Orreal v The Queen

[2021] HCATrans 193

[2021] HCATrans 193

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B25 of 2021

B e t w e e n -

MALCOLM LAURENCE ORREAL

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
KEANE J
GORDON J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE, MELBOURNE AND SYDNEY

ON THURSDAY, 11 NOVEMBER 2021, AT 9.46 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR S.J. KEIM, SC appears with MR P.F. RICHARDS for the appellant.  (instructed by Legal Aid Queensland)

MR C.W. HEATON, QC appears with MR C.W. WALLIS for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr Keim.

MR KEIM:   Thank you, your Honour.  Your Honours, the raw materials for your consideration of this appeal are relatively easily accessed.  The evidence which is wrongly admitted is identified as summarised by Justice McMurdo.  We have identified that in our outline of oral submissions at footnote 4, but we would seek to take your Honours to the core appeal book commencing at page 77 and we would ask your Honours to read, for completeness, in terms of understanding the evidence involved, the first six paragraphs of his Honour Justice McMurdo’s reasons, which go over to page 78.

KIEFEL CJ:   Mr Keim, I think you can you can take it that we have read them. 

MR KEIM:   Thank you, your Honour.  Each of the appellate judges agreed that the evidence was inadmissible and should not have been received.  That can be seen in Justice McMurdo’s reasons, at paragraph [7] at page 78 of the core appeal book, Justice Mullins’ reasons at paragraph [19] at page 80, and Justice Bond’s reasons at paragraph [90], which is over on page 97 of the core appeal book.

The compounding factors comprise of the manner in which the learned judge and the Crown Prosecutor dealt with the evidence.  The Crown Prosecutor, one might say, started off cold and then blew very hot before cooling again.  This is presented by his Honour Justice McMurdo at paragraph [8] at page 78 of the core appeal book.  His Honour sets out the prosecutor’s – relevant parts of the prosecutor’s address at paragraph [8].

KIEFEL CJ:   Mr Keim, before we go on to look at how the Crown Prosecutor’s address and the trial judge’s failure to direct did not correct the error – the error in question was the admission of the evidence, was it not?

MR KEIM:   Yes, your Honour.

KIEFEL CJ:   The evidence was admitted as a result of discussions between defence counsel and the prosecution.

MR KEIM:   It was, your Honour, yes.

KIEFEL CJ:   As Justice Bond points out, and it is tolerably clear by inference, that discussion would have been because the defence saw a forensic advantage in having the HSV-1 evidence admitted.

MR KEIM:   The Court of Appeal made that conclusion and that is not challenged.  But can I say two things about that, your Honour?

KIEFEL CJ:   Perhaps if I just indicate my concern that follows from the way in which the Court of Appeal approached it.  Justice Bond, with whom Justice Mullins agreed, held in relation to ground 1 at paragraph [92] that the trial counsel - defence counsel’s forensic choices in having the evidence admitted did not amount to a miscarriage of justice, but with respect to ground 2, which was whether there was a miscarriage because of the admission of the evidence, held that there was a miscarriage.

MR KEIM:   Yes, your Honour.

KIEFEL CJ:   I am just a little confused about how there could be a forensic choice in having it admitted, which does not carry over into ground 2.  Why are not the forensic choices of defence counsel, here obviously to have the evidence relating to the 15‑year‑old young man who the complainant had had some dealings with, having that admitted - why are not those forensic choices which operated with respect to ground 1, why did they not operate with respect to the question of miscarriage for ground 2?

MR KEIM:   Can I say two things with regard to that, your Honour.  The forensic choice should not be treated as being rational for the purpose of this ground – and it is not that it specifically relates to this ground.  But the cross‑examination which defence counsel sought to achieve on the basis of the discussion with regard to ground 1, could have been achieved in any event because of medical evidence going to the state of the complainant’s hymen.  So, while it may have been a forensic choice, in our submission, it should not be treated by this Court as a rational forensic choice ‑ ‑ ‑ 

KIEFEL CJ:   Why not, because Justice Bond at paragraph [91] points to the advantage which would obviously accrue to the evidence relating to the 15‑year‑old boy being admitted into evidence, and that is the subset of the HSV-1 evidence, is it not?

MR KEIM:   Yes, but there was no real advantage with regard to the HSV‑1 evidence, in our submission, your Honour.  The advantage was to be able to cross‑examine with regard to the existence of that other sexual relationship. 

KIEFEL CJ:   Well, there might not have been in the long run obviously, by the time the jury verdict was had, but they are the choices that defence counsel weighs up.  There was obviously a weighing up of having the HSV‑1 evidence relating to the complainant and, therefore, the accused admitted to allow the evidence relating to the 15‑year‑old in because it would impact upon the complainant’s credibility. 

MR KEIM:   What I am saying, your Honour, is that that evidence and that cross‑examination with regard to the sexual relationship, so the evidence with regard to the sexual relationship, would have been and should have been admissible in any event because of the state of the complainant’s hymen and her obvious young age.  So, it was ‑ ‑ ‑ 

KEANE J:   Mr Keim, that is not how it happened.  That is just not how it happened.  These admissions were made, it appears, as a package.  Both defence and prosecution agreed that this material would all go in, and having gone in, it is hardly surprising that the defence did not thereafter seek a direction to say that all this evidence was irrelevant – having joined in urging its admission in the first place, no doubt with a view to gaining the forensic advantage which Justice Bond referred to. 

Once the package goes in, and your side have secured the advantage, which was not insubstantial, it is understandable that your client – sorry, that counsel at the trial for the defence did not seek to say that all this evidence was irrelevant and the jury should be told it is irrelevant. 

MR KEIM:   Except, your Honour, they were the submissions made by defence counsel – that the jury should disregard the evidence and that it was irrelevant, even though defence counsel ‑ ‑ ‑ 

KEANE J:   No doubt he can say that this evidence does not serve any purpose to convict my client.  That is perfectly understandable.  What he did not do was seek a direction that the judge should direct the jury that the evidence should be disregarded.  That is your complaint – your complaint is that the judge did not direct the jury that it was inadmissible and irrelevant and they should disregard.

MR KEIM:   Yes, your Honour.  We say that counsel should have sought the direction, and the learned presiding judge should have given the direction whether it had been sought or not. 

KEANE J:   But it is perfectly understandable – what I am saying to you is it is perfectly understandable why counsel for the defendant did not seek it, having been one of the parties – having been party to the admission of all this evidence as part of the package which conferred the forensic advantage that he had obtained.  It is perfectly understandable that having participated in the admission of all this evidence, he could not see his way clear to saying to the judge that having organised all of this we are now saying that you should direct the jury to disregard it altogether. 

MR KEIM:   It is understandable, your Honour, but we say that it nonetheless mounted to an injustice in terms of the conduct of the trial, and it resulted in a substantial ‑ ‑ ‑ 

KEANE J:   An injustice along the way to the complainant. 

MR KEIM:   Except, your Honour, we say that the advantage could have been obtained and should have been obtained simply on the basis of the medical evidence going to the state of the complainant’s hymen because that also was a matter which raised the question of some other form of sexual experience on the part of the complainant which could have explained the objective.  It was certainly a form of seeking two reasons to obtain the relevant evidence when only one was necessary and should have been provided, so ‑ ‑ ‑ 

KIEFEL CJ:   Mr Keim, as Justice Keane has pointed out, that is not how it happened.  How it happened was the forensic choices were made to put the HSV‑1 evidence in, and I do not think this is a case – is it – where given that the defence was clearly seeking a forensic advantage out of this, that the trial judge was obliged to step in and direct when neither counsel wished that to occur, and defence may then have argued that the trial judge was being unfair because they were seeking to pursue a forensic advantage to which the prosecution had agreed. 

MR KEIM:   By the time the summing‑up came, your Honour - I take Justice Keane’s point that it may have appeared to be some kind of unfairness to the complainant, but by the time the summing‑up came it was evident the medical evidence had been given - it was evident that this evidence was prejudicial but of no probative value, and at that stage, we say, it was a substantial injustice for the trial judge not to give that direction, and it was an error on the part of defence counsel not to seek the direction at that point in time.

Whatever one says about the forensic choices, and that is not – that has not been raised in this appeal because the other point was open, the forensic choice, whatever one says about those forensic choices, it was clear by the end of the trial that the jury should have been directed to disregard that evidence and to place no weight on it at all. 

It was not so directed, and we say that a substantial injustice, and substantial miscarriage of the trial has occurred as a result of that failure to give that direction, even if the admission of the evidence in the first place was not such a direction.  We also rely upon the way in which ‑ ‑ ‑ 

GORDON J:   Mr Keim, can I just understand the way you put it.  I had understood that the miscarriage of justice had been conceded by the Crown, and the question was whether or not there was a substantial miscarriage, at least from their submissions, and also from their outline of oral argument.

MR KEIM:   Yes.

GORDON J:   Is it the position that despite - just so I am clear about this - the package, as it has been put to you, that there was, in effect, acceptance now that the evidence was both inadmissible and prejudicial, and by that I mean the HSV or the herpes evidence, and secondly that not only was it inadmissible and prejudicial, but that it was compounded by the significance it was given during the course of the trial, both by the prosecution and the judge’s direction.  In other words, it was not only just a failure to give a direction, and you accept, as you must, that there was not a direction sought, but the way in which it was treated by both the prosecution and the trial judge?

MR KEIM:   Yes, your Honour.  The admissibility of the evidence was accepted by each of the judges of appeal as constituting a miscarriage of justice, and I understand it has been accepted as such by our learned friends in their written submissions.  We rely upon the miscarriage of justice that arises not only from the admissibility evidence, but the double compounding of that by the way in which it was dealt with by the learned trial judge and the way in which – particularly the way in which it was approached by the prosecution.

I think it was Justice McMurdo noted the somewhat inflammatory language by the learned prosecutor, who, I think Justice McMurdo said, seemed to recognise that and stepped back at the last moment, with the last sentence, although we say that that did not remedy that problem in any way whatsoever. 

So we say there are three compounding miscarriages of justice, and we say that at least combined they constitute a substantial miscarriage of justice.  We say that if a very clear direction was given by the trial judge to disregard the evidence and disregard what the prosecutor had said with regard to the evidence, we would have much greater difficulty in making the argument here.

If I can just indicate, your Honours, the Crown Prosecutor’s treatment of the matter is dealt with by Justice McMurdo at paragraph [8] of the reasons, at page 78.  Justice Mullins’ extracts are to similar effect at paragraph [24] at page 81.  We have given those to you in paragraph 5 of our submissions.

The passages of the learned trial judge’s summing‑up are set out by Justice McMurdo at paragraphs [9] to [10] on page 79 of the core appeal book, and paragraph [26] at page 82 by Justice Mullins.  It was, as I said I think in answer to your Honour Justice Gordon’s question, common ground that the jury should have been directed to disregard the evidence.  That is evident from paragraph [94] at page 98 of the book in Justice Bond’s reasons and agreement with Justice Bond might be thought to come within Justice Mullins’ general agreement at paragraph [18] at page 80, at the commencement of her reasons.

At paragraphs 5 and 6 of our outline we have provided the Court with references to the judge and prosecutor’s actual discussion of the wrongly admitted evidence but we do not propose to take the Court to those passages as they have been sufficiently summarised in the passages we have taken your Honours to.

At paragraph 7 we say it follows that in considering the nature and effect of the error in the trial, it was necessary for the Court of Appeal to consider the compounding nature of the error, not only the receipt of the evidence but also the communication by the judge and the prosecutor to the jury that they could make use of that evidence, as opposed to instructing the jury directly to the contrary. 

The duty to consider the nature and effect of the error as an integral part of considering whether to exercise the proviso is articulated by the plurality in Kalbasi v Western Australia.  That passage is found at page 198 of the joint book of authorities in paragraph 15.  That is at page 71 of the report of that case.  

The same paragraph of Kalbasi is also significant for identifying certain types of cases, and we say that this is one of them, where there is particular difficulty in an appellate court being able to satisfy itself that in the absence of wrongly admitted evidence the Crown has proved its case to the necessary level, which is part of the test that was articulated in Weiss.  That follows on probably the next – about line 6 to line 10 of that passage in Kalbasi at paragraph 15. 

For present purposes, the relevant source of difficulty, being so satisfied derives from contested issues of credibility and we have developed at some length in our written submissions as to why there were genuine issues arising with regard to the credibility of the complainant.

The point is, going to paragraph 9 of our outline, similarly made in Baini v The Queen at page 95 of the joint book of authorities, at paragraph 29, page 480 of the report.  The plurality also speaks of the natural limitations of the appellate process in that paragraph and then the application…..in terms of the inevitability or otherwise of a guilty verdict in the absence of the errors is discussed on the following page at paragraph 32 of Baini, page 96, page 481 of the report.

Our reference at paragraph 10 of our outline of oral submissions to the lack of absolute red lines in considering matters such as these may be seen as a reflection of the plurality’s reference to an absence of absolute rules or singular tests in Weiss and that passage appears at page 355 of the joint book of authorities at paragraph 42 of the reasons, page 316 of the report, where the plurality says:

It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond –

the fundamental propositions referred to.  The countervailing observation is that especially where the case turns on contested credibility there are real obstacles in arriving at the preconditional negative proposition, namely that absent the error, the Crown has proved its case to the necessary standard or, differently put, absence the error, a guilty verdict was inevitable.

This is partially because of what the case has referred to, as we saw in Baini but which is referred to in Castle as “the limitations of the record”.  That passage appears at page 137 of the joint book of authorities, paragraph 68 and that is at page 473 of the report.  Halfway through paragraph 68, the plurality says:

The natural limitations of proceeding on the record precluded a conclusion that guilt was proved beyond reasonable doubt.

That is the natural limitation that we are referring to and the authorities refer to.  In paragraphs 11 and 12 of our written outline, we wanted to finish by drawing attention to the error in failing to direct the jury to disregard the wrongly‑admitted evidence.

In Lane, the approach of the appeal court, which was set aside by this Court, was to say that, despite being urged to do so by the Crown, the jury would not or could not possibly have given credence to the suggestion that the first of the two accidents in that case had caused the criminal death

of the victim.  The discussion appears commencing at page 261 of the joint book of authorities at paragraph 41.

In this appeal, the jury were told that they could use the irrelevant but prejudicial material, but the reasoning of the majority of the Court of Appeal, similar to that in Lane, was that the jury, despite being invited to do so, would not possibly have used the material as part of their deliberations, including on questions of credit.  We say that those conclusions were wrong.  In paragraph 44 in Lane, this Court said that such reasoning:

would impermissibly diminish the role of the jury as “the constitutional tribunal for deciding issues of fact.”

I do not want to push the analogy necessarily that far.  It is sufficient to say that the majority of the Court of Appeal failed to pay sufficient heed to the limitations of the record, they failed to appreciate the reality of the compounded error and they did not have a proper appreciation of the way in which the jury was wont to use the wrongly admitted material.  In our submission, the proviso should have been applied and we say that the appeal should therefore be upheld.  Those are our submissions, your Honours.

KIEFEL CJ:   Yes, thank you, Mr Keim.  Yes, Mr Heaton.

MR HEATON:   Your Honours, the fundamental premise of our submission in response to the appeal as to the nature of the HSV‑1 evidence was such in this case that it could not have rationally influenced the jury in their assessment of the credibility of the complainant.  Its capacity to influence the jury’s assessment, if at all, was so negligible, applying a process of logical reasoning and, indeed, following the guidance that was given to them by counsel and by the judge in the course of the trial – it was so negligible that it was within the sound exercise of the appellate judges’ individual discretions to have discounted it as having had no impact on the assessment by the jury of the credibility of the complainant. 

Her account, and therefore her credibility, was supported in a material way by other evidence:  the injury to her vagina, which was consistent with the acts alleged by her in the offending; the distressed condition observed by her sister; the timely disclosure of the offending to her mother the following morning, together with evidence both from her mother and from her sister that supported the conclusion that the opportunity for the offending existed on the night of these events. 

The persuasive force of that accumulated evidence, in our respectful submission, would overwhelm any consideration of the impugned evidence which was at best logically neutral in the jury’s assessment of the complainant’s credibility and the conclusion of guilt, so that it can be properly concluded that it would have had no impact on the crucial question for the jury in their determination in this case.

GORDON J:   Mr Heaton, may I ask about that contention that it is, as I understand it, at best neutral?  On my reading of the transcript, the evidence relating to the HSV-1 occupied a large part of the expert’s evidence‑in‑chief, almost all of the cross-examination and, as I think you accepted in your submissions, was referred to by Crown Counsel as the chicken and egg question directed entirely at that piece of evidence – which itself is, I think, difficult to describe or may arguably be difficult to describe as neutral – addressed four times by the prosecution.  It is more than just merely that they could use it, it was given a significance throughout the course of the trial, which was only, I think, at best three and a half days.  Do you accept that?

MR HEATON:   It was certainly given prominence but, in my respectful submission, the examination of it in terms of the evidence that was given, and the cross‑examination of it – leaving aside for the moment – and I do wish to take the Court to what was said about the evidence in the addresses and the summing‑up – the prominence that was given to it only stood to highlight how unhelpful it became in the jury’s determination of the question for them.  It was incapable of supporting the conclusion one way or the other, and that became readily apparent, as it was explored in the evidence – and then, certainly in light of what the jury were told about it.

KEANE J:   Mr Heaton, is that not the problem?  Is the problem not that, by the time the judge came to give the jury directions, the judge almost recognises that there is no basis on which the judge can direct the jury as to how they could reasonably be assisted by the evidence, but it is nevertheless left to them to basically make of it what they will.  The judge could not explain how it might reasonably assist them to reach a conclusion one way or the other.  It is almost as if it was left to them to use it as unreasonably as they liked.

MR HEATON:   What can be said about that is – whilst I agree with that proposition, of course – but there is an important distinction in a case such as this, where the evidence was left to them, but they were not invited to reason impermissibly based on that evidence.  It was simply left to them as evidence that was part of the overall case that had been presented during the course of the trial.  The unhelpful nature of the evidence was pointed out to them by both counsel and by the judge, but it remained a part of the evidence that was there. 

So, unlike other cases where an error might be identified where a jury is invited to reason impermissibly, this was a case where the jury were in fact guided against the use of the evidence.  It was pointed out that it was there, and perhaps that is a glib statement of fact - it was in fact part of the evidence that had been presented, but its logical probative value was non‑existent.

GLEESON J:   Mr Heaton, at page 76 of the book of further materials there is a piece of paper which sets out some admissions.  Was that piece of paper given to the jury?

MR HEATON:   As I understand it, it was tendered as exhibit 7, so it was an exhibit in the trial, and it was referred to - I can probably turn quickly up that point in the evidence where it was – maybe that was an ambitious claim on my part. 

GORDON J:   It may assist you, Mr Heaton, that at core appeal book 52 to 53 the trial judge in his closing deals with the unchallenged evidence of Dr Waugh and then deals with the admissions in exhibit 7.

MR HEATON:   Yes.

GORDON J:   And explains to the jury about those admissions.  So I find that at core appeal book 52 to 53.

MR HEATON:   I am just trying to turn up where exhibit 7 was actually tendered.  On the back of those inquiries from the Court, can I turn to the submissions that were made by counsel and the directions that were made by the trial judge as they pertain to this piece of the evidence, this part of the evidence, but to put it in context, and in doing so I would seek to demonstrate that whatever prominence it may have had during the course of the trial otherwise, that prominence, or indeed, any significance that might attach to it was taken away in the way that it was dealt with by counsel and by the judge. 

The submissions of the Crown Prosecutor begin at the book of further materials at page 78, and I want to take, in some short compass, I want to take the Court through the structure of this address to the jury.  In her opening few paragraphs, the Crown Prosecutor outlined the case against the defendant.  In so doing, she directed the jury’s attention to the parts of the evidence which supported the conclusion of the defendant’s guilt. 

A number of the aspects of the evidence were said in combination to support the conclusion of his guilt, and she pointed the…..evidence of the complainant herself, the evidence from her sister, her observations of seeing the complainant go into the bedroom and half an hour or an hour later emerge from the bedroom, the evidence from the sister that the complainant hopped into bed with her, that she had been crying, or that she was crying quietly to herself, that she was cold, and she was shaking.  The following day her mother was told - the disclosures were made by the complainant to her mother.  There was a distressed condition attached to that. 

So, we have a timely complaint, and she was medically examined and found to have an injury which was consistent with the allegations that she made.  So these are the features of the case that the prosecutor pointed out in her opening summation of what the case involved, and why the Crown said the jury would be satisfied of his guilt.  Importantly, there was no mention there of the HSV‑1 evidence. 

She then went on to discuss the various aspects of the evidence in some detail.  She spoke firstly of the complainant, and highlighted aspects of her evidence which tended to support her reliability and her credibility.  She spoke of there being no inconsistencies, that it was a logical account, that it was a detailed account, that it was coherent, given in a narrative, free‑flowing way.

She then turned to the evidence of the sister.  She spoke of the support that that provided to what the complainant had said.  She then moved to the evidence of the mother, and she spoke of the support that the evidence from the mother provides as well.  By now we are up to the book of further materials at page 81. 

The evidence of the mother included what was referred to as the distraction and that is the evidence in relation to the events surrounding this young fellow named Dylan.  That is perhaps, I guess, helpful in that what it demonstrates is that not all of the evidence that might be before a jury is necessarily helpful in their ultimate determinations of the issues that arise.  The circumstances surrounding the events involving the mother and Dylan is another, I say, example of that. 

The mother’s evidence also supported the complainant as to opportunity – and as I said, when the disclosures were made the following day, the prosecutor referred to the fact that the complainant was crying, and there was that distressed condition.  The prosecutor then turned to – and by now we are up to book of further materials at 83 – the medical evidence.  The Crown Prosecutor placed some weight, and properly so, on this medical evidence.  She submitted to the jury in relation to the medical evidence:

that’s where the problem really lies for the defendant.  I’m going to get to the problem in a moment ‑

So what we say about that is, she has identified for the jury that the medical evidence is important, and indeed perhaps the most significant supporting piece of evidence for the complainant.  But before she gets to talking about that, she tells the jury I am just going to talk about this, and she refers to it as:

The herpes thing ‑

The way in which she then spoke to the jury of the HSV‑1 evidence and its context in the case is important, in our submission, for the proper appreciation of the nature and effect of that evidence – and its erroneous admission, accepting that to be so – in the context of this trial.  Even the reference by the prosecutor to it being the “herpes thing”, has a tendency to diminish the significance of it in relation to the overall evidence in the case. 

During the course of what she told the jury about the medical evidence, and indeed referring specifically to the herpes evidence, the HSV‑1 evidence, book of further material at page 83, commencing at line 19 down to about line 39 is the passage.  She says the:

The herpes thing is not the lynchpin in this case.  It is very neutral really.

I will not take the Court through it chapter and verse, but during that short passage she specifically tells the jury:

you might well think that she caught it from her boyfriend’s mouth rather than the defendant’s penis.

So, while she did say that it was a factor for the jury to take into account, the Crown Prosecutor’s own submissions to the jury deprived the evidence of any weight in their determination of the credibility and the support that might otherwise be gained for the complainant. 

KIEFEL CJ:   But, Mr Heaton, the nub of what she is saying is when she says, at line 35:

the point is that both of them do have the same virus.

Is not that the real difficulty in the prosecutor’s address?

MR HEATON:   That is.  But, in my submission, it is wrong to focus on that, but instead proper to look at it in the context in which the submissions were made – all of the submissions on this evidence – and indeed in the context of all the submissions made to the jury in her address.  While she did make that comment, of course I cannot shy away from that, she then countered that in her concluding remark:

But I don’t suggest that you would really put any weight on it.

That was then the end of any reference to what she called the “herpes thing” in the context of this case. 

She then moved on to make submissions about the important evidence and what she in contrast told the jury they would put a lot of weight on, and that was the evidence of the injury.  Then she went and focused on that important piece of evidence before her concluding submissions to the jury. 

In her concluding submissions, which is at page 84 of the book of further materials, she outlined the strength of the case again against the defendant, again referring to those matters that she started with, and, again, did not make any mention of the herpes evidence. 

What that demonstrates, in our submission, is that whilst the evidence was there, whilst we accept the jury were not told to ignore it or disregard it entirely, that is not the answer to the question raised because the way in which the evidence was given to the jury, or the way in which they might have considered it, logically, rationally denied it of any probative weight and that was made clear.

This was the Crown’s submission to the jury.  This was the Crown’s case against the defendant.  This was the way the case was framed for the jury’s consideration.  The strength of the evidence and the submissions made by the Crown were highlighted and focused on and articulated in some detail. 

The way in which she referred to this other part of what we say was a distracting aspect of the evidence was in its context and the nature and effect of it was such that it cannot have had any impact logically on the jury’s assessment of the strength of the case and the conclusion of guilt.

KIEFEL CJ:   Mr Heaton, I see that the defence counsel, at the bottom of page 88 over to 89, refers to the issue.  Do you rely upon the fact that the defence counsel did not seek a direction from the trial judge as indicating that there was no real problem thought to maintain around the issue ‑ ‑ ‑

MR HEATON:   It is relevant, in our submission, to the nature and effect of it in terms of its impact in the trial.  The fact that it was clearly admitted by agreement as part of a strategic plan is a relevant consideration in the overall consideration of nature and effect of it when assessing whether or not it was proper for the court to have applied the proviso.

KIEFEL CJ:   Speaking of defence counsel brings me to this question – I had not wished to interrupt your substantive argument following your outline.  What do you have to say to the language phrased by myself and Justice Keane with Mr Keim about the approach of the Court of Appeal to the miscarriage itself, not to the next stage, to the proviso, but to the finding of miscarriage itself.  Why was not the forensic choice made by defence counsel relevant to the fact that the evidence was admitted?

MR HEATON:   Some might say that it was and in responding to this appeal we have not sought to take issue with that distinction.  The first ground perhaps is focused on the conduct of counsel and the second ground focused on the admissibility of the evidence.  I do not know - I cannot speak for the court and it is not otherwise apparent in the judgment, but that might go some way to explaining the difference of outcome in the configuration of this evidence.  But I accept the force, of course, of what your Honour is saying, that one would seem to be logically connected to the other. 

We have not sought to take issue with that in our response to this appeal.  We have accepted that, on the substantive application, the proviso basis of this appeal, that the error was the admission of the evidence and that, therefore, has been the focus of our submissions.

Can I then just quickly take the Court through – your Honour has already referred to the submissions made by defence counsel at the bottom of page 88 over on to 89 of the further book of material.  He rather appropriately explained to the jury that that evidence:

doesn’t prove anything.

That is at line 45, and then points out:

how common the virus is‑

and how it can be transmitted, in essence, then giving the jury even further reason to conclude that it was of no assistance to them, and further building on the theme that had been commenced in relation to that evidence by the prosecutor.  That then turns, or brings for consideration, the summing‑up of the trial judge, and the passage of the summing‑up has been well documented and I do not intend to take the Court to it specifically, but the effect of it, and this is at core appeal book 52 commencing at line 36, she pointed out - the trial judge pointed out to the jury yet again the aspects of the evidence which supported or went to the lack of any probative value of it.

GORDON J:   So, Mr Heaton, do you accept that in the trial judge’s summing‑up, if you look at it, as you are appropriately doing as a sort of running document, immediately after describing the charges, the trial judge goes to the admissions, which were raised with you by Justice Gleeson, and deals with the DNA swabs and the results from the herpes virus analyses, and says:

the parties have admitted those facts, you must treat those facts as proved.  And I will say more about that – the medical evidence – later on.

That is the first time that this evidence is addressed.

MR HEATON:   Yes, I accept that and, indeed, I do not seek and, indeed would urge the Court to resist any particular focus on one aspect to the exclusion of the rest of the summing‑up.  It must be looked at as a whole and, indeed, consideration given as to what it communicates as a whole document essentially.  Returning then to what the judge told the jury, she pointed out that there were three aspects that were important in relation to that evidence, and this is at 53, line 11, where she said:

This is probably the most important part of his evidence, and there are three parts of it.

Then she goes through and points out the three reasons why the evidence is of no weight, and she categorises that as being the important part of that evidence, not possible to say with certainty when the complainant contracted the virus:

it is not possible to say when the defendant . . . contracted the virus . . . it is not possible to say who the complainant . . . contracted the virus from.

GORDON J:   I am sorry to be pedantic about this, but it has to be read though in what appears two paragraphs before, does it not, where the trial judge sets out again the reference to the admissions and the fact that we have no results and when the blood tests were taken and the positive results.

MR HEATON:   Indeed, and with what follows afterwards beginning at line 20:

So where does that leave you?  You might think that evidence does not really help you one way or the other.  You are left with evidence that both the defendant and the complainant child both tested positive for the same herpes virus, but on the state of the evidence , you cannot know when she contracted it, you cannot know when the defendant contracted it and you cannot know who she contracted it from.  You just take that evidence into account along with all of the other evidence.

GLEESON J:   Mr Heaton, I have a question about how the Court ought to take into account forensic decisions in relation to substantial miscarriage of justice as opposed to miscarriage of justice.  Do you say it is relevant – or to what part of the analysis of substantial miscarriage of justice should the forensic decision apply?

MR HEATON:   To the nature and effect of the evidence in the context of the trial and whether or not it can then support a conclusion or deny the conclusion of no substantial miscarriage of justice.  In essence – and the fundamental premise that underpins our submission in response to this appeal is that this evidence was logically and rationally incapable of assisting the jury to conclude that the complainant was telling the truth. 

Whilst the jury were not told to ignore it, they were also not invited to reason through some path that would have supported a conclusion of guilt based on that evidence.  It was there.  They were told that it was something that they could take into account.  They were not told how they could take it into account.  They were told how they could not, or what it did not show. 

Against that was a body of overwhelmingly sufficient and we would say powerful supporting evidence of the complainant that would have overwhelmed any consideration that the jury might have had of this curious distraction in the evidence of the HSV‑1 evidence.

GLEESON J:   The way you are putting it is that by making the forensic choice, the accused did not take any material risk at all?  This was not a case of taking a risk that the jury would rely on that evidence to corroborate the…..events.  The true position is that the forensic choice was an immaterial one.

MR HEATON:   Well, I am not sure how exactly to respond to that in the context of the issue that we have sought to respond to in the appeal – but there was clearly some risk in the forensic decision to seek to have this evidence admitted.  That is a consequence of the forensic decision having been made and that is relevant, we say, when the Court then comes to consider whether or not there has been, as a result of the admission of this evidence, a substantial miscarriage of justice.

KIEFEL CJ:   Mr Heaton, do you say that forensic advantage is that identified by Justice Bond?

MR HEATON:   Yes.  Can I just perhaps conclude – that is really all I wanted to take the Court to in terms of the evidence, and I am certain the Court appreciates the argument that we make.

In terms of applying the circumstances of this case to the general principles, the test is one of a substantial miscarriage of justice.  We say paramount to that consideration is the nature and effect of the error must be considered by the Court in its determination as to whether or not there has been no substantial miscarriage of justice as a result of the admission of this evidence, which was of no probative weight.

Even if we were to accept that there is a possibility of a risk of the HSV-1 having influenced the jury’s consideration of the credibility of the complainant, it can only, in the way that the evidence was treated by counsel and by the judge – and the logical conclusions that can be drawn from it – it can only have been a negligible effect, if at all.

So, whilst it might be said that a theoretical possibility exists, despite the obvious lack of probative force, it cannot, we say, have meaningfully influenced the determination of the jury so as to have denied the application of the proviso by the Court of Appeal.

The differing outcomes in the judgment of the dissenting judge, as  opposed to the majority, we say, is simply a reflection of the subjective application of the principles to the circumstances as they were found by the individual judges in the exercise of their discretion.

The nature and the effect of the error cannot have operated, we say, ultimately so as to have deprived the Court, in its assessment, on the whole of the case, from being able to apply the proviso.  Those are our submissions over and above that which we have placed before the Court in writing.  Thank you, your Honours.

KIEFEL CJ:   Thank you, Mr Heaton.  Do you have anything in reply, Mr Keim?

MR KEIM:   Yes, please, your Honour.  Firstly, perhaps a point of pedantry, but my learned friend referred earlier in his submissions to the discretion of the appeal court in determining that there was no substantial miscarriage of justice.  In our submission, section 668E(1A) requires an assessment whether no substantial miscarriage of justice has actually occurred – that is an evaluation which, at the end of the day, is right or wrong.  It does not involve any exercise of discretion.  I do not suggest that my learned friend was suggesting discretion in the true sense, but I just wish to place that on the record.

With regard to your Honour Justice Gordon and Justice Gleeson’s question to the written admissions, if one goes to the core appeal book at page 9, line 35, my learned friend was correct in identifying that they were made exhibit 7 in the proceedings, and of course exhibits in the proceedings

are available to the jury in the jury room during their deliberations.  So, hopefully that has answered that question. 

The third matter I wanted to say is that my learned friend’s submissions with regard to the nature and effect of the evidence in question does bring the situation very much back to the situation in Lane’s Case, as I discussed at the end of my oral submissions, in the sense that what the Court of Appeal has done is to speculate that the jury paid no attention to evidence that they were in fact invited to pay attention to by the learned Crown Prosecutor in the trial and were told that they could pay attention to.

That brings one very much to the situation described in Lane’s Case, and the effect that it has in acting in that way to marginalise the constitutional role of the jury in our justice system.  They were the three matters that I wanted to deal with, your Honours, in response to our learned friends.

KIEFEL CJ:   Thank you, Mr Keim.  The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow. 

AT 10.48 AM THE MATTER WAS ADJOURNED