R v Edwards

[2009] HCATrans 62

[2009] HCATrans 062

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart  No H4 of 2008

B e t w e e n -

THE QUEEN

Appellant

and

PETER MAXWELL EDWARDS

First Respondent

STEPHEN SARUNIC

Second Respondent

HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 1 APRIL 2009, AT 2.16 PM

Copyright in the High Court of Australia

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR I.M. ARENDT, for the appellant.  (instructed by Director of Public Prosecutions (Cth))

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR J.M. MORRIS and MR B.A.P. KELLEHER, for the respondents.  (instructed by Deacons Lawyers)

HAYNE J:   Yes, Ms Abraham.

MS ABRAHAM:   As your Honours are aware this is an appeal from a judgment of his Honour Justice Slicer permanently staying the proceedings in this matter.  The appellant says the judgment is infected by error, both wrong in legal principle and wrong in fact.  Taking a step back, in a nutshell the Crown case is that a particular flight taxied down a taxiway, turned into the runway and took off without the taxiway and runway lights being illuminated.  There was argument in the court below in relation to the absence, primarily, of two pieces of evidence and that formed the basis, the essence of the application, plus delay. 

The two pieces of evidence were this.  One was a monitor list.  The monitor list is an optional facility - that is, it is not required at the airport.  It just happens that Launceston was an airport that had the facility - which would record the activation of turning on the lights.  The pilots here were required to turn on the lights themselves, it being at a time when the tower was closed.  The record, or the monitor list, only keeps the last 13 activations and so would be gone within about 24 hours and, indeed, when it is regularly checked, which was on a Thursday, which was two days later, the particular day was not recorded.

The second matter is the flight data recorder.  There are two ways of recording information in the cockpit:  one, the cockpit voice recorder is not in issue in my submission because that would have been overwritten before the plane landed in Melbourne.  So one is really dealing with the flight data recorder and what that records is the fact of transmission.  It does not record voices.  It does not record what the transmission is, but the fact of transmission, but importantly will only record if the engine is running.  So, for example, if a transmission is sent when the plane is on the ground and the engine is not running, then that would not be recorded at all.

So it was principally those two pieces of evidence that were said to be absent or, I might add, by 13 to 15 days after the event the second, the FDR was absent.  It was those two pieces of evidence which were said to form the basis of the decision.

Now, against that very brief background, in the appellant’s submission the legal test applied by his Honour in reaching his conclusion is in error.  It is most succinctly stated at paragraph 59 at appeal book 3 at 1205 at the beginning of the paragraph that begins “The test to be applied”.  Importantly, what his Honour does do is formulate a test which results in a conclusion if the continuation of the indictment could constitute an unacceptable injustice or unfairness.

With respect, the question of “could” was referred to on numerous occasions during the course of the judgment.  It is a consistent theme.  It appears also, for example, at appeal book 1197 in paragraph 20.  Towards the end of the paragraph there is a sentence that begins:

Time elapsed could render direct recollection of events less reliable and reduce the possibility of advancing the “technological” omissions in the chain of evidence more problematic.  There remains a risk that the delay, coupled with the other matters elsewhere considered, could reduce the nature of the trial to a simple, but incomplete, question of whether or not the lights were operating.

Can I just pause there.  In the appellant’s submission, that in fact is the question, whether or not the lights were operating.  That is the first step, and, with respect, that is the only possible step that this missing data could have any impact on at all.  The reference to “could” or “a risk” also appears in paragraphs 36 and 37 on page 1200, which are the paragraphs where his Honour, in the appellant’s submission, speculates as to a possible scenario that “could occur” during the course of the trial.  Similarly, at paragraphs 56 which is on page 1205.

In my submission, the appropriate approach to determining an application of this nature where the argument at the end of the day was that a continuation of the trial is unfair, the issue is “would be” unfair, not “could be” unfair and “would be” in the context of the balancing exercise that must be performed in determining an application for an abuse of process.

CRENNAN J:   Is that the difference between a possibility and a certainty?

MS ABRAHAM:   Yes, “could” is very much a possibility and it is, in my submission, much, much lower than “would” being a certainty.  In my submission, his Honour ‑ ‑ ‑

HEYDON J:   It is not really a certainty, surely it is just a probability?

MS ABRAHAM:   It is higher than a possibility.  It is significantly higher than “could” because “could” really is a possibility, it has to be.  It would ‑ ‑ ‑

CRENNAN J:   More likely than not.

MS ABRAHAM:   Yes.

HEYDON J:   It would be the assessment of an appellate court looking back at the completed trial whether or not it had been fair.  That is not normally an assessment one applies a mathematical test to, but it is at least a sort of balance of probabilities test.

MS ABRAHAM:   If one was looking back and there was a conviction at the end of the day, one would determine whether or not what occurred there was a risk of a miscarriage of justice for a variety of reasons.  So one is looking at a different approach, with respect, than what one is looking at at this stage in the proceedings.  But, yes, I agree, it is not a mathematical approach by any stretch of the imagination.  But it does need to be performed with a balancing exercise that this Court has spoken of in Jago, of course, and Walton v Gardiner.  In the appellant’s submission, that exercise also was not apparent or apparently undertaken by his Honour in making this decision.

HAYNE J:   I am not sure how much challenge there is to the principles you assert should have been applied.  Rather, as I read the respondent’s submission, it is directed to whether those principles were applied; see particularly paragraph 28 of the respondent’s submissions.  Do you join issue with paragraph 28 to the extent to which it articulates the applicable principle, in particular, that the prejudice had to go to fundamental fairness of the trial?

MS ABRAHAM:   No, I do not take issue with that. 

HAYNE J:   Does the case then come to whether, read as a whole, the judgment of the judge is to be read in the fashion indicated in the next sentence of the respondent’s argument, namely:

the use of the word “could” instead of “would” represents error of expression and not misapprehension of principle.

MS ABRAHAM:   Yes.  Clearly my friends are arguing that even though “could” appears throughout the judgment, really, the principles were applied and in effect “would” was applied.  The appellant’s submission is simple on that and that is that the word “could” is replete throughout the judgment and, in my submission, it is obvious that “could” has been applied and not “would”.  In my submission, obvious also because of the nature of the factual speculation that was undertaken by his Honour in reaching the conclusion he did.  The process he undertook when he determined what the significance of the evidence was on his own scenario was conjecture and it could arise or could be argued during the trial. 

When one looks at the use of the word “could” in that context, in my submission, all that does is reinforce that the meaning the word has, the obvious meaning, if it was applied throughout and what was applied when he formulated the test and used the word in that context.

HAYNE J:   Do I understand the submission to be, first, “could” has been used in the various places you have identified; second, paragraph 36 you characterise as speculation.  What else is there in your argument beyond that?  I am not saying that that is not sufficient or whether it is sufficient.  I just want to understand what else is in play.

MS ABRAHAM:   Certainly.  Your Honour, in addition to 36, where there is the reference, on the Crown’s submission, to speculation - the word “speculation” is actually used in 44, which is at the bottom of page 1201:

The above is but inferred speculation ‑

and it relates to the sequence in the timing.  They are the principal passages, with respect, but, with respect, the most obvious when one has the one in paragraph 59 where his Honour is actually formulating the test.  He starts the sentence with, “The test is”.  So, in my submission, that is the most significant.

KIEFEL J:   Do I understand you to say that the various matters raised by his Honour on pages 1200 and 1201 through to 1202 were not relevant to an assessment of the missing data?

MS ABRAHAM:   In the Crown’s submission, what his Honour has done is speculated as to a possible matter that could be run at trial and from that then assessed the significance of the data.

KIEFEL J:   So it is a hypothetical construct?

MS ABRAHAM:   Yes, because this could be run, or this argument could be had, then, on that argument, he reasons, the Crown case and the defence case can be reconciled.  In other words, that the eyewitness accounts and the activation of the PAL system could fit together and, therefore, he reasons about the significance of it.

KIEFEL J:   But even if one accepted that there is some basis in the speculation of what a defence case might be, does the question of the missing data and its effect upon the trial process nevertheless have relevance?  Do you concede that there is a connection?

MS ABRAHAM:   It is a fact that there is, with respect, no doubt about that but one cannot then, or rather ought not then, speculate as to what might or might not be run at trial and then assess, well, if this might be run, or this could be run; therefore this is relevant to this, that or the other, particularly, with respect, when there is no evidence before the Court as to – that is why his Honour actually says, “This is conjecture” – because there was no evidence.  But importantly, it clearly was important in his Honour’s mind that, on this scenario, there was a reconciliation of the two cases.  That is plainly wrong.  There can never be a reconciliation of the two cases.

So not only has he speculated, but he has speculated in such a way as to give a prominence or a significance to this evidence that it does not have.  On the Crown case the evidence is that the taxiing occurred on a taxiway that was dark and then a turning into the runway.  There is a map actually in appeal book 3.  I do not know if that is of assistance.  We have a blown‑up copy with the relevant features marked on it, if that is of assistance to the Court at all.  It is in appeal book 3 at 1084.  The copies we have have marked on the RFDS hangar the houses of the relevant witnesses.

HAYNE J:   If you think it would assist your argument, hand it up, yes, of course.  I take it Mr Walker has seen it?

MR WALKER:   I have, thank you, your Honour.

HAYNE J:   Yes.

MS ABRAHAM:   With respect, in the appellant’s submission, the issues that do not have the complexities that are suggested by the learned trial judge; the plane taxied from the terminal, which your Honours can see marked at about the middle of the page towards where 32L is written, down the taxiway where “A” is, taxied down taxiway A, past the hangar where the Crown witnesses were and when they observed it going past the taxiway, lights were not on nor the windsock lights.  It then turned at the end and went down runway 32L and took off.  The southern windsock is marked.  Obviously they are taxiing towards that and then they turn and go. 

On the scenario that his Honour has, what has occurred is this.  When one activates the lights, one has to push the transmission three times within 25 seconds.  If the third time it is pushed it actually straddles exactly the 25 seconds, it goes on for 10 minutes but the windsock would flash.  So in this instance the southern windsock would flash indicating that it is in the last 10 minutes.  His Honour speculates that the lights were on.  This had occurred, rather, whilst the plane was stationary.  I might add, in paragraph 56 he said the lights were activated “whilst the passengers were embarking”.  If that occurred, then the plane would not have been operating.  In other words, the engines would have not been on and it would not have been recorded.  So the absence of the FDR would not help that scenario at all. 

His Honour speculates truncation of the lights, therefore, the lights on the taxiway were on and obviously what would follow would be the windsock and, as they go to take off, literally, the lights click off exactly at that time.  So, as your Honours can see, the two cases can never reconcile because the Crown case is that the lights on the taxiway are off.

CRENNAN J:   There are some lights that are always on, are there not, the apron lights?

MS ABRAHAM:   The apron lights.  They are different to clearly what has been recorded in this instance.  With respect, for a start, as I said, the two accounts cannot be reconciled.  His Honour then goes further than that, in my submission, and repeatedly makes the observation that this is somehow relevant, the potential truncation.  It is somehow relevant to the question of recklessness.  His Honour makes that clear at –if your Honour would just bear with me a moment.

HEYDON J:   Paragraph 57, first sentence.

MS ABRAHAM:   Thank you.  It also appears in paragraphs 44 to 46, 36 and 37 against a background where the appellant says that the initial factual issues that have been identified, in my submission, are in error.  That is in paragraph 10.

The importance of his Honour tying this up with the question of recklessness, in my submission, it has got nothing to do with recklessness.  The first issue in this trial was whether or not the lights were on.  Now, obviously the Crown has to prove the lights were on, so whether the Crown had proved its case beyond a reasonable doubt that the lights were not illuminated on the taxiway and the runway as the plane took off.

If the lights had the scenario that his Honour postulated, that is if it was reasonably possible that the lights on the taxiway were on and were on until the plane literally took off and they went off, then the Crown would not have proved its case.  That would have been a reasonable possibility.  The Crown would be out of there, with respect.

Only if the Crown has established beyond reasonable doubt that the lights were off would one even get to the situation of the next steps in the elements of the offence which relate to recklessness.  Those considerations – the remaining elements of the offence – must be considered against the background of that first finding, that is, the lights were not illuminated.  If the lights were not illuminated there is no issue of truncation, there is no issue at all.

So, with respect, it has nothing to do with any other issue, but that first issue and so his Honour not only has speculated, but has then involved it in aspects of the case in which it could not possibly fit.  That – and he repeats on a number of occasions that the case is strict liability – has nothing to do with those issues at all.

HAYNE J:   I understand the argument thus far on this branch to be, one the primary judge engaged in a process of constructing hypothetical constructs.  You say there is error in doing that in any event.  Step two, whether or not that is right the reconciliation identified by the primary judge cannot be made between the two cases and whether or not that is right, step three, the reconciliation identified does not bear on any issue of recklessness because the Crown case is that the lights were never on at any relevant time.  Is that it?

MS ABRAHAM:   That is it.  I suppose expanding that last briefly; it is not just on the Crown case the lights were never on at any time.  What are the elements of the offence?  It could never be a live issue after that first step, assuming the Crown is satisfied the onus – obviously the Crown had not, as I said, or we would be out of there.  So, with respect, not only in the appellant’s submission do we have an incorrect legal test, but a significance has been placed on this evidence that it clearly does not have.

What we have at the end of the day, in my submission, is a case not out of the ordinary, that is, a case where there will be evidence which his Honour keeps referring to as “word on word”, hardly an unusual scenario in criminal trials.  It is well recognised, in my submission, that the absence of witnesses, documents and the like ordinarily do not result in an unfair trial in the sense required under Jago, Walton v Gardiner and the like.

There is nothing particular about this case that brings it within that exceptional category at all and if the proper test were to be applied, in the appellant’s submission, then the stay would be refused.  In my submission, it is not a case, as my friends suggest, that it is appropriate, if we succeed on the first aspect, for the matter to be remitted because, with respect, there is no reason to remit it.  This Court has all the material that is necessary and, with respect, the issues do not have the complexity that my friend suggests they have.

I notice in my friend’s submissions there is argument about what was recklessness and all the rest of it but, as a matter of logic, that can never be the case.  So at the end of the day, what we have is a case, which is not an unusual scenario, where the evidence is not perfect in the sense of we do not have every piece of evidence that might have been available as at the particular point of time.  As I said, the authorities make it clear that that of itself ordinarily is not sufficient.

This is not a case of delay.  The last piece of evidence would have been gone by 13 to 15 days after the event and that is even assuming that, even on their scenario on the hypothetical, that an engine was running.  At best, in my submission, what the defence argument really boils down to is this.  There is a possibility that the missing data might have assisted them.  In my submission, that is all it is because, equally, the data might well have assisted the Crown and the Crown says it would have assisted the Crown, but it is pure speculation.  My friends cannot put it any higher than that, with respect.

Obviously, when applying the test and determining whether or not a matter is to be stayed, of course a fair trial is one according to law and that is taking into account all the steps that a court has to ensure that it is fair.  Most typically, with respect, in relation to cases of a nature where a witness might be missing or some evidence of some sort might be missing, a direction is regarded as an appropriate means by which to deal with the issue.  Indeed, that is how obviously it is often dealt with in the case of delay.  As I said, we are not in a delay situation here.  Although his Honour used delay, it is not something that is delay in the sense of a Longman type delay, that is, a complaint a long time after the event.  We are not anything like that scenario.

This is a matter that clearly could be dealt with by direction and, with respect, it is not a matter that the jury would not be able to understand.  There is nothing complex about the concept.  The only thing that does actually record the PAL activations would have been gone.  It only has 13 activations kept.  It would have been gone within 24 hours.  They would understand that.  The question of the FDR, clearly though would understand that and if, as the directions would be, focused on the elements of the offence, then the direction does not encompass recklessness and those sort of matters because that is not relevant for this aspect of the case.  So, in my submission, it is clearly a matter which would be dealt with in the ordinary course of events by a direction to the jury appropriately tailored at the end of the day.

BELL J:   Is this a convenient time to just ask you to run through, if you would, the elements of the offence under subsection (1), both the physical and the fault elements so that we are all at one?

MS ABRAHAM:   Certainly.  Your Honour, the first element is that the respondents operated an aircraft, which is conduct, so intentionally operated an aircraft; conduct being the physical element, intention being the fault element.

BELL J:   Yes.

MS ABRAHAM:   That the respondents were pilots is the circumstance, technically the circumstance was recklessness as the fault element; that the manner of the operation of the aircraft could have endangered the life of another, that is recklessness; and the fact that that in itself ‑ ‑ ‑

BELL J:   That is a physical element of circumstance in which conduct ‑ ‑ ‑

MS ABRAHAM:   Result which ‑ ‑ ‑

BELL J:   Result of conduct.

MS ABRAHAM:   Yes.

BELL J:   Yes, all right.

MS ABRAHAM:   I apologise for that.  And that that conduct is in fact a breach of the relevant section.  I think it is section 20A, which is the strict liability aspect.  The strict liability just relates to the, in effect, knowledge of the law and that is why it was put in, according to the explanatory memorandum.  The section was amended at the time of Chapter 2 taking effect and there was a desire to ensure that the offence was no more – that one was required to prove the same under the old section as the new section and so the strict liability goes to knowledge of the law.

In my submission, what one is dealing with, the first element is operating the aircraft, and so the recklessness, the endanger life aspect, the result is against a background and only considered if the Crown has proved that the lights were not illuminated.  Therefore, that is why the issue of truncation and the like would not come in, because if that was a reasonable possibility, the scenario postulated that the lights went off as they took off, then that would be the end of the matter.

In my submission, nothing my friends have put my friends have put in their written submissions in an attempt to suggest that this case is somehow different from any other case demonstrates that point; quite to the contrary.  In my submission, this is a classic jury trial for the jury to decide at the end of the day whether they are prepared to accept the evidence beyond reasonable doubt or not.  The accused, in my submission, are in no different or worse position than an accused in any other trial and clearly, with respect, in a far better position than many of the cases where one sees delay, for example, being the issue.  That is clearly not what one is dealing with here.

At the end of the day, in my submission, my friend’s argument fails because it ignores what indeed is required to be proved and that is that the real issue, the first issue, is, were the lights on or not, to put it in terms of the onus of proof being on the Crown, but that is the issue that must be decided.  Of course, the Crown does carry the onus of proof and the onus and standard of proof clearly affords significant protection in a case of this nature, as is recognised by the authorities.

BELL J:   To the extent that his Honour appears to have been troubled that the combination of the loss of the primary technological evidence and the delay in the context of a trial where the accused were jointly charged, his Honour was troubled that there may be questions - given that each pilot was responsible for the operation of the plane - about the awareness of each pilot.  But again that is really more a difficulty for the Crown, one would think.

MS ABRAHAM:   Absolutely.  The absence of evidence as is recognised in many of the authorities is more likely to be of disadvantage to the Crown, but his Honour’s problem in that respect, in my submission, is this.  His Honour was always focusing on the question of recklessness and the like and, indeed, when one is talking about awareness, as your Honour was there, that is what that is involved in.  One is not at that stage.  To get to that stage the lights have to have been off.  The PAL system and any recording, the FDR, the monitor list is not going to assist thereafter and it is clearly not going to assist even hypothetically.

Assuming somebody pushed the button, it does not say who pushed the button.  So, in my submission, that is yet another example of how his Honour has applied the concept to aspects of the trial that it does not apply to.  It only applies with respect to that first step.  His Honour, with respect, did seem most concerned that what one had was what he described as a “word on word” trial.  With respect, there is nothing unusual about that.  There is nothing about this case, in my submission.  His Honour was concerned it was word on word and because of the period of time it might be less reliable.  Well, with respect, that is a question for the jury at the end of the day. 

We are not in the realms of a complaint 20 years later of an ongoing course of conduct of sexual offending.  One is talking about a discrete incident and memorable incident of which the witnesses undertook activities as a result almost immediately to ensure the lights were operating.  So we are dealing with a different kettle of fish.

So what his Honour has done at the end of the day, in my submission, really is rely on three factual matters - that is the nature of the crime - by that I mean the fact of the recklessness and the like.  Well, in my submission, that is irrelevant.  That the passage of time might result in word on word - I have already addressed that, and he relies on the complexity of the windsock and straddle matters.  Again, I have already addressed that.

But underlying it all is his, in my submission, erroneous assessment of the significance of the absent data to the proceedings.  So it becomes in one sense, his Honour compiled a factor upon factor where the first base was flawed and, indeed, the factors as they were added to clearly increase those flaws.

CRENNAN J:   Is it part of your argument that because nobody knows what the absent evidence might have shown it is difficult to show any prejudice arising?

MS ABRAHAM:   Absolutely.  The argument that my friend, in the written submissions, is very much - presupposes that the evidence would assist them.  We just do not know.

CRENNAN J:   It is a different situation from one where perhaps a witness has died, but everybody knows what the evidence was that was likely to be given and then an assessment can be made on that basis about the existence or absence of the prejudice.

MS ABRAHAM:   Yes, I agree entirely.  We are a step removed from that and even on those cases, in my submission, there are authorities and we have referred to them in our submissions, for example - Adler, McCarthy and the like where they are talking about potential witnesses that could corroborate the defence.  We are not in that realm here.

HAYNE J:   I understand this branch of the argument to embrace four propositions:  one, there could have been other evidence; two, there is not; three, that is often so; four, we do not know what the other evidence would have said.

MS ABRAHAM:   Absolutely.

HAYNE J:   Yes.

MS ABRAHAM:   Your Honours, in our submissions we refer to, obviously, a number of authorities.  I do not propose to take the Court to them, obviously.  Can I just mention one because the judgment was delivered – I think it was a day before the submissions were filed and I was aware of it the day after – it is in our reply.  It is the case of Sherlock.  It is the SA Court of Criminal Appeal.

HAYNE J:   What are we going to get out of that, Ms Abraham?

MS ABRAHAM:   It was a case that dealt with this issue.  I am not taking the Court to it.  I have referred to the single instance judgment in our submission.  In reply, I referred to the Full Court decision.  It has now gone to the Full Court.  In my submission it is an accurate recitation of the principles.  I do not say any more than that.  It does talk about some of the matters that I have spoken about and we had already spoken about in the submissions, like speculation and the like, so I simply raise it for that point.  I have no further submissions.

HAYNE J:   Yes, thank you, Ms Abraham.  Yes, Mr Walker.

MR WALKER:   The Crown has still not told your Honours what it is by way of any direction which would deal with any problem.

HAYNE J:   Could I suggest, Mr Walker, that in that respect you might have to grapple with the four propositions I last enunciated?

MR WALKER:   Yes, very much so.  I think I was anticipating that with what I was next about to say which is this, and the last 10 minutes would perhaps justify your Honours in taking this position that they do not concern themselves with explaining and justifying a direction because there is no problem, that this is run‑of‑the‑mill, mundane and comes with the territory of the reconstruction of a past event when the Crown alleges an offence has been committed.  Just as no trial need be perfectly fair, obviously, no narration of past events necessary to convict a person need be perfectly complete.

All of that may be accepted but, in our submission, there remain these grave difficulties in the way of the Crown relying upon what they characterised as the conjectural or speculative nature of what the defence raised in the stay application and his Honour accepted as real as being a ground for this Court to uphold the appeal and we put our argument in the following way.

First, of course, we do go to the error, as it plainly is, a slip as we would seek to characterise it in paragraph 59 volume 3 of the appeal book 1205.  A simple glance, if one is permitted to, by way of shortcut to the headnote in Walton v Gardiner really highlights the nature of the slip.  Why say could when the headnote says would?  Why say could when the second of the two alternatives approved by the majority in Walton v Gardiner says would?  Why say could when would is found in all the authorities?  We accept that.  Of course that is correct.

What is involved in a stay of proceedings, criminal proceedings, on the ground in question in this case which is a species of abuse of process, needs, in our respectful submission, to be carefully stated and understood before dismissing these reasons as reasons which are infected by a fatal error.  This is not a stay of proceedings on the basis of improper motive, put that to one side.  It is not a stay of proceedings on the basis of foregone conclusion, and that is important to put to one side because the strength one way or the other of the defence or prosecution case is not the determinant in an application of this kind.  It is the fairness of the trial, not the way in which the outcome is bound to turn that is the hallmark of this jurisdiction.

The one point of jurisprudence that we would venture upon is this.  Though we are very quick not to defend the use of the word “could” in place of “would” in paragraph  59, it is important to point out that in the passage in Walton v Gardiner which is in question, which you will find in 177 CLR 378 at 392, an approach to the jurisdiction in question, this abuse of process jurisdiction to stay proceedings, was being considered in terms which might be regarded as conceptual but really are about the language being used to encapsulate the notion. One sees that the department’s view, the view that was being considered by the majority on that page, about two inches down, is described as one:

confined to cases where the court is satisfied either that any hearing before the Tribunal would necessarily be unfair –

I am not going on to the “improper purpose” alternative.  “Would necessarily be unfair”, your Honours will recognise that as both pre‑Walton v Gardiner and post‑Walton v Gardiner, a phrase that is used from time to time.  Indeed, you will find it reproduced as if it were simply the law in our learned friends written submissions.  In that very passage, which is not a passage that has been subject to anything adverse – including in Glennon, which is really a different take on the same approach, it is a case that did not purport to re‑examine Walton v Gardiner – this passage stands for the proposition that that is the narrow and rejected view of the jurisdiction, because the next paragraph:

None of the members of the Court of Appeal accepted the Department’s narrow view –

Then there are two formulae, verbal we accept rather than conceptual because the idea is generally the same, which the majority in Walton v Gardiner uphold as correct – the last word of that paragraph.  The first does not use any of these conditionals at all.  It simply says power to make an order if it is satisfied that the continuation of the proceedings would be so unfairly and unjustly oppressive as to constitute an abuse of process, involving, as their Honours in this authority and in Jago make clear, a balancing process, that I will come to in a moment.

The second way which was approved by their Honours in Walton v Gardiner is Justice Mahoney’s formulation, which is that the question is whether, in all the circumstances, continuation of the proceedings would involve unacceptable injustice or unfairness.  There is the “would ”, but then the concept of unacceptable, like the alternative formulation, involves a balance of matters.

That puts in context the way in which his Honour approached it because in paragraph 58 it is plain to demonstration that his Honour accepted that what, after all, is pressed on this Court by the Crown and we embrace, namely, that the jurisdiction is to be exercised only in extreme cases.  So you have in paragraph 38, it ought only be exercised in the most extreme circumstances, and then a very important phrase which captures Mr Justice Wilson’s expression in Barton, which has been referred to approvingly in Jago and then again in Glennon as follows, namely, where no other remedy can be found to rectify the prejudice, that is, other than a stay.

As soon as one gets to that thinking about the problem confronting the Court from which the stay is sought, one has already gone to the most extreme, only this stay will remedy the problem, which is the impending unfairness.  Clearly the confidence with which you predict unfairness, because nothing can be certain about the future, particularly a trial not yet run, the confidence is very high at the point that you say only a stay.  This is so unacceptable as to require a stay.  Not an acceptable risk is another way of putting it, because all of this is prediction of an outcome that has not yet occurred from a human endeavour which has its own complexity, namely, a trial where we know that the law says after you have had the trial, you are no longer in the stay jurisdiction, you are in the appellate jurisdiction, and then you look at what was done and you no longer have to think about what could be done.  An appeal is not an assessment of prospect, but a stay application is an assessment of prospect.

So in paragraph 58 it is very plain that his Honour was directing himself as cogently as could be required by the authorities to look for the extreme case which can be cured only by a stay.  Then it is clear that his Honour referred to the one and only remedy, if the Crown here accepts there is any problem, which is dubious, which was ever referred to in the argument between these parties, namely, a direction.

His Honour finds that there is neither severance – that is between the accused – rulings on evidence or apposite directions that could provide any vehicle for redress here, he says, in this case – the third last line of paragraph 58.  That is picked up again in paragraph 59, about line 43 or so where he refers, again in unimpeachable terms, to the “fundamental defect which cannot be rectified by directions given at trial”.

That is the case that he directed himself as to and that is the case – that is the standard or yardstick that he held against the factual material in this assessment of prospect that is at the heart of the stay application.  You are not describing an actual trial, as on appeal, you are considering things – and we do not shy from the words – which might, may happen but you are doing so by a prediction that has to be sufficiently confident as to the threatened unfairness as to constitute something unacceptable in the balancing process that the authorities speak of.  We stress a balancing process means that there is seriousness of unfairness against efficacy, again assessed in prospect, of proposed solutions such as directions.

HAYNE J:   Now, does consideration of judicial direction to the jury presuppose that there is an unfairness of the requisite character?

MR WALKER:   Unquestionably it does.  That is why I have several ‑ ‑ ‑

HAYNE J:   Is the unfairness here identified sufficiently encapsulated in the first two lines of paragraph 59, namely, “loss of primary data or evidence and delay”?

MR WALKER:   Yes.

HAYNE J:   Does it go beyond those two considerations?

MR WALKER:   No.  I would simply add, not by way of qualification but in order to put this into context, explain why his Honour thus expressed it, the way in which our case was argued below is found in paragraph 7.  It does not add to what Justice Hayne has just asked me to point out.  That was the argument put.  That was the argument appreciated in paragraph 59.  It is as Justice Hayne has put it.  It is as his Honour put it.

HAYNE J:   Now, in considering the significance of absent evidence, evidence that might have been, is it relevant to consider what was done in Longman in a 20‑year delay case where an accused was by reason of that delay denied the opportunity to explore in detail the alleged circumstances attendant upon its occurrence and perhaps adduce evidence throwing doubt on the complainant’s story or confirming the applicant’s denial?  That is Longman 168 at 91, particularly.

MR WALKER:   Yes, (a) because of the possible use of Longman by our opponents it is necessary to go to it; (b) Longman was dealing with a problem, a threatened unfairness which is not of the same nature as this case.  It is a quite different nature, for reasons I will try to demonstrate.

HAYNE J:   The plurality reasons say the fairness of the trial had necessarily been impaired by the long delay.

MR WALKER:   Had necessarily been impaired.  Your Honour, it is here that logic could defeat itself because it is probably not sensible to say of every day added to the lapse of time from a putatively criminal - allegedly criminal event to a trial that it increases unfairness.  That would be absolutist and probably just intuitively wrong.

Longman is, of course, referring to the situation now more common than it once was of very long – very long periods of time between the alleged wrongdoing and the trial.  Furthermore, we add, by way of stark distinction from our case, very long periods of time, often not much shorter than the time to trial, between the allegedly criminal events and what I will call the first complaint or first reports to those in authority.  For a number of reasons which I will develop, that is quite opposite from this case here.

The problem with Longman as being something which can be applied either in the general statements on 91 or in what it in an appellate jurisdiction held was necessary in order to have avoided a miscarriage is that Longman was in the context of a highly specific statutory reform to the common law of corroboration, as your Honours will recall, and in effect grappled with the problem of what was necessary, notwithstanding what I will call the abolition of the common law requirement for corroboration and a direction accordingly when there remained what I will call a residual or fallback obligation to ensure a fair trial and to give directions accordingly, and I stress this was in the appellate jurisdiction.

It is all about corroboration - page 91.  Of course, it is in the context of the very long delay in question, but it arises from questions of corroboration and rules about corroboration which did not depend upon delay, which depended upon the “once upon a time” notion that certain kinds of alleged victim were not to be treated as other kinds of victims or other kinds of crime in relation to what judicial directions were called for concerning reliability of their evidence, corroboration, in particular, of sexual assault victims.

That is why just below halfway on page 91 of 168 CLR, the case starting at page 79, that is why you find the word “alone” at the centre of the matter:

The jury should have been told –

Now, this is the holding –

that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years –

there is the setting of delay in that case –

it would be dangerous to convict on that evidence alone –

and there was the important holding in face of the statutory change to the rules about corroboration –

unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy.

There are elements in that direction that we fasten upon for our argument not to show that it should have been deployed or could be deployed in our case but to highlight the catch‑22 the Crown wields against us, and with respect, this is my response to something that Justice Crennan raised with my learned friend.  It is true, as his Honour points out, in important passages that you will find not only in paragraphs 36 and 37 to which my friend took you, but also in paragraphs 44 and 46 of his reasons, that there were conjectures or speculations explicitly dubbed so by his Honour as to what might be available or might have been available – I stress the latter – in defence.

Far from weakening his Honour’s reasons, they are powerful parts of his Honour’s reasoning as to why there is, in this case, an irremediable unfairness.  The jury will be told, as all juries are told, to attend to the evidence and only the evidence.  Certainly bring to it in their attending to it and evaluating it their worldly knowledge and common sense, but attend to the evidence.

KIEFEL J:   Are you saying, Mr Walker, that the circumstances to which his Honour referred as possible created a need for a direction which could not overcome the problem that his Honour had identified?  That is a rather circuitous way of saying is there a need for a direction?

MR WALKER:   It is a problem which gives rise to the inquiry, can this be fixed by a direction?  We submit no direction would fix it for the reasons I am in the course of trying to demonstrate now.  For those reasons his Honour is, with great respect, entirely right in having rejected the notion that there was a ruling, as his Honour puts it, an apposite ruling that would have worked here. 

KIEFEL J:   Before you go on, could I interrupt you.  In relation to the question of a direction, I wonder whether it is correct to refer in a case of evidence of this nature to the real need for a direction because it seems to assume that there is some inherent prejudice in the absence of the evidence which it is necessary to cure.

MR WALKER:   Yes, it does.  I think Justice Hayne asked me that.

KIEFEL J:   But if the absence of the evidence simply leaves a state of uncertainty, it goes neither for the Crown nor against the defence, you might be in neutral territory and it would leave one to the position – and I wondered whether this is really what his Honour was attempting to create and I do not mean that in the sense that he was being overly imaginative for the defence – but the question of the missing evidence in practical terms would probably only arise if it was pointed to by the defence. 

It would not naturally occur to the jury that there was evidence of this nature.  The prosecution could not refer to it unless it somehow came out through a witness.  It is most likely to occur if it were considered to be in the defence interest to point to the absence of evidence as somehow favouring their case, but that is unlikely, is it not, because the defence cannot point to a necessary outcome?  That really brings you back to the same point; the evidence here is neutral.

MR WALKER:   The answer to the last proposition is, no, for reasons that I will put in both answering your Honour and in my delayed answer to ‑ ‑ ‑

KIEFEL J:   Sorry, I should correct that, the absence of the evidence is neutral.  The evidence itself could have said it.

MR WALKER:   The absence, yes.  I was going to say it is not neutral for reasons I hope to point out.  But could I preface it by a response to what Justice Kiefel has asked concerning how would this absence of what his Honour calls primary evidence arise in the trial, the nature and fairness of which is necessarily being assessed in prospect – I stress, in prospect.  If you want to you can add the word “hypothetically”, but it is what has to be done – in a stay proceeding? 

Well, we would, with respect, challenge that the worldly knowledge and common sense of a modern jury would not extend to the fact that the aviation industry is one of the most highly regulated, controlled and recorded activities by any set of professionals you could imagine; a requisition to do practically everything, a record of it electronically, mechanically or in paper.  We have seen the pilots with their briefcases.  I mean, it is a highly regulated officially controlled, recorded, supervised endeavour.  Juries know that.

KIEFEL J:   At the risk of interrupting you at this point, if that be so, is the only direction that can be given that the absent evidence we cannot know what the out come is, that is the only direction that can be given?

MR WALKER:   That is not really a direction, however, which deals with the problem that I am trying to persuade your Honours does exist and which tells differentially against us.

KIEFEL J:   Now I will leave you alone.

MR WALKER:   The first thing is that fairness in the relevant sense does not mean, as it were, that you are ensuring that there is no lead in anyone’s saddle bags.  That is not what “fairness” means relevantly.  Fairness involves an understanding of the nature of the particular case – you cannot generalise so as to apply a recipe, as it were, to every case whatever its kind – and in particular, according to the nature of the events and the kind of evidence about that.  This is emphatically not a case about long distant alleged events which would not have created their own record, apart from the inherently unreliable record which is human memory at a long remove of time.

This is not a Longman case, this is not a Doggett case; this is not any of those cases.  This is not a case of late complaint.  This is a case of early complaint, mainly within five minutes, because one of the Royal Flying Doctor pilots raised the matter, according to the evidence before his Honour and available by reason of the committal, with the operations officer at the airport that night.  As his Honour points out, nothing was done to find out from Qantas – to radio the Qantas pilots, “Did you have a problem turning the lights on?”  There was a check whether the lights would respond to the ground remote control there and then.  This is not late complaint, this is really early complaint.

So when we talk about 24 hours as being, as it were, a mere twinkling in a bureaucratic investigation not to be considered when considering what was available and what might tell upon the fairness of a trial which seeks to narrate and reconstruct events to which then serious criminal consequences can be attached, one has to bear in mind that it was not 24 hours, it was a fraction of an hour that if something happened it was first noticed.  That is the first point.  The second point is there was an even more obvious involvement of what I will call the prosecutor in the civil sense – that is CASA – within 12 hours because the other Royal Flying Doctor pilot reported to the relevant CASA office.  His Honour records how it then goes up the hierarchy but then starts to take weeks or months for things to be done.

True it is that there were two forms of record that were wasting by reference to their obviously well‑known and inherent nature.  Thirteen or 14 activations would be the limit of the record on the ground of the pilot‑activated lighting system – that is the monitor, so‑called.  If that had been asked for not three days later but the day the complaint was received, or the day after complaint was received, that would exist.  I am going to come back to the importance of the PAL monitor because in our submission there is nothing conjectural about its character.

The second thing concerned the flight data record – FDR – and that is overwritten in a period which had it been sought within days or a week would have had material.

BELL J:   Could I just clarify something about that which I did not fully understand from his Honour’s reasons at paragraph 53, appeal book 1, 204.  Is it right, in relation to the flight data recorder, that as a matter of fact it was able to be established that it was not overwritten until 30 November 2001 and that Qantas were notified on 9 November?

MR WALKER:   Qantas were notified on 9 November by the Air Traffic Safety Bureau, which is not the same as CASA and which is, as it were, a safe haven safety authority.

BELL J:   They were notified by a body on 9 November.

MR WALKER:   They were notified by a body not with a view to something wrong having occurred, indeed, without any indication that there was anything untoward about safety at all.  In our submission, there is no blame to be attached and his Honour attached no blame.  My friend has not suggested any blame being attached to Qantas not having responded to the 9 November notification by doing more or differently from what they did do, but by then it was too late.

HAYNE J:   It had been overwritten sometime between 5 and 7 and there was no notice to Qantas before 9, is that right?

MR WALKER:   That is right, yes.  This a case where, if what my friend says about the Crown case be correct and appropriate as a source of what I will call, I hope not offensively, complacency about the fairness of the trial, if it be correct, then they characterise that which they accept and say is acceptable as a prospect of this trial what they call five eyewitnesses.  The subtext, your Honours, is five unanimous eyewitnesses all saying lights not on during the taxi and take-off.

HAYNE J:   Can you state in summary form what exactly is the unfairness that you say will occur if the trial proceeds?

MR WALKER:   The unfairness is that the evident and obvious source of what we would otherwise have been able to point to as reasonable doubt will for the very reason of the five, I think it was, propositions that Justice Hayne distilled from the last phase of my learned friend’s argument, be grievously vulnerable to the prosecution attack that it is mere conjecture and speculation, that you do not have the evidence, you cannot speculate about it and the jury will be directed, “Don’t wonder about the evidence that you don’t have.  You can’t speculate about what material which once existed would have shown.  Put that to one side.”  That, in our submission, is a differential effect on an accused in a case like this.

KIEFEL J:   But could you restate that as you have lost the prospect of countering the eyewitnesses’ testimony?

MR WALKER:   By other than what I will call inadmissible or vulnerable conjecture.  It may be enough that it is vulnerable conjecture.  It is possibly inadmissible conjecture.  I do not want to make life difficult for any succeeding trial counsel were, God forbid, there to be a trial, but one can see the problem and one can sense it in the way the Crown presents in this appeal.  We have, they say, five eyewitnesses to line up and say that which happened is consistent with an offence being committed.  It is just word on word.  It is just word on word and what is different between ‑ ‑ ‑

KIEFEL J:   But does not that create a likelihood of a reasonable doubt for you?  I mean, perhaps this is not the way to test a fairness of a trial, but if you have the eyewitnesses – I suppose you are concerned with the sheer number of them.  It is not word on word, it is words on words.

MR WALKER:   Your Honours know that compurgation is not an accepted form of trial, but there is an element of it, no doubt.  Can I point this out and here we are on delicate ground, because I do not want to cry stinking fish about our case.  We should not have to depend in order to maintain the correctness both of approach and result of his Honour’s ruling.  We should not have to proceed on the basis of, your Honours, woe is me we are bound to lose, far from it. 

Unfairness of trial involves an unfairness of there existing a risk and the risk we have identified is one which the Crown, one would think, will embrace, indeed, probably has already embraced from the Bar table, namely, the defence theory is conjectural or speculative; see the way his Honour talks about it, therefore the primary evidence is not contributing to that which is proper for a trial, therefore no loss, therefore no problem, therefore no need to specify a ruling, therefore no jurisdiction for a stay.  I hope I have not travestied my friend’s argument, but I have put the steps slightly differently, but that captures, we think, the reasoning.

Now, it falters at the first point.  His Honour was identifying conjectures and speculations in a way that utterly differs from the way it was depicted this afternoon.  The first thing is, my learned friend said there was no evidence to support this.  This was, as it were, a construct or imagination.  Now, his Honour, of course, protests it is not a mere construct; twice he does that.  But we know that early in the investigation a Qantas check captain, not an inconsiderable figure in evidentiary expert terms, Captain Rivett, had spoken with the investigator, Mr McLaws, who, as his Honour said, was subject to some criticisms about the way in which he dealt with the material he assembled during the investigation.

Captain Rivett, volume 2 of the appeal book, page 807, ventured an explanation for what had happened and in paragraph 38 of his Honour’s reasons that is referred to.  It is not true to say that this was a castle built in the air.  This was based upon material which we can then add to as follows.  The explanation that his Honour, with respect, correctly captures in the very passages where he says but this is what the primary evidence would address and which cannot be addressed except by conjecture in its absence, that approach runs as follows. 

Now, this is the second point of attempted rebuttal by us of the way in which our learned friend addressed this question of there being no problem, you are not losing anything you ever had, as it were.  The second proposition was, my learned friend says it was simply wrong, it was never possible to reconcile her eyewitnesses with success for the defence.  Now, I am not talking about recklessness or mistake of fact, at the moment.  Recklessness is an element of the offence and can never be put to one side, true, but that is not what I am focusing on now.

I am now focusing on whether there was conduct without the lights on of a kind that would fit both the statutory offence plus the particulars given.  The first issue, my learned friend says, is whether the lights were on; well no, actually.  The first issue is a bit more nuanced than that and has to be - whether they were on at a relevant time.  Your Honours have all been in aeroplanes.  There is a point of no return before you reach the point of so‑called rotation which is when the aeroplane tilts to go up, rather than just continuing along.  If the lights go off at or near the point of no return I, for one, do not want the pilot to try and return.  It cannot possibly be an offence for a pilot to continue because the lights go off unexpectedly when it is too late to abort the take‑off.

This is an elementary matter of aviation.  That is why the timing, the period of how long the lights were on and thus what the witnesses may have seen, assuming that what they saw might be accepted that at a relevant time when they noticed it, the lights were off, is absolutely critical.  That is a primary question, not whether the lights were on.

HAYNE J:   Well be it so, the key question is why is that not an issue suitable for trial by jury?  What is it that makes it unfair to tender that issue or related issues of fact for consideration by the jury at a trial?

MR WALKER:   The answer to the question is that unlike events like a melee in a street or a sexual assault or a burglary or the like, these were events in a highly regulated industry which themselves create - that is have as constituent parts - their own record.  When there is a radio transmission, there is a record created by the transmission.  It is not like a CCTV that may be or may be not trained on the site of the melee, the loss of which cannot possibly produce the need for a stay.  The actual event is recorded as part of the event itself.  The same even more so is with the PAL.  The pilot activation and that exact times – you can see an example of this when there was a safety concern for obvious reasons about this straddle phenomenon which I will explain in just one moment.  Could I take your Honours in volume 1 of the appeal book ‑ ‑ ‑

HAYNE J:   Before you do that can I note this aspect of your argument sufficiently as being this industry is regulated, there are records, there can be no fair trial without those records being available to the jury?

MR WALKER:   Between the last step and the second last step I need to insert more steps.  Each of those steps, yes, I do embrace, but I do not embrace the last as flowing only from the ones that Justice Hayne put to me.

HAYNE J:   Well, at some point if you would identify.

MR WALKER:   Yes, I will.  Your Honours, an example of the nature of the record which is created by the operation, which can be resorted to immediately without any difficulty, can be found at pages 417, 418.  Your Honours will have noticed the numbers - amidst all the competing numbers are the bold ones in the middle of the pages at the top - volume 1, 417, 418.  There is something pretty contemporaneous - 23 December 2001 there is a report on:

LIGHTING “WENT OUT” WHEN A/C ON LANDING ROLL -

You will see that at about line 33 on page 417.

HEYDON J:   23 December, I think.

MR WALKER:   December that is.

HEYDON J:   You said September.

MR WALKER:   I am so sorry, your Honour.

HEYDON J:   I just wanted to get on the same railway track, as it were.

MR WALKER:   I am sorry.  I intended to and tried to say December and that is what it is.  If you go to page 419, you will see there is the printout and, as it happens, it shows – please do not ask me technically to explain it – a 27 minute – you will see that in manuscript  “27” in the left‑hand column – which is a truncated period because these lights are meant to be on for 32, if they have been activated properly. 

It is convenient at this point, if I can, to put in context and explain the so‑called straddle phenomenon.  It is called straddle because it refers to the third of the required three pulses of transmission which need to be made for between one and five seconds.  It refers to one of them, the last one, having started before 25 seconds and continuing after 25 seconds, so the beginning and end of the pulse or transmission is on either side of, that is, straddles the 25 – includes the 25th second.

The defence theory, as the prosecution would pooh‑pooh it, the defence theory is supported by the fact that demonstrated, as his Honour finds, to have occurred not only on a view for this case but also in operations for the Royal Flying Doctors, in particular, namely, that if there was this straddle, rather than the lights not coming on, no harm done, you try again and make sure you get your three pulses within 25 seconds, it would come on not telling you that there was anything defective but it would come on only for 10 minutes.

That, of course, then gives rise to a further question that during those last 10 minutes, according to the system – and I stress according to the system – so all these are matters of records, they have specifications, manuals and records of operation.  It is all integral, the constituent parts of the system include the records.  According to the system, the last 10 minutes of the 32‑minute illumination would be accompanied by a warning sign, namely, the illuminated wind direction indicator, the IWDI, the so‑called windsock ‑ ‑ ‑

CRENNAN J:   The windsock.  The southern one, I think.

MR WALKER:   Yes, the windsock.  The southern one at this airport – I stress the southern one.  It is irregular that it was the southern one because it was not the one nearest the terminal which was the standard aviation practice, irregular that it was on the right rather than the left.  Leave that aside at the moment, but your Honours can easily see why that might go to recklessness or the like – would supposedly have flashed.  The so‑called eyewitnesses are not quite so impregnable on all of these matters which are obviously all important to the question, is there a reasonable doubt as to whether the lights were off for the whole of the taxi and take-off, which is one thing, and were on for the relevant taxi and take-off?

CRENNAN J:   Is the straddle function something people would from time to time be using deliberately for some reason?

MR WALKER:   No, it appears to be a defect.

CRENNAN J:   A defect.

MR WALKER:   It was the subject of a warning which does not sound as if it is something that you would be trying to do.  Volume 1, appeal book 413, 415 records historically, that is, after the event, records a historical period and talks about the problem.  So, I think the answer to your Honour’s question is, no, it is not an optional extra like one of those buttons on the motorcar that you do not quite know what it works but you know its is meant to be there.  No, it is a defect, apparently.

BELL J:   If the trial were to proceed, would it be necessary for the Crown to exclude the reasonable possibility that this was a straddle effect?

MR WALKER:   Your Honour, that is the dilemma I have in a stay.  Of course, I would be bound to say, yes.  That goes into the basket of then, what is your complaint here, you have got these points that you might win with?  I am bound to point out that his Honour was alive to that aspect of things.  His Honour was alive to that aspect of things, as you will see from, for example, paragraph 26 where, in relation to the missing primary evidence and the circumstances that had led to it being missing, his Honour pointed at about line 33 to:

a weakening of the prosecution case with lessened prejudice to the defence.

BELL J:   But then he curiously went on to exclude from that the absence of the records that are at the heart of this complaint and I am just seeking to understand that.

MR WALKER:   Yes.  Now, can I then deal with 26 while I am on 26.  By this time in his reasoning, and as your Honours have seen, no great alacrity, despatch and nothing exceptional would have been required for a safety episode or incident for these records to have been sought within time.  So the 24 hours that my learned friend refers to is not some land‑speed record for policemen, as it were.  It is in the nature of things for the aviation industry.  It happened within five minutes.  If something was noticed, it was noticed within five minutes; less than 12 hours for CASA to get onto it.

Now, they did not and, in our submission, that is already, as it were, an exception in relation to these kinds of events.  That is why it is starkly in contrast with long ago allegations of sexual assault – I should say allegations of long ago sexual assault – or the disorganised melee that causes injury or death in a street.

Now, Justice Hayne asks, well, where is the unfairness as I identified to inform the stay jurisdiction?  At the risk of repetition, we point out that the event being reconstructed by the evidence, which is a combination of what the Crown presents and the challenge to that by the defence, whether that be by calling evidence or simply by cross‑examining and arguing, that that reconstruction of the event will be for sure in this case incomplete.  It lacks something which are important constitutive elements, namely, the records which are part and parcel of the event.  They are not mere evidence on look or style of the event, they are part of it.

So you an eviscerated reconstruction which leaves out critical matters in a case that the Crown says it all turns on whether the lights were on and we qualify it by saying, well, whether they were on at the critical time, it means that it will go to trial without the defence being able to say, well, this is an event which is of its nature timed and recorded by reason of the way in which this was investigated or, to be unkind, not investigated during the relevant opening, that is forever lost.  Then his Honour adds to what might have been inadequate on its own another element which would have been inadequate on its own, namely, the two and a half year’s delay.

The two and a half years is his Honour’s expression.  I think the “half” is, with respect, a bit more than it should be.  It is about two years and three months, perhaps, between first report and decision to charge.  It is very largely unexplained.  In a sense there is explanation by the narrative of the investigation that one will pick up, but not in such a way as ever to allow us to run a deliberate delay case.  There is no such suggestion, nor is there any suggestion from the other side that in any way there was a refusal to co‑operate, for example, by Qantas which contributes to a delay.  So all those matters can be put to one side and it is relevantly unexplained.  How on earth could it take so long for them to decide to go with a case which they protest here simply depends, word on word, five eyewitnesses?

If they are right about five eyewitnesses, they had them by about December that year, and that is even with the relatively leisurely way in which they initiated and proceeded with the investigation.  Even after, I would say, with respect, that one’s ordinary life tells one very much so after two years, memories are, if they exist at all, of what I will call routine matters, very much weakened and the product of artefact.  They are the product of artefact if they have been the subject of discussion with investigators, particularly if, as was attempted to be shown at the committal and would have been attempted to be shown at the trial, they have been, to use the jargon, contaminated by inappropriate investigation.

Certainly for our side, where all we know from the evidence is that Captain Edwards says the lights were on, they were activated, they were on, this was a routine event which was not brought to his attention by either safety investigator or regulatory investigation for, relatively speaking, a very long time.

Then we have rather fracturing the parade of five unanimous eyewitnesses, as his Honour points out there are two others.  His Honour says that the prosecution might be expected to call them – paragraph 14 of the reasons.  What we do know is that the prosecution does not intend to call them, that being clear from correspondence from the DPP, volume 2 pages 895, 896.  Messrs Gomez and Axon are witnesses the Crown does not propose calling unless they are needed for rebuttal because of the way the defence runs its case.  That is what is said.  With great respect, his Honour is right; they are eyewitnesses.  The fact that they say they cannot remember one way or the other is obviously relevant for the jury.

In any event, at paragraph 14 his Honour points out that Mr Gomez is watching the plane through binoculars and though there is criticism of Mr McLaws, the investigator, for getting wrong the way in which Mr Gomez first responded on this and though it is now obviously too late to get what I will call an uncontaminated version from Mr Gomez, it is pretty clear from the evidence to which we draw attention in our written submission that Mr Gomez said that he could not say that the lights were not on.

Mr Axon was on the flight deck.  The “flying spanner” as they are called, the flight engineer, and he gives evidence of no doubt a very sensible concern for his own welfare and not simply altruism.  He gave evidence, not doubted, that is what he would have done if the lights were not on, and he did not.  So again we are in this dilemma that I am pointing out reasons why we will, of course, address a jury on the basis of palpable reasonable doubt or doubts, but that is not a reason to reject our stay application for this overwhelming single reason.

As you have heard the Crown today, as they have made clear in their written submission, they can start, and they will probably try to finish with the proposition, that the jury must not speculate and, indeed, must be directed not to speculate about what these missing elements, the PAL monitor and the FDR records, flight data records, would have revealed about the timing of transmissions, would have revealed about the possibility of there being a straddle and would have revealed about the period of time the lights were illuminated.

HEYDON J:   Surely defence counsel could say something about that, could not that person?

MR WALKER:   Your Honour appreciates, of course, I have got to say yes to that because, yes ‑ ‑ ‑

HEYDON J:   Defence counsel says something, the judge is entitled to say something about it.

MR WALKER:   Yes, but the judge ‑ ‑ ‑

HEYDON J:   I mean, if it is a stupid thing to say, the judge is entitled to criticise it.  Or if it is slightly misleading, the judge is entitled to correct that effect.

MR WALKER:   Yes, your Honour.

HEYDON J:   I am not denying what you said just before I asked you the question, but it is not the case that there is to be a complete ban on any discussion.

MR WALKER:   And I certainly accept, by the way, that the events that your Honour has just posited are events of the very kind which the assessment in prospect of the trial to assess its fairness necessarily involves a judge seized with an application for a stay considering.  They are examples of not merely directions, but of also other aspects of a trial which are answers to the question, but we are faced with irremediable fairness.  I accept all of that entirely.  That is one of the reasons why this is not inadmissible conjecture.  It is the nature of the jurisdiction to require an assessment in prospect of the fairness of the trial without having being had, obviously.

Now, it is for those reasons, in our submission, that it becomes important, as Justice Heydon has raised for my attention, to consider whether or not there is in fact, if prejudice, anything irremediable about it.  At bottom, unless and until, as defence counsel, one could invoke contra spoliotorem approach, and we cannot, then it is true that the jury’s oath and the direct charge to the jury will be attend to the evidence.  It is clear to demonstration that the Crown here is determined to point out, indeed, eloquently this afternoon my friend has said in sketch what their strategy will be at trial.

There is not this evidence, even if there could have been, you cannot speculate about it, end of the line.  Indeed, you cannot use it for anything then.  It is not available for whether the lights were on.  It is obviously not involved for the more nuanced question as to when the lights were on.  It is not involved for whether there is recklessness in doing what they did, et cetera.

HAYNE J:   I really do think we have got the point you have made, Mr Walker.

MR WALKER:   I am sorry, your Honour, thank you.

HEYDON J:   What we have not got is a list of all the steps, remember?  Justice Hayne put two steps and you said there were some between them.

MR WALKER:   That which goes in between is this, that because the missing primary evidence has left no trace from which there can be factual inferences as to what it would have said about the timing of illumination or activation, the Crown will have the advantage in discharging its onus of pointing to the lack of any evidentiary foundation for defence theories of which the straddle scenario is the most obvious in this case, and the defence will correlatively but even more heavily suffer the disadvantage of being able to point to an evidentiary foundation in this case, for that having occurred will be restricted to evidence showing the technical capability of it having occurred.

We go further.  Consideration of directions produces no direction which is apposite and sufficiently likely to be efficacious as to displace the need for a stay.  First, as to a Longman direction which is what has been, without explanation, suggested by the Crown, this is not the very long period case, this is not the late complaint case and this is not a corroboration case.  Perish the thought the defence in this case would want anything in the nature of a corroboration direction, bearing in mind that we have the two accused, one of whom we know says, “It wasn’t on.”

Why one would want to draw the jury’s attention to the fact that the accused corroborate each other one would not know.  So Longman does not run and my friend has not, with respect, shown any enthusiasm for a Longman direction here and there is nothing in either Doggett or the New South Wales decision that Justice Bell was in, RWO [2002] NSWCCA 133 drawn to attention by our learned friends, which adds anything more apposite by way of a direction.

But there is a reason in principle why, secondly, a direction would not be apposite or efficacious because a direction could not, with respect, either by warning or admonition or even worse, encouragement, do anything to broaden the jury’s permissible view of the matter beyond the field of the evidence before them.

BELL J:   I do not understand that.

MR WALKER:   They will be told - and nothing would be said to detract from this – that they are to attend to the evidence before them and not otherwise.

BELL J:   To come back to the matter that I raised with you earlier, if the defective operation of the PAL system at Launceston Airport at the time leaves as a reasonable possibility that up until the point the plane rotated and commenced its take‑off the lights were on, that is the end of the matter is it not, and the trial judge would no doubt direct the jury in those terms?

MR WALKER:   Your Honour, all of that, with respect, is most welcome to our side of the record, and we would embrace that proposition.  We are facing a trial where the Crown adamantly takes an opposite position.

BELL J:   I am sorry, I thought there was acceptance about the fact of this peculiarity which appears to be some sort of defect in the PAL system, is that right?

MR WALKER:   Your Honour is right.  It is certainly not acceptance by the Crown that they need to exclude the possibility of it having occurred.  You have heard my friend this afternoon.  They say it has nothing to do with it, could not assist, that there is no ‑ ‑ ‑

BELL J:   I am sorry, a little earlier we had an exchange, Mr Walker, and I thought you accepted that it would be incumbent on the Crown.

MR WALKER:   I accept that, of course I embrace that.  It may lessen my prejudice for stay purposes, but of course as a matter of principle in defence, that is naturally right.  The Crown does not accept that at all.

BELL J:   Is that because on the Crown’s case this question never arises?

MR WALKER:   Yes, they say it is impossible to reconcile.  Now, we submit that for the reasons his Honour has pointed out that we have tried to support, of course you can reconcile the eyewitnesses seeing at point of rotation no lights, but the lights having been on until sufficiently close to the point of no return for the notion of an offence being committed to be bizarre, to be out of court.

BELL J:   If you provide a basis for establishing that the system had these features to it, and the Crown – I mean, it may be that the Crown can exclude it, and maybe the way the Crown excludes it is persuading the jury that they accept as established beyond reasonable doubt the observations of witnesses who say the apron, or whatever it was, the runway, was not illuminated at the time the Boeing made its way down.  Now, if that is so, the theory about the significance of the straddle effect goes.  But if it is left open, then the judge would have to direct in the way that I say, surely?

HAYNE J:   I thought the Crown case as described to us was this aircraft left the apron with the taxiway and runway lights not on?

MR WALKER:   That is as we understand it, yes, your Honour.

HAYNE J:   Yes.  I understood the appellant to at least inferentially accept that those were the only eggs in the basket.  The case they were going to make at trial was this aircraft taxied down the taxiway to the runway with no lights on.

MR WALKER:   That is right.  That is the case about the operation of a mechanical system, electrical mechanical system, the lights, a constituent part of which is creation of the monitor, the PAL monitor, which by reason of the investigative phases that his Honour describes have been forever lost, so that we are left with conjecture only.  An artificially vestigial reconstruction of the events in question will be presented by the Crown.  They will not have that which the machine did create at the time, namely, the monitor.  They have these so‑called eyewitnesses and we will not, because of the two and a half years before charging and the shorter but even more significant time before any concerns were raised, in the absence over the whole of the period of any safety concern reflected in any discipline of my clients, we will have lost the opportunity of obtaining early recollections in order to rival those eyewitnesses.

My people were not asked to consider this either by radio that night when the Royal Flying Doctor.....or when CASA was told the next day or when the CASA investigator, et cetera, and, in our submission, that is an inveterate and incurable unfairness.  No one again has suggested a direction by which, as it were, the jury is asked to imagine with what greater confidence the pilots may have given evidence had they been asked to turn their minds to this, for them, routine event earlier to the night in question.

HEYDON J:   Just on that, what was the date of Mr Edwards’ statutory declaration?  Is it page 177 of volume 1, 15 January 2002?

MR WALKER:   Yes, your Honour.

HEYDON J:   Which is the three months.  So you are, in effect, arguing that the loss of the records caused him not to have been alerted to a problem before he was alerted to the problem.

MR WALKER:   That is right.

HEYDON J:   You have been putting a scenario, as they say, to us, which does not accord with either the Crown’s position or apparently Mr Edwards’.  The Crown says the lights were never on.  Time does not come into it.  The whole of the relevant period they were not on.

MR WALKER:   They said never on for the taxiing and take‑off.  Everyone agrees they were on for the landing.

HEYDON J:   It says they were never off basically.

MR WALKER:   No, he says “ILLUMINATED FOR THE DEPARTURE”, your Honour.

HEYDON J:  

I STRENEOUSLY REJECT ANY ALLEGATION OF NON‑ILLUMINATION OF THE RUNWAY LIGHTS.

MR WALKER:   Yes, but that is for the departure.  Everyone agrees that they were successfully activated for the landing and it appears from his Honour’s reasoning and from the Crown’s argument that it is accepted that would have gone for 32 minutes.  But you will recall the timing is such like, we do not have the exact time of when it started, but there was wheels down at, I think, 10.32, take‑off just shortly after 11.00.  So the 32 minutes, as his Honour points out, is pretty close the expiry of that time.

So Captain Edwards does not say there was always illumination, he strenuously denies non‑illumination obviously for the departure - “THE RUNWAY LIGHTS WERE ILLUMINATED FOR THE DEPARTURE”.  It is common ground that they were illuminated for and for the relevant predetermined period after the landing, 32 minutes from activation.

HEYDON J:   But the charges relate to departure, do they not?

MR WALKER:   Yes, only to departure.

HEYDON J:   My only point is that the – to sort of postulate a problem about them being lit as he approached the runway and then failing and then his agony of decision and choice whether to stop ‑ ‑ ‑

MR WALKER:   No, I am not putting agony of decision at all.  My point is that once they have gone to rotation the notion that you are seeing runway lights can be dismissed, you are looking in a totally different direction.

CRENNAN J:   Your theory is a combination of straddle plus could not pull back because of reaching the rotation point, is it not?

MR WALKER:   No, it is not a matter of not being able to – let me start again.

CRENNAN J:   Well, sorry, straddle is in there, is it not, as explaining why the lights ‑ ‑ ‑

MR WALKER:   Straddle would mean 10 minute illumination, which may mean ‑ ‑ ‑

CRENNAN J:   Yes, reaching rotation point at ‑ ‑ ‑

MR WALKER:   ‑ ‑ ‑ the lights going out after you have started your take‑off, because if the lights had gone out – if there had been a straddle and the lights ‑ ‑ ‑

HAYNE J:   Push back and taxi would occupy 10 minutes and get the rotation.

MR WALKER:   The learned trial judge sets this out, with respect, well in paragraph 11.  He points out it would not assist the pilots if this straddle had happened but the lights had gone out before they started to take off.  That would have been a misfortune that it had gone out, but they certainly should not have been venturing on a take‑off without the lights.

KIEFEL J:   I think that the timing was 1101 commenced taxi, 1105 wheels left runway?

MR WALKER:   Yes.

KIEFEL J:   Could I ask you this apropos of the earlier question.  Would either the pilot or the co‑pilot have to give evidence of the time at which they activated the lights in order for the evidentiary onus to shift to the Crown to overcome the straddling defect because of the question of timing?

MR WALKER:   No, probably not.

KIEFEL J:   Because otherwise it is just evidence of a potential mechanical defect which has no factual substratum, does it?

MR WALKER:   Well, probably not, but if so, in our submission, that informs further an irremediable prejudice because they would be giving evidence of something which of its nature was mechanical and recorded and, in our submission, that is something which places them in a position where no direction can fix it because again the jury cannot be asked to speculate upon what the missing records could have said.  It is because the jury cannot be asked to take into account, as it were, beneficially to the accused that missing records may support what they say without their support, but, in our submission, a direction cannot fix it and that the loss of this evidence is as serious as his Honour puts it.

Now, against the notion that this seems a terrible outcome for the administration of criminal justice if a permanent stay became necessary within, what, a fortnight of the events in question, of course we add what his Honour necessarily added and that is the very considerable delay thereafter, which is highly significant.  So two matters not in themselves sufficient, correct direction on that point, combine in what one imagines are very rare circumstances indeed the highly regulated industry, different from all the kinds of crime that my learned friend assimilates this case to.  It is for those reasons, in our submission, that there is nothing untoward when all the reasons are read, even given the infelicitous “could” in paragraph 59, so far as his Honour’s directions as to law is concerned.

There is nothing pace what our learned friends have put which shows in House v The King or any other terms an informative or material or fatal error of fact.  As to the logical flaws that my learned friend seeks to identify, in our submission, they are rather the other way around, that is, there is a lack of logic in denying the capacity of the possibilities we have raised as informing what I will call a defence theory. 

Finally, it appears the parties, for their opposite purposes, combine in noting that which the primary evidence by its omission gives to the character of that defence theory, namely, the possibility of the prosecution branding it as merely conjectural and speculative in a way that can only hurt the defence, which differentially affects the defence.  It is for those reasons, in our submission, that on the admittedly highly special facts in an industry where the events in question are not incidentally recorded but are as a constituent element recorded, that the lack of those records deprives the accused of an opportunity that the nature of the events in question should have given them, particularly when one bears in mind that this is a

safety‑inspired offence that has to do with offences of endangering lives or person. 

In our submission, it is highly significant that the problems that have come about is because nobody felt sufficiently concerned about this to draw it to the pilot’s attention in any safety context at all notwithstanding, as his Honour points out, the regulatory and disciplinary ways in which that could have been done.

It is for those reasons, in our submission, that on the critical point, namely, is there a reasonable doubt as to whether the lights were on at the critical time during take‑off, in our submission – and has the prosecution negatived that possibility – we are deprived of the capacity to say that is not mere conjecture or speculation.  May it please, your Honours.

HAYNE J:   Thank you, Mr Walker.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honour, my friend has said that the question I posed whether the lights were on was missing something and that is, at the relevant time.  With respect, I understood it to be at the relevant time, and the Court is clear as to what the Crown case is.

HAYNE J:   Am I right in my understanding?

MS ABRAHAM:   Yes, that is correct.  That is important, in my submission, because whilst my friend has said just a moment ago there is no error of fact, the scenario that his Honour has put is a realistic scenario and he indeed pointed to an email of some Qantas person at some time which is said to support it.  The one thing that has not been pointed to or explained is, how the scenario fits.  A good illustration is this.  In the written submissions the explanation of the scenario is in paragraph 34 of their submissions.  Critical to this scenario is subparagraph (j), that is:

the appellant’s witnesses reasoned back from their observation of [an] unlit runway rotation and concluded that the lights –

were not on.  In other words, for their scenario to work, the taxiway lights must have been on and just as the plane was going up the lights go off, in effect.  Now, significantly, there is no transcript reference to that proposition because it is contrary to the evidence.

In fact, when it was put to Mr Griffiths at the committal and to Mr Withers, for example, they denied it.  One of them, in effect, said that they must been on a different planet.  They denied that that scenario occurred and that is important because, in my submission, if at the end of the day my friend asks some questions of, is there not this problem with the system and could not a straddle have occurred and all the rest of it, then at the end of the day there is evidence that a system could exist in that way.  Of course, the jury would have to exclude it, but on the Crown’s submission they would exclude it by accepting the eyewitness accounts, in my submission.

So far from demonstrating there is no error, my friend by failing to identify how it does work, has highlighted that there is no reconciliation and there clearly is an error.  My friend clearly has not addressed how it supposedly relates to recklessness and the like where, in my submission, it clearly does not.

Your Honours, as to the question of direction, clearly Longman and the cases of that ilk talk about requiring a trial judge to give a direction tailored to the circumstances of the particular case and it will depend ultimately on the evidence.  In Longman, for example, there was some discussion on the page preceding the page your Honour Justice Hayne pointed to, where it pointed out there may be some factors in that case that a comment might have been sufficient.

It would depend on the circumstances, but ultimately the trial judge may need to give a direction, comment, whatever, but we are in a different situation only in this respect, we are dealing with something, we just do not know one way or the other.  It may well, as I said earlier, have assisted the Crown.  There is nothing, in my submission, that is difficult about that concept and there will be nothing that will be difficult for the jury to understand, in my submission.  Indeed, far from being disadvantageous as your Honour Justice Bell put to me whilst I was on my feet originally, the Crown is in a position of having to exclude.

Certainly my friend has made a lot of the fact that it is said that this is different because the industry is regulated and therefore that is different.  With respect, that does not put it in some special category.  If a woman is raped but no samples are taken for whatever reason, she was away from the hospital, did not want to complain for two days, whatever, in my submission, the accused is in the same position.  There is no special position here for this person or just simply because it is an airport scenario.

But, importantly, because there has been repeated emphasis on these – is required – the monitor list is optional and there was a finding there was no fault on CASA not having that.  The FDR on the scenario of the trial judge in paragraph 56 of the judgment, that is, it was activated at the time the passengers were embarking, there would be no record.  So, even if we had the FDR and there was no record, it would be open – the Crown would be met with an argument, well, they turned it on while the plane was still – or activated it, rather, before the engine was turned on.  That explains why

that is not there and so it does not, even in that sense, have the significance my friends suggest.

Fourthly, your Honour, my friend, insofar as there was an attempt to suggest because there was an email which appears in appeal book 2 at 807 from a captain at Qantas that that somehow supports the scenario, your Honours will see from the spiel of emails thereafter, clearly it is rejected – it was a person from Qantas speculating – and it does not fit the evidence.  So it does not give it a strength it does not have and it is not a basis for his Honour to have speculated.

Your Honours, can I simply give your Honours a couple of page references.  My learned friend took your Honours to appeal book 1 at 417 and a date of December.  I do not take your Honours to it now.  There was evidence about that at the committal and the evidence was that was an air traffic control issue.  That was a different issue than what we are dealing with now.  That is in the appeal books at 394, 395.

Finally, the question of what is said to be incurable – one of the last things my friend said – the fact that this is some time down the track that when the accused knew about it or when the respondents knew about it, on the material before the Court they well and truly knew about it before 2 January because there was a letter from Qantas to CASA which indicates they had been spoken to.  So, obviously it was at some time before that.  But even leaving that to one side for the moment, this is not a situation that someone is being asked 20 years down the track, what happened on 5 May?  It is alleged that you indecently assaulted somebody. 

In my submission, the accused are not in a worse position here than what occurs in cases where there is, in my submission, obvious and extensive delay.  So, far from being incurable, in my submission, it is, (a) there is no evidence as to when they knew, but (b) that is not a basis to distinguish this case from the other cases.  If your Honours could just excuse me.  Those are my submissions.

HAYNE J:   Thank you, Ms Abraham.  The Court will consider its decision in this matter and adjourn to 2.15 pm tomorrow.

AT 4.16 PM THE MATTER WAS ADJOURNED