel took from it.

The evidence itself, which was elicited by a police officer and played in a recorded form – which, of course, means that it was available as part of the depositions before the trial, which I will come to in the context of a later submissions – is worthy, in our respectful submission, of a review also. At the appellant’s book of further materials, page 13, the evidence, again, is in short compass, commencing at about line 13, where Senior Constable Thomas says:

Okay. Um, and did, has anything else happened like that that you, that you’ve seen or, nuh?

Of course, in context, the “has anything else happened” is a description of what she – that is, the sister – had seen of the bedclothes being taken up. So, it was obviously in the context of something thought to be sexual, and then the answer is:

But he, he, he like smacks –

the complainant:

on the bum.
SCON THOMAS: Smacks her? What do you mean by that?
[THE WITNESS]: Randomly.

This is the police officer:

SCON THOMAS: Yeah. Like if she’s naughty or you know if you do, sometimes if you do the wrong thing you might get a smack?

So, this is the offering of the innocent explanation:

[THE WITNESS]: No.
SCON THOMAS: Not like that?
[THE WITNESS]: We weren’t doing anything wrong.

And then the police officer – no doubt this should, had things been dealt with a bit more diligently, have been excised, no doubt, but:

it’s a bit weird that he smacks her. Does he smack you? Nuh? Oh, right, that is a bit weird.

So, we are getting, again, this flavour of the use of the evidence for a non‑disciplinary smacking for a non‑disciplinary purpose in a way that creates, in our respectful submission, a potential misuse of that evidence. Of course, none of that matters, in our respectful submission, unless the evidence of that Act – or those Acts, assuming they are multiple Acts – led to show sexual interest is a species of propensity evidence that was required to meet the Pfennig test, because if it was a species of propensity evidence and so required to meet the Pfennig test, then our submission is that it patently did not.

Indeed, Justice Henry, writing in the Court of Appeal, and with whom the other members of the Court of Appeal of Queensland agreed, said at paragraph 37 of the judgment below that:

the evidence was obviously not strong enough to meet that test –

No notice of contention has been filed in respect of that conclusion, and in our respectful submission it is simply true that this evidence was incapable of meeting the Pfennig test. So, if it needed to then it was obviously wrongly admitted – unless it was, of course, for other purpose, which I will come to – and secondly, and much more importantly, was certainly wrongly permitted to be used for the purpose of sexual interest reasoning.

Can I come back to the submission that the evidence required the application of the Pfennig test. As the respondent Crown correctly says, the question of whether sexual interest evidence as opposed to more classical uncharged acts evidence from the same witness was left open were not determined by this Court in HML. What the respondent Crown, respectfully, does not identify is that the issue was settled, and settled by every member of this Court, in BBH v The Queen (2012) 245 CLR 499. In our respectful submission, BBH stands squarely for the proposition which has not been doubted at any point since, that sexual interest evidence – BBH, of course, being the bee‑sting case, if I can put it that way; the observation of a bending over at a campground case, so, again, evidence coming from an independent source as it is here – is authority for the proposition that the Pfennig test applies.

I will not trouble the Court by taking the Court through every reference, but in BBH the most clear statement of it comes from the joint judgment of Justices Crennan and Kiefel at paragraph 153 on page 546 of the report:

It should be accepted, in cases of this kind, that a finding of a sexual interest held by an accused father towards his daughter is evidence of the accused’s motive or propensity to engage in sexual acts with the daughter, and that it might be employed by a jury in propensity reasoning towards guilt. In a case such as this little, if any, distinction may be drawn between motive and propensity. Where sexual interest is demonstrated, the test in Pfennig is therefore attracted.

That holding was made also by Chief Justice French at paragraph 50, Justice Hayne at paragraph 64, Justice Heydon at paragraph 106, and Justice Bell at paragraph 197.

So, the evidence was, in our submission, here patently required to meet the Pfennig test and it did not meet it. As I have already noticed, the Court of Appeal in terms of Justice Henry’s holding at paragraph 37 made clear that it was obviously not strong enough to meet that test. Although, again with the greatest of respect, the respondent Crown’s position has not necessarily been consistent in the course of its written submissions to this Court ‑ ‑ ‑

EDELMAN J: Well, it was conceded in the special leave written submissions, was it not?

MR HOLT: It was, and I will leave it there and deal with it in reply if I need to. It follows, in our respectful submission, that at the very least the direction permitting this evidence to be used for sexual interest was wrong because the evidence could not meet Pfennig and had to and did not, so it was necessarily in this trial wrongful for the jury to be told what the learned trial judge told the jury to do.

GORDON J: Do you also take issue with the extent of the direction? In other words, at least on one view of the Pfennig direction, is a suggestion, not a requirement, that it is useful to identify the absence of an otherwise innocent explanation.

MR HOLT: Yes, and in addition, there was no admonition in the context of this case of this direction. There was no admonition not to engage in any differential or other form of propensity reasoning. It was simply, you cannot find him guilty for another reason – I am paraphrasing, but words to that effect.

I should say, Justice Gordon, of course, that the alternative explanation – the innocent explanation – was referred to in the summary of the contentions by the judge. So, it was placed before the jury, given the significance of it at all to have been said here. But, obviously, the point we make more fundamentally is that the direction itself should never have been given, and no amount of cleaning it up or adding to it could really have helped in this context, because the jury were just allowed to do something – that is, to engage in propensity reasoning – which it simply should not have been allowed to do.

The prejudice – obviously, the proper use of that word, that is, the risk of improper reasoning – associated with propensity reasoning is not just, as seems to be implicit in some of the submissions for the respondent Crown, about the kind of shocking nature of the incident itself – the Roach‑type domestic violence sort of the situation – it is, in truth, in the very human tendency – that is the wrong word to use here – the very human characteristic of reasoning by other acts, by what we know of other people’s character, what things they have done in the past tell us. That is the whole reason why the common law, with its laser focus on evidence relevant only to the criminal charge actually laid, has turned its face subject to high bars like Pfennig to evidence that permits this kind of propensity reasoning. It is a leopard does not change its spots kind of reasoning which is the true prejudice here. It is an insidious kind of a prejudice – it is not as obvious as a gory post‑mortem photograph.

The Crown has sought here to label the evidence admitted in other ways. Labels are, as this Court has said on multiple occasions in this context, helpful and unhelpful. The idea that this, though, was relationship evidence in the proper sense – that is, relationship evidence in the sense of evidence not going directly to the commission of the charged offences, but which answers a question which would necessarily and logically arise in the mind of a jury like has occurred in Roach – why would this thing happen out of the blue; why would a complainant not resist – it is not a permission to simply allow anything about an interaction between a complainant and a defendant to be led and call it relationship evidence under that guise.

But one does not even really, in our submission, need to have that argument in the context of this case for this reason. They were told to put the evidence aside if they did not use it for a sexual interest purpose, and there is nothing in the record – nothing at all – to suggest that it was ever seen by the parties below or deployed in any way other than as sexual interest evidence. With the greatest of respect to the respondent Crown, part of the mistaken approach to the submissions that have been made to date in writing is to conceive of the direction as if it was a relationship direction. So, for example, the Crown says, well, it did not need to be proved beyond reasonable doubt because relationship evidence does not. The point about sexual interest evidence is that, at least as matters presently stand following HML, it does. This was not a relationship direction. It was a sexual interest direction.

The only other suggestion to be made as to why this evidence would otherwise be admissible – and, again, they all suffer from the same problem, which is that there is no suggestion that it was ever used this way in trial, so we are running an appeal which bears, in our respectful submission, little resemblance to the case actually run below in terms of the respondent’s position. Most recently, the Crown suggests that it was to rebut a suggestion of recent fabrication. I will confess to not really understanding how that can be so other than by the deployment of tendency reasoning and propensity reasoning. It seems to be said, well, the suggestion of recent fabrication can be rebutted by this evidence because it shows a sexual interest. Well, if that is so, then we just get to the same point by a different means, and it assists the Crown not at all.

The other way, of course, which can be resolved, we think, very briefly, is that Justice Henry, writing in the Court of Appeal, considered that the evidence was admissible under what was then section 132B of the Evidence Act 1977 (Qld), and it seems to be common ground – well, it must be common ground – that that section did not apply to these charges because ‑ ‑ ‑

GORDON J: Is that because they are not in the relevant division?

MR HOLT: Exactly so, your Honour.

GORDON J: Thank you.

MR HOLT: Now, I perch on that not just to make a cheap point but because it does seem – or, at least, a respectful submission can be made – that part of, perhaps, the way in which Justice Henry dealt with the matter in the Court of Appeal was because his Honour’s view was that the evidence would have been before the jury anyway, whereas our respectful submission is that there was no basis for it to be before the jury at all.

In addition, again just dealing with the submissions of the respondent Crown for these purposes, the Crown also repeatedly submits – and, with respect, we do not understand upon what possible basis it could be submitted – that the direction that was actually given somehow contained an anti‑tendency warning. That is a submission, it seems, is made at paragraphs 31 and 32 of the Crown’s primary submissions and at paragraph 44, where the submission is made by reference back in particular to HML, to the suggestion that a propensity warning, a non‑propensity reasoning direction, was actually given.

Of course, that kind of a direction would have involved, as was made clear in HML, a specific warning against propensity reasoning. In other words, a direction with the full force and weight of the position of the trial judge that the jury was not to reason in that way. Of course, that would have been a bewildering direction to give in this case, when the whole purpose of sexual interest reasoning is to reason in a way that has a propensity component to it. So, firstly, it was not done; and secondly, it would have made no sense if it had been done.

Can I turn, then, to the question of – in really simple terms – why the evidence mattered. I have already touched on this, that is, why it is not right to say that this evidence was effectively innocuous or so weak that it would not have been accepted; why it is that evidence admitted of this kind for a wrong purpose, given that it did not meet Pfennig and was not available, had the capacity to be a difference‑maker. Now, what I mean by that phrase, of course, will become live when we talk about the question of materiality a bit later in these submissions, but in essence, the question is: what is the potential effect of this evidence on this trial? Wherever matters land, in terms of the approach to the common form provisions, that question must always be asked and answered at some level, whether within the miscarriage limb or within the proviso.

BEECH‑JONES J: Mr Holt, I will be interested to know at some point, in all of your analysis, across all the provisions, where we take into account tactical advantage you concede your client sought, having this evidence before the jury and in the direction that was given.

MR HOLT: Yes.

BEECH‑JONES J: At some point, because at the moment I have not seen any analysis of where that comes in.

MR HOLT: No, and I will address that.

BEECH‑JONES J: Anyway, I have taken you off your ‑ ‑ ‑

MR HOLT: No, no. One should always answer questions. So, the short answer is, if our primary analysis is to be preferred within the proviso ‑ ‑ ‑

BEECH‑JONES J: And only.

MR HOLT: And only in the proviso – but can I acknowledge, Justice Beech‑Jones, none of that is an easy question, and I will – but dealing, then, just briefly with the question why the evidence mattered – and I have already touched on to some extent. It mattered, really ‑ ‑ ‑

EDELMAN J: There are two senses of “mattered”, and this may come into the points you are making about miscarriage of justice a bit later, but in one sense, to use very well known metaphors, is that something can matter in the sense of being a strand in a rope, and another sense is something can matter in the sense of being a link in a chain. Which of the senses are you relying upon it?

MR HOLT: Can I attempt to unpack that in two ways? The first is – and the reason I do this, of course, is because I am conscious of the reasoning of the Court, particularly in the writing of Justice Kiefel in HML, about the nature of sexual interest evidence being effectively a link in the chain, and that being the juridical basis upon which her Honour concluded and the Court concluded that these matters had to be proved beyond reasonable doubt. The reasoning behind that seems to be – I do not mean that disrespectfully; I just find it difficult – that this kind of sexual interest evidence, applying Pfenning properly, is only to be used if it is in fact capable of bridging the gap that might otherwise exist in terms of a reasonable doubt and so, in that sense, would be an essential path on the chain of reasoning.

In the context that I am talking about it here – that is, in the more general miscarriage context – I chose the word “matter”, Justice Edelman, precisely for its vagueness for these purposes before coming to the issue of what it means in terms of miscarriage. It is obviously a spectrum. The question is – and no part of our submission – and I think it might have been wrongly taken, and no doubt that is my fault – it is no part of our submission to say, for example, that innocuous errors should result in appeals being allowed.

The question of what the potential effect of an error on the trial, on a trial, is something which must always be asked and answered, and an error which is either incapable of having effect or is unlikely to have an effect is one which is always going to be a live question, depending on the circumstances of the case. So, I am not sure that the answer is a single sentence that I can give your Honour in that context.

We do say in the context of this case that this evidence, by its nature, and by the way in which it was deployed in the context of this case, wrongly had the capacity improperly to be a difference‑maker – that is, at least had the capacity to make a difference to the trial; to be the thing which, in a word‑on‑word case where both of the key protagonists had given evidence, was capable of being used by the jury – and indeed, I would go so far as to submit, potentially likely to be the reason why one would be preferred over the other, in that sense.

BEECH‑JONES J: That submission is clearly not the assessment made by the counsel who appeared for your client at the trial.

MR HOLT: No, it was not, and I squarely address that – and I will, Justice Beech‑Jones, if I might do that at a later point.

BEECH‑JONES J: Yes.

MR HOLT: Thank you. Again, on the basis that one should answer questions, I have to grapple with that, and I grapple with it on the basis that that assessment was wrong, and plainly so.

Of course, the starting point is – recognising that I think I failed but will think about the question your Honour Justice Edelman asked – the reason why the evidence was important in this case, why it cannot be dismissed as being either incapable of affecting a verdict or, indeed, even to a higher standard, is on a number of levels.

The first is, just by virtue of its nature as propensity evidence or evidence that permits propensity reasoning when that was otherwise not proper, that is a kind of evidence, a form of reasoning, which the common law and this Court have held effectively has the capacity for such significant prejudice of the kind that I have submitted about before that it requires a test of the kind deployed in Pfennig, rather than the ordinary approach, which is all relevant evidence is admissible, subject to the ordinary discretion to exclude. That is, it is a kind of evidence which the Court has recognised has a significant capacity for prejudice and, where the jury was permitted to use it – improperly, in our respectful submission ‑ ‑ ‑

BEECH‑JONES J: Just on that, could I ask – I think you say it is common ground it was not evidence of sexual interest, and that might be contrasted with other forms of propensity evidence, or evidence said to be of propensity that does not meet the test.

MR HOLT: Yes.

BEECH‑JONES J: Is that because it is common ground it could not be characterised as sexual?

MR HOLT: Not that it could not be, but that the alternative innocent explanation could not, in any sense, be excluded.

BEECH‑JONES J: That it was not sexual, as opposed to – well, at least there might be a difference between that and other types of conduct that could not be innocently excluded, but might not get there in terms of Pfennig.

MR HOLT: No doubt, although, when one thinks about the way in which these sorts of arguments were explored by the Court in BBH, in the caravan park case – obviously the Court divided in terms of this kind of an analysis – where we ended up was not in a situation where one makes a sort of ballpark assessment of the risk of prejudice and then determines whether or not the Pfennig test applies. If the kind of reasoning which is to be deployed here – which is motive reasoning, as the Crown puts it, effectively – then the Pfennig test must apply, and it must do so because there is a risk, otherwise, of this kind of reasoning occurring.

Are there more or less prejudicial kinds of sexualised evidence? Yes, of course. I apologise for repetition, but in this case what mattered was much less the fact that it was – the nature of the touching that was alleged here, because it carried with it other innocent explanations, it was the fact that the evidence was being given by another person – that is, a person other than the defendant or the complainant – in circumstances where it was told to the jury, in a pretty powerful submission by the Crown, that they could infer beyond reasonable doubt that it was sexualised.

GORDON J: Can I just ask about that point. You just said that one of the significant things about this evidence is it was given by somebody else other than the complainant.

MR HOLT: Yes.

GORDON J: The position, though, was that the accused gave evidence himself of it but was not asked about it. Is that what we should do with that aspect of the case, or does it not matter?

MR HOLT: I think it does not matter is the short answer, Justice Gordon ‑ ‑ ‑

GORDON J: Thank you.

MR HOLT: ‑ ‑ ‑ because he was not cross‑examined on it, which in some ways makes the decision to permit the evidence to be used in that way an even more curious one, in our submission, as I will come to, but ultimately that just meant that there was evidence which the jury was entitled to accept or reject from him as to that explanation, and another inference which was urged upon them by the Crown, an inference which was not properly opened because the evidence did not meet the Pfennig test. In other words, they should never have even been asked to reason in that way.

Again, in the context of this case, at the risk of belabouring the point, in the context of a case, a word‑on‑word case, what might be described with a small “c” as corroboration, some form of independent evidence, some little window that might give an indication that what the complainant is saying is true in terms of sexualised conduct or other improper conduct is incredibly important in a sexual offence trial, especially one which is word‑on‑word where both parties give evidence. It can, as a matter of practical reality, be the difference‑maker in the context of a case, the looking for the one thing that might support the complainant’s case or otherwise. Where that thing is said to be sexualised conduct by an adult to a child, the capacity for it to have an effect on the verdict is profound, in our respectful submission.

EDELMAN J: I am sure you will come to this at some point, but you are oscillating between referring to the capacity of having an effect on the verdict and the capacity of having an effect of the trial.

MR HOLT: Yes.

EDELMAN J: I mean, one of them is the strand‑in‑the‑rope‑type argument, and the other is the links in the chain. Capacity to affect the verdict is a counterfactual‑type assessment, but affecting a trial is something that is part of the prosecution case but might not, counterfactually, necessarily make a difference.

MR HOLT: Yes. In our submission, in this case it is the former rather than the latter, that is, it had the capacity to affect the verdict, for these purposes.

EDELMAN J: And you say that the onus is on you to show that?

MR HOLT: No, we do not. For reasons I will come to – what I am attempting to demonstrate at the moment, and in the context of this case – that is why I have put in a blunt way, I am sorry, why the evidence matters – how we deploy that in the sense of the limbs of the common form and then the proviso is something I will come to. But certainly, I would make submissions against the proposition that we had to demonstrate that. That would be something, on any assessment, which should be made within the proviso, even if there is some materiality threshold within the third limb – or the second limb, in fact. I will come to that very shortly.

The idea, which was one of the two reasons that Justice Henry held that there was not a miscarriage of justice in this case, that the evidence was effectively so weak that the jury could not have reasoned in the way that they were invited to reason, in our respectful submission, could not be accepted. When told by a Crown prosecutor that they should reason in that way, in the way that I have taken the Court to, and told by the trial judge that they could reason in that way, in our respectful submission, it could not possibly be said that there was not at least a genuine risk that they would reason in that way. And given the reality in these sorts of trials of the likely search for a piece of independent evidence which, in practical terms, is how these trials tend to get determined, evidence that has that quality becomes really significant.

The second, of course, was counsel’s non‑objection – more than non‑objection, acquiescence with an expressed desire to get a tactical advantage. In our respectful submission, what counsel did in this case, in this context, does not prevent what occurred, that is, the direction is given and the admission of this evidence, from being either – and I am hedging my bets here for the argument to come – a miscarriage or a substantial miscarriage. That is for a couple of reasons.

The first, of course, is in relation to the miscarriage point. The obligation to direct the jury in accordance with the law was squarely on the learned trial judge, and it seems, in fact, that the learned trial judge understood that in the sense that when the discussion occurs and the prosecutor indicates that he intends to make submissions on the basis that this is sexual interest evidence, the learned trial judge considers it and says – this is at the appellant’s book of further materials, at page 78, at about line 17:

I’m inclined to permit it –

So, he hears from the learned prosecutor, at about line 3, he says:

I propose to just address on it briefly.

Defence counsel is then called upon, and this is the critical concession that is made:

my learned friend, did open that evidence in his opening address about –

the sister’s:

evidence about sexual interest.

Which gives us, if I can pause and go back to a submission I made earlier, a little bit of insight into how at least those participating in the trial saw the Crown’s opening and what it was intended to convey:

tactically, I was going to use that in my favour in the closing address.

And the essence of it was obviously that, as it ultimately was given in the closing address, it was a desperate argument, in effect, by the Crown. The point I wanted to make here – and I have just distracted myself – is that what his Honour says is:

it was a matter raised with the other child as an unusual feature of their dynamic. At this stage I am inclined to permit it because the direction to the jury includes that they have to consider whether or not it reaches the bar.

So, the learned trial judge, notwithstanding the concession, did not simply say, okay, it will go in. “I am inclined to permit it” made clear that his Honour did not see the concession as binding, which, of course, it could not have been anyway.

This is not an incompetence of counsel ground, this is a ground that says, for whatever reason, we ended up with a wrong decision on a question of law, or characterises the miscarriages we will come to, and that, as a result, the fact that that counsel made the concession they made is evidence that would be used and could legitimately be used to assess the question of the risk of misuse in the atmosphere of the trial, but it is certainly not a complete answer to the proposition that there was a miscarriage of justice in this case.

BEECH‑JONES J: So, that assessment of risk of misuse, is that the proviso stage or the miscarriage stage?

MR HOLT: Well, ultimately, that will depend on the position that the Court takes, but we would respectfully submit that that occurs at the proviso stage.

BEECH‑JONES J: I see. Yes.

MR HOLT: And I should also simply grapple with the point, our respectful submission – and it is made with the greatest of respect; trials are hard – is that the decision itself was forensically flawed and not capable of forensic justification. To permit propensity reasoning about sexual interest from a witness other than the complainant is really only generously described as a serious gamble for the minor benefit of being able to knock it down on the basis that the Crown is being unreasonable and trying to rely upon it. So, in our respectful submission, while there was a theoretical pro, the cons were obvious and well and truly outweighed those to allow evidence of this kind of reasoning in this kind of a case.

GORDON J: Can I ask a couple of questions about a wrong decision on a question of law which you have just raised by reference to pages 77 to 78 that you have just taken us to. Is it just the giving of a direction itself because the evidence could not meet the Pfennig test itself – is that the error?

MR HOLT: Yes.

GORDON J: Is that reinforced by the fact, that is, the primary judge or the trial judge, thought it was tenuous in any event?

MR HOLT: Yes, absolutely. In other words, his Honour made a decision, in our respectful submission, because his Honour was invited by the Crown to give a direction, considered it, the defence said, we are happy for you to give it, but considered his Honour was inclined to give it, that decision can be shown – it is a decision that can be shown to be wrong in part by virtue of the reference to it being tenuous because had his Honour turned his mind to the Pfennig test, the conclusion of it being tenuous would have been a conclusion which would have made clear that it should not have been given in the first place.

That does take us to the second limb question, if I can put it that way, here because two, of course, of the new proposed grounds upon which special leave has not yet been granted assert that the admission of the evidence (a), and (b), the giving of the directions, each represented a wrong decision on a question of law. In answering your Honour Justice Gordon’s question, I have made some of the submissions I wished to make about the nature of the decision which the learned trial judge made to give the direction. As we read the respondent Crown’s submissions at paragraph 27 of their supplementary submissions, they appear to concede that this was a decision on a question of law. They do not concede that it was a wrong one, obviously, but I have already addressed that – but they do concede that.

The only additional point we ought make here is that the Commonwealth Director makes a submission that in order for there to be “a decision”, there must be a ruling, and that a ruling can only happen where there is a contest – that is, in effect, where there is a disagreement between the parties. We respectfully submit that that would be far too constrained an approach to the question of whether or not there has been “a decision”.

GLEESON J: Mr Holt, where do you detect that concession, that it was a decision on the question of law?

MR HOLT: Excuse me, your Honour, I am sorry.

GLEESON J: I am looking at paragraph 25 of the respondent’s supplementary written submissions.

MR HOLT: I am sorry, your Honour?

GLEESON J: Perhaps it is paragraph 27.

MR HOLT: Yes, it is paragraph 27. I am sorry, if I said 25, that was an error on my part.

GLEESON J: No, I said 25. Thank you.

MR HOLT: We respectfully say that the Director’s approach for the Commonwealth, as we say, is far too constrained, in particular in the context of a jury trial where, of course, learned trial judges have an obligation to assist the jury and to provide the jury with directions of law which the jury are directed that they must follow. That will often involve trial judges making decisions of law quite apart from issues being raised by the parties and certainly, as this demonstrates, quite apart from the parties having a united position on it. Trial judges are not ruling, in effect, by consensus. They are making decisions on questions of law always in a trial. Indeed, every direction given to a jury, other, of course, than a permissible comment on the evidence, is a direction of law.

GAGELER CJ: Does that mean, in your submission, any direction of law to the jury involves a decision on the question of law by the judge?

MR HOLT: I would make that submission if I needed to, in the sense that it seems – and I apologise for putting the submission this way, but it seems odd to say of a trial judge who makes a positive decision to direct a jury in accordance with their fundamental obligation under the Criminal Code and under Alford v Magee, it seems odd to say that that is not the product of a legal decision made by that judicial officer and one, of course, that creates the architecture of the trial, and so really matters in that sense.

BEECH-JONES J: Well, it might have a rationale in that it focuses on the contest and whether a true tactical reason is being sought to be achieved by defence counsel, because where they take an objection, questions about tactics would not matter. They have taken the objection, it is in contest, whereas where they do not take it, it then might devolve to the third limb, and then questions about tactical advantage might loom – you say, do not – as to whether it amounts to a miscarriage.

MR HOLT: We say do not, because it can be dealt with in the proviso, and if I can preface an argument which will have been obvious from our written submissions, the virtue of that approach is that it means that we are treating the result of a miscarriage which has a legal component and a wrong decision on the question of law in the same way for the purposes of the proviso. So, those questions of tactical advantage can be dealt with in that case. Now, all of that requires us to grapple with – need to grapple with the negative proposition advice, which I will do, but that is why we say that it happens in the proviso stage rather than at the wrong decision on a question of law stage.

BEECH‑JONES J: Just to develop your argument, then, on this. So, do you say a decision to admit evidence that should not be admitted in the absence of objection is a wrong decision on the question of law?

MR HOLT: That was exactly the point I was now coming to, because that underpins one of the other proposed grounds. This, of course, is a much harder argument to make, and there are good reasons for that. I ought be clear, our submission is not that in all situations – or, indeed, in most situations – where ultimately inadmissible evidence is led without objection, the trial judge has made a decision on a question of law. That would deny the adversarial nature of the trial, it would deny reality, it would deny – it would be really problematic.

Our respectful submission is that where the evidence as it is here – and possibly only here, in a Pfennig context – is presumptively inadmissible and, as a matter of common law, not admissible subject to a discretion to exclude or a basis to exclude, but presumptively inadmissible unless the high standard of Pfennig is met, what is required to admit it, then, is a positive decision. That can contrast, for example, with hearsay; some of the examples that have been put against us – legitimately so – where that sort of evidence is lead all the time and without objection, and there is no difficulty with that and there is no decision being made.

Here, of course, the evidence had been opened, and, as I have already submitted, there were no other possible purposes. That difference with this kind of evidence is made clear in a couple of the comments made by their Honours in HML. I think it was Justice Hayne, in particular, who said that it is desirable for prosecutors to give notice of such evidence in advance, precisely so that a ruling as to admissibility – because the presumptive position is for non‑admissibility – can be made. That is why we say this a wrong decision on a question of law, or it is a decision on a question of law without, I hope, falling into the trap of making a too‑broad submission that that would always be the case, because it certainly would not, in our submission.

If I can cut to the end, in a way, ultimately in our submission, the direction being given here characterising that as a wrong decision on a question of law, in our submission, is our strongest ground, in effect. So, subject to the proviso and to any argument about materiality on the second limb – which I will to in a moment – in our submission, it would result in the appeal being allowed.

That then takes me to the question of whether the second limb has within it any sort of materiality and threshold at all. That is the question of law limb. As we understand the submissions that have been made – very helpfully – by, obviously, the respondent Crown and the interveners, the Commonwealth Director says, no, if there is a wrong decision on a question of a law, there is a wrong decision on a question of law, and one simply goes to the proviso. That, of course, is our respectful submission also.

The respondent Crown is, as we read it, silent on the issue, but inferentially seems to agree with that proposition that it is no. The New South Wales Director, though, says yes, and seeks to read in a materiality threshold into the second limb which, as we read it, is that there must also be a miscarriage of justice in the sense of the third limb, however that is to be defined. In our respectful submission, that submission would not be accepted, for the obvious reason that it renders the second limb, in effect, redundant: you have to prove a miscarriage of justice regardless of whether there is a wrong decision on a question of law. Why would you ever need to go through that threshold question?

There is also nothing, in our respectful submission, in the words of the section that could be read as requiring that – unlike miscarriage, which has a different quality to it as a phrase – and there is no obvious legal policy reason for it, in our respectful submission.

GLEESON J: What about the word “wrong” in “wrong decision of any question of law”?

MR HOLT: In our submission, that is simply an identification of the question of law had not been answered correctly or incorrectly. That is a binary proposition; there is no qualitative component to that. Again, if there needed to be, why would there be any difference between – why would you have limb two and limb three? There would just be no purpose to it.

GAGELER CJ: Mr Hinton, in tomorrow’s case, suggests that something can be read into the words “if the court thinks”.

MR HOLT: Yes, and those words – because, probably, of the age of the common form provisions and from where they were inherited, there is quite a bit of that kind of language which does not appear in modern statutes, of course. I recall – and I am sorry, I cannot immediately find the passage in my head from Weiss – that in Weiss, the Court noticed that and effectively cleared much of that away. Now, the legitimacy of clearing words away in a statute, of course, is something which one would only do with great care, but that is the historical way in which those matters have been dealt with.

There is, in our respectful submission, a potential for a legitimate argument in this sense, and it ties into the materiality question on the miscarriage point that I will come to shortly. It stems from something, Justice Gordon, that your Honour said in Hofer in paragraph 130, where your Honour said of both the second and third limbs that, effectively, you would need to, before going to the proviso, identify an error that might be effectively truly innocuous; that a truly innocuous error could be knocked out – if I can put it that way – at that point in time.

Thinking that through, it might be legitimate to say that there is something inherent in just the nature of an appeal. That is, it is sort of not even an appeal unless the thing which is being alleged is something which was more than innocuous, or was at least to the disadvantage of the person who was taking the appeal. That might be so, but it would be such, in any event, a low‑level threshold as to be essentially, in our respectful submission, meaningless. For reasons we will come to, that issue can confidently and capably be dealt with within the proviso, in any event.

STEWARD J: Mr Holt, can I just ask, in relation to the second limb, does the word “should” have any work to play:

or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law –

MR HOLT: Again, I think it is a similar answer to that which I gave ‑ ‑ ‑

STEWARD J: It is just historical language, is it?

MR HOLT: It is, but again, I am very conscious of not saying just because language is historical, we can cut it out of the statute, because, of course, that is entirely contrary to the proper approach to statutory construction. Yes, is the short answer, in our submission.

STEWARD J: Thank you.

MR HOLT: The various versions – because, while they are called common form provisions, of course, they are not completely common. There are differences in almost every State and Territory, as we see them. Ultimately, I think it was one of those differences in relation to the proviso where “actually” does not appear – I think in South Australia it was noticed as being irrelevant, I think by your Honour Justice Gordon.

BEECH‑JONES J: Mr Holt, I was going to say – I know there is a lot of – page 328 of Simic, which some people rely on – I am not sure if you do – refers to a misdirection being “a material one”.

MR HOLT: Yes. And that, of course, then begs the question as to what materiality means in that context. I am sorry, I am just trying to find the reference which Justice Gordon referred to in paragraph 130 of Hofer, which was that there will be no miscarriage or, indeed, no wrong decision on a question of law:

if the mistake made at trial was one which could have had no effect on the outcome of the trial.

That is, to use the Chief Justice’s language, the truly “innocuous” appeal, because no part of our submission is that innocuous grounds of appeal should get anything more than short shrift in an intermediate appellate court, it is just a question of how ‑ ‑ ‑

EDELMAN J: By “innocuous”, you mean something that is not really part of the prosecution’s case – it is not even a strand in the rope. It might be an error in giving an address by a witness – something that does not form part of the prosecution’s case but not necessarily whether or not it might ultimately have affected the trial in a counterfactual sense.

MR HOLT: Exactly so. It is almost the barest of materiality criterion for the purposes of qualifying for being effectively a ground of appeal at all, in the sense that – let us say, for example, could I appeal on behalf of a defendant on the basis of a ruling that was patently favourable to the defendant on the basis – even if it was obviously wrong as a matter of law – which we say, no, that is an innocuous error, because it could not conceivably have affected anything.

EDELMAN J: That is, you would say, as I take it, then the explanation for the phrase “to the prejudice of the accused” that is used in HCF.

MR HOLT: Yes. Of course, I hesitate to try and say what members of this Court meant by a particular phrase, but, yes. Whatever was subjectively meant, that is how it ought be construed in the sense that “to the prejudice of the accused” – obviously, it is not even an appeal if you are taking an issue that was not to your detriment at least in some very basic arguable way.

GLEESON J: Another way of thinking about that in relation to all three limbs might be that the language of unreasonableness in the first limb, the language of wrong decision in the second limb, and the language of miscarriage of justice necessarily connote some prejudice to the accused.

MR HOLT: Yes, and the next question which will be begged, of course, is what level of prejudice and of what kind. I think I would prefer to put it on the basis that rather than trying to latch on to each of the words in those limbs, to simply say it is inherent in the very nature of appeal that something must be to your detriment before it even qualifies effectively – so one can apply a very, very low threshold of that kind into each of those criteria without doing any damage to the language that is deployed in Weiss.

EDELMAN J: Is that any different way of saying that it must be a strand in the prosecution’s case?

MR HOLT: Possibly not. I am bound to say, Justice Edelman, that I had not conceived of this argument with the distinction that your Honour is putting to me, so I am not going to pretend that this is a sophisticated response. But I do not think it is any different from that, save, I suppose, that one could imagine an innocuous error even about something which was a strand of the prosecution’s case but where it really did not matter, or, in fact, it was detrimental to the Crown rather that to the defendant in that sense. So, there might be some slightly greater meaning to it, but I suspect I am just splitting hairs at that point.

BEECH‑JONES J: Mr Holt, can I raise the example I think you were going to come to, which is hearsay evidence admitted, let us say over objection, on a fact later admitted by the accused in their evidence to the jury. Does that invoke the second ground, the second limb, or is that one of these utterly innocuous errors you have being referring us to?

MR HOLT: Yes. So, our preferred construction would see that question dealt with shortly and briefly in the proviso, and that seemed to be what Chief Justice Gleeson in oral argument in Weiss was getting at when that was being referred to – was in the context of the proviso. Can I make this concession, though. If there is to be a kind of criterion of that very low level of the kind that we have been discussing in the last few minutes, that is the kind of thing that could easily qualify for that.

BEECH‑JONES J: On the second limb?

MR HOLT: Yes.

BEECH‑JONES J: You say, even if it is admitted without objection, it is still second limb?

MR HOLT: This evidence ‑ ‑ ‑

BEECH‑JONES J: Yes.

MR HOLT: ‑ ‑ ‑ but not all evidence.

BEECH‑JONES J: Well, no, evidence later admitted by the accused in their own evidence, you would still say that is second limb and in the proviso?

MR HOLT: I do not think we would say that that – there may well be no decision in that context. Where the admission related, say, to hearsay evidence, we would not submit that was “a decision”.

BEECH‑JONES J: I see, I see. But third limb?

MR HOLT: Third limb, yes.

BEECH‑JONES J: Third limb?

MR HOLT: Yes, and then the question would be: if one can use the third limb, or the second limb, to get rid of the truly innocuous error – the error that really is no part of the trial at all – then one could do it there, or, in the alternative, one could do it particularly if one – and I will come to this obviously in a moment – deals with a negative proposition in Weiss and the way that both Justice Edelman and the Chief Justice suggested it could be dealt with in Kalbasi, then this question could be dealt with effectively by a one‑liner under the proviso. One then keeps a comity between the approaches of the second and the third limbs.

BEECH‑JONES J: But on your primary case that was under the third limb, that would satisfy miscarriage of justice?

MR HOLT: Yes, yes, it would, but for reasons as I will – in fact, as I will come to now, which for reasons which would require, we think, what has been called the universal proposition – the negative proposition in Weiss – to not be treated as universal, in effect, in the way that Justice Edelman and the Chief Justice described in Kalbasi that it might not need to be, because if it is not universal and there is a legitimacy to a materiality threshold, particularly as the Chief Justice put it in Kalbasi I think in paragraphs 70 and 71, then all of those questions can be dealt with without the vice – I am sorry, I did not mean to say that – without the downside – there is no better word – of having to go through the full review on the record because that really is the thing that is – the concern about getting into the proviso is the need for an intermediate appellate court to review the entire record, apply the negative proposition in circumstances where we know that there are plenty of cases it cannot be applied. So, the solution, in our submission, is to ‑ ‑ ‑

BEECH‑JONES J: You say qualify the universal proposition?

MR HOLT: Qualify the universal proposition in precisely the way that Justice Edelman and the Chief Justice proposed that it could be done in Kalbasi – in fact, suggested that it had already been done by virtue of some of the work that had been done in that context, and so, in that context, cleave to what, in our respectful submission, are the very clear words of the Court in Weiss and the description of what a miscarriage of justice is and what it is not.

BEECH‑JONES J: But cleave away from the otherwise clear words about the universal proposition.

MR HOLT: Absolutely, but one has to make a choice, Justice Beech‑Jones, in our submission, because the two propositions in Weiss – that is, the universal negative proposition on the one hand, and on the other, the very strict approach to what is a miscarriage of justice, any error no matter what effect it had on the trial. Really, as I think all members of this Court – or at least many have said on many occasions, and others have also with entire legitimacy – sit ill together, because if you put them together, it means unmeritorious appeals. If you take them literally, unmeritorious appeals will get through because very easy to satisfy the miscarriage ground, and there are plenty of cases you cannot apply the universal proposition to.

So, one must give – I will be frank, that is the submission we make: one must give if Weiss is to be retained in that sense. In our respectful submission, the appropriate approach, the soundest approach is – for reasons, I confess, of course, are much to do with Justice Edelman and Justice Steward’s reasons in Edwards and in Hofer – I am sorry, in HCF – should be dealt with within the proviso rather than within the miscarriage provision at all because, in our respectful submission – Justice Beech‑Jones, your Honour put to me, well, if you are going to make a choice between or the other, why that?

One reason is because – and, of course, the submission is made with the greatest of respect to the Court in Weiss – but the universality of the negative proposition, as others have commented on, sits really ill with the fundamental precept of much of the reasoning advice, which is that the test is that which is in the statute, and there is no one universal test to be applied for it, which is why the Court in Weiss apprehended – comprehended that issues like fundamental departure from the precepts of a trial or lost fair chance of an acquittal were things that could be comfortably dealt with within the proviso, rather than within the miscarriage ground. Yet, the universal proposition – again, with respect – sits ill with that. So, it seems to us, respectfully, that the solution is the solution which was proposed by their Honours, separately writing, in Kalbasi.

The other option, of course, is to do one of two things – is to impose what might be called a much more modest materiality threshold in miscarriage effectively to ensure that those kinds of innocuous errors do not make it through to the proviso. But the difficulty with that is, unless you pack a lot into the miscarriage ground, you are sill left with the same problem, which is that, if you leave the universal proposition in place, so many cases cannot be dealt with by application of the review on the record because of the natural limitations of it. This case, in our submission, would be one of them. That cannot be done. So, one ends up – and with the greatest respect, we respectfully submit this is what have seen happening in the last decade or so – we end up packing more and more of that which would commonly have been dealt with, and which Weiss anticipated would be dealt with in the proviso, into the miscarriage ground, and so we collapse – to use Justice Edelman’s word – much of that into the miscarriage ground.

The downside of that is, of course, two things. One, it means that the burden of persuading a court that effectively an error or an irregularity mattered or was fundamental falls to a defendant rather than falling to the Crown, which is in itself, in our respectful submission, not consistent with the basic proposition expressed in any of the cases, of course, that the trial should be conducted on the basis of the history that people have a right – probably that word is wrongly used in that context – to a trial strictly according to law and evidence.

GAGELER CJ: If we do away with the universal negative proposition, how do we do that? What is put in its place? Is there a qualification to it? Is it just abandoned and something else put there?

MR HOLT: All one needs to do is not make it universal, Chief Justice. And as we read – and, of course, we defer to your Honours on it – but as we read what your Honour wrote in Kalbasi and what Justice Edelman wrote in Kalbasi, that is effectively what is suggested. So, one makes it non‑universal, and then it simply becomes a way of dealing with certain cases like Hofer – the exceptional case of Hofer, where the application of the universal proposition came to a conclusion that was otherwise different – and recognising, again, as your Honours both did, writing separately in Kalbasi, that those very basic questions like, could it have had an effect on the trial, and so on, can be asked and answered within the context of the proviso without the need to always apply the universal proposition in that sense, because ‑ ‑ ‑

GORDON J: The other option, of course – you said you had two options. As the alternative – I think you have only given us the first – the second is, in a sense, I think, to adopt it by saying, in relation to the first inquiry, the knocking‑out of “innocuous” also might take out those which have a capacity to effect, as distinct from the possibility that they did, and that it then makes the negative universal apply in the context of the proviso in respect of the balance of those cases that are caught, or not caught, by that kind of analysis.

MR HOLT: Yes, and I suppose, again, part of the difficulty with that approach is that if the negative proposition remains universal, then what I might call the sort of moderate materiality threshold of that kind ‑ ‑ ‑

GORDON J: I think it is actually quite low, in a sense, because its capacity – it is objective; it is not – one does not sit there and, in effect, look at the trial in the way that would shift a lot of the proviso analysis into the first inquiry.

MR HOLT: Yes. Exactly so. But part of the difficulty I think I have to accept is that even if one does that, then, and leaves the universal proposition universal, then there may be cases, for example, where something – even when it meets that low threshold – a live question that might be answered in favour of the Crown might be – the conclusion to that question might be that it, in fact, could have had no effect on the verdict in this particular trial. We would say that should be dealt with in the proviso, but if it is the kind of case where the universal proposition is not applicable – credibility contest, for example – then that appeal would necessarily be allowed.

BEECH‑JONES J: Can you tell me why, as a matter of statutory language, materiality is not relevant to miscarriage of justice, but it is relevant to substantial miscarriage of justice? How did we end up there?

MR HOLT: It is really hard because, as I hope we acknowledge fairly in our written submissions, the phrase “miscarriage of justice” taken as a phrase carries with it as a matter of ordinary language the idea of something going wrong that not just mattered but that really mattered. We talk about miscarriage in that sense.

Your Honour, with respect, is exactly right in terms of that language, but that ultimately, of course, is what the Court in Weiss determined was not going to be determinative, not, in our submission, because the Court in Weiss misunderstood the history of the Exchequer rule, but because they were seeking to construe the common form provisions and the proviso in a way that inoculated against what was understood to be the strictest form of that rule, and so effectively said – “legal fiction” is the wrong phrase, but I do not have the right one – that as a matter of statutory construction to cleave most closely to the purpose of the proviso and the context of the common form provisions, what we need to do is to treat a miscarriage as being reflective of the Exchequer rule in its worst form or its strictest form, and so design the proviso in a way which is intended to do away with that. In terms of the meaning of the actual content of the words “miscarriage of justice”, I do not have an answer for your Honour.

EDELMAN J: But your submission, effectively, concedes that you have some form of – whether we use the word “materiality” or not, there is some form of threshold in “miscarriage of justice”, whether or not you express as being part of the prosecution case, or something that might have made a difference in the running of the case, or something that is not entirely innocuous. There is a threshold to show that justice has miscarried, but it is not the same threshold, by definition, as showing that justice has substantially miscarried. The way that this Court and the English courts for a century have expressed the substantial requirement is links in a chain, it is counterfactual reason.

MR HOLT: Yes, and I think, with respect – and I suspect it came across in the uncertainty of the drafting of our primary submissions – there is real force in the proposition of a low threshold of materiality in that context. It is not what Weiss appears to contemplate, and the solution to it, which we have identified in the dissenting judgments and Kalbasi, is one which seems to deal with that question of innocuousness – I am not even sure that is a wrong, I am sorry – in the proviso, and there is no downside in doing so.

The clarity of that division between the two is one which avoids the problem of collapsing those kinds of tests into the miscarriage ground because although the various verbal formulations that have been used are often said to be indistinguishable, in our respectful submission they almost never are. They carry with them different indications of intensity which carry the genuine prospect of shifting something which ought be a burden that the Crown bears. That is, demonstrating the trial which has gone wrong for some reason should nonetheless have the convictions that were given under it upheld, and the person not get a retrial.

GORDON J: But that is the critical point. What you have just point is the thing which, in effect, informs, I think – arguably – the way in which it is considered. If you take as your proposition – as I understand what you have just said to us – that it is consistent with the criminal justice system that it should be the Crown that, in effect, proves its case against the accused, and that is the role in one form of the application of the proviso – that is, the Crown must show that the miscarriage itself did not give rise to a substantial miscarriage of justice – then it is that which, I think, is a very important plank in determining where the idea of materiality – let us just label it that – sits.

Is it just in the proviso, and therefore it is up to the accused or the appellant to somehow establish some level of materiality? You would say no. One then says to ourselves, how do we deal with the first limb – “limbs” being the wrong word – in identifying what goes through to the form of analysis and the burden imposed in the Crown? At least in some of the judgments, that is why there has been this idea that innocuous things fall out; things at the low threshold that have no capacity, objectively, to affect the result fall out. It may be – not a justification, but it seems to be the two are linked.

MR HOLT: Yes, they are. Again, as we identified in our written submissions – and I think, with respect, the way your Honour the Chief Justice put it in Kalbasi was to say this: innocuous errors need to be able to be knocked out, and if they cannot be knocked out at the miscarriage phase, then they should be knocked out at the proviso phase before one gets to anything like the universal proposition.

Where on each side of the line that question of knocking things that are innocuous falls – it is difficult to make arguments as to why one is better that the other, save for this. On the one hand, of course, it can properly be said that to push something through to the proviso which is truly innocuous seems like an off use of statutory power and the time of intermediate appellate courts and the way in which things would be dealt with. But equally, if one has no materiality threshold and deals with innocuousness in the context of a modified universal proposition, that is a one‑liner.

The difficulty with dealing with any form of materiality in miscarriage – if I can just put the counterargument in this way – is two things. One, whatever language is used, there is a risk that more comes in – indeed, in some of the recent descriptions, of course, we have seen fundamental error come into miscarriage, which, in our respectful submission, will always be in the proviso. But also, it permits comity, depending on the position in relation to materiality for a wrong decision on a question of law, but if that has no materiality criteria, then there is a legal policy benefit, in effect, in having any issues of materiality dealt with in the same way in respect of each of those limbs. As I hope will be obvious, that is a difficult question as to which side one goes.

EDELMAN J: It may be a difficult question but there is a very, very fundamental point of principle underlying it and that is, I think, evident by the slippery way that the word “innocuous” can be used, because you can use “innocuous” in the sense of meaning it is something that could not have made a difference to the ultimate result of the case – now, that has traditionally been the role for the proviso. But it could also be used in the sense that it is innocuous because it did not really form part of the prosecution case at all – which has traditionally been part of the sense in both civil appeals and criminal appeals of the notion of a miscarriage.

But the fundamental point of principle seems to be that if the counterfactual question is something that an appellant must prove, then you are requiring an appellant to re‑run a criminal trial, maybe to a much lower threshold – to re‑run a criminal trial on an appeal – the whole of the trial, rather than to point to error.

MR HOLT: Yes. There is real force. What I am trying to say is – I suppose, the question – the problem is no matter what label is used, even a label as innocuous as “innocuous” – no matter what label is used, carries with it the capacity to bring more in, in that sense.

What, in our respectful submission, is critical is that once something has gone wrong in a criminal trial, the demonstration of a conviction should otherwise nonetheless stand as one that will sit with the Crown. And if that means by virtue of the way in which the miscarriage ground and the proviso are said to interrelate, that the Crown has to deal with a bit more than might be ideal in some circumstances, well, that is a cost that the system will be prepared to bear, in our respectful submission.

BEECH‑JONES J: Mr Holt, with the third limb, that can include such things as inexplicable decisions by counsel not to adduce evidence. They have a materiality threshold applied to the trial that happened.

MR HOLT: No doubt.

BEECH‑JONES J: So, your approach would open up a difference between that and other things that happen, be they recalled errors, defects, irregularities or anything else, and that – materiality thresholds with prosecution disclosure with fresh evidence, all those sorts of things.

MR HOLT: Yes.

BEECH‑JONES J: So, we have differential approaches, on your approach.

MR HOLT: Well, we do at one level, but if I can put it – I am sorry, your Honour.

BEECH‑JONES J: No, no – I am finished.

MR HOLT: If I can put it in a slightly different way to that, which is the way we attempted to put it in the written submissions also, which is: there are “errors” and “irregularities”, to use the language that has been deployed in many of the cases. I know that is not a binary distinction, but it is a useful labelling process. Where one is dealing with an error which has about it a legal component, even if it is not a wrong decision on a question of law, it will be of one particular kind.

There are a set of irregularities or alleged irregularities – prosecutorial misconduct and defence incompetence, those of which your Honour has identified – where you cannot even determine that it is an irregularity without asking whether it made a difference or not. So, one will necessarily, before even getting to the threshold question of determining that there has been something gone wrong, it seems to us not to be sensible to say, well, you know, if a prosecutor uses a swear word in a closing address, that is an irregularity in the trial. One has to see it in the context of the trial to make that assessment.

We think that simply has to be true to get to that point, but that does not, in our submission, deflect from or detract from in any way the point that Justice Edelman was making to me, which is that once one has got to a point of identifying an error or an irregularity, it is critically important that the Crown bears the burden on those which it should.

GAGELER CJ: Mr Holt, we will take the morning adjournment. I am pretty sure that at some stage in my career I have said that the burden shifts to the Crown once you get to the proviso, and I am pretty sure that a Full Court on which I did not sit said the opposite, after I had said that.

MR HOLT: I know the cases your Honour is referring to, and I will be in a position to address your Honour after the break.

GAGELER CJ: Thank you.

MR HOLT: Thank you.

GAGELER CJ: We will take the morning adjournment.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

MR HOLT: May it please the Court. The question that your Honour the Chief Justice asked me before the break, your Honour, at paragraph 78 of Filippou, referred back to your Honour’s judgment in Baini where your Honour had cited Mraz as well as other decisions for the proposition that the Crown bears the burden in respect of the application of the proviso. In Filippou, your Honour noted that the case of Lindsay v The Queen may need to cause a rethink of that, in effect. Lindsay v The Queen, in our respectful submission, the two relevant passages which your Honour cited in Filippou – and Lindsay is not in the book – are in the joint judgment at paragraphs 46 to 48, and then Justice Nettle also addressed the issue at paragraph 63 and following.

Our respectful submission – and obviously I have only had a couple of minutes with the judgments – but our respectful submission is this: that the holding in Lindsay is not to reverse the burden in respect of the proviso, but the essence of the holding in Lindsay is that, even where the Crown does not positively assert reliance on the proviso, an intermediate appellate court can itself come to the conclusion that there has been no substantial miscarriage of justice that has actually occurred. The joint reasons are briefer than Justice Nettle’s reasons. Justice Nettle goes on to say that proposition, in effect, is not inconsistent with the burden being on the Crown for those purposes. So, I think that is the exchange that your Honour was referring to.

EDELMAN J: No one is disputing Justice Fullagar’s reasons in Mraz.

MR HOLT: I do not understand anyone to be doing so and, with respect, if those reasons were to be disputed in Mraz, one would have expected Lindsay to be written in a very different way and with much more explanation to it than is otherwise the case. So, in our submission, the burden does still stand. The proposition from Lindsay is simply that if a court itself comes to the conclusion that no substantial miscarriage of justice has actually occurred, then the court is not prevented from applying the proviso in those circumstances, regardless of the Crown sitting quiet, which is obviously not something that would ordinarily happen.

The remaining topic that I wish to cover was the application of the proviso in the context of this case. Plainly enough, that is in some ways an awkward submission to make, given the question of what is part of the content of the proviso and part of the content of the question of miscarriage remains, to some extent, live. Can I address it in this way – and it is partly why I started these submissions talking about the significance of the evidence, because ultimately, in our respectful submission, the error here, whether by way of admission of the evidence, but more particularly by the direction it was given, would satisfy any way of putting any materiality criterion in either of the miscarriage question of law or the proviso for those purposes. That is, for the reasons I have already submitted, it was capable of giving rise to substantial misuse of the evidence in a way that could – and in fact in cases of this kind, as a matter of practical experience, often would – make a significant difference.

The Crown in this Court asks for the proviso to be applied, having not done so in the Court of Appeal, and it has filed a notice of contention to that effect. What, with the greatest of respect, the Crown does not do is in any way to assist the Court with why it says on a review of record, notwithstanding the limitations of the record, this Court could conclude that, notwithstanding the error made, guilt was proved beyond reasonable doubt, particularly in circumstances where the Court of Appeal was itself not asked to conduct this task.

GAGELER CJ: Are you here adopting the universal negative proposition or not?

MR HOLT: I am adopting the negative proposition for these purposes, whether universal or otherwise. I suppose the short answer is I am making submissions at the moment in accordance with the currently understood state of the law, which is that the negative proposition is universal.

GAGELER CJ: The entire thrust of your submissions to this point has been that we should abandon the universal negative proposition.

MR HOLT: Absolutely, but I am not arrogant enough, Chief Justice, to think that the Court is necessarily with me on that or not, so I will make alternative submissions, if I may.

GAGELER CJ: Yes.

BEECH‑JONES J: Have you finished on whether we should abandon that or not? Is there anything you want to say about ‑ ‑ ‑

MR HOLT: I have said everything I wish to say about that.

BEECH‑JONES J: All right. The part of Weiss that says you can take account of the jury verdict, which I think is kind of picked up in Kalbasi – where does that sit with your approach to the abandoning of the universal proposition?

MR HOLT: Can I be clear – and I will answer your Honour’s question, of course – it is not my submission that the negative proposition has no part to play in the application of the proviso. Indeed, the New Zealand Supreme Court, in adopting Weiss but modifying it in a way consistent with Justice Gordon’s comments in Hofer in paragraph 130, have done the same thing.

We do not submit that that negative proposition has no part to play in the proviso. The submission is simply that it would not be universal, and that ultimately, in any particular case, depending on the nature and effect of the error, the test to be applied will be that which is appropriate to determine the question of whether the error either permits the court to make the assessment that the negative proposition requires or otherwise to find, for example, that the error did not have any effect or could not have had any effect on the verdict.

BEECH‑JONES J: But is the effect of your submission that, in a particular case, depending on the nature of the error, the intermediate Court of Appeal can follow through and assess the consequences of that error and determine that they did not affect that particular trial, it can therefore conclude there was a substantial miscarriage of justice?

MR HOLT: Yes.

BEECH‑JONES J: That is the proposition, you say, should be carved out from Weiss?

MR HOLT: Well, in actual fact, the Court in Weiss says that. It is simply that it stands at odds with the universality of the negative proposition.

BEECH‑JONES J: Without taking me to it, where does the Court say that in Weiss?

MR HOLT: I am sorry, your Honour ‑ ‑ ‑

BEECH‑JONES J: Just take it on notice, if you like.

MR HOLT: I will take it on notice.

GORDON J: Can I just ask one question, just so I understand where we are going with this. On any view, there needs to be, arguably, some sort of uninformative approach. As I now understand your submission, you are not abandoning the negative proposition in its entirety, but somehow there is some sort of a materiality assessment to be undertaken when you get to the proviso, as I understand the way you have put it.

MR HOLT: Yes.

GORDON J: I am sorry to ask these questions. Does that also include “innocuous”? That is, things which are – on the way you now put it to us, that if it is innocuous – that is, the error identified is innocuous – it is one line in that aspect?

MR HOLT: Yes, exactly. So, in the way that the Chief Justice described in Kalbasi, that materiality criterion, if it could not sit in miscarriage, would necessarily, as a mater of legal logic, have to sit somewhere, and that would be in the proviso, without the need to apply the negative proposition.

GORDON J: A difficulty about that has been identified in some of the judgments – that there is difficulty then identifying where the onus lies, because, as we have just discussed when we have returned from the break, the onus in the proviso has been – consistent with the authorities you have taken us to – on the Crown. That is now carved out of it what you have just put to us. That is, as I understand it, that the innocuous line of it is an innocuous – is that part of the Crown assessment or is that part of the appellant’s assessment?

MR HOLT: No. If it sits in the proviso, which is our primary submission, then it would be part of the Crown’s assessment. The Crown would have to identify that as being so.

GORDON J: So, in the first stage of that kind of analysis – that is, you are identifying whether it is the second limb or the third limb – one identifies error, and that is an error that has no materiality attached to it. One just says there is an error either on a decision on a question of law, or there is something that has gone wrong.

MR HOLT: Yes. In the language of paragraph 18 of Weiss, exactly so. No matter the nature or effect of the error on the trial, is what their Honours said. Because while they can be criticised precisely, in our submission, in order to identify the Exchequer rule in whatever its perceived strictest form was, whether correct or not, so as to create a prophylaxis against that use of the Exchequer rule by the use of the proviso. That, in essence, in our submission, is the structure that the Court chose to use in Weiss. The problem, which has continued to emerge, is that the innocuous error – potentially, at least – can work its way through those processes and still result in an appeal being allowed and patently should not. So, the solution to deal with that at the beginning of the proviso, in our submission, is the soundest of the approaches.

GAGELER CJ: And when you get to the proviso, then you say the onus is on the Crown to prove either that the error or irregularity could not have affected the jury verdict or that, on a total review of the evidence properly admitted at the trial, the right verdict was reached. Is that right? It is a two‑stage thing when you get to the proviso.

MR HOLT: Can I put in a slightly different way, Chief Justice?

GAGELER CJ: Please do.

MR HOLT: If one puts to one side the universality of the negative proposition in Weiss, effectively, the admonition in Weiss is that the job of the intermediate appellate court is to determine whether no substantial miscarriage of justice has actually occurred, and what underpins the joint judgment but for the universality point is the idea that how that threshold is to be met will be determined on a case‑by‑case basis, and identifying within the proviso analysis exactly what path one must go to that as flawed. That is why it is odd that the negative proposition was made universal, and that is why we submit it should not be.

What then will have to occur – and this is where Kalbasi, in our respectful submission, both the dissenting judgments but also the joint judgment, have their focus on the nature of the error and the effect that it will have on the trial. So, the way in which that test is put in any particular case will be a case‑specific question depending on and starting with the nature and effect of the error, and ultimately asking the question: has no substantial miscarriage of justice actually occurred, notwithstanding the error? One can get to that endpoint – I am sorry, your Honour.

EDELMAN J: That may not actually be different from what Weiss is saying. I mean, one possible reading – and I must say I had not read paragraph 44 in this way before – but one possible reading of paragraph 44 is that it is not insisting that in every single case the intermediate appellate court must review the whole of the evidence but just that in a particular case it might be possible, having regard to the verdict that the jury rendered, for the appellate court to be persuaded that a guilt of the offence was properly proved at trial.

MR HOLT: Exactly so, and part of that reasoning, I think, one finds in Justice Nettle’s writings in Kalbasi as well, the question as to whether there will be cases where determining that guilt has been proved on the record may be as simple as saying this error had no capacity to affect the verdict and therefore there is nothing that countermands the validity of the verdict, which is the decision of the jury as the constitutional finder of fact.

BEECH‑JONES J: But is that not resurrecting the “this jury” debate, “this jury” by – the one thing Weiss settled, as I understood it, was the debate up to that time about whether the proviso was “this jury” or the “reasonable jury” by saying neither.

MR HOLT: Neither, it is the appellate court.

BEECH‑JONES J: Then we are now back to, on this part of the approach, “this jury”.

MR HOLT: Well, or at least looking at things from the jury’s perspective, and Weiss, of course ‑ ‑ ‑

GORDON J: Well, that is a difference.

MR HOLT: It is.

GORDON J: The submission is a submission, that is a very big difference you just put then. Sorry to pull you up on it.

MR HOLT: Not at all.

GORDON J: The point raised by Justice Beech‑Jones was what Weiss was actually getting away from, so that – how the Chief Justice put it to you – the right verdict was reached, is objectively having looked at the record one forms the view consistent with the test propounded.

MR HOLT: Exactly so, but the ‑ ‑ ‑

GORDON J: Well, that is different from the jury.

MR HOLT: It is, and one of the things, of course, that Weiss says is that those phrases like that “this jury” and so on can be useful and, indeed, this is a point Justice Edelman makes, particularly in Kalbasi, can be useful in emphasising the nature of the criminal process and the role of the jury and the standard of proof and those sorts of things but is not in and of itself a test. I have put that clumsily, I was not intending to make a submission that that was the rest we refer to.

But I am bound to submit this, that one of the significant criticisms, of course, which is levelled at Weiss in a compelling way is the extent to which it devalues the significance of the jury verdict as the thing from which – that caused the conviction which is being appealed from, and so it appears inevitable that if one is looking at the ultimate question in terms of the statute, as Chief Justice Gleeson put it, just in terms of has an actual miscarriage – substantial miscarriage – sorry, a substantial miscarriage of justice actually occurred there will be many ways of assessing that.

One of those is that the error – and Weiss says this specifically – is one of those is an error that literally could not have affected the case. One does not need to get into the “this jury” or a “reasonable jury” question to answer that, it is just a way of the court coming to that satisfaction, to that conclusion. What is resisted is the idea of trying to confine the pathways to that conclusion within the proviso too much because, as was made clear in Kalbasi, the nature and effect of the error is the starting point in all cases. So, one would not want to close off pathways in that sense to achieve that, save that, of course, it is always, as Weiss says, a job for the appellate court to make that assessment as to whether a substantial miscarriage of justice has actually occurred.

GORDON J: It has been put by, I think, the Commonwealth Director that – and I am going back to what we were talking about before the break; I apologise, I just want to make sure I understand – that one way of looking at the limbs is to adopt a form of analysis like this Court adopted in LPDT dealing with materiality. What is wrong with that? Are you going to give me the same answer you gave me before?

MR HOLT: I think so, I do not think I have any other answer to that.

GORDON J: No, it is okay. I just do not understand why that is not embraced.

MR HOLT: Yes. It is partly the function of the burden and standard of proof in a criminal case, and the particular features that set in an accusatorial trial in particular, where one has got to the point of identifying an error. But also – and again, I am sorry to sound like a broken record – it is not to say, in fact consistent with those developments in administrative law, that innocuousness or materiality as a low threshold has no part to play in the determination of whether an appeal should be allowed. It is simply a question of where that should set for these purposes.

Part of the difficulty here is a common form provision‑specific issue which is that there is, in our submission, a legal policy benefit that should be reflected in the construction of the common form statute to see a wrong decision on a question of law and a miscarriage dealt with in effectively the same ways, where the proviso can be dealt with in effectively the same way. So, having the same colour for each of those, but ultimately where the outcome may be no different from those purposes.

GORDON J: That is why I am asking. If the low threshold is the threshold which has been identified, then it is a question of where it is rather than giving rise to a different result.

MR HOLT: Yes, and the downside of putting it a miscarriage, of doing that a miscarriage and not doing it in a wrong decision on the question of law – which, in our submission, is much harder to do, as one ends up with differential tests – and so the balance of risk, I suppose, lies in doing it in the proviso, but the policy reasons for doing that at that very low level are difficult for me to make good.

GORDON J: Thank you. I apologise for interrupting.

MR HOLT: Not at all. I had only got to the proviso in the context of this case and making awkward submissions based on differential ways of approaching the proviso. On the assumption of the application of the negative proposition, our respectful submission is that this is exactly the kind of case that has been identified by this Court on multiple occasions, as we put in the written submissions, where the error was one which had the capacity to affect assessments of credibility in a contested credibility case, and so is singularly unsuited to review on the record in that respect.

Then, in respect of the question of the impact on the verdict or the impact on the trial, in terms of the nature of the error which is identified here, its capacity for having any of those kinds of impacts, in our respectful submission, is profound. I can put it as simply as this, it would, one would think, be an odd case in which a jury was permitted to use propensity reasoning improperly for sexual interest in a child sex complainant case and that not amount to a substantial miscarriage of justice, given the significance of that kind of evidence in a case of this kind and the significance of propensity reasoning and the extent to which the common law has set its face against it.

BEECH‑JONES J: To sound like a broken record, where does the tactical advantage come into all of this? Effectively, in your case, nowhere.

MR HOLT: No, no – I resist that proposition, Justice Beech‑Jones. It comes into an assessment, in our submission, of the proviso. That is, can it be said that no substantial miscarriage of justice has actually occurred? The answer, in our respectful submission, is this: when one is dealing with, effectively, a decision of law – so, it is not an incompetence of counsel ground but a decision of law that was wrong which has those effects – of course it might be said, in a particular case, where there was an extreme or genuine tactical advantage that no substantial miscarriage of justice has occurred.

It might be one of those multiple pathways whether it is to the proviso that that could occur. So, we do not deny that. What we say in this case is, for the reasons I have already given, the tactical decision that was made by counsel was one which: (a), still left the judge with a decision to make, which his Honour did make, separate to the concession; and (b), was one that was not forensically justified, for the reasons I have given and I will not repeat.

GORDON J: But it is not – I know you have said this before – it is not a fault of counsel case.

MR HOLT: No. No, we have not put the case on the basis that that amounts to incompetence of counsel, and so would be assessed under TKWJ

and those sorts of principles. It is an error of law where a relevant factor – a miscarriage where a relevant factor in considering the effect of that is that counsel positively asked for it, or acceded to it being given and said that he was going to take tactical advantage of it. That is part of the question of determining it, but, again, where the error is of this kind, that is the sort of consideration, in our submission, that would only very rarely be able to permit the proviso to be applied.

Those are our submissions, may it please the Court.

GAGELER CJ: Thank you, Mr Holt. Mr Cummings.

MR CUMMINGS: Thank you, your Honour. Your Honours, my starting position is that the miscarriage of justice part of section 668E is integral to that provision and cannot be avoided, and that there is a necessity to look at and see whether there has been a miscarriage of justice before going on to consider whether it has been a substantial miscarriage of justice. In this particular case, there was a tactical decision made, and the tactical decision was to create in the case a need for the judge to give a direction on how to use sexual interest disposition evidence.

In my submission, because of the way the defendant conducted his case, that then created a situation where the judge had no real choice other than to give the sort of direction he did. That is, the defence chose to use this evidence, explore its potential of sexual interest evidence, and then, having introduced that concept to the jury, the judge had to tell the jury the hoops they had to reason through before they could use that evidence.

Now, I emphasise this – my learned friend has said that the evidence would never have passed the Pfennig test, and that is true. I do not cavil with that at all. But that was not how the evidence was introduced. The evidence was introduced as relationship evidence, and relationship evidence in a very benign fashion. It was introduced to show the nature and circumstances of the power within the family unit. The obvious question for the jury in this case was, well, this all happened in a very small family unit, in close confines, with a sister just one year younger nearby. Why did anyone not see anything? Why did she not go to her mother?

So, the aspects of dynamics within the family, the fact that the accused could exercise discipline over the child, could lay hands on the child, thereby created a realistic context in which the jury could assess the evidence of the complainant.

EDELMAN J: That was not how it was left to the jury, though.

MR CUMMINGS: No, it was not. But, your Honour, my point is that was a tactical decision made by the defence. The defence actually introduced that potentiality into the case and, your Honours, it is not just my say‑so on that ‑ ‑ ‑

EDELMAN J: Sorry – the prosecution introduced this evidence not as relationship evidence; the prosecution introduced this evidence as so‑called “sexual interest evidence”.

MR CUMMINGS: No, not initially.

EDELMAN J: Will you take us to the passage where the prosecution introduced it as relationship evidence?

MR CUMMINGS: Yes, your Honour. That is in the prosecutor’s opening, at page 169 of the respondent’s further material, lines 4 to 6. Now, the prosecutor did not say it was relationship evidence, it was just introduced as three particular aspects of that witness’ evidence in a very banal way.

GORDON J: Mr Holt put to us both in his written submissions and orally that it was opened in a way which was sexual interest.

MR CUMMINGS: In my submission, that is not so. In fact, your Honours, that was the position of the appellant in the Court of Appeal. If I can take you to page 212 of the respondent’s further materials, and footnotes 16 and 17, counsel appearing for the appellant in the Court of Appeal said that the evidence was introduced as relationship evidence going only to discipline, and that the defence counsel was incorrect in his submission saying that the prosecutor had opened it as sexual interest evidence.

That is an important concession, your Honour, and that was a concession made in the Court of Appeal in writing. The point I make is, that then also impacts upon Justice Henry’s reference to 132B, because as the appeal was litigated it was not in dispute that the evidence was admitted and admissible as relationship evidence, not sexual interest evidence. Now, your Honour, how did it come to be first utilised as sexual interest evidence? Well, in my submission, your Honours ‑ ‑ ‑

BEECH‑JONES J: Mr Cummings, page 173 is the trial counsel’s opening, and at line 27 he outlines his client’s case that there was no sexual aspect to the slapping on the backside.

MR CUMMINGS: That is so, your Honour.

BEECH‑JONES J: Is that not kind of anticipating that that is what that counsel thought the Crown was seeking to show?

MR CUMMINGS: Your Honour, my submission is not; the prosecution had not given any indication of that whatsoever. If there was that concern, then it was open for defence counsel to object to that passage. I mean, we are only talking about 15 words in a prerecorded piece of evidence – a pre‑recorded statement. In fact, if one looks at the evidence‑in‑chief led from the appellant – and this is at page 40 to 41 ‑ ‑ ‑

GORDON J: Of the same book?

MR CUMMINGS: Of the appellant’s further material, your Honour.

GORDON J: Just before you leave that, I just want to ask one question. On page 212, which are the submissions, it says in paragraph 25:

The appellant’s trial counsel incorrectly stated that the Crown had opened this as “evidence about sexual interest” in his opening address.

MR CUMMINGS: Yes.

GORDON J: Is that what we are being taken to?

MR CUMMINGS: No, your Honour. What I am taking you to now is the way in which this topic was addressed in evidence‑in‑chief by defence counsel.

GORDON J: I see. Thank you.

MR CUMMINGS: Now, at page 40 from line 41 to 41 line 8 – this is evidence‑in‑chief – the appellant’s counsel explores this topic of domestic discipline. Nothing untoward about that.

BEECH‑JONES J: I am sorry, Mr Cummings, I have lost you. Which page, again, sorry?

MR CUMMINGS: Sorry – page 40 on the appellant’s book of further materials.

BEECH‑JONES J: Appellant’s book of further materials.

MR CUMMINGS: Sorry, your Honour, I did not make that clear.

GORDON J: This is the cross‑examination or – this is the examination?

MR CUMMINGS: This is the examination‑in‑chief.

GORDON J: Thank you.

MR CUMMINGS: So, your Honours can see that the discipline aspect of that evidence is introduced. Then if you go to line 10, that is when defence counsel actually introduces, quite explicitly, when you touched her on the:

bum, was there any sexual –

So, this is where this concept of sexual potential of this evidence was introduced, not by the prosecution but by ‑ ‑ ‑

EDELMAN J: Why did the Crown prosecutor ask for a sexual interest direction, then? If it was no part of the Crown case that this was anything other than relationship evidence, why ask for a sexual interest direction?

MR CUMMINGS: Because, your Honour, the appellant had introduced, as an explanation to the allegations, that the complainant had made the allegations because her mother had essentially schooled her up into doing that because the accused had left her. Now, that was the thrust of the defence case. That is how the defence counsel addressed the jury.

Having raised that aspect, it then became necessary – and I am not saying wise, but it became necessary – to look for some aspect of the evidence which showed some aspect of sexual interest on the part of the accused from a source other than the complainant and her mother. That is when the prosecutor sought to rely on the evidence for that purpose, because, obviously, if the jury were prepared to assume or find that the bottom slapping evidence showed the accused had sexual interest, that was coming from someone who was not caught in the defence submission that this was all a spurned woman schooling up a child to make false allegations. That is where it all came from.

Now, I am not saying it was a wise decision. I am not saying that I would have done it. But that is the thinking of the prosecutor. The prosecutor did the right thing. He raised the matter in the absence of the jury, rather than just addressing the jury, and he asked for that direction from the judge. Now, the appellant could have objected at that stage. He did not. Instead, he supported leaving that potentiality of the evidence to the jury, and the judge necessarily had to give directions about it. That is my point.

It was not admitted as sexual interest disposition evidence, it was admitted as relationship evidence. But then, to achieve a tactical advantage, the defence chose to try and rely upon it, as did the prosecution, as sexual – sorry, I will go back again, I have not put that properly. The evidence had potential – very weak and very contingent potential – as sexual interest evidence, but up until that point in time, no one had tried to use it as such. Then the prosecutor tried to explore that potential because of the way the defence had litigated their case. The defence counsel then had a choice: did he allow that potential to be explored, or did he oppose that potential being explored?

Now, if he had opposed it, then we would not be here, because the judge would invariably have found there was so many rational explanations for the anaemic bit of evidence from the sister that it would never have passed the Pfennig test and that did not happen. But that is not what happened. Defence counsel chose to put that potential before the jury for his client’s own tactical advantage, and that is why, in my submission, miscarriage in the early part of the proviso has acute application here. It was the tactical advantage sought by the defence which introduced this very problem.

EDELMAN J: Why did the prosecution close on it, then? The prosecution could still have closed on the basis of saying, we do not rely on this evidence in any way as showing sexual interest, but instead the prosecution closes on the basis that it proves, independently, that there was a sexual interest.

MR CUMMINGS: Taken in the context of the issues at trial – and that is my point, your Honour. The way the trial was litigated, the defence had said all of this is explicable, all of these horrible allegations by this little girl are explicable because what has happened is this man left this woman, she got upset about it, and within a day or so she has got the children, taken the children down to the police to make these allegations. That is why it became acute and something that might have been used by the prosecution in its case to show that here is a source of evidence from someone else, not caught by the defence scenario, that there was potentially an observation of sexual interest.

GORDON J: I have a problem, at least in the way I understood it was put by Mr Holt, that what was put by the Crown in opening at page 169 of the respondent’s book of further materials in effect was to say it was in a non‑disciplinary way and therefore, in effect, there was the elephant in the room. Then at 173 of the same book, we have the defence opening which says, listen:

To provide a context for his evidence, you have heard from –

the sister, et cetera, and it goes on, and then:

He will say that there was never a sexual aspect to that.

In a sense, he was responding to the way in which the Crown had opened this very evidence.

MR CUMMINGS: Your Honour, that is the mistake he made in his perception of what the Crown opened, in my submission. That is why, in the Court of Appeal, counsel appealing for the appellant conceded it was admissible as relationship evidence and defence counsel was erroneous in his assessment as to how it was opened. Your Honours, if you accept that submission, then this is not a case where evidence was wrongly admitted as sexual interest evidence; rather, it was evidence which was legitimately admitted as relationship evidence but then came to be relied upon by the parties as sexual interest evidence.

That then teases out the next issue, and that is, does the Pfennig test apply where it is not a threshold admissibility issue, but where the evidence is in the case and the parties choose to rely upon it as sexual interest evidence? Because once you get to that stage it is not an admissibility question anymore. That is, in my submission, where one gets to the point of saying, well, then – as Justice Hayne said in HML in relation to the underwear evidence, that is at page 400, paragraph 176, what he said at 176 is there is “no ruling”, there is “no objection”, there is no error of law in relation to that, and then his Honour also pointed out and moved on to talk about it being, really, just a matter of what directions – whether the judge gave adequate directions on the use of that evidence.

Then his Honour explored, in paragraph 200, just what directions the judge should have given about the underwear evidence in HML. So, the underwear evidence in HML was exactly, in my submission, in the same category. It was allowed to kick around inside the trial. Then, there being no ruling, the issue ceased to be whether it met the Pfennig test or did not, the issue became how did it come to be used? Then, it was necessary for the judge to give directions.

If one explores the directions that Justice Hayne speaks about in paragraph 200, he emphasises that, in regards to all of this evidence, including the underwear evidence, what was needed was a direction to warn the jury that they had to be satisfied it happened beyond reasonable doubt and that it showed a sexual interest that the accused was willing to act upon. That is why ‑ ‑ ‑

BEECH-JONES J: Mr Cummings, if this is not admissible as propensity evidence, is the appropriate direction not: you cannot use it as propensity evidence?

MR CUMMINGS: In a perfect world, yes, but what of the situation where the parties choose to litigate the case on the basis that this evidence is available to the jury for their own purposes?

BEECH-JONES J: Sorry – absent an acquiescence, consent by the Crown, you agree that the appropriate direction ‑ ‑ ‑

MR CUMMINGS: Is to disregard it.

BEECH‑JONES J: ‑ ‑ ‑ at this point of the trial is: do not treat it in this way, or disregard it.

MR CUMMINGS: I would go one step further. If you get to the stage where you have this evidence in the trial, then you are really looking at a case where you should be discharging the jury. If it has this sort of connotation, where it is showing sexual interest and it does not meet the Pfennig test, then, really, the jury should be discharged. But that is not what happened here; what happened here was the parties chose the area of contest.

GORDON J: Can I just test it another way. The evidence is admitted, on your argument, as relationship evidence.

MR CUMMINGS: Yes.

GORDON J: It, therefore, is in for all purposes?

MR CUMMINGS: No.

GORDON J: Why not?

MR CUMMINGS: Because, your Honour, there has to be an assessment as to how the evidence is used. If it is introduced as relationship evidence, and during the course of the trial there comes to be a situation where it might be misconstrued or misused, then the court has to give guardian directions.

GORDON J: Consistent with the obligation on a trial judge to make sure there is a fair trial.

MR CUMMINGS: Yes.

GORDON J: Here we have evidence admitted as relationship evidence, which is ultimately used as propensity evidence.

MR CUMMINGS: Yes, the point I was trying to make is: its potential for use as propensity evidence was left to the jury.

GORDON J: In a perfect world that should never have happened.

MR CUMMINGS: That should never have happened, but that is how the parties chose to litigate the case, and then the judge is then confronted with the situation – the parties defined the issues; the parties defined what evidence was put before the juries; the parties defined what evidence is objected to. In those circumstances, the judge cannot enter the arena; the judge cannot start pulling pieces of evidence out.

GORDON J: The trial judge cannot on that analysis, but what the trial judge can do is, consistent with what you and I have just discussed, ensure there is a fair trial, and so you, as I understand it, would say, here the direction is sought, the direction is given. Do you accept that the direction given is incomplete?

MR CUMMINGS: No.

GORDON J: Do you accept that it is missing the possibility of reasonable explanation or is an explanation for the conduct?

MR CUMMINGS: Your Honour, yes, but in the context of the atmosphere of the trial, as my learned friend has taken to the observations of the judge at the time, clearly the impression of defence counsel was, it was never going to pass directions given by the trial judge. It was never going to get to the stage that the jury would accept either it happened beyond reasonable doubt, or it showed sexual interest beyond reasonable doubt, or it showed that the accused was willing to act upon it beyond reasonable doubt.

GORDON J: How does that sit with what you just put to us, that in a perfect world, where you had sexual interest evidence of this kind, it would lead to discharge of the jury?

MR CUMMINGS: How it fits in this way, your Honour, is it comes back again to the parties choosing to litigate, in particular, the defence seeking to make a forensic decision and take a tactical advantage. If I can illustrate that, your Honour ‑ ‑ ‑

GORDON J: Can I just ask one more question before, and then I will stop interrupting. Do you accept Mr Holt’s submissions that there was no forensic advantage?

MR CUMMINGS: No. My submission is, (a), that is the wrong test. The test is not whether – we are not here to judge the wisdom of counsel but whether, objectively, there was a rational explanation for what counsel did. In this case, there was, and when I get to – what I want to say about that is, defence counsel’s assessment of the atmosphere of the trial was that this evidence would never be used by the jury as sexual interest evidence.

That is why he was happy, one might infer, for the judge to give the directions he did – and remembering, your Honours, he did not ask for redirections. Coming back to the issue of whether the directions were deficient, defence counsel did not ask for redirections. My submission is that was a reading of the room – the atmosphere of the trial, assessment of counsel – the jury were never going to use this evidence as demonstrating sexual interest that the accused was willing to act upon.

BEECH-JONES J: Mr Cummings, I understand your argument at least includes this – regardless of why this evidence was admitted, that direction did not effect a miscarriage of justice because of the approach taken by trial counsel.

MR CUMMINGS: Exactly.

BEECH-JONES J: I understand. Then, on the second limb, do you make the concession Mr Holt attributes to you that the trial judge made a decision on a question of law in giving that direction?

MR CUMMINGS: My submission is the trial judge formed the view that he had to make that direction, it was necessary because of the way that the parties were conducting the case.

BEECH-JONES J: But your answer is, that is not wrong, because that reflected the way that the trial was run. Is that the essence of it?

MR CUMMINGS: Yes, exactly. Your Honour Justice Gordon, you raised with me where the fairness issue comes in and whether there is implicitly – and perhaps I read too much into your Honour’s question – whether the overarching obligation of the judge to ensure a fair trial would have obliged the judge in this case to exclude the evidence off the judge’s own bat, despite what the parties wanted to do.

That, in fact, is suggested in paragraph 29 on page 8 of my learned friend’s supplementary submissions. He refers to three cases to support that proposition, one being Dhanhoa and the other being Conway, and then finally – sorry, I will start that again. He refers to Pemble, James and Perish. Now, Perish is not in the appeal books, the joint book of authorities, and I apologise, I missed not including that. But I refer to that for this reason. Dhanhoa confirms the Ratten principle – and this is at page 177 of that judgment – that the parties choose the area of contest. They choose what evidence is objected to and what is not.

Pemble was not a case about excluding evidence, but failing to leave a defence which was open on the evidence, because defence counsel had run the trial on the basis that it was murder or nothing. James was a case where defence counsel on appeal argued that the judge was obliged to leave every possible alternative to the charge, not just those chose by the prosecution. So that was another – and this Court rejected that argument for a variety of reasons. Perish does say, in paragraphs 271, 272, that the court’s overarching obligation to ensure a fair trial does include removing evidence even though objection is not taken to it. But in 273, that same court says that does not apply where there has been a forensic decision not to object.

So, your Honours, my submission is this is classically a case where defence counsel have run their case in a particular way, they have chosen how to litigate the issue. The judge did not make an error of law, rather, he had to compensate for and deal with how the case was being run, and this idea ‑ ‑ ‑

BEECH‑JONES J: Is the effect, you say, of the judge’s decision to say, all right, if both of you want in it for this purpose, which I do not like, I am going to at least give a direction protective of the way in which it could be used?

MR CUMMINGS: Yes, and so protective that the likelihood that the jury would actually use it was negligible. And, your Honours, my submission is that is confirmed by the fact that counsel did not seek redirections. If one looks at the directions, firstly, it is the strong tiers: you first have to accept beyond reasonable doubt that it happened; then you have to accept beyond reasonable doubt it showed sexual interest; then it has to be shown beyond reasonable doubt that he is willing to act upon it; if it does not satisfy those three things, you disregard it; even if it does, that does not mean he is guilty, you still have to go back and look at the evidence and see if the charges are proved. So, it was a protective direction in the circumstances created by how the parties chose to litigate the trial.

GLEESON J: The Crown had a proper basis for making the submission put to the jury that it was capable of demonstrating sexual interest.

MR CUMMINGS: Your Honours, in line with the application to have it introduced as realising that potential, the Crown’s submission was appropriate. But bear in mind, your Honour, it was for the jury to see whether that potential was realised. The defence case, of course, was this was just a mundane domestic situation, all it was, was this girl saw routine discipline being administered, nothing more, nothing less.

So, your Honours, if your Honours accept that submission, then there has been no wrong admission of evidence and no wrong decision of law about admission of evidence, because it was not an issue about admission of evidence but use of evidence in a different way – use of evidence which had been admitted lawfully, and for most of the trial, been utilised lawfully, but then came to be used in a different way.

GORDON J: Can I ask one other question, just about this last bit.

MR CUMMINGS: Sure.

GORDON J: If you are right about all of that and one gets to this direction which is sought by the parties, and you say the direction had the three elements: beyond reasonable doubt it happened; beyond reasonable doubt, sexual interest; beyond reasonable doubt, would act upon it ‑ ‑ ‑

MR CUMMINGS: Yes.

GORDON J: ‑ ‑ ‑ can, of course, disregard it; and, of course, even if it does satisfy all three, it does not prove that he is guilty of the offences charged. The point made in Pfennig was, I think, slightly different. It dealt with admissibility, yes, but it also dealt with the question of direction by saying that it was “useful” – I will put that as the neutral term – that it should not be used to draw an inference adverse to the accused unless it was the only reasonable inference in the circumstances.

MR CUMMINGS: Yes.

GORDON J: That is absent from this direction. Does that matter? I am looking at page 485, but it also found itself at 481 and 482.

MR CUMMINGS: Your Honour, of all those – the short answer, in my submission, is the way the judge put it to the jury was either it met those five gates, or they disregarded it. So, the need for an alternative rational explanation did not arise, in the way the judge left it to the jury.

GORDON J: Thank you.

MR CUMMINGS: They either found, beyond reasonable doubt, those three things, or they just threw the evidence in the wastebin.

GORDON J: Mr Holt puts it against you, I think, that it is independent evidence from a third party that has some character about it both in terms of its nature but also its source.

MR CUMMINGS: Not really, not if you look at the actual evidence itself.

GORDON J: Thank you.

MR CUMMINGS: And that is my point, if you actually read the evidence, it is nothing. It has a potential – a very remote, very contingent potential – but it cannot be the case that Pfennig has to be satisfied whenever there is a potential that evidence might be used to show sexual interest. There must be some flag that it can or will be used in that way before Pfennig has to apply to the evidence, because in almost every single case where there is a sexual offending within a family, there will be numerous incidences of mundane interaction.

If the court has to apply Pfennig every time there is a potential that the accused – how the accused looked at the complainant in the lounge room or how he brushed past her in the hallway could have a potential sexual interest, the court would never stop applying Pfennig at a trial level. Every piece of evidence would have to be held up and examined in that prism. That is why, in my submission, one starts from the proposition here, the evidence was mundane. There was a very remote, weak, contingent possibility it would attract sexual interest, but no one saw it to begin with, except maybe defence counsel, who seemed to be alive to it from the very start, and then decided to address that in evidence‑in‑chief with his client. Your Honours, those are my submissions on grounds 3 and 4.

If I can move to ground 2. Your Honours, my submission in this regard comes down to this – excuse me a moment, I have just lost my train of thought. The issue in ground 2 was the judge made a wrong decision on a question of law when his Honour decided to direct the jury. I think I have already answered that, or made my submissions in relation to that, and that is that really the judge had no choice. The point about this particular issue is, in my submission, much must be read into the perception of the atmosphere of the trial as perceived by defence counsel. GBF talks about that at page 548, paragraph 24.

The other aspect of the case is that in HML, Justice Hayne readily acknowledged that even though evidence did not satisfy the Pfennig test, it might not be admissible under the Pfennig test, but it still remained “relevant”. His Honour made that point, I believe, at page 400, at paragraph 175. Then, as his Honour went on to say in that same paragraph, the evidence was inadmissible – concerning the underwear – because, had the Pfennig test been applied, it would have been inadmissible because there were too many innocent explanations. But the fact that it did not satisfy the Pfennig test did not mean that it was not relevant.

What then arose was, in that very case where the evidence was allowed in, there was no objection; was no ruling, the issue came back to what directions the judge was obliged to give because of that evidence. That is when his Honour said or held, essentially, that once you get past the stage where you have to apply the Pfenning test to admissibility, if it is actually in there and it stays in there, then the issue becomes what directions – how effective were the directions in dealing with that evidence?

That is on page 400, paragraph 176, and that ultimately leads to what his Honour says in paragraph 200 at page 406 as to what the directions should ideally contain. Notably, the judge’s directions in that case at 407, paragraph 201, did not meet that standard, but nonetheless, Justice Hayne did not consider there had been a miscarriage of justice in that case. So, in my submission, in relation to ground 2, there has been no wrong decision according to law, that once the potential sexual interest evidence was in and the parties flagged they intended to use it and fight the contest on that basis, the judge had to give directions of the kind that he did give.

If we go, then, to ground 1 – ground 1 refers to the Court of Appeal erred in holding there is no miscarriage of justice occurred when evidence inadmissible as propensity evidence was nonetheless left to the jury to be used as propensity evidence. As I have already submitted to your Honour, it was not actually left to the jury as propensity evidence. Rather, its potential was left to be argued by the parties in support of both cases.

So, what the Court of Appeal actually picked up on, in my submission, is that, having regard to how the case was litigated, that there was no miscarriage of justice because it was the forensic decision to allow that sexual interest potential to be explored by the parties – that is where they chose to join issue. Justice Henry realistically assessed, as did defence counsel, that this evidence was so weak there was really no prospect of it being used as sexual interest evidence. That is, there was no chance that its potential would be realised and that, consequently, the court did not need to go to the proviso – it was not invited, but it did not need to – it simply concluded there was no miscarriage of justice.

Your Honours, that then brings me to the proviso. My submission is that the idea of trying to – and I will not go into any detail about 132B, except to say, given the concession that admissibility of that evidence was not in issue, the reference to 132B seems quite curious. The established case law in Queensland, from R v MAQ [2006] QCA 355 – that is in volume 6 of the joint book of authorities, page 1726 – that case dealt with the situation where one count on the indictment came within 132B, and one count did not. What the court basically held was that 132B basically operated in parallel with the common law, the evidence in relation to the other count was admissible as relationship evidence at common law, and in relation to the count 132B did apply, it was admissible in relation to that.

That was the state of the law in Queensland at the time that Justice Henry made reference to 132B. The point I make is it was never about 132B. His Honour’s conclusion was right. Whether he referred to 132B or not does not matter, because the evidence was always admissible as relationship evidence at common law in Queensland.

Then, in relation to the proviso, your Honours, my submission is the proviso cannot be divorced from the earlier part of s 668E. I say that for this reason. Section 668E as enacted appears at page 55 of the joint book of authorities, volume 1. I just wanted to take your Honours to the language of that provision. It is quite different from how it has been reprinted. So, if one casts an eye over that provision as enacted, one sees that it starts off by saying an:

appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside –

GORDON J: What tab is that, please?

MR CUMMINGS: That is volume 1 of the joint book of authorities, your Honour, page 55.

BEECH‑JONES J: Did you say tab 9?

MR CUMMINGS: Tab 1, your Honour.

STEWARD J: What was the section number in the original?

MR CUMMINGS: Section 668E. It has never been amended.

STEWARD J: I see.

EDELMAN J: Section 9.

MR CUMMINGS: Sorry, your Honours – I have made a typographical error.

GAGELER CJ: You are talking about the Criminal Code Amendment Act 1913.

MR CUMMINGS: Yes, your Honour.

GAGELER CJ: That is section 9.

MR CUMMINGS: Yes. Sorry, your Honours, I completely misunderstood your question. It is section 9. That sets out how the provision was enacted. As your Honours can see, it is very similar to the provision in Weiss, but we start off with:

The Court on any such appeal against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that –

And then we have the three strands which, really, if we incorporate the third strand, involves information of a variety of circumstances. Then it goes on:

Provided that the Court may, notwithstanding that it is of the opinion that the point or points raised by the appeal might be decided –

Not “are decided”:

might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

The point I make, your Honours, is that the proviso is an integrated part of one thought process. The reprinted version separates the proviso off into a separate paragraph and changes the language. The reprinted legislation did not permit that to be done; it did not permit a change of meaning, and that is section 8 of the Reprints Act 1992. My point is you cannot divorce the proviso from the rest of the section, because the very wording of the section contemplates the court reaches a, shall we say, tentative view as to whether what has been raised:

might be decided in favour of the appellant –

That is when the court then comes to consider the proviso. So, it is not a two‑step process by the wording of the provision. In my submission, that is an important point, because what Weiss was saying in paragraph 18 – and there is no challenge to Mraz at all, I want to make that clear – but what it is saying is, part of this filtration process that was brought by this new provision was, first, there has to be something pointed to that is wrong with the decision of the jury or the trial. Then – only then – do you go on to consider the proviso.

So, it may well be that the points raised initially gets to the stage where the court just says, well, we are not going to contemplate setting aside the verdict because of this, setting aside the conviction because of this. Or it might be that it is of such significance the court thinks that it might set aside the conviction. But the court then has to consider whether there has been no substantial miscarriage of justice actually occurring. So, in my submission, “miscarriage” has an acute function in the early application of this provision, because taking tactical advantage and introducing evidence which would otherwise be objectionable is something that affects – and that is the thrust of TKWJ – whether there has been a miscarriage of justice. It is that threshold point.

Your Honours, my submission is you cannot find a simple solution to this because it is a symbiotic process. What is a “miscarriage” depends almost exclusively on how the case is litigated. The court has no role to play in how the case is litigated, and this case illustrates that perfectly. In BBH, the situation was the converse. The evidence of what the boys saw could never have assisted the assessment of the credibility of the complaint. It could not have helped at all; it was just sexual interest evidence which might have made the version more plausible.

In this case, how the appellant chose to use the evidence was to say, look, all of these terrible things have happened over four years, from when this girl was eight or nine to when she was 12. All these terrible, horrible things have happened; no one saw anything. The highest the prosecution can point to is the sister saw something that struck her as a bit odd, and he slapped her on the backside. That is it. That is the tactical advantage that the defence sought to wring from this trial, from this evidence, and they did so on the basis that their assessment of the atmosphere of the trial in front of the jury was there was negligible risk that this evidence would ever be used as sexual interest disposition evidence. But it would effectively destroy the prosecution case, because it just could not make sense that all of these things happened in that small household in such a close proximity as to be unobserved by anyone. That is how the defence chose to litigate the case.

On those circumstances, this brings into sharp relief how section 668E can, at the very beginning of the process of considering whether the conviction should be set aside, say, as was said in TKWJ, if defence counsel chooses to litigate the case in this way and there is an objectively rational reason why that might be the case, then there is no miscarriage of justice, then there is no unfairness. That is exactly the point which was made in that New South Wales Court of Appeal decision.

Yes, the judge can, in the obligation to – R v Perish, I forgot the case’s name for a moment – in Perish, that was the point. Yes, the judge can, in exercise of supervisory jurisdiction to ensure fairness, remove evidence, even though the parties do not object, but that does not apply where the parties make a forensic decision to introduce that evidence.

GAGELER CJ: Now, if we are getting to the proviso, then we are, at this stage of the argument, conceding a miscarriage of justice – or are you not, necessarily?

MR CUMMINGS: If your Honour is against me on everything else I have said about grounds 1 to 4, yes.

GAGELER CJ: I mean, you are raising a proviso. So, you are raising it on the contingency that there will be found to be a miscarriage of justice.

MR CUMMINGS: Yes, and, your Honour, can I just clarify this. I have done so because I am hoping to assist the Court, however humbly I might be able to do so. My primary submission is you would not get to that point.

GAGELER CJ: I follow that, but we are now at the proviso and your argument seems to be that there is no miscarriage of justice.

MR CUMMINGS: Yes. Sorry, your Honour.

GAGELER CJ: We do not get to the proviso unless there is a miscarriage of justice ‑ ‑ ‑

MR CUMMINGS: That is so.

GAGELER CJ: ‑ ‑ ‑ so I am having difficulty following it.

MR CUMMINGS: Okay. Your Honours, I am just addressing the scenario where there has to be a miscarriage of justice before you start – well, sorry, if one looks at the wording of the provision there can be, in my submission, several propositions. One is there is a clear miscarriage of justice, in which instance the conviction is set aside. The other is there might be, there is certainly something to look at there, but at the end of the day the Court of Appeal ultimately concludes no substantial miscarriage of justice occurred.

The third scenario is, yes, there is a miscarriage of justice but it is not a substantial one and the appeal can be dismissed; or there has been a miscarriage of justice, it is substantial, the conviction must be set aside; or there has been a miscarriage of justice, we cannot really say whether it is substantial or not, we cannot say it is trifling, we are not prepared to say no substantial miscarriage of justice occurred in this case. So, there is a plurality of decisions that ‑ ‑ ‑

GAGELER CJ: Okay. You are deploying the proviso. Which route do we take in this case?

MR CUMMINGS: In this particular case, no substantial miscarriage of justice occurred, in the sense that the way the parties litigated the case, there was actually no miscarriage. There was a potential for it, but it is so remote that the proviso can be applied by saying, well, whether there has been an actual miscarriage here or not, no miscarriage of justice actually occurred.

GAGELER CJ: Like Mr Holt, you are asking us to depart from the universal negative proposition in Weiss.

MR CUMMINGS: To a degree, yes. And I apologise if I was being a tad obtuse in following your Honour’s line of reasoning. Your Honours, my submission is the better and steadier course in 668E is to focus on influence, having regard to how the case was litigated. Excuse me a moment, your Honour.

Unless there is some specific aspect of the matter that your Honours wanted me to address further, I did not want to take up any more of your time.

GAGELER CJ: Thank you, Mr Cummings. We will commence the interveners’ submissions after lunch. The Court will take the luncheon adjournment.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GAGELER CJ: Ms Sharp.

MS SHARP: May it please the Court. Consistent with LPDT, which is at volume 6, tab 55, at paragraph 8, what we have attempted to do in our submissions and oral outline is to identify a framework that will provide practical guidance in this complicated area of the law. As with errors that may or may not be jurisdictional, so too in criminal cases are there innumerable errors, irregularities or decisions that may be made which may or may not amount to a miscarriage and which may or may not mean a substantial miscarriage of justice has occurred or that one cannot be excluded.

We do not seek to identify all the possible errors, irregularities or decisions that could be made, nor to classify them. However, we do seek to identify each step of the analysis that is required in relation to both the second and third limbs of the common form appeal provisions. At a very high level, each of those two limbs has, we submit, three steps: firstly, identifying the error or decision; secondly, consistent with your Honour Justice Gleeson’s observations about the three limbs, identifying whether that error was material or the decision was wrong. If available and pursued then, the third step in relation to each of the limbs is the proviso.

As set out in our oral outline, we will commence with analysis of the third limb rather than the second limb. There appears to be little dispute as to the steps involved. There is, however, some contention about whether there is a test of materiality, but the question on which parties really differ is to what would satisfy the threshold test to enable an appellate court to find there was a miscarriage, described as materiality or the threshold test. I will come to that in the second step of the process.

The first step, which we set out at the first paragraph of our oral outline, is that an appellant must identify an error or irregularity in or in relation to the trial. The appellant bears the burden at the first step, consistent with the moving party on any appeal. Then, if the appellant cannot identify an error or irregularity, the appeal must be dismissed – that would be the end of the matter.

The point here is that the error irregularity must be in or in relation to the trial. There may be many errors or irregularities, but if it is not in or in relation to the trial, it is not relevant for present purposes. On the third limb, what may be an error or irregularity should not be viewed narrowly, but there must be such an error, and the case, as I indicated, may fall at this step if the appellant does not identify any such error.

We then turn to consider “fundamental” errors, if I can use that shorthand. If the error or irregularity was fundamental, using it merely as a descriptor, it is unnecessary to undertake any further assessment of whether that error or irregularity could have any effect on the verdict or, indeed, consider the proviso. That is because it will have been an inherently substantial miscarriage of justice. We set out in our written submissions, at paragraph 23 to 24 of the principal submissions, what those might look like.

In those cases, it would be logically impossible for a respondent to establish that no substantial miscarriage of justice has actually occurred. So, whilst it is really imparting observations from the proviso, the final step, we consider that, having looked at the cases, errors that are fundamental or of this type can be acknowledged and identified at an early step in the process, which then alleviates the need to consider materiality or the proviso. It is for that reason that we have put that step so early in the process.

We refer in the outline there to observations of the Court in HCF v The Queen (2023) 97 ALJR 978. That is in volume 6, tab 52 of the materials at paragraph [7]. There, the majority said, in relation to the apprehension, that the jury had been biased:

If the irregularity gives rise to such a reasonable apprehension, then there has been a “failure to observe the requirements of the criminal process in a fundamental respect”, in that “the integrity of the trial process” has been undermined. In such event, regardless of any potential effect on the trial –

That, in our process, is the second step materiality test:

there has been a miscarriage of justice which is inherently substantial and there is accordingly no scope for the application of the proviso.

That is an early way in which an appeal may be allowed. The next step in the process that we have identified is that if an identified error or irregularity is not fundamental, such that it can proceed through the process, the analysis will then proceed to the second step to consider what we have labelled a materiality test. This step of the process has always required, and does still require, consideration of the trial that happened. What happened in this trial? What happened with this jury?

In our submission, reflective of the authorities, we have set out the test in the oral outline as being an error or irregularity – that an error or irregularity will be material if an appellant – it is important the appellant bears the burden at this point – establishes that the error or irregularity could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. We set out in our written submissions the cases that describe and explain that test in a range of different ways, but we come to this one particular formulation based on a review of those authorities which we have done in the written submissions.

We start first by reference to LPDT again, which is where the Court recently identified a test of materiality. In that case, the Court said, at paragraph 7:

In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that –

and this is in the sense of a decision being material:

in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.

We say there is a consistency in language and concept across the cases, both in the administrative law authorities and in the criminal law cases about that test.

EDELMAN J: One finds almost identical words to the words in paragraph 7 in many of the decisions on the proviso.

MS SHARP: Yes. Your Honour, that is one of the reasons that we have sought to step out the process separately.

EDELMAN J: It sounds a lot like collapsing the proviso into miscarriage of justice.

MS SHARP: No, your Honour. I can understand your Honour’s question. The second step in the process is: was the error material? And there is a difference between an error that is material, or that there is a miscarriage, which equates to a miscarriage in this context, and the proviso, or the third step, which is if it is a substantial miscarriage. So, the threshold may not be very high for a miscarriage. It is one of possibility: could the error have realistically affected the result? That is a factual inquiry about the trial that did happen. In this trial ‑ ‑ ‑

EDELMAN J: There might be a difference if by “affected the result” you mean something which could have influenced, contributed to, been taken into consideration in, rather than, counterfactually, potentially led to a different result. That may be a very big difference between, potentially, miscarriage and substantial miscarriage.

MS SHARP: Yes.

EDELMAN J: Otherwise, the two tests seem to me to be very, very similar.

MS SHARP: Would your Honour excuse me one moment. The significant difference, your Honour, is the test for the proviso is as stated in Weiss, which was confirmed by the majority in Kalbasi. It is about whether there is a reasonable doubt as to the conviction. Here, we are talking about an error and whether it could have had an effect on the trial. There is no need to consider the whole of the trial record. And so, in our submission, they are two different steps directed towards two different inquiries.

EDELMAN J: But if they are both concerned with whether the outcome would have been different then, not only is there no need for the proviso, there is no need to look at the whole of the record, because one would look at a tiny bit of the record to determine whether or not the outcome is any different.

MS SHARP: The materiality test, in our submission, is could have been different, not would have been different.

EDELMAN J: Yes.

GORDON J: Might have made a difference.

MS SHARP: Sorry, your Honour?

GORDON J: Might have made a difference.

MS SHARP: Might have made a difference.

GORDON J: Not significant possibility, but might have made a difference.

MS SHARP: Might have made a difference. It is a relatively low test, and so the purpose of that low test – albeit one that requires consideration of sometimes the same things that would be required to be considered on the proviso necessarily – is that matters or errors which have been described as innocuous, to use a descriptor, will not get through to the third step to the proviso step.

So, this is, in effect, a filtering process. There is an error or irregularity in the trial. Does it get to the level of being a miscarriage in a sense that was immaterial? Could it have realistically affected? That is the inquiry at that point. And that is all that an appellant has to show, that it could have, not that it did, and on the proviso, then, it is for the Crown to show that it died not, in essence. It is for the Crown on the proviso to show that the court would be satisfied of its own that the appellant is guilty of the offence that was charged.

BEECH‑JONES J: So, leaving aside Mr Holt’s variation, the proviso, how you formulate it by reference to Weiss, does not look at the trial that was had, in the sense of this particular jury, it looks at what the evidence was. And the difference may be, you might look at materiality, if you had some questions from the jury, and you might know about their reasoning.

MS SHARP: Yes, your Honour.

BEECH‑JONES J: But if you are looking at the proviso, on Weiss, you do not.

MS SHARP: That is correct, your Honour. That is set out in paragraph 3.1 of our oral outline. We do not seek to engage with how the proviso functions and how it is applied; we are looking at the anterior steps, of which cases get to the third step, and what process by which they get there, and who bears the burden of those different steps in that process.

So, I have been addressing what we submit is the materiality test – paragraph 2.1 of our oral outline – and there refer to observations of the test made in Hofer and HCF as well, which are, in our submission, consistent with and in similar language to how we have identified the test. Assuming that an appellant can meet the test – I am sorry, your Honour.

STEWARD J: Can I just ask one question, I am sorry, Ms Sharp. I am probably a bit slow today. Your materiality test – you have quoted from LBDT, Hofer and HCF – where does that leave us with the proposition from Weiss that any departure from trial, regardless of the nature or importance of that departure, is sufficient to trigger a miscarriage?

MS SHARP: There is an inconsistency there with Weiss, and in our written outline we identified that. To the extent that this test requires overturning of Weiss, we would seek to reopen it on that specific and narrow point only.

STEWARD J: And the basis for reopening it?

MS SHARP: It is that – if your Honour will excuse me, I will just get my ‑ ‑ ‑

EDELMAN J: While you are pulling that up, that passage that Justice Steward just quoted from was approved by Chief Justice Kiefel, Justices Bell, Keane and Gordon in Kalbasi ‑ ‑ ‑

MS SHARP: Yes.

EDELMAN J: ‑ ‑ ‑ and other by Chief Justice Kiefel, Justices Bell, Keane, Gordon and myself in GBF.

MS SHARP: Yes.

EDELMAN J: So, both of those decisions would have to be reopened to that extent as well.

MS SHARP: Yes, your Honour. It is to the limited extent that any error is the indication from the drafting of the test in Weiss, which was a second‑limb case – so a slightly different case than what I am talking about there, which is the third limb where the materiality test exists, in our submission. We have addressed it at paragraphs 28 to 30 of our written submissions.

We submit there that Weiss, when you look at it from this context, in the context of the third limb – we are not talking about a second‑limb case, as I said; I am conscious of a third limb – it does not appear to represent the current state of authority on this issue. We have been discussing a number of cases in which there is a materiality test, and that materiality test is, as your Honour has pointed out, different to the concept in Weiss – that absolute phrase that any error results in a miscarriage.

STEWARD J: The difficulty there may be with your language is the difficulty that Justice Edelman has outlined, which is that over time, it will get expanded, and it will start to conflate with the proviso. Is all that you really want to say that, in order to satisfy the miscarriage here, the appellant at least must show that it was to his or her prejudice, so that an innocuous error, as you say, would not qualify for that?

MS SHARP: If that is to equate with it being material, then that is language that we would not quibble with, your Honour. It is to have a test at that point, that ‑ ‑ ‑

STEWARD J: A filtering test.

MS SHARP: A filtering test, yes. A filtering test as part of the second step for the third limb that requires the appellant to show that, as we have framed it, it could have made a difference.

STEWARD J: Thank you.

MS SHARP: Thank you, your Honour.

GLEESON J: Ms Sharp, was Kalbasi a second‑limb case, or second and third limb?

MS SHARP: One of the significant issues in Kalbasi – I think there were aspects of it that were both second or third limb. I do not have that detail to hand immediately, but I will get that detail for your Honour. In Kalbasi, it was a case more about trying to reopen the proviso, so it was addressed to that more significantly. If your Honour would just excuse me for one moment – yes, if I can come back to that question, your Honour, in relation to Kalbasi specifically.

Returning, then, to the framework as we have identified, assuming the appellant can identify an error and satisfy a test of materiality, however framed – and we have submitted the test of could realistically have affected – then the matter would move to the proviso. We set out in paragraph 3 of the oral outline our submissions in relation to the proviso. As I have indicated, we do not seek to reopen how the proviso is applied once the third step is attained – so, once there is an error that is material, and we reach the third step, then the proviso is applied.

GAGELER CJ: So, on the point that Weiss actually decided, you say Weiss was correctly decided?

MS SHARP: We say it is consistent and been followed with the law since then, yes, your Honour. Those are the submissions, really, about the framework for the third limb. If I could move then into the second limb of the proviso, which is a wrong decision on any question of law.

We have attempted in the oral outline to frame the steps in a consistent way so that we have a consistent framework to assist practitioners in identifying how they can pursue appeals in these matters. The first step is that the appellant must identify a decision on a question of law. The question of decision is something which occupied some of the discussion this morning. In our submission, there will be “a decision” where the judge rules on a legal question. Ordinarily, there will be no decision unless there is a contest. So, usually ‑ ‑ ‑

GORDON J: What does “ordinarily” mean, and what are the exceptions?

MS SHARP: In relation to a direction, for example, in Dhanoa, there can be a request for as direction and, as was the case here, there was an acquiescence in the request for the direction, so there is no contest between the parties as to the outcome of the decision, but there was a request for a decision. So, in the context of a decision about admissibility of evidence – to separate out evidence from directions as two types of legal decisions that can be made in a trial, in relation to evidence when there is an objection and a contest about that, the product of that objection, in our submission, is “a decision” that can fall within the second limb.

GORDON J: Why is it necessary to have the contest element for a question of law when you have – I will ask a prior question. Do you accept that, as Mr Holt put it, there is an obligation on the trial to ensure that there is a trial conducted according to law in the way it was described this morning?

MS SHARP: We accept there is absolutely an obligation on a trial judge to ensure that there is a trial conducted to law. We draw a distinction between how decisions are made in relation to evidence from directions, and we do that principally because of the adversarial nature of the trial. There may be a large number of reasons why trial counsel have agreed between themselves for particular evidence to be led in a particular way and, in our submission, that is not for the trial judge to be engaged in the fray at that point. There may be a whole range of reasons why things are admitted. There will be inadmissible hearsay that goes in in the running simply because it forms part of a narrative if witness might give evidence. If there is an evidentiary problem that is the subject of an objection that is then contested, then the resultant ruling on that objection, in our submission, is a decision that can attract the second limb.

GORDON J: Right. Can I then move to the direction bucket?

MS SHARP: The direction bucket. So, there are three options here. This morning, I think it was Chief Justice Gageler asked a question: is every decision to make a direction a question of law that could be a decision of law subject to the second limb? That is a possibility. We do not embrace that; I do not think it is consistent with all of the authorities, necessarily. We have made a submission consistent with Dhanhoa that where there is a request for a direction – which was the case here, a request and an acquiescence – that could amount to “a decision” such that it falls within the second limb.

GORDON J: What happens when you have a situation like here, where there is an acquiescence but the trial judge themselves is saying it is pretty marginal, all right, I will give you the direction – on the spectrum, it is not at one end or the other.

MS SHARP: In our submission, it is a limb – if Dhanhoa is the test for a decision of law, then it is a second‑limb case. There was a request for the direction ‑ ‑ ‑

GORDON J: I see.

MS SHARP: ‑ ‑ ‑ and the fact that it was acquiesced – the tactical decision that your Honour Justice Beech‑Jones has been talking about – is relevant to determining or considering whether that decision was wrong. So, there is a qualitative assessment there: was it a wrong decision? And that requires consideration of the trial and the entirety of the trial record. As has happened in other cases – in Huxley in particular – there were a range of factors that were considered. The Court was divided as to whether there was a miscarriage or not, but the process that all members of the court engaged in to determine that was the same. The entirety of the trial record was considered, including counsel’s role in the way the ruling played out in the objection. The Court took different views, ultimately, as to the outcome.

GORDON J: Thank you.

GLEESON J: I am just trying to understand your reliance on Dhanhoa. The passage, paragraph 49, that you have cited says that:

Because the trial judge was not asked to direct the jury, he did not make a “wrong decision of any question of law” –

MS SHARP: Yes.

GLEESON J: I thought you were saying that where there was a request, an acquiescence, Dhanhoa said that there was ‑ ‑ ‑

MS SHARP: It is a reverse of that. So, because there was no request, it was not, but we read that as saying if there had been a request, not necessarily a contest ‑ ‑ ‑

GLEESON J: I see.

MS SHARP: ‑ ‑ ‑ then that would be “a decision”. However, the third option is, of course, that the same test would apply in relation to a direction, that there had to be a contest for it to be “a decision” such that it fell within the second limb.

GAGELER CJ: So, we have three possibilities, as I see it.

MS SHARP: Yes, your Honour.

GAGELER CJ: All of them require a judge to do something. One is where the judge just does something that involves an error of law.

MS SHARP: Yes.

GAGELER CJ: Another is where the judge acts at the request of one party to do something that is an error of law. And then the third is where the judge, in determining a contest between the parties, errs in law.

MS SHARP: Yes.

GAGELER CJ: I think they are the three possibilities.

MS SHARP: Yes, your Honour.

GAGELER CJ: You choose the middle one. Why?

MS SHARP: We only choose the middle one in relation to directions because of Dhanhoa. If unconstrained ‑ ‑ ‑

GAGELER CJ: Well, you can see a lot of things are up for grabs now – why should we choose the middle path?

MS SHARP: Unconstrained, if we were unconstrained by Dhanhoa, we would submit that it was a contest, it would be better to be in the third category.

GAGELER CJ: Just give me some reasons for that.

MS SHARP: We do not then have the discussion that we have had today in terms of the relevance of the tactical decision. It makes it clear, then, the types of cases that would fall within the second limb. We have indicated that we do not think there is a test, we do not submit any test of materiality on the second limb, so it is quite a powerful limb. If you can fall within the second limb – that there is a decision of law and it is wrong – then you go straight to the proviso, you do not have to discharge the materiality burden.

But that powerful test then comes with a limitation. In our submission, it should be relatively confined, and can be confined to a wrong decision, as it said, and that decision, if it was as a result of a contest, we would say that would not be inappropriate, it would not do any danger to the language, it would not undermine the provision in any way ‑ ‑ ‑

EDELMAN J: There a little bit of danger of damage to the language, because it is not a very natural use of the word “decision” to confine “a decision” to circumstances where the issue which is being decided is controversial – decisions are made all the time on issues which are not in dispute or issues which are the subject of concessions.

MS SHARP: If there was an issue about a particular decision, it if was actually in contest, then one would expect – and I know this is just a “one would expect” submission – there to be an actual contest about it. We can take an indication from the fact that there is no objection that trial counsel, for whatever reason, on both sides – whether that is because they have made an agreement, whether it is because nobody really identified the problem at the time, whether in the running ‑ ‑ ‑

GORDON J: Is that not the issue? There will be times when counsel – there is not a contest ‑ ‑ ‑

MS SHARP: Yes.

GORDON J: ‑ ‑ ‑ and counsel have not realised there is an error, and nor does the judge.

MS SHARP: And that is what the third limb is for, your Honour.

GORDON J: So, you say that would then go into the third limb?

MS SHARP: Absolutely. We are not shutting the ‑ ‑ ‑

GORDON J: In other words, we are not precluding it from being a miscarriage, you are just shifting it into a different bucket.

MS SHARP: That is correct, your Honour.

GORDON J: I understand now.

BEECH‑JONES J: And in that third limb, you do not suggest that just because someone consented or acquiesced, that is determinative?

MS SHARP: Definitely not, your Honour. That is part of it.

GORDON J: Does it go into the mix, in the third limb?

MS SHARP: Yes, in terms of whether there is a miscarriage ‑ ‑ ‑

GORDON J: Yes.

MS SHARP: In terms of whether, in the context of the trial, because there will be things that, in the context of the trial, take on a different light. So, the same direction given in trial A might not be productive of a miscarriage, but the same direction in trial B, because of the circumstances or context of that trial, might be.

GORDON J: I do not seek to put words into your mouth. So, in relation to the second limb, we have decision on a question of law if there has been a contest?

MS SHARP: Yes.

GORDON J: We are dealing with directions now – or there has been a request made.

MS SHARP: If there a request made and no contest, then would say that is a third‑limb case, if it turns out that the direction was given in error.

GORDON J: I see. Thank you.

MS SHARP: On this – sorry, your Honour.

EDELMAN J: What do you mean by “contest”? Because if it is opposed, without any submissions, if it opposed without any substantial reasons, does that amount to a real contest?

MS SHARP: In our submission, it would amount to a contest sufficient to engage the second limb. So, in the running, trial counsel have so many decisions to make as they go – as a trial proceeds. An objection is not taken lightly, it is taken because there is an issue that needs to be ventilated for a judge. Now, if the basis for the objection is obvious, then it might be upheld without any further submissions or content. If it is one that is more contentious and it is in relation to evidence in the running, the jury will go out. If it is in relation to a direction then, at that point in time, there will be argument about what direction should be given and in what form.

EDELMAN J: So, if the judge, in exercising their duty to ensure a fair trial, asks one of the defence counsel, do you accept this, do accept this evidence, or do you accept this is admissible, and defence counsel says no, then the decision will become a decision.

MS SHARP: Yes, your Honour.

EDELMAN J: But if the trial judge does not ask that question, then it is not a decision.

MS SHARP: Correct. We agree with that. In an evidence case, that is correct, and that is consistent with Soma.

EDELMAN J: Even though exactly the same reasoning process might go on in the judge’s head, exactly the same reasons might be enunciated by the judge, and exactly the same result might be announced; one is a decision and the other one is not a decision?

MS SHARP: I am sorry, your Honour, in one of your examples, the judge did not ask the question, the evidence just went in.

EDELMAN J: Yes.

MS SHARP: So, the judge does not – so, we do not know the judge’s reasoning process, the judge has decided ‑ ‑ ‑

EDELMAN J: No, both cases, the judge says to the defence counsel, do you – in the first case, the judge says to the defence counsel: do you object to this? And the defence counsel says: I have no position on it. Second case, the judge says: do you object to this? Defence counsel says: yes. Now, in the second case, there is a real contest ‑ ‑ ‑

MS SHARP: A decision – yes.

EDELMAN J: ‑ ‑ ‑ but in both cases, the judge gives very brief reasons why the evidence is admitted, reaches a conclusion to admit the evidence, but it is not a decision ‑ ‑ ‑

MS SHARP: No.

EDELMAN J: ‑ ‑ ‑ in the case where you have not had the formal objection.

MS SHARP: Yes. There will always be, where there is an arbitrary rule, cases that one can identify which might be close to the line, but in order to identify a process, to confine and define the scope of the different limbs, in our submission, based on the discussion, we say that the decision ‑ ‑ ‑

EDELMAN J: Is there any authority in any area of the law at all which has said that a “decision” requires a contest?

MS SHARP: Yes, your Honour, the matter of Soma, which we deal with in our written submissions and referenced in our oral outline. Can I take your Honour to that?

EDELMAN J: Yes. This is the dispute between Justice Kirby and Justice McHugh, is it?

MS SHARP: No, your Honour. We address it at paragraph 30 of our principal submissions – if I could just find the spot in my oral outline.

BEECH-JONES J: So, you are taking us to Soma?

GORDON J: Paragraph 4.2, I think.

MS SHARP: Thank you, your Honour Justice Gordon. I am taking to your Honours to Soma, which is addressed in paragraph 4.2 of the oral outline. R v Soma (2003) 212 CLR 299, it is in the supplementary materials, volume 2, at tab 15. Can I take your Honours to paragraph 11 – if it assists, that is page 304 of the reported version, or in the supplementary volume, page 437 in the red numbers at the top. So, the paragraph begins at the bottom of the previous page, which cites the section that we have been discussing this morning, 668E(1) of the Queensland Act. Immediately after the quoted section of the provision:

There having been no objection at trial to the evidence that was given and received about the respondent’s police interview, it cannot be said that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law.

That is not say, though, that the decision which your Honour Justice Edelman described cannot be appealed. It is absolutely the case that if a decision was incorrect, it could be the subject of an application under the third limb.

GAGELER CJ: I do not want to introduce more words here, but I am going to do it. You would paraphrase “wrong decision on a question of law” as “wrong determination of an issue of law”?

MS SHARP: Yes, your Honour. I would note at that point that my time is up.

GAGELER CJ: No, keep going.

MS SHARP: Thank you, your Honour. I was addressing the second limb, and we were at the decision stage. In terms of the next part of that process, it has to be a wrong decision. The question in relation to this, then, is: what is considered? How do we determine whether something is a wrong decision? Decisions on directions – I am sorry, I have just lost my place – yes, at 5.2, whether the giving – 5.1, in relation to evidence, I am sorry.

The question whether to admit or discuss particular evidence and determining whether it was wrong will depend on the identification of a legal error, as we have set out in the oral outline, in the ruling on that question, and that will be judged according to the applicable standard of appellate review for the particular evidentiary ruling, in our submission, whether that is the correctness test or the House v The King test, for example.

Decisions on directions require a broader consideration. That will depend on the context of the whole trial, whether the decision is wrong. An examination of that context may reveal that there is no wrong decision because it involved no legal error, or there was an error but that the error was later corrected in the course of the trial, in the course of the directions – and that was the case in Huxley, which we have referred to in the oral outline. Your Honour Justice Beech‑Jones, this is where the – if we are in a second‑limb case in relation to the directions point, the tactical decision is something that can be considered by the court. So, it is relevant to determine whether the decision was wrong in a particular case. It is not determinative ‑ ‑ ‑

BEECH-JONES J: But if your primary view of “decision” is right, there will not be any question of tactics.

MS SHARP: That is so.

BEECH-JONES J: Because someone said, we do not want it.

MS SHARP: Yes, correct. Really, the point at 5.2 of the oral outline is to say that determining – deciding whether a particular direction is wrong does require consideration of the context of the whole trial, and that is the point of the references there from Huxley.

Closing out, then, the decision tree, if I can call it that, if a decision was not wrong, having identified a decision, decided that it was not wrong, the appeal must be dismissed, but if the decision was wrong there will have been a miscarriage and the matter would proceed, then to the proviso.

BEECH‑JONES J: Do we need those words, “a miscarriage”? Do you not mean just the ground will be established?

MS SHARP: Yes, your Honour, because it is – yes, I apologise.

BEECH‑JONES J: So, do you not, or you are not submitting any – I am scared to use the word – materiality test at this point?

MS SHARP: No, your Honour, the considerations that go into deciding whether a direction was wrong will require consideration of the context in relation to a particular evidentiary ruling, as we have said, but these are matters that I understand the New South Wales Director will address the Court on. I understand why they make those submissions, we just do not seek to make them at this point.

GAGELER CJ: You do not entirely agree with the New South Wales Director, do you?

MS SHARP: We do not.

GAGELER CJ: Or if you do ‑ ‑ ‑

MS SHARP: We do not. We see it as a construction point. I understand the basis for the submission, but if the second limb is narrowly confined, it will only relate to particular pieces of evidence that are admitted incorrectly over objection where the applicant can show, an appellant can show, that that was a wrong decision, or in relation to directions, as we have said. So, we see limb two as being, as I said, very powerful, but, really, relatively confined, and so whilst it will be that the proviso is reached more easily in relation to the second limb, we do not see the statutory basis – or the construction basis for making the materiality argument at that point.

STEWARD J: Is that the same as saying that where there has been a contest and the accused has lost the contest, they will naturally be able to show that the decision was to their prejudice?

MS SHARP: Yes.

STEWARD J: Yes, I see.

GLEESON J: And how does that approach fit with some of the things that are said in Filippou which suggest that there is a materiality aspect to the second limb?

MS SHARP: In Filippou, in our submission, that was not really an issue that was before the Court. It might have been one of those observations that is made and has been made in a number of these cases over the years, when you do not step out the various different parts of each of the limbs, observations can be taken to refer to different steps at different times, in our submission.

The other reason why we really draw a distinction between how the errors are identified, in the sense that you have a wrong decision of law in limb two, and any other miscarriage in limb three, is that it does give the two limbs different work to do. If there was a materiality test in the same way in relation to limb two, if there was no requirement for a contest, any error could be either a limb two or a limb three error. Unless there are any further questions, those are the submissions that we ‑ ‑ ‑

EDELMAN J: Just in relation to your submission that there can be no materiality and no consideration of things like tactics in relation to the limb that is concerned with wrong decisions on a question of law, what about an example where either the defence or the prosecution requests a direction, and requests it probably for tactical reasons. Is that not something that is taken into account? Or do you say that one just looks at, at that stage, whether or not the direction should have been given? Assuming there is a dispute about it.

MS SHARP: Assuming there is ultimately a dispute about it, yes, the request is just part of the record. So, if there was a request and no objection, on our version, it would be a third‑limb case, and there would be materiality. The second limb takes tactics into account to the extent that sometimes making an objection in relation to evidence is tactical – can be tactical.

GORDON J: I was going to ask you about that. Does that mean that it is more likely that they will object?

MS SHARP: I think this is perhaps one of the things that concerns the New South Wales Director in their submissions, and I can understand that, but having thought about that and looked at it, or thought about how trials actually run, making an objection in relation to some innocuous evidence in an attempt to set up a wrong decision on the question of law for the purposes of an appeal might actually work against counsel. Objecting too often in cases really does not help with the jury, for example, and if the evidence is inadmissible and you were aware that it was coming, you will make an objection because you need to make the objection, because it is the appropriate thing to do. If you lose the ruling, then that is an error in the trial, but if you make the objection and it is upheld, then there is no appeal point on that ground.

GORDON J: Thank you.

MS SHARP: Those are the matters.

GAGELER CJ: Thank you, Ms Sharp. Mr Hatfield.

MR HATFIELD: Your Honours, the position of the New South Wales Director is that the concept of a miscarriage of justice under the common form appeal provision inherently requires a degree of materiality. The appellant’s contention that any error or irregularity, no matter how insignificant, or even one that is just not innocuous, requires either the appeal to be upheld or the appellate court to move to the proviso should be rejected.

We have summarised in our submissions at paragraphs 27 and following some examples of established authorities under the various heads of miscarriage of justice which post‑date Weiss, under topics such as incompetence of counsel, misconduct of the Crown, irregular conduct of the trial judge, complaint about the trial directions, and complaint about the omission to give directions.

In our submission, it is uncontroversial that the established authorities on these topics themselves show that they inherently involve consideration of the materiality of the alleged irregularity or error when assessing whether such complaints can establish a miscarriage of justice. We contend that such a requirement should persist under any general statement about the threshold of materiality for miscarriages of justice such as those made in Hofer and Edwards. It is the very nature of the term “miscarriage of justice” that it involves something of substance, in our submission.

The contention of the appellant in this case that once an accused has demonstrated some error or irregularity, even if just innocuous, and that the question of whether it was material then should be one dealt with in the proviso, and because there it is proper for the Crown to bear the onus to demonstrate a fair trial free from error, should be rejected. We suggest that the difficulty with the submission is that it is implicit in it that it is proper to disregard the jury’s verdict and revert to the accusatorial nature of the trial even upon demonstration of an innocuous or non‑material error, or even passing just a low threshold.

In our submission, it is the very demonstration of materiality that allows the conclusion that the jury verdict is infected by error and thus requires the Crown to satisfy the negative proposition in the proviso, consistent with the accusatorial nature of the trial process. Shifting the materiality requirement to the proviso in a large number of cases for slight errors would devalue the verdict of the jury and, in our submission, the position of the New South Wales Department of Public Prosecutions reflects the current orthodoxy and should be retained.

In relation to the formulations of the thresholds stated in the cases, the Department of Public Prosecutions’ primary position is that there is no need to reconcile the various formulations that have been used in Hofer, Edwards and the following cases, because each essentially conveys the same underlying theme that a miscarriage of justice requires some demonstration of a potential connection between the irregularity or error and the outcome in the trial. It is calling for an assessment of the significance of the error or irregularity in the context of the trial.

Secondly, because the precise approach and analysis or the description of the threshold that applies in a particular matter may depend upon what type of miscarriage of justice is being considered, a fixed or rigid formulation may not contemplate or be sufficiently flexible to cover all types of miscarriages of justice which might arise. Essentially, we contend that the verbal formulations in relation to miscarriage of justice expressed on Hofer and Edwards should be applied consistently with the established jurisprudence about particular categories of error. We say that is what has been happening since Hofer, and we have set out to survey, in our written submissions, the intermediate appellate authorities from Hofer up until March 2024 when our submissions were filed which also show that the question of miscarriage has been considered as a separate antecedent question to the proviso.

Now, in relation to the formulations of the materiality requirement, Justice Edelman’s question about the links in the chain or strands in a cable‑type analysis to it, what we say, if by that question it is meant that: is it necessary to show that the matter was a makeweight in the sense that it affected the verdict? We say no. What is required is something – and Hofer is a good example of what is required. In Hofer, it was the impermissible cross‑examination and the inference that the accused had recently invented the explanation he gave, which was wrongly implied or stated in the Crown’s cross‑examination.

The analysis of the majority in relation to that found that the jury may have – that reasoning may have been attractive, not that it would have made a difference to the verdict. So, the analysis of the error in Hofer is a good way to look at the way ‑ ‑ ‑

EDELMAN J: Something that is capable of affecting the process of reasoning.

MR HATFIELD: Yes. Not that it did, or not that it made a difference. Then, the analysis of the proviso in Hofer is also a good example, because in satisfying the negative proposition, the jury verdict was set aside. If Justice Fagan had had regard to it in the Court of Criminal Appeal but the majority in Hofer set it aside and focused on the record, the consideration of the error was only noting the fact of it and what it was, and the focus then turned to the strength of the case and the difficulties with the evidence of the accused. And when it was found that the court was of the opinion that his version was glaringly improbable, it was impossible to apply the proviso in that case. In a lot of ‑ ‑ ‑

BEECH‑JONES J: But the level of assessment was, was it not, that it could have affected the jury’s analysis of the accused’s evidence, and if you had accepted his evidence, he should have been acquitted.

MR HATFIELD: Yes.

BEECH‑JONES J: So, that was, in a sense the connection with the outcome, but it was not an in‑depth deep analysis of what the jury’s verdict was, or ‑ ‑ ‑

MR HATFIELD: No, and it was also an ‑ ‑ ‑

EDELMAN J: It has to have some connection with the outcome, in any event, to show that it could have affected the process of reasoning, but it does not have to have a counterfactual connection. One never asked the question of: would the result itself have been different?

MR HATFIELD: It is impossible to identify that in nearly all cases. It is accompanied by observations that the Crown’s conduct was highly prejudicial and breached the standards. Indeed, the court – and we have referred to Libke amongst those cases bringing in the standards from established categories – the court referred to Libke in terms of its description of the Crown’s conduct – I think around 24 of the decision. That is the framework the New South Wales Director invites the Court to maintain.

BEECH‑JONES J: Mr Hatfield, you, as you said, have identified these various categories but – correct me if I am wrong – they all sit somewhere above a bare possibility and below, likely, the result would have been different – would they not?

MR HATFIELD: Some ‑ ‑ ‑

BEECH‑JONES J: Is there really any substantive difference in any of them – realistic possibility, real possibility – so it is not probability – real chance.

MR HATFIELD: It is sometimes hard to discern if there is any real difference between the various formulations. We do not land on any one in particular. We do not have a difficulty with the formulation identified by the Commonwealth Director which reflects LPDT and I think what the Chief Justice said at 120 of Hofer, the summary there.

We do not challenge any particular formulation, although we note, for example, there are categories of miscarriage of justice such as fresh evidence, which requires a higher standard, and new evidence, which requires a higher standard again – fresh evidence requiring a significant possibility that the jury’s verdict would be different. That is a category of miscarriage of justice. So, any statement of a general threshold either needs to have an exception to cover that type of matter or be sufficiently flexible to accommodate whatever type of miscarriage of justice is being considered. And, as your Honours know, the categories of what can constitute a miscarriage of justice are far from closed and can constitute a wide range of circumstances.

BEECH‑JONES J: Correct me if I am wrong, new evidence has to be such as to get you an acquittal, though, does it not?

MR HATFIELD: Yes. The court has to be satisfied that the verdict should not stand; there has been a miscarriage of justice.

BEECH‑JONES J: So, that is kind of a different – there is miscarriage, and then relief.

MR HATFIELD: Yes.

EDELMAN J: Is the formulation not a significant possibility that the jury would have found the accused to be – that the accused is innocent? That is the formulation.

MR HATFIELD: Yes, I think that is right. From Ratten.

EDELMAN J: Yes.

MR HATFIELD: Ratten and Gallagher are the authorities in relation to that.

GORDON J: Putting to one side the different formulations – or embracing them, whichever way you put it – the Commonwealth Director accepted that the test for materiality is relatively low. In other words, the way she put it was, at least on the third limb, that one does not have to have an inquiry into the trial, one has to have, in effect, this idea that it might have made a difference to the result in the end.

MR HATFIELD: Yes.

GORDON J: The way it is put in the formulation is, I think, to pick up the language, the error has to be:

in, or in relation to, the trial –

and then, when you get to the third aspect of it, it has to be something which gives rise to – that is:

the error or irregularity could realistically have affected the verdict of guilt –

Do you accept those submissions? Do you embrace them? Do you take issue with them?

MR HATFIELD: We would maintain that more flexibility is required – really, it depends what is being considered. If it is merely that it is not innocuous – can I give an example. A Crown prosecutor in an address says four things about which defence counsel complains about three of them. The judge addresses three, and a fourth is overlooked, and it is an invitation to a form of reasoning that is problematic. It is perhaps not beyond non‑innocuous, but in the context of counsel having picked up three of the matters, the judge having addressed them, one matter remains, does that pass the low threshold, or is something more required?

A matter of that nature, we would argue, would not pass and would not constitute as miscarriage of justice – of course, depending on what it is; it is a hypothetical example. But, really, it is hard to make hard and fast rules, in our submission. Everything – the assessment is always fact‑specific and matter‑specific. So, the formulations – we accept that there is some threshold, but it may depend very much on the circumstances of the case. So, I have perhaps avoided your Honour’s question, but ‑ ‑ ‑

GORDON J: No, it is interesting that the formulation which you, I understood, had adopted from the Commonwealth takes into account a number of aspects to it in paragraph 2.1 of the Director’s outline, and that is, its error or irregularity could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had and that would take into account the things I think you have just identified. That is, specific facts of the facts of the case rather than a hard and fast rule.

MR HATFIELD: Yes. I think the formulations which were collected by Justice Beech‑Jones in Zhou and their expression, analysed closely, perhaps are not – are saying much the same thing, in our submission. I think the way the Chief Justice put it in Hofer, collecting a number of the expressions together again put it in similar terms to that. But if the court feels that it needs to arrive at a specifically formulation that covers all cases, then we do not cavil ‑ ‑ ‑

GORDON J: There is a question about how it is put in a way which ensures that one is not collapsing the second step and the third step into one step.

MR HATFIELD: Yes, and we maintain that – and also, if we are talking about what factors go into the assessment of the error or irregularity, the first step in our theme of our submissions is that the established jurisprudence on, for example, misconduct by a Crown prosecutor, incompetence of defence counsel, should inform the approach to those matters.

Now, it is not clear to me sometimes whether what is being put, for example, with a – for example, a piece of evidence that is prejudicial to the accused, a witness blurts out that an accused person has been in jail, is the analysis that we are going through looking at whether that is material – is it the fact that what is said, or is it that in the context of the trial overall? Because to find that that was an error in either how the trial judge dealt with it or there was a refusal to discharge the jury, that has inbuilt materiality considerations to making a decision or some step in relation to that. If it is just the bare fact that something is said, it constitutes a miscarriage or it is being looked at in isolation, then that is a very different thing.

On one view, if the strict approach to Weiss was to that effect, then every time something goes wrong in a trial, the trial judge should be discharging the jury rather than waiting to apply the proviso in relation to the trial. So, that is why we have referred to this body of established jurisprudence on recognised categories of error that we say must inform and should continue to inform the approach that we do not understand what the Chief Justice said in Hofer to be restating or recasting those authorities. It was to clarify the application of the strict rule in Weiss.

In our submission, it actually reflects the orthodoxy of what has been happening in the large majority of cases between Weiss and Hofer – a number of them were collected by the Chief Justice at 115 of the Hofer decision. Against that is put only Kalbasi and GBF, in addition to Weiss. Kalbasi was not dealing with – the misdirection in Kalbasi was acknowledged. In GBF, we have referred to in our written submissions, although the strict form of the statement is put, in the two paragraphs which followed was reference to the type of contextual matters that I have been addressing. So, our submission was that is against the large number of what we say are orthodox decisions, the clarification is in that context.

EDELMAN J: Just to be clear, though, you do not accept, as I understand, the submission by the Commonwealth Department of Public Prosecutions that whatever formulation of words one uses for a miscarriage of justice, that needs to be associated with the result. Because, at least as I understand the effect of that at the moment, that might mean if one took, for example, a formulation that a miscarriage of justice required a realistic possibility that the result would be different, if the onus were on the accused to show a realistic possibility the result would be different, there would almost be no cases left – maybe one in a million cases left – where there would be room for the prosecution then to say, well, the judge having accepted that there is a realistic possibility that the result might be different, we are now going to persuade you that nevertheless the accused is guilty beyond reasonable doubt.

MR HATFIELD: It depends how that phrase is meant, because to say there is a reasonable possibility the result will be different, for the matter to be material at all, it has to have had the potential to make a difference. So, on a logical understanding – the point I made earlier and the reference to Hofer, we accept that is the position, it does not have to – it is not necessary to show it would have made a difference, it is really just that it may have contributed to the reasoning, is sufficient.

EDELMAN J: So, it might not even have made a difference to the ultimate result, but it is necessary to show that it might have, or did, or was likely to contribute to the process of reasoning. Which of those would be the formulation?

MR HATFIELD: Likely or did. Well, realistic chance is not problematic. In some ways, they are all saying the same thing, it is ‑ ‑ ‑

GORDON J: Well, I think substantial risk is different from realistic chance.

MR HATFIELD: I would agree with that, your Honour. I would agree with that.

GORDON J: So, the question, I think, is the right question to ask.

MR HATFIELD: Yes, I would agree with that characterisation.

GORDON J: So, do you accept the lower standard?

MR HATFIELD: A substantial risk, yes, is higher. Realistic chance is – we would not disagree with that formulation.

GORDON J: Thank you.

EDELMAN J: So, you would have no miscarriage of justice if there is no realistic chance that the irregularity or the error could have affected any process of the jury’s reasoning.

MR HATFIELD: I agree, yes. I wanted to address briefly some issues in relation to second limb error. We rely on Filippou, what is said at 4 and 13. We note, as Justice Gleeson pointed out, that did not decide the point, but the description of the principles there, we say, reflect the reasoning. We also say the reasoning ‑ ‑ ‑

BEECH‑JONES J: So, is this in support of the proposition that there is materiality in the second limb?

MR HATFIELD: Yes.

BEECH‑JONES J: Can you tell me what would the separate operation of the second limb be, if there is the same materiality test for the second limb as the third? Or would there be none?

MR HATFIELD: Well, the analysis is slightly different. Usually, it would not make a difference, we would submit. But, when dealing with the issue under the second limb, one is looking for an error in the decision of the trial judge, and there will often be either a restrictive view – looking for House v The King error – or correctness. The very fact that a judge was called upon to adjudicate a matter means that some finality will attach to it – that the parties appropriately litigated it, were heard, and the matter was determined authoritatively.

GAGELER CJ: So, are you saying that you only have “a decision” if the judge is called upon to adjudicate a difference between the parties? Is that your position.

MR HATFIELD: Yes. Or a request is made and the judge decides to accede to it.

GLEESON J: And is that based on that passage in 49 in Dhanhoa?

MR HATFIELD: Yes.

GLEESON J: And nothing else?

MR HATFIELD: No.

GAGELER CJ: So, if we have to choose between those two alternatives, which would you have us choose?

MR HATFIELD: Sorry, the two alternatives?

GAGELER CJ: A simple request, or a dispute. It is the discussion I had with the Commonwealth Director’s representative.

MR HATFIELD: In our submission, a request is sufficient.

EDELMAN J: Is that because you were concerned of the spectre of a thousand pre‑trial applications by an accused person to cover the concern that they may have to, on appeal, prove a miscarriage of justice with a materiality threshold?

MR HATFIELD: No, no. No, your Honour, it is not ‑ ‑ ‑

EDELMAN J: Why would we depart from paragraph 11 of Soma, then?

MR HATFIELD: Our position is that there has to be a request to adjudicate, however that arises. So, we are not – that is our position. I am not sure if I can assist your Honour further with that. Can I come back to that question?

GLEESON J: If you do have a request to adjudicate, then, as a matter of practicality, in most cases you will have a materiality hurdle crossed, will you not?

MR HATFIELD: Yes, we acknowledge that. Usually, that will be the case. One can think of examples where it may not, but usually it is going to be the case.

GLEESON J: What would be a good example – a practical example?

MR HATFIELD: A request for a 165 direction or warning that the judge does not accede to, and yet, it is completely obvious to the jury that the person was drunk or on drugs and it was not necessary – something of that nature. But usually, in the usual cases, the materiality should be clear from the course of the exchange with the judge on the issue, whatever it is.

The only points I wanted to make about the second limb were in relation to the construction and the contextual matters we relied on in relation to that. We say that the wording of the text itself supports a meaning that all three terms should be understood as constituting miscarriages of justice – that is, under the New South Wales provision, at least, reflected by the words “any other” miscarriage of justice when picking up the third limb – and that all three limbs are subject to being dismissed where there is no substantial miscarriage of justice, indicating they are all a type of miscarriage of justice, one obviously not amenable to it.

We also rely on the contextual matters on the New South Wales provision which would read, with respect to an error of law:

opinion that . . . should be set aside –

those words. And we also submit that there is no principled basis for differentiating between the necessity for some materiality or potential connection with the outcome between the second and third limbs.

BEECH‑JONES J: Mr Hatfield, it is “any other ground”.

MR HATFIELD: It is “any other ground”. Yes.

BEECH‑JONES J: Yes. Not “any other miscarriage of justice”.

MR HATFIELD: Sorry, your Honour?

BEECH‑JONES J: It is “any other ground”. So, it could be read as ground 1, ground 2 – so, the second limb is:

the ground of the wrong decision –

and the third limb is:

on any other ground –

It is the other ground, not the other basis.

MR HATFIELD: Yes. Those are my submissions, if it please the Court.

GAGELER CJ: Thank you. Mr Holt.

MR HOLT: May it please the Court. May I deal first with the appeal‑specific matters, if I can put it that way, in response to the submissions by the respondent Crown and deal at the outset with what really was the thrust of the submissions and matters of course that were discussed also during my submissions this morning, which is the question of the tactical decision in the context of this trial that was made.

That really was, as we understood it, at the heart of our learned friend’s submissions. And so, unpacking, really, the question of what the forensic advantage was that was sought to be made by the decision that the defence counsel patently made in this case to effectively acquiesce to, in a positive way, a permission being given to the jury to reason in terms of sexual interest evidence, because a rational forensic decision, in our respectful submission, logically must be one which is designed for and objectively is likely to obtain, a forensic advantage in the context of a trial.

The advantage here, particularly given the timing of the acquiescence and the request by the Crown to do it, is a capacity to make closing submissions about certain things, logically. The Crown submissions, as we understand it here, is that the evidence here was used for a tactical advantage. That is, the direction was acquiesced to for a tactical advantage; that advantage being, as we understood it, that the defendant’s counsel could submit that this was the only evidence of anything being seen to have happened in this close‑quarters environment. The only untoward thing was the bottom touching or the bottom slapping evidence.

It is important, in our submission, to unpack that by looking at the way in which defence counsel actually closed on this issue, to see if it represented, objectively, the forensic advantage which the Crown says it sought to obtain. Can I take the Court, please, to the appellant’s book of further materials at 86, where these issues were closed on. In particular, from about lines 37 and following, where the submission that underpinned this idea of a tactical advantage was being made, which is that:

There is no evidence from the mother about –

certain things that might be expected. Then:

Apart from the one incident of his touching –

the sister, but one assumes that should be the complainant, that the sister:

says that he touched her on the backside, no one has said anything about anything untoward being witnessed.

So that, at that point is the extent of the way in which the bottom touching was used for that forensic advantage which the Crown has identified.

Of course, one only needs to identify the counterfactual, which is, had the direction about sexual interest not been given, had the evidence not been before the Court, the submission would just have been: there is no evidence of that kind of anything untoward occurring. It would have been a better submission – certainly not a worse submission, forensically – so it could have made, in our submission, no difference; or, in fact, it would have improved the position.

The remaining way in which defence counsel dealt with the sexual interest evidence is found over the page, on page 87 of that book. In the last sentence of the first paragraph:

Or is it the case, in this particular situation, with respect to –

the sister:

there was a touching on the backside? The Crown prosecutor opened that as sexual interest.

Another indication, which I will come back to, in this trial of a very clear understanding by defence counsel that this had been opened as sexual interest evidence. Then the next paragraph – I will not read it to the Court – is just a rebuttal the capacity of that evidence to demonstrate a sexual interest in quite an ordinary way. So, there is no forensic advantage of being able to just rebut an argument. It would have been a significantly better forensic situation if the argument was not there and did not ‑ ‑ ‑

BEECH‑JONES J: We do not have the tone. I mean, it has a little bit of a mocking tone, does it not?

MR HOLT: One can imagine how it was given ‑ ‑ ‑

BEECH‑JONES J:

Sexual interest.

Really?

MR HOLT: Your Honour, unquestionably. But all it really is, in truth, is an attempt to convince the jury not to reason in that way, and – as we said in written outline, and I do not resile from it – an indication of a suggestion or a hint of a kind of desperation by the Crown, if it were to make that submission. But it is a faint advantage when what stands in contrast is giving the jury the capacity to use evidence, as the Crown described it as, of independence of sexual interest by a stepfather to a child in a word‑on‑word case. The two are just, in terms of forensic advantage and disadvantage, are so distantly matched, that it was not a sound forensic decision, in our submission.

The other submission in this respect that was made by the respondent Crown was that for this to be a rational decision, it must have involved defence counsel’s conclusion that the jury would never have used the evidence as sexual interest. Now, if that were the conclusion that defence counsel came to in terms of making this decision, it was simply not a rational one, in my submission.

As I noticed earlier, when the Crown makes, on the face of it, a well put‑together piece of advocacy to the jury about the unlikelihood of this 11‑year‑old effectively noticing something, seeing it as being untoward, not in the context of discipline, and the learned trial judge then saying that it could be used in that way, the prospect that you could be satisfied that the jury would never have used it as sexual interest, in our submission, if it was the conclusion defence counsel came to, was one which is simply not rational.

We think it is common ground – and it ought be, in terms of Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531 – that the forensic decision not to seek a direction of this kind is relevant to an assessment of the risk of erroneous reasoning – there is no doubt about that – but it is not obviously determinative of the question of miscarriage, and your Honour Justice Beech‑Jones raised that earlier. That, of course – Hamilton – was a case where counsel had not sought a protective propensity warning at all. This is a very different case, where there was a positive decision to permit propensity reasoning to be undertaken, and so, qualitatively, significantly different.

It was also submitted in this context on this tactical question by the respondent Crown that the conduct of the trial from defence counsel’s assessment is what matters. So, there was a lot of talk about the atmosphere of the trial, what did defence counsel think, and, indeed, with the greatest of respect, this unusual notion that defence counsel made a positive decision to introduce sexual interest evidence, or the use of this evidence in a sexual interest way, in the trial.

It is also clear, and, indeed, was accepted by the respondent Crown that defence counsel positively believed from the beginning of the trial that it was being used as sexual interest evidence. That is clear from the passages in closing. It is clear from the exchange with the trial judge about the direction. The defence counsel, contrary to the version of the trial which has now been put – the very person from whom perspective of this assessment is to be made – positively believed that it was being led as sexual interest evidence from moment one, and so everything the defence counsel does from that point is not about introducing it, it is about responding to something which he positively believes is there.

Of course, we say he was correct in that assessment, for the reasons we have already submitted, that actually this evidence, even though it was not done in terms, was being open to sexual interest evidence because much as anything else, it was simply inadmissible as relationship evidence. But if he was not correct – that is, that was an error by defence counsel – then undermines the claim that the sexual interest evidence being introduced by defence counsel was the result of an informed tactical decision, rather it was the result of a mistaken view as to what the Crown was doing with the evidence.

The other submission in this respect that was made which is important – and I touched on it this morning, but it warrants reply – is that the evidence itself, as opposed to the use of it for sexual interest purposes, was introduced as relationship evidence and then somehow converted by defence counsel to being sexual interest evidence. And the submissions I have just made demonstrate that to be wrong. But it is wrong also for a number of other reasons.

It is wrong, in large measure, because it was inadmissible as relationship evidence. Relationship evidence – as this Court was at pains to make clear in BBH – is not just evidence of anything about the interactions between two people, it is about answering questions that might logically arise in the mind of a jury with evidence like in Roach of domestic violence acts otherwise being committed. There is literally nothing in the record of this trial to suggest that the Crown identified any question of that kind which this evidence was relevant to answer – nothing at all. The most telling aspect of that is that the Crown prosecutor did not close on any such question, did not close on anything resembling the use of this evidence as relationship evidence, did not open on it in that way, and did not ever suggest that it was for that purpose at any stage during the course of the trial.

What is now said in this Court – again, with the greatest of respects – in a way which treats the trial as if it was a trial not the one that actually happened but a different kind of trial. The claim was that the logical question of this evidence, answered as a matter of relationship evidence, was that it would explain the defendant had a role such that he could – as I made a note of our friend’s submissions this morning – discipline the child. He had that kind of a role within the household.

The difficulty, of course, is that in opening, the Crown prosecutor made clear that this evidence was not about touching of bottoms when they were not doing anything wrong, and the evidence itself was precisely not about discipline, it was about slapping her on the bottom when she had done nothing wrong. So, it was not even evidence that was capable of answering the only question that the Crown – this Court is able to say might have made it relationship evidence.

Again, if it was truly relationship evidence, then why would the Crown not have asked for a direction that permitted the jury to use it in that way? It is, in our respectful submission, to ask this Court to treat this trial as a different trial from that which actually occurred.

GLEESON J: But, again, at the intermediate appellate level, it was your client who was saying the evidence was relationship evidence. It just strikes me that we have the trial counsel not regarding this as significant evidence; we have, on the appeal, the accused’s counsel saying that it can be regarded as relationship evidence; and then we have the intermediate appellate court saying this is incredibly weak evidence. Is there not something troubling about then coming a long, long way from Cairns and starting to perceive this as significant evidence?

MR HOLT: It is significant evidence to the extent that it was used for the purposes of reasoning in a propensity fashion on a sexual interest basis, for the reasons I have been through, and I will not repeat. That is why it mattered. And that, of course, was the essence of the submission that was made in the Court of Appeal – that was why the direction itself was so problematic. The evidence itself, in our submission, as a matter of law, was not admissible as relationship evidence.

True it is that counsel for the defendant in the Queensland Court of Appeal conceded that it was admissible as relationship evidence. Respectfully, we disagree with that, but that was the concession made, nonetheless. But it is the capacity for its use, the ability for the Crown to make the submissions I took the Court through this morning, and the potential for independent evidence of sexual interest of an adult in a child to have an effect on a case like this.

It was, of course, weak evidence of sexual interest – that is why it was not admissible. That, of course, is why it should never have been left, because of the risks of leaving such evidence, unless it is particularly strong. So, in our submission, it is not an answer to say the evidence was weak, therefore it was okay that it was admitted. The very point of the high threshold is that weak evidence should not be admitted, because that is where the risk lies.

BEECH‑JONES J: Mr Holt, to the extent you are seeking special leave to appeal from the admission of the evidence, you do agree that that is directly contrary to the way in which the appeal was conducted in the Court of Appeal?

MR HOLT: Yes. Yes, I accept that – I have to accept that, your Honour.

STEWARD J: Mr Holt, is it right that your predecessor made the concession about relationship evidence? The submissions and footnote we were taken to were those of the Crown below.

MR HOLT: I think the concession was made, but I will just have that checked, Justice Steward. I think it was in a different ‑ ‑ ‑

GLEESON J: The submissions are headed “The Queen against” your client, which seems to suggest that your client was not the appellant.

MR HOLT: Sorry – no, that is just a tradition in the Queensland Court of Appeal, but yes, it was – yes. So, it is the appellant ‑ ‑ ‑

STEWARD J: I may be wrong – I thought that these were the Crown’s submissions, but maybe that is wrong.

MR HOLT: No, it is footnote 16 of page 212.

STEWARD J: Yes, I see. So, they were your predecessor’s submissions?

MR HOLT: They were. They absolutely were.

STEWARD J: Thank you.

MR HOLT: In terms of, then, the question about the directions in this case – and this is the last submission we wish to make in respect of the respondent Crown’s submissions, the directions given in this case. Our learned friend suggested, or submitted, that the trial judge considered himself obliged to give the direction that was given, in some way suggesting, we think, that if the parties agreed to a direction being given, then a trial judge either is, or should consider herself or himself to be bound to give that direction.

In our respectful submission, if that is what the learned trial judge thought, then it would have been wrong, because it is the trial judge’s obligation to ensure that the jury are directed in accordance with the law. But, as we have noticed this morning, the phrase that his Honour used – I am inclined to give it – very strongly suggests that his Honour took his own independent view of it – no doubt influenced by the concession, I accept that immediately, but nonetheless made his own decision.

Thinking about it during the course of submissions this afternoon, it is a bit like – there are directions and there are directions. There are some directions where, if the parties come along, and say, we agree that preliminary complaint directions should be given in respect of these four witnesses, it is not going to take much for the trial judge to agree to that. But if we are talking about, for example, an Edwards lie direction, or the leaving of a defence one way or the other, or the use of evidence on a propensity basis that otherwise needs to meet Pfennig, those are, in our respectful submission, very different decisions which a trial judge is making in respect of decisions.

The submission was made that the directions that were given were required, in essence, to compensate for – that was the language actually used – the use that the parties intended to make of the sexual interest evidence. But, of course, this was far from a protective direction; it was a direction that permitted a particular form of reasoning which, on the basis of Pfennig, should not have been allowed to occur.

The Court has been taken to it already, I think, in HML – the buying of the underwear case, in essence – the directions that were given in that case were wholly protective directions. They were directions that were designed to prevent propensity reasoning, not directions designed to permit it improperly. That really is the stand‑out, stark feature of this case.

Can I deal, then, briefly, in reply, with some of the submissions made by the interveners – only briefly, because these issues have been discussed now at length today. But a couple of things that had a particular focus during the course of those submissions warrant reply. Our respectful submission is that “a decision” in a context of the second limb is not confined to a contest.

Firstly, because the language does not require it, for the reasons that your Honour Justice Edelman gave during the court of submissions. The idea of a trial judge making a decision on a question of law does not, on the face of that language, nor with a proper understanding of the role of a trial judge, always require, though it will often involve, a contest between competing positions. Those examples I gave before, about particularly in the context of directions, are examples of precisely that occurring.

The other submission we wish to make is this. There appears to us, with respect, to be no good reason as to why the existence or not of a contest provides any good substantive qualitative reason to have something within the second limb or within the third limb. The only purpose that seemed to be identified by it, as we understood it in the submissions, was the idea that it would kind of hold back the floodgates a little bit from stuff going into the proviso, and that, with respect, to us does not seem to be a good reason to take an approach of that kind.

The difference, of course, as we have conceded in respect of the admission of evidence, we have made a submission that this kind of evidence is different, but certainly in respect of many other decisions the trial judges make, the legal content of the decision and the obligation of the trial judge to make it makes it a decision on a question of law, regardless of the position that the parties take on the issue, in our submission.

EDELMAN J: Is paragraph 11 part of the ratio of Soma?

MR HOLT: I think it is, your Honour. I have said that probably too quickly. My reading of Soma has always been that it was part of the ratio of Soma.

EDELMAN J: So, you would have us then depart from that?

MR HOLT: Only to this extent, that Soma was dealing with evidence that had arisen in the context of cross‑examination, and evidence as a result – hearsay evidence – so, evidence as a result of which is the kind of evidence that has been discussed in the course of submissions which is often led and, in the absence of any objection, there would be no reason for a trial judge to turn her or his mind to it.

BEECH‑JONES J: We would have to depart from Johnson too, though, would we not? Paragraph 52 of Johnson.

MR HOLT: I would need to take that on notice, your Honour, I have not got that immediately to hand, I apologise. I am sorry, what was the paragraph reference, your Honour?

BEECH‑JONES J: Paragraph 52.

MR HOLT: Paragraph 52, thank you.

GLEESON J: And perhaps Hamilton at 26.

MR HOLT: I am feeling like the bricks are stacked against me at the moment. I think I suggested that it was a more problematic ground in a submission earlier, and I might say nothing more about it, at this point.

Can I deal with the question of materiality on the second limb, and in particular, in response to the submissions by the New South Wales Director, that it incorporates, effectively, a miscarriage of justice test on top of the wrong decision of a question of law test. I have made our primary submissions about that. I only wish to assist the Court in this way, in respect of Filippou and the extent to which that might assist in this reasoning. Respectfully, we adopt the position taken by the Commonwealth Director that there will often be cases where these things are expressed in a way that are not intended to change the law, but there is a more fundamental point that ought be made about the reasoning in that decision.

As the Court will recall, Filippou was a case dealing with the application of the common form provisions in judge‑alone trials and followed on from Fleming. It had a particular feature to it, which might explain why things were dealt with in a relatively omnibus fashion, which was that the grounds of appeal in that case were – the essence of the complaint was put on each of the three limbs. The same complaint, effectively, was on each of the three limbs and then the proviso applied, so they were dealt with in something of an omnibus fashion.

But much more importantly, in some of the key paragraphs in Filippou, which I will just give the Court the references to, but particularly paragraphs 9, 13 and 15 where the Court refers to a miscarriage of justice as being part of the requirement for second limb. It does so expressly on the basis that:

the question . . . will be whether the error constitutes a miscarriage of justice in the sense of a departure from a trial according to law.

Then, in a couple of those paragraphs, particularly at footnote (11) and footnote (16), paragraphs 17 and 18 of Weiss are cited for that purpose, and paragraphs 17 and 18 incorporate within them the phrasing that we have relied on heavily in the written submissions and which Justice Steward referred to earlier about the nature of a miscarriage and the nature of a departure from a trial according to law.

Again, we say that not to suggest that Filippou somehow assists us in reverting back to those provisions in Weiss, but rather it makes good the proposition that Filippou was not intending to say a miscarriage, in the sense that we are now describing it today, as involving the materiality threshold, was intended to be applied. Indeed, paragraph 15 in Filippou makes clear that, in the context of a:

wrong decision of [a] question of law”, the Court of Criminal Appeal –

being:

persuaded that the error could not have deprived the appellant of a chance of acquittal that was fairly open to him or her.

Is something which would be done within the context of the proviso, rather than in the context of the question of law issue or the miscarriage issue, and so, Filippou is a bit problematic for that proposition.

Can I deal finally, then, with some brief submissions in reply on the question of materiality in the third limb, in the miscarriage of justice ground, in light of the exchanges which have occurred, particularly focusing on the formulation which is proposed by the Commonwealth Director, which is that it could realistically have affected the verdict of guilt that was, in fact, returned by the jury in the trial that was had. Can we simply notice, as Justice Steward did, that, in our respectful submission, it is difficult, if not impossible, to reconcile a formulation of that kind – or, indeed, many of the formulations we have been discussing – with the language in paragraphs 17 and 18 of Weiss.

Of course, Chief Justice Gageler has, in other writings, identified that that may not have been the holding in Weiss, and I think your Honour may have referred to that in passing today. Our respectful submission is that paragraphs 17 and 18, which explain the way in which a miscarriage of justice is conceived of by the Court in Weiss by reference back to the most extreme version of the Exchequer rule, is an integral part of the holding in Weiss. So, to impose a materiality threshold – as has happened, there is no doubt about that, the authorities that have been referred to are clear – is to do something which is, on the face of it, at least inconsistent with paragraphs 17 and 18.

Now, the Court is, of course, open and at liberty to do that, and it has been occurring, but it is important, in our respectful submission, when, if we are seeking here – and it is important, in our submission, if Weiss is not to be entirely overturned and redone, so to speak, to ensure that there is a level of commitment and consistency with the basic architecture that was identified in Weiss.

EDELMAN J: This is presented most starkly because it is in the context of provisions that are relied upon every day in courts of criminal appeal, all across the country.

MR HOLT: Yes.

EDELMAN J: The more we depart from Weiss, the more we upend any notion of consistency that has been applied for 20 years or so.

MR HOLT: And we conceded – not conceded, it was not a concession for us to make – but we identified this morning the logical problem with the two propositions in Weiss and the way in which they sit together ‑ ‑ ‑

BEECH‑JONES J: Because you invite us to depart from Weiss.

MR HOLT: I accept that is exactly the point, because there is a problem with those two aspects and it is a question of how one responds to it.

EDELMAN J: But what you are seeking to do is to minimise the extent of departure ‑ ‑ ‑

MR HOLT: Exactly so.

EDELMAN J: ‑ ‑ ‑ in order to preserve consistency.

MR HOLT: And with the hope of seeking to stay consistent, in particular, with what we see as being the fundamental holding in Weiss, which is that the ultimate question is that which the statute poses, and whether work in relation to that ultimate question can be done by multiple means and within the context of the proviso, cleaving, effectively ‑ ‑ ‑

BEECH‑JONES J: But Weiss is a case about the second limb and the proviso ‑ ‑ ‑

MR HOLT: Yes.

BEECH‑JONES J: ‑ ‑ ‑ and the one bit that you want us to adhere to is the discussion about the third limb. And, in two respects, you have said, to get rid of the necessary requirement about guilt, and also, in doing so, have invited us to go back again and look at this jury verdict, which was contrary to the very basic structure of what Weiss was about, is it not?

MR HOLT: No – and I apologise, Justice Beech‑Jones, because I have clearly been unclear in that respect. We invite a departure from Weiss in the sense of the negative proposition not being universal in, essentially, precisely the way in which Justice Edelman and the Chief Justice explained it in dissenting in Kalbasi. And in fact, it may well be – it is a sound argument made, with the greatest respect, of course, that that was effectively implicit within the whole decision in Weiss. So, that change is not one that we respectfully submit is a substantial change.

In terms of the question of whether paragraphs 17 and 18 and the conception of the miscarriage are central to the holding or not, our respectful submission is that they are, in the sense that the whole basis of how the proviso was conceived of is explained by a view taken of the Exchequer rule, which was deliberately extreme and probably historically inaccurate, but the court in Weiss recognised that, and that in turn allowed one to understand what was going into the proviso or not.

BEECH‑JONES J: But when you invite us to reject the negative proposition in Weiss as, effectively, universal, you say, because there is a category of case, driven by limbs 2 and 3, that do not have a materiality error, where the Crown can demonstrate, by reference to this trial and this jury’s verdict, that it was not – that it led nowhere, that reasoning involves focusing, in the proviso limb, on this jury’s verdict. And is that not contrary to what linked – where Weiss’ starting point was?

MR HOLT: No, and if we have put it that way, then that is my fault, in terms of it being clumsily put. The point is that, however – the tests that we are discussing, the potential tests that we are discussing presently, for the purposes of a materiality criterion, those which your Honour identified in Zhao and have been identified in other cases – some version of those, the more intense version of those, would be precisely the kinds of things that would be considered within the context of the proviso, but Weiss itself does not suggest that it is inappropriate to look at the capacity for an error to affect the outcome of the trial.

What it says, though, is the debate between whether it is this jury or a reasonable jury is a debate that takes one nowhere, because it is the job for the appellate court. So, it is not about going back to this jury or a reasonable jury. There are sound reasons to do that, but that is not what we invite the Court to do. It is effectively to remove the universality and deal with those questions within the proviso.

The alternative is effectively the alternative – and this is where I come back to the formulation, perhaps, as the final submission – that the New Zealand Supreme Court took up in Matenga, where the only portion of Weiss that they criticised was the paragraph 17 and 18 conception of a miscarriage in such strict terms, and they imposed a very low‑level materiality threshold of the kind and using the sorts of conceptions that were used by Justice Gordon in Hofer in paragraph 130 and Justices Edelman and Steward in Hofer also, which, in our respectful submission, placed that materiality criterion at a low level. That is where it is ‑ ‑ ‑

STEWARD J: Could I ask you about that, Mr Holt.

MR HOLT: Yes.

STEWARD J: Taking the Weiss Exchequer rule in its strictest form, there is nothing about that strict form and also requiring an appellant to at least demonstrate why the irregularity is to his or her prejudice by looking at the nature of the irregularity, rather than the whole trial or anything like that – just making a submission to the court, this is against me, because.

MR HOLT: Yes. And this is, I suppose, the alternative submission that I made this morning, which it is almost inherent in the nature of an appeal ground that it be against the person who is taking the appeal.

STEWARD J: Yes.

MR HOLT: So, no, that conception can soundly be adopted.

GAGELER CJ: Against, in what sense?

MR HOLT: I am sorry?

GAGELER CJ: What does it mean to be against the person?

MR HOLT: So, something which could be – it is probably easier to answer in the negative, and perhaps that is why it is a good question. An error which is obviously neutral, or indeed, an error which is obviously to the favour of the appellant would be something that could not pass that threshold.

EDELMAN J: Do you mean used in a process of reasoning against the appellant?

MR HOLT: Yes. Just dealing with Soma, and the question that was asked about whether it forms part of the ratio, I may have to retract slightly

the submission that I made earlier that it did – Soma, of course, was fundamentally, in the way that it was ultimately decided, a question about case splitting by the prosecution, so it may in truth be that that does not form formally part of the ratio. I am not in a position to develop that beyond that at the moment, other than I should make the submission.

May it please the Court.

GAGELER CJ: Thank you, Mr Holt. The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 3.49 PM THE MATTER WAS ADJOURNED

[2024] HCATrans 84

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