R v LJM

[1994] HCATrans 196

~

.

• J6

IN THE HIGH COURT OF AUSTRALIA

Registry No C6 of 1993

B e t w e e n -

THE QUEEN

Applicant

and

LJM

Respondent

Application for special leave

to appeal

BRENNAN J
DAWSON J
TOOHEY J
GAUDRON J

MCHUGH J

Copyright in ·the High Court of Australia 1 9/2/94

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 FEBRUARY 1994, AT 10.27 AM

MR K.J. CRISPIN, QC:  May it please the Court, I appear with

my learned friend, MR J.E. IBBOTSON, for the
applicant. (instructed by the Director of Public

Prosecutions)

MR J.W. BREWSTER: If the Court pleases, I appear for the

respondent. (instructed by C.J. Staniforth,

Director, Legal Aid Office, Australian Capital

Territory)

BRENNAN J: Yes, Mr Brewster. Mr Crispin.

MR CRISPIN:	May it please the Court, this is an application for special leave to appeal against a decision of
the Federal Court of Australia, upholding an appeal
against conviction on a charge of committing an act
of indecency upon a child then eight years of age.
The questions that arise in the appeal are set out in the summary of argument, as are the relevant
facts and, unless Your Honours wish me to do so, I
do not propose to canvass the facts in any great detail, other than is necessary to deal with what
we would conceive as the nub of the issue.

The Federal Court, as Your Honours will see

from our summary of argument, began their analysis

of the safeness of the verdict by acknowledging
that the complainant's account of the incident was
not inherently implausible or improbable, that the

jury had preferred it to the appellant's denial and

that the complainant was apparently an impressive

witness.

The majority view that the verdict was none

the less unsafe and unsatisfactory was founded in

part upon perceived inconsistencies in the

complainant's evidence.

Again, unless Your Honours wish me to do so, I

do not propose taking Your Honours to each and

every one of those inconsistencies in detail

because in the end result Their Honours did not

regard them all as being significant. Indeed, if I

could perhaps take Your Honours briefly to a

passage in the majority judgment at page 228 of the

application book, at line 6 on that page, Their

Honours approached the matter on this basis:

As we have indicated, we are not troubled

by all the inconsistencies mentioned by

counsel. Some inconsistencies of recollection

are to be expected. It seems to us that there

is a proper distinction between evidence which

depends upon a witness' analysis of a larger

mosaic of facts (for example, in this case,

whether the appellant "always" entered the bed

2   9/2/94

room as she was changing) and evidence

concerning an incident in which she was

involved. Many witnesses, perhaps especially

small children, will vividly remember an

incident but be inconsistent in analysis. The

more significant the incident to the witness,

the more likely that the witness will remember

it. According to her evidence, the

complainant was very aware of the appellant's

handling of her, both on 30 April and the

earlier occasions, and resented that

treatment. So one would expect a clear memory

of the incidents, even in an eight year old. complainant's inconsistent statements about the shutting of the door on the earlier

occasions and the last two matters mentioned

in connection with the 30 April incident:

whether she was picked out of bed, or got out

and walked, and the positions of herself and

the appellant during the reading.

Now, if I could take Your Honours very briefly over

the page:

In considering the weight to be given to these

inconsistencies, we have to remember that the

complainant's account of the appellant's

conduct is uncorroborated. But, important as

they are, it is not only the complainant's

inconsistencies that cause us to consider the

verdict unsafe and unsatisfactory. There are

several puzzling and unexplained

circumstances. Most of them arise out of the

evidence of the complainant's mother.

Now, if I could then take Your Honours to the foot

of page 234, in the passage commencing line 19:

We do not impute any improper behaviour to the

complainant's mother. We do not pretend to

understand the dynamics operating between

these people -

these people in the context being the complainant's

mother and the respondent -

in the period April-July 1990. They were not

explored at the trial. Perhaps counsel
thought them irrelevant; but without more

information it is impossible for us to feel

satisfied that the mother's delay in reporting

the alleged offence (and then not to the

police) is compatible with the complainant

having made the clear statement she attributes

to her on 1 May. If it was clear, from the

events of 1 May, that a profoundly disturbing

9/2/94 ~ncident had taken place the previous evening,

it would be easier to accept the

inconsistencies in the complainant's versions

of the incident. But that is not clear. The

to evaluate whatever the complainant told her, did not act as if a profoundly disturbing event had occurred. Her reaction causes us to wonder whether the complainant did make the statement her mother attributed to her.	complainant's mother, the person best placed question whether the evidence, considered as a
whole, was capable of satisfying the jury
beyond reasonable doubt.

GAUDRON J: Well, so far there is no error of principle, is

there?

MR CRISPIN:	No, Your Honour. All we say about that is, firstly, Their Honours placed reliance upon only
three inconsistencies. Secondly, even as to those
three inconsistencies - - -

GAUDRON J: Inconsistencies in uncorroborated evidence.

MR CRISPIN: True, yes, Your Honour.

GAUDRON J: And, in circumstances where the evidence of

complaint, if accepted in its entirety, might put

one complexion on the inconsistencies but, if not

accepted, could put another on it.

MR CRISPIN: Yes, I think Your Honour is undoubtedly correct

in the observation, however, what Their Honours

then did was to say, one examines that question in

the light of the mother's response. The mother's

response was inappropriate, in Their Honour's view.

Accordingly, one concludes that the jury was not

entitled to be satisfied beyond reasonable doubt

that the complaint was made, notwithstanding the

fact that the complainant had given evidence that

the complaint was made; the mother had given

evidence that she received the complaint; the

father gave evidence that he also received the

complaint.

GAUDRON J: Another complaint - a complaint on the same day.

MR CRISPIN: A complaint on the same day. Yes, indeed, on

the same morning.

GAUDRON J: But it was not the same complaint.

MR CRISPIN:  No. There was some issue in the trial as to

whether the child spoke to the mother first or the

father first, but both parents gave evidence that

there had been a complaint made to them.

4   9/2/94

Now, the error or principle, we submit, begins with the line of ~easoning that says, because the

mother's response was not what Their Honours would

have expected of a mother in the position of this

mother, having regard to the fact that she was an

occupational therapist who had some counselling

training and who had, on one occasion, attended a

course on child sexual abuse, therefore it was not

open to a jury to be satisfied as to the

truthfulness of her evidence that the complaint had

been received.

Therefore, to continue the line of reasoning,

it was not open for the jury to be satisfied that

the child made the complaint, as the child claimed,

and therefore it was not open to the jury to be

satisfied beyond reasonable doubt as to the whole

of the child's evidence and,indeed, therefore, one

had to view the perceived inconsistencies in the

child's evidence in a different light and not

consider them in the context of the profoundly
disturbing incident, as Their Honours described it,

that the child said had taken place.

TOOHEY J: But is there not much of that contained in the

passages that you have already read to us?

MR CRISPIN: It is, Your Honour, yes.

TOOHEY J:  I did not, then, quite understand your answer to

Justice Gaudron that there was no error of principle to be discerned in that part of the

judgment to which you have already taken us.

MR CRISPIN:  Yes, I am sorry, Your Honour, that concession

may have been a little bit too unqualified. What I

had intended to indicate was that we would concede

that there is nothing inappropriate about
approaching the matter on the basis that if a
profoundly disturbing incident had taken place, the

emotional impact of that incident may well have

made inconsistencies more understandable than might

otherwise have been the case. Where we part

company from the approach taken by the majority in

the Federal Court is in this line of reasoning to

which I have just adverted, based upon the

perceived response of the mother.

It is, we would respectfully submit, a

somewhat unrealistic approach to things to expect
that the mother of a child who has just told her
that she has been sexually abused, will behave in a

completely logical way, as though she were a police

officer receiving a complaint in the following
established procedures. In this particular case

the mother's emotional response was complicated by

two further factors. Firstly, she was at the time

9/2/94

going through a stage of marital breakdown. The

final separation with her husband occurred only

some 13 days after this event and there had been

difficulty in the marriage for quite some time. Secondly, she said, and I can take

Your Honours to it in due course, that her

relationship with the respondent was one akin to a

daughter/father relationship. She related to this

person as a father and it had been the respondent

who had been supporting her through her marital

difficulties.

In those circumstances, of course, one can

imagine the ordinary process of denial that one goes through, one does not want to believe that

such an horrific thing has occurred in relation to

one's child. Further, one does not want to believe

it of someone whom one has known and trusted.

DAWSON J: But the curious response had extended over some

considerable period of time, the previous
complaint.

MR CRISPIN: Yes, it was. Your Honour, that again needs to

be set in context. There had been complaints on

earlier occasions, up to a year before, and that

evidence appears at pages 71 and 72 of the appeal

book. The evidence was, however, that it had then

subsided and it was only in April that the

complaints began to emerge again. That was, of
course, at the time which was getting very close to

the time that the marriage was disintegrating.

DAWSON J:  I can appreciate it was not a sudden relevation

on the last occasion.

MR CRISPIN:  None the less, when asked about the complaint

on 1 May, the mother said that she was absolutely

shocked and when asked about whether she believed

the child she said she had no doubt about the

child's allegations after 30 April. So that there

would be an inference, we would submit, available

to the jury in those circumstances that the mother

went through a time when she was concerned enough

about the allegations to seek to make alternative

arrangements but had not come to the firm view that

they were well founded. This was, after all, not a

total stranger. It was somebody that she trusted

and had trusted for some time.

DAWSON J:	You have got to find an error of principle, have you not? If the majority in the Full Court
reasoned in this manner, would it be exceptional,
namely that because of the mother's behaviour they had misgivings about her evidence of complaint. Complaint could go to buttress the evidence of the

6   9/2/94

complainant, that evidence having certain

identifiable inconsistencies in it. In the

circumstances, since they had misgivings about the

evidence of the complaint, they did not feel

justified in it taking into account in buttressing the complainant's evidence. If that were the line of reasoning there would be no error of principle,

would there?

MR CRISPIN:  The answer to that, with respect, Your Honour,

is that it depends upon the way in which the trial

was conducted because the fact of the matter

is - - -

DAWSON J: Well now, you are going to a different point. If

that was the line of reasoning, so far as legal

reasoning is concerned, there is no error, is

there, putting aside the way in which the trial was

conducted and so on?

MR CRISPIN:  If one takes the proposition and leaves it at

that point - - -

DAWSON J: Confines it like that - - -

MR CRISPIN:	- - - then there may be no error.
DAWSON J:	No doubt you say the Full Court, or the majority,

went further and perhaps you could direct our

attention to where they went further given that?

MR CRISPIN:  Your Honour, can I just say there are two

qualifications to that point, and it is perhaps

convenient to say that these are the two dominant

points in the appeal. Firstly, the line of

reasoning ignores the fact that at the trial it was

common ground that the complaints had been made.

There was simply no issue about it. Three

witnesses gave evidence: the child and the two

people to whom the complaints had been made. There

was no suggestion to any of the three that the

complaints had not been made. Indeed, it was, in

fact, relied upon by defence counsel what the

complaints had been made.

The points sought to be made a counsel at the

trial was that the complaints had been made and yet

the mother did not believe her own daughter. If

the mother did not believe her daughter therefore

the jury should not believe her daughter. So that

this proposition that there was some doubt about
the complaints having been made was entirely novel,

it was not an issue at the trial, nor was it an

judgment, hence the natural justice point

issue during the course of the argument in the reserved

which we raise.

7   9/2/94

Secondly, it was then a matter of not merely saying because of the mother's behaviour we have

some doubts about the veracity of the mother's

evidence as to the complaint but then taking it on

and using that to otherwise infect the evidence of

the child.

BRENNAN J:	If you have got that as a ..... principle, you have not got anything else as a special leave
point, have you?

DAWSON J: Bearing in mind that this is a Crown appeal and

it is only in exceptional circumstances where real

matters of principle are involved that special

leave will be granted to appeal against a verdict

of acquittal, even where that verdict has been

entered by an appeal court.

MR CRISPIN:	I accept that, Your Honour.
BRENNAN J:	The girl's inconsistencies, if any, would not

justify the grant of special leave - - -

MR CRISPIN:	No, I do not suggest that at all.
BRENNAN J:	So it is a question of the court taking the

conduct of the mother as evidence to impugn the

making of a complaint whereby the credibility of

the child is impugned.

MR CRISPIN: Essentially that is so, Your Honour.

GAUDRON J:  Is it whereby the credibility of the child is

impugned so much as whereby the inconsistencies in

the child's evidence take on a different

complexion - are not so easily ignored?

DAWSON J: Or, putting it more broadly, where the

uncorroborated evidence of the child should be

accepted.

MR CRISPIN:  The answer to that question, Your Honour, is

not easy to discern from the judgment. It does

appear that they have approached the matter in

different passages in both ways. Certainly in the

passage at page 229 they say that:

it is not only the complainant's

inconsistencies that cause us to consider the

verdict unsafe and unsatisfactory. There are

several puzzling and unexplained
circumstances.

Then one has the passage further over at page 234 where they concede that they:

9/2/94

do not pretend to understand the dynamics

operating between these people -

the mother and the respondent.

They were not explored at the trial. Perhaps counsel thought them irrelevant; but without more information it is impossible for us to

feel satisfied that the mother's delay in

reporting ..... is compatible -

So they do appear to consider that both as a

separate and, indeed we would submit, as the

dominant factor. Secondly, they consider it as being relevant to the weight to which one would

attach to the inconsistencies.

At page 222 they also refer to:

inconsistencies in the complainant's evidence

and several puzzling aspects of the

surrounding circumstances.

That is approximately line 5 to 8.

Now, Your Honour, we have dealt with the inconsistencies in written argument and I do not

need to take up the Court's time with them unless

somebody wishes me to do so, but essentially what

we submit is that when one looks at the case on an

overall basis, one is led to conclude that the

and the real route by which they arrived at this: conclusion, that the verdict was unsafe and

inconsistencies of themselves would not have led

unsatisfactory, lay in their criticism of the

mother's perceived inadequacies to the child's

response, so that one went through this process of

taking credibility -

DAWSON J:  On the other hand, if there were the perceived inconsistencies and a total lack of complaint,

would they have considered that enough?

MR CRISPIN: They would have been entitled to do that,

Your Honour, yes.

DAWSON J:  So when you get to perceived inconsistencies with

unsatisfactory evidence, as they saw it, rightly or

wrongly, of complaint, well you are on the border

line there, are you not?

MR CRISPIN: Well, if it were unsatisfactory evidence of

complaint, Your Honour, perhaps yes.

9/2/94

DAWSON J: Well, that is the view they took, rightly or

wrongly - I mean,·we are looking for the error of

principle.

MR CRISPIN: Yes, but, Your Honour, essentially we say, the

evidence of the errors of principles are those that

we have set out in the arguments. Firstly, we say

that there is a natural justice point and that this

was an argument of fact which had never been raised

at trial and never been raised in appeal.

GAUDRON J:  I wonder to what extent that matters; that it

matters that it was not raised.	The only real
consideration is whether it was open.	I mean, it

must have been open to a jury to consider those

matters, whether it was raised by counsel or not.

MR CRISPIN:  Your Honour, in a sense that is correct, but

certainly the practice, of course, in the conduct

of trials is that one calls evidence, there are
frequently matters not challenged in
cross-examination, about which there is no issue at
the trial. One does not call further corroborative
evidence of those matters. Now, in this case, of

course, there would have been no further evidence

that could have been called, but none the

less - - -

GAUDRON J: There was certainly cross-examination of the

mother as to her reaction to the complaint, was

there not?

MR CRISPIN: Yes.

GAUDRON J: And, doubtless, that could only have been

directed to the reliability of her evidence as to

complaint.

MR CRISPIN:  No, Your Honour, with respect, and this was

conceded quite expressly as the Federal Court

appeal.	The point that was sought to be made by my
learned friend at the trial was not to suggest that

the complaints had not been made, but to suggest
that the mother did not believe them and hence, as

I suggested earlier, to say to the jury, "Look, if this girl's own mother did not believe her when she

said this had happened, why should you believe her

when she said this had happened?" And His Honour gave the jury a direction about that; that is was

not the perception of the mother that was relevant

to credibility, it was the jury's perception of the

witness's credibility, based upon the demeanour of

the child.

DAWSON J: It was observed somewhere, and I have forgotten

where now, that an appeal court is not an

unthinking animal. It does not choose between

10   9/2/94

rival arguments only, it has a mind and can think

for itself. I should have thought the same thing

could be said of a jury.

MR CRISPIN:	Your Honour, I would not have the effrontery to challenge the proposition in this august tribunal,
but what Your Honour says is undoubtedly correct.
But that has not been taken in the past; to suggest
that the test laid down by this Court in Chidiac
really places the Federal Court in the position of a royal commissioner, free to range over the
matters as a whole.  We would submit the
appropriate course for the Federal Court is to look
at the issues that were raised at the trial and litigated between the parties - - -

DAWSON J: What I am saying to you is, the jury was not

confined to the particular arguments that were put

to it if there are other arguments that are

available for their consideration.

MR CRISPIN: Indeed.

TOOHEY J:  But what is your natural justice point? I

thought, reading the ground of appeal, that is was

related, not only to arguments which had not been

raised before the jury, but you were asserting that

the Full Court had taken on itself to rely on

matters which had not been argued on appeal.

MR CRISPIN: Yes, that is so, Your Honour.

TOOHEY J:	So the discussion about what was argued before the jury, or not argued, has relevance, but it is a
different question as to what was argued or not argued before the Full Court.

MR CRISPIN: It is, Your Honour. It is related only in this

sense, that we say the fact that it was not argued

before either the trial or the Federal Court

produces a stronger situation because not merely

was the Crown not given the opportunity of	addressing the Federal Court about it but,	furthermore, it involved impugning unchallenged
evidence at the trial, and the witnesses were not given the opportunity of dealing with it.

BRENNAN J: It goes more fundamentally, does it not, that

the Full Court's function was to determine whether

a jury properly instructed could convict on the

evidence that was before it, and relevant to that

is the manner in which the trial is conducted?

MR CRISPIN: Yes, Your Honour, and we say it was fanciful,

with very great respect, for the Federal Court to

suggest that it was not open to the jury to accept

evidence which was uncontradicted and unchallenged

11   9/2/94

in relation to the complaints. And that, in

effect, was precisely what it did.	Now, we submit
that is -

GAUDRON J:  No, but that is not what they found, they found

it was not open to them to be satisfied beyond

reasonable doubt that the actions occurred - that

the offence occurred.

MR CRISPIN: Yes, they certainly did not, Your Honour.

GAUDRON J:  And that, indeed, was the only finding that was

relevant to their decision.

MR CRISPIN:  Yes, but it was the route by which they arrived

at that finding, with respect, that we submit gives

rise to grounds for special leave, because in the

end result Their Honours were troubled, had doubts

that the complaints were made, and it was that

which was, we would submit, the dominant

consideration, but if not, at least a very strong

consideration in coming to the view that it was not

open to the jury to be satisfied that the acts had

occurred. Now, we ask rhetorically, how could that

be so, given that it was undisputed at the trial,

it was unchallenged at the trial, and given that it

was never an issue at the trial or on the appeal.

It was raised for the first time in a reserve

judgment.

GAUDRON J: But the jury is not bound to accept evidence,

even if it is unchallenged.	I mean, that is the
whole issue of the burden of proof.	The jury can
simply reject it.

MR CRISPIN: Yes, they can, Your Honour, but the difference

is that in this case they did not reject it, they

accepted it. In this case, one was concerned with

an appellant court saying, "Never mind what the

jury accepted, we say, the jury was not entitled to

accept that and we say - - -"

DAWSON J: They rejected some of it.

MR CRISPIN: Yes.

DAWSON J: Because there was an acquittal on one count.

MR CRISPIN:  He was an acquittal on one count, Your Honour,

but the acquittal on the one count is not really

available to impugn the credibility as a whole, but

save in a very limited respect. I can deal with

that very quickly, Your Honour. During the course

of the committal proceedings - and it is quoted at

page 55 of the application book - the child had, on

at least one occasion, suggested that she had been

touched on the outside, rather than inside the

12   9/2/94

vagina. Hence, in the end result the verdict of

acquittal on a charge of sexual intercourse is

entirely consistent with a jury saying, "Well, we

accept her generally, but there has been confusion as to that point, therefore we will convict on the

alternate count".

Your Honours, we make the point that the inconsistencies, when one examines them, really do

not take one very far.	The court itself, at
page 222, suggested that:

Some of the so-called inconsistencies are

matters of no consequence, the sort of minor
variation in a witness' accounts of an

incident that usually arises -

it is at line 15 -

and in the absence of which a court might

wonder whether the witness had learned her/his

evidence by rote. Some of the claimed

inconsistencies may have been merely verbal

mannerisms.

And the like. They then refer to non-verbal

consistencies and it is really - - -

BRENNAN J:  Do we need to go through this, Mr Crispin?

MR CRISPIN:  We may not, Your Honour. We have dealt with it

in writing and if it is not going to be of any

assistance to Your Honours to go through it orally

then I am quite content to leave the matter there.

BRENNAN J:  I mean, the point that you wish to make is that

the majority of the Full Court dismissed the

argument in relation to some kinds of

inconsistencies and accepted it in relation to

others which they nominated.

MR CRISPIN:  Yes. And when one looks at the details of the

inconsistencies which Their Honours thought were

important, we submit, plainly, they were not. And

they were not for the reasons that Their Honours

had expressed. So, Your Honours, I do not wish to

simply go over the same points or belabour the

matter. We submit one comes back to an overall

approach of impugning the evidence of this child

that was simply impermissible.

TOOHEY J:  Would you identify for us with some precision,

Mr Crispin, what it was that you say the Full Court

acted on that was not the subject of argument to

it?

13   9/2/94

MR CRISPIN: Yes. If I could take Your Honour to page 235

of the application book, at line 5. It is a part
of the passage to which I have adverted earlier.

Their Honours had made the point the

inconsistencies would be easier to accept if it was

clear that a "profoundly disturbing" incident had

occurred the previous evening, but that is not

clear. Their Honours then go on to say:

The complainant's mother, the person best placed to evaluate whatever the complainant

told her, did not act as if a profoundly

disturbing event had occurred. Her reaction
causes us to wonder whether the complainant
did make the statement her mother attributed

to her. Uncertainty on that matter must

affect the question whether the evidence,

considered as a whole, was capable of

satisfying the jury beyond reasonable doubt.

TOOHEY J: Are you saying that the second of your grounds of

appeal, or if you like the second of your special

leave questions in your summary of argument:

Did the Federal Court err in finding that

the conduct of the child's mother in response
to the child's complaints was admissible to

impeach the credit of the child?

was a matter not argued before the Full Court?

MR CRISPIN:  It was argued before the Full Court on a

different basis, Your Honour. It was put before

the Full Court on the basis that the complaints
were made, but that the mother did not believe the

child, and hence it was the mother's opinion as to

the child's credibility which should have impeached

the child's credibility.

It was not put before the Full Court, or at

any other time, that the mother's conduct or	inappropriate response should have led to an
inference that the complaints were not made. It
was that proposition which emerged for the first
time in the reserve judgment. So that it was never
suggested before as Their Honours put it here.

DAWSON J:  Does it go as far as that, to say that the

complaints were not made, but to lead to some doubt

about the nature of the complaints? It is not

exactly clear, is it?

MR CRISPIN: Precisely what Their Honours say, Your Honour,

is that it leads us to wonder whether the

complainant made the statement her mother

attributed to her.	So it is amenable to either
meaning.
14 9/2/94

TOOHEY J:  I am having difficulty with the distinction that

you are drawing, it is a pretty subtle one.	What
is it?	You are ~aying on the one hand that it was

argued before the Full Court that the mother's

reaction to the complaint indicated that she did

not believe that the complaint was made?

MR CRISPIN:  That the mother's reaction indicated that she

did	not believe the truth of what her daughter told
her	and, hence, if the mother did not believe what
the	child said had occurred, then the jury should
not	have believed what the child said.

BRENNAN J: That argument, in a sense, was an impermissible

argument.

MR CRISPIN: It was, Your Honour.

BRENNAN J:  One would think that it is a very cogent

argument for the jury but it is an impermissible
argument in the sense that it allows the conduct of

the mother to cast a pall over a complaint by any

child. When it came to the Full Court, the Full

Court then put it into a form which was not an

offensive form legally, is that not so?

MR CRISPIN: Yes, essentially.

DAWSON J:  The difference is that you say, "Well, the mother

didn't believe the complaint", or that is the

inference one draws, "therefore you can draw a

further inference that the complaint was not of a

strong nature or not one on which one should act in

buttressing, strengthening, the uncorroborated

evidence given by the child.". And if you put it

in that way, no exception could be taken.

MR CRISPIN:	I submit that even that formulation runs afoul of the same proposition to which Justice Brennan
just adverted, that it none the less involves using a reaction of one person to impeach the credit of
another; in this case the credit of the child.
DAWSON J:	No, to assess the nature of the complaint, the strength of the complaint, the specificity of the
complaint.

MR CRISPIN: But that was none the less, Your Honour, a

matter about which the child had given evidence

and, in substance, the evidence of the child as to

what she told the mother and the evidence of the

mother as to what she heard from the child is the

same. What it would involve therefore is saying,

"We have regard to the response of the mother.	We
conclude from that that what the mother and the
child both said about the complaint cannot be right, because otherwise the mother's response

15   9/2/94

would havG been different and therefore one is

using, with respect, the conduct of the mother in order to impeach the credibility of the child, at

least in relation to that issue." We submit that

was an impermissible line of reasoning and we

further submit that the device which

Their Honours - and I do not use that in any

pejorative sense - but the alternative approach

which Their Honours took, in dealing with the
matter, overcame that impermissible line of
reasoning, but only at the price of embracing

another.

DAWSON J: That disregards what was put to you by

Justice Gaudron, that it is not just a case of the

contest of one person's evidence against another.

What you have is the uncorroborated evidence of a

child about which you have to be very careful and

that evidence includes evidence of a complaint. On

the other hand, if you have evidence of a complaint

by an independent witness which you can accept

unequivocally, that of course may go to strengthen,

in an important way, the uncorroborated evidence of

the child. If the evidence of the complaint is

such as to be doubtful, one way or another, either

as to its specificity or as to its strength or in

some other way, it may not be available to perform

the function of providing the necessary

strengthening of the uncorroborated evidence. It

is not just a case of, you know, one witness's

evidence verses another at all.

MR CRISPIN: Yes. Well, certainly the question of one

person's evidence verses another, of course, did

not arise, because there was consistency among the

three; among the parents and the child.

DAWSON J: You are correct. Perhaps it is just not a case

of using the mother's evidence to impeach the

evidence of the child but looking at the mother's

evidence to see whether it performs the necessary function of strengthening the child's evidence to	the point where you can accept it; that is a better
way of putting it.

MR CRISPIN: Yes, that would have been a more defensive

formulation but, with respect, that is not what

Their Honours did. What Their Honours did was to

say that, "The mother's reaction makes us wonder

whether the complainant made the statement which

the mother attributed to her", and uncertainty on

that matter affects the question of whether the

evidence as a whole -

DAWSON J:	In a sense it does, but it is merely evaluating the mother's evidence, on one view, but I can see
what you are saying.

16   9/2/94

MR CRISPIN: Yes, in a sense it is, Your Honour, but again,

it needs to be remembered that it is evaluating the

mother's evidence on a point as to which one had

not only the mother's evidence but the child's and

the father's. We submit that whilst it may be that

if one looked at the matter in abstract terms, one

can imagine a situation in which the court might

have been justified in reasoning along that basis,

in other words that the m9other's evidence of the

complaint was, as it were, the straw that provided

the counterbalance in a fine case as to whether or

not the conviction could be sustained or otherwise.

But that line of reasoning is not available in a

case such as this where in substance the

truthfulness or otherwise as to what the mother

said about the terms of that complaint was simply

not an issue at the trial or on appeal.

BRENNAN J: 

Mr Crispin, can I just take you to the question

of principle again, because this seems to be the
bothersome problem. Leave aside for the moment the
question of natural justice that the Crown

complains about. If it were in issue at the trial

as to whether a complaint had been made or not and

the court had heard argument on it on the appeal
and the Full Court had said, "We really must wonder

whether or not a complaint was made and because we

don't think that a jury could properly be satisfied

about that, we don't think that a jury could be

properly satisfied about the truth of the

allegations that were made by the daughter", on
that line of reasoning you would not have a problem

of principle, would you?  I am assuming for this

purpose that evidence of the complaint depends upon

the mother's evidence.

MR CRISPIN: Yes. 

On the basis of those assumptions,

Your Honour?

BRENNAN J: Yes. I understand fully the force of what you

say about the natural justice but if, reading what

the court had said, that is the line of reasoning that they took, one does not see an error of legal	principle in that, and if one then goes to the
natural justice point, the question arises, should
the Crown have special leave to appeal in this case because of the natural justice point?

MR CRISPIN:  Your Honour, with respect, I would depart from

that conclusion.

BRENNAN J: Yes. That is why I wanted to draw your

attention to it.

MR CRISPIN:  We submit, Your Honour, that the difficulty is

that one builds in to Your Honour's formulation,

which we accept that the conditions one did and

17   9/2/94

they are not available in this case, that when one

considers the manner in which the case was

approached in the context of this case, it involved

an approach to considering a special leave

application which went beyond the fresh approach to

the evidence - or fresh appraisal of the evidence

suggested in Chidiac - and involved an acceptance

of the proposition that it was open to the Federal

Court to disregard what were the issues at the

trial, and to look at matters almost as though the

Federal Court were clothed with the powers of a

royal commissions and were not bound by what

occurred at the trial.

Now, we submit that that does give rise to a

question of law, as to the proper approach and the

proper principle to be applied by a Federal Court

in dealing with an unsafe and unsatisfactory

verdict. We submit, with respect, that it is an

important one, because one has to ask the question,

what will the implications be for the future

conduct of trials, if an appellate court feels free

to approach the matter in this way.

Will it mean, for example, that in all future

trials, where corroborative witnesses are not

called because there is no challenge to the

evidence of the principal witness, that that will

be available and will be a weakness at trial. Will

it mean that in all cases where a witness's

credibility is not seriously attacked at trial, the

Crown should none the less try to lead evidence in-

chief which might explain perceived inconsistencies

that may be available to a Federal Court at a later
time even though counsel in the case does not wish
to take them? There is a practical difficulty, we

submit, in widening the ambit of the examination

undertaken by the Federal Court in the manner which

it did in this way - - -

DAWSON J:  It is very difficult to extract any principle

from what the Federal Court did, or said, even

though one may take exception to the conclusions

which they reached. And I say that with one thing

in mind, because one of the things to be considered

here, of course, this being a Crown appeal, is the

position of the respondent. He was served a period

of imprisonment, now has been at liberty for 12

months and there is a certain inhumanity in
retrieving, if you are correct, and replacing him
in prison, unless the principle of law that you say

is at stake is so clear as to warrant that course.

MR CRISPIN:  Yes. I understand the difficulty to which

Your Honour adverts. Could I just say this,

Your Honour, that there was, in any event, an

appeal as to the severity of sentence which was not

18   9/2/94

ultimately pursued in the Federal Court. If

Your Honours were of the view, ultimately, to grant

leave and to uphold the appeal then it would, as I

understand it, be my learned friend's position that

he would seek to have the matter remitted back to

the Federal Court for that aspect to be dealt with,

and that would not be a course which we would

oppose.

GAUDRON J: But do you not also have an intermediate

position? Even if you are right on your arguments

here, the question still remains whether the

verdict is unsafe and unsatisfactory.

MR CRISPIN: Yes, Your Honour is correct.

GAUDRON J: So, that would either have to be determined in

this Court or also remitted.

MR CRISPIN: It would, Your Honour, yes.

BRENNAN J:  The choice between those two is not easy to

avoid, is it, or to conclude?

MR CRISPIN:	No.
TOOHEY J:	I have to say, once again, I am having difficulty

with the argument, Mr Crispin, because in the last

few minutes you have been offering us a reason why

this application raises the question of special

importance, that without some correction from this

Court, Full Courts might, as it were, roam at large

in relation to a trial where the verdict is said to

be unsafe and unsatisfactory. But there is no

suggestion here that the Full Court went outside

the range of evidence. I thought your complaint

was essentially a complaint that the evidence of

the mother's conduct was used to impeach the

evidence of the child.

MR CRISPIN: Yes.

TOOHEY J: Is that the crux of it, or not?
MR CRISPIN:	The crux of - it is certainly one of the

dominant points, Your Honour, yes. And we say that

in the context of a child molestation case, that

was really a very dangerous course to pursue.

TOOHEY J:  Yes, it may have been. What is the principle for

which you are contending?

MR CRISPIN: Firstly, Your Honour, in considering an appeal

on the ground that the verdict was unsafe and

unsatisfactory, it is not permissible to find that

the jury must necessarily have had a doubt about
issues that were undisputed at the trial. Perhaps

19   9/2/94

it could be reformulated to explore issues that

were not issues at the trial or on appeal.

Secondly, that the matter should not have been the

subject of a decision without the Crown having the

opportunity to address it at the trial. Thirdly,

that an inappropriate response by a mother or by a

parent of either sex is not available to impeach

the credit of the child. We submit that, in

substance, when one goes to the facts of this

particular case, that, essentially, is what

occurred.

TOOHEY J: Are those in any order of priority?

MR CRISPIN: Probably in order of priority, Your Honour, the

last one first, although we are also concerned

obviously about the fact that the matter was not an

issue at trial and the witnesses were simply not

cross-examined about it.

TOOHEY J: Thank you.

MR CRISPIN:  Your Honours, could I just perhaps complete the

picture in relation to the evidence of complaint.

Firstly, within the Australian Capital Territory,

as Your Honours may have noticed, evidence of

complaint is not normally admissible at the

instance of the Crown. The issue was raised in

this case solely by the accused and evidence of the

complaint was introduced in cross-examination. It

was introduced for the purpose to which I have

adverted, namely to bolster a suggestion that the

mother did not believe her child.

BRENNAN J: Could you just show us the passage in the

cross-examination where that was done?

MR CRISPIN: Yes. If I could take Your Honour to page 55 of

the application book, at line 16 or 17:

Now, when you woke up, what, was it the next

morning?---Yes.

And did you say something to either of your

parents about what happened?---I told both of

my parents.

Who did you tell first?---My mum.

Your mother?---Yes.

Where were you when you spoke to your

mother?---I don't remember.

When you spoke to your mother you told her

that Mr Martin had touched you on your

vagina?---Yes.

20   9/2/94

And you also spoke to your father?---Yes.

That was after you spoke to your mother?---

Yes.

And so forth. Then, at the foot of the page:

Had you ever said anything before to either of

your parents about the things that were
happening to you, of Mr Martin touching you at

his house?---Yes, my mother.

And so forth.

That, as Your Honour will see, were questions

by my learned friend, Mr Brewster, in

cross-examination. Then the purpose of them

appears at page 77 in the cross-examination of the

mother, line 4:

you, obviously, throughout the whole period up

to - at least up to when contacted by the

police - you had some doubt as to whether

these incidents had occurred plainly?

Answer:

After 30 April, I had absolutely no doubt at

all.

Question:

You see, I suggest that if that had been the

case, you would have had no contact with

Mr Martin after that; that you were still in

doubt as to - - -

and, then she answers by reference to the

relationship with Mr Martin.

Your Honours will see that at page 67 of the

appeal book with the mother, the evidence in-chief

refers to a conversation but skirts about the
contents.	The mother said at line 10 she observed:

She was totally different ..... morning. She was then asked about that:

Did that result in a conversation with Amy?--

Yes, it did.

Did you, later that day, do something in relation to what Amy may have told you?--Yes,

I did.

21   9/2/94

And, there was then a conversation with the

accused. So, the terms of the complaint were not

raised via the Crown in evidence in-chief with

either the child or the mother, and the father was
then called and basically made available only for

cross-examination. His evidence - relevant

evidence - is at page 80 of the appeal book. He is

first called at page 78. I do not need to take

Your Honours to that. In-chief he is asked his

name and address and occupation and nothing more.

Then on page 80, at about line six, he is asked:

in the morning of 1 May, Amy told you

something?--Yes, she certainly did.

And it was about what had happened the night

before?--Yes.

And what did you do when you were told this?

And, so forth, and then there is a conversation
with the mother.

So, Your Honour, what we draw from that is

that the question of complaint was introduced into

the trial by counsel for the accused. It was

introduced into the trial solely for the purpose

which, we submit, in the end result constituted an

impermissible line of reasoning, and in dealing

with the matter. It was not really a case of

looking at the additional value of the evidence

obtained by the mother's evidence of the complaint

to see whether it would bolster the child's

evidence.

The issue in the trial was rather a question

as to whether or not inferences about the mother's

belief in the facts recounted in that complaint

could be used to impugn the child's evidence and,

that being so, the way in which the matter was

sought to be raised was not permissible. But, more

with the matter was, for other reasons, not	significantly, the way in which Their Honours dealt
permissible either.

So, in the end result one has really a

conclusion which, we would submit, is quite a

dangerous and inappropriate one, especially in

cases of this kind, and one has to ask,

rhetorically, does that mean in future cases, for

example, there is a precedent to remain that if the
mother's response to a complaint of this kind is

inappropriate that, as a matter of principle, is

available to impugn the evidence of the child, and

even in a case, such as this one - - -

22   9/2/94

DAWSON J:  Now, you keep saying, "impeach" or "impugn" the

whether to accept the uncorroborated evidence of

evidence of the child, that is not it at all.

the child, that is the point.

MR CRISPIN:  I accept Your Honour's correction. It may be

overstating it in general but, again, it has to be

set in the context of this case where there was an

express finding by the Federal Court that there was

nothing inherently implausible or improbable about

the complainant's evidence. Indeed, it was

accepted that she was an excellent witness. In

those circumstances, and putting aside for the

moment the question of some inconsistencies, can

one really say, "Well, the mother didn't behave

appropriately and therefore we don't think it would

have been open to a jury to accept the child's

evidence"?

DAWSON J:  And that is not what the point is. The mother's

evidence of the complaint was, in the view of the

Full Court, not satisfactory. Therefore, could the

evidence of the child which was uncorroborated be

accepted with the inconsistencies to which they

pointed and in the absence of any satisfactory

evidence of complaint?

MR CRISPIN: Yes, I accept I have left out one or two steps

in the line of reasoning, Your Honour, but we

submit none the less that, putting aside the

question of inconsistencies which we have dealt

with separately, the substance of what

Their Honours did was to say, "Because we think the mother's response was inconsistent, therefore we can't accept her evidence about the complaint, therefore one can't accept the child's evidence of the complaint."

DAWSON J:  No, "therefore it would be dangerous to act on

the evidence."

BRENNAN J: That is, "It would be dangerous to act on the

evidence without satisfactory evidence of

complaint." That is what is being put to you as

the - - -

MR CRISPIN: Yes.

BRENNAN J:	What is the statutory provision which precludes the Crown from adducing evidence of the complaint?
MR CRISPIN:	It is section 76C of the Evidence Act 1971

which is in these terms:

Any rule of law or practice permitting

evidence to be admitted in any proceedings in

23   9/2/94

respect of a sexual offence, being evidence

relating to the making of a complaint, or the

terms of a complaint, by the complainant, is

abolished and no such evidence shall be

admitted in any prescribed sexual offence

proceedings.

Subsection (2) provides:

Nothing in this section affects the admissibility of evidence in relation to a

complaint, or the terms of a complaint, by the
complainant in prescribed sexual offence

proceedings where that evidence is otherwise

admissible under any other rule of law or

practice.

So, it was not inadmissible to ask a mother

questions about a complaint made if that could be

demonstrated to have had some relevance, for

example, to the mother's credibility. ~he real

vice, we would say, is then using it to go beyond that and using it in a way which indirectly leads

to the tainting of the credibility of the child's

evidence.

TOOHEY J:  The legislature does not seem to have envisaged

that the evidence might come out through

cross-examination.

MR CRISPIN:	No.
TOOHEY J:	And no such evidence shall be admitted in any
prescribed sexual offence proceedings.

But once it is out in cross-examination, it is out.

MR CRISPIN: Well, it no doubt contemplates that it may be

admissible on some other basis, Your Honour.	One
could imagine a case, for example, in which a

psychologically disturbed person constantly kept

making a complaint in very unusual terms and there

might be some relevance but, prima facie, it is not

admissible and, in this case, it was not sought to

be led by the Crown as part of the Crown case.

BRENNAN J:  Was there any discussion on the terms of

section 76C in the course of the Federal Court

argument?

MR CRISPIN:  I do not think there was, Your Honour.

BRENNAN J: Well, perhaps your junior can help us with that.

MR CRISPIN: Yes, but I stand to be corrected, Your Honour,

but I think the answer to that is "no". The

Federal Court argument centred on, as I understand

M(2) 24 9/2/94

it, two propositions. Firstly, evidence as to the

prior action not·being admitted because it was

contended that they amounted to evidence of similar

facts and they were not strikingly similar.	And I
understand my learned friend has a notice of

contention and would wish to raise that if due

course.

Secondly, my learned friend again maintained

the position that the mother's failure to believe
the child was an important matter and one which

should influence the Federal Court in order to find

that it was not open to the jury to be satisfied.

I can take Your Honours to the various passages in

argument in due course if Your Honours feel that

that would be of assistance.

I am sorry, Mr Ibbotson has drawn my attention to page 151 of the application book where, at

line 25, Mr Brewster raised the question of

section 76C. There is then some discussion,

Your Honour, that does not seem to really be

directed at the meaning or extent of the

prohibition in section 76C and so far as we can

find, the point is not further taken up.

BRENNAN J: Yes.

MR CRISPIN: Your Honour, those are, in substance, the

submissions that we make.	I do not wish to take up
the Court's time unduly.	We submit that it is an

appropriate case for special leave. Plainly, if

leave were to be granted and the appeal were to be

considered, it would require, as Your Honour

Justice Gaudron has pointed out, an examination of

the evidence, but it may be inappropriate for me to

embark upon that at this point.

BRENNAN J: Well, perhaps you should deliver whatever

argument you want to deliver but, as I understand

it, you say you have made your points on the

question of the scope of the function of an

appellate court and on the question of the effect

of the mother's evidence. Now, if there were

anything beyond that, is there any reason why, if

you succeeded on either or both of those points,

special leave were granted and the appeal allowed,
the Court should not make an order permitting the

matter to the Federal Court to further hear and

determine the appeal?

MR CRISPIN:  No, Your Honour, that would be, we would

submit, an appropriate course.

BRENNAN J:  Would that pick up Mr Brewster's notice of contention?

25   9/2/94

MR CRISPIN: It would, Your Honour, as I understand it.

BRENNAN J: We will here from Mr Brewster, perhaps, on it.

MR CRISPIN: Perhaps we can deal with Mr Brewster's notice

of contention in due course, but I am sorry, I did
not mean to mislead Your Honour, but the Federal

Court did deal with this question of the prior acts, so Mr Brewster would no doubt wish to be heard in relation to that.

BRENNAN J: Yes.

MR CRISPIN:  May it please the Court.

BRENNAN J: Yes, Mr Brewster.

MR BREWSTER:  If the Court pleases, if I could take the

Court to my summary of argument, which proceeds in a, perhaps, unusual way. There was some confusion

as to whether Order 69A, the new rules, applied to

this case, and these submissions were filed on

advice that it did. Subsequent advice was received

that it did not. So they follow the format of

Order 69A, but perhaps do not fit all that comfortably in with a special leave application in

a criminal matter for a bench of five. I would

propose to start in the middle, as it were, at
point 14, which is the special leave point; the

reason why special leave should not be granted, and

would, at the outset, while this is not in the

submissions, and just what fell from His Honour

Justice Dawson, that this case has to be looked at

in the backdrop of being a Crown appeal, and the

principles which were enunciated in Glennon's case

and Benz's case apply, and we would say that this

case does not satisfy that criteria.

The first matter that I wish to address,

Your Honours, is ground of appeal in the draft

amended notice of appeal, 2.2. It would appear

that point that 2.1 and 2.3 are, to some degree,

interconnected. At least, I had proposed to treat

them as being related points; 2.2 perhaps having a

discrete element to it. It is page 253 of the

application book. That is:

That the Federal Court erred in finding that

the conduct of the child's mother in response

to the child's complaints was admissible to

impeach the credit of the child.

In other words, the way we would read that is, was it admissible as a matter of evidence? We would

firstly say, "Yes, because it is relevant." And

Relevance is the touchstone of the admissibility of

26   9/2/94

evidence. Prima facie all that is relevant can be

admitted in evidence, subject to -

BRENNAN J: What is its relevance?

MR BREWSTER: Perhaps I could come to that a little later,

if I could, Your Honour. But we say, even if it is

not relevant, in the particular circumstances of

this case, this is not an appropriate vehicle for a

grant of special leave because the evidence was not

objected to at the trial, on the grounds of

irrelevance, or on any other basis. Therefore, if

it is inadmissible, if it is not admissible, it has

become admissible by being tendered without

objection, and the rules in relation to the use to

which evidence which is inadmissible, but which is

admitted and becomes relevant by consent can be

put, are well established.

The authority - I will just briefly take

Your Honours to it, it is not in my list of

authorities - I can hand up copies if required,

but I only wish to cite one short passage - is from

Jones v Sutherland Shire Council, (1979)

2 NSWLR 206, a decision of the Court of Appeal

where, at 219 His Honour Mr Justice Samuels said:

In my opinion, the general principle

which emerges from the authorities ..... is this

And this is where inadmissible evidence is let in

by consent -

If evidence, admitted without objection, is

legally admissible in proof of some issue in

the case, its evidentiary use should be

confined to that purpose.

And he quotes an example.

If, on the other hand, evidence, admitted

without objection, is not legally admissible

in proof of any issue, it may, once in, be

used "as proof to the extent of whatever

rational persuasive power it may have". evidence, was it not?

DAWSON J:  What was the evidence in question there? Hearsay

MR BREWSTER: It was a document, as I recall, Your Honour.

Yes, it was hearsay. This evidence, having been

admitted, can be used, and the question of whether it was admissible should not, in my submission, be explored by any court, let alone be made the grant

of an application for special leave.

27   9/2/94

TOOHEY J:  I did not understand the Crown to be arguing as a

basis of application for special leave that the

evidence should not have been admitted.	You were
directed to section 76C.	I thought the argument

was that the evidence should not have been used by

the Federal Court in the way that it was used.

MR BREWSTER:	Yes, I understand that.
TOOHEY J:	So it is not the role of this Court, as it were,

to determine questions of admissibility, is it?

MR BREWSTER: Perhaps I am reading too much into the word

"admissible" in ground of appeal 2.2.

BRENNAN J:  It is admissible to impeach the credit. Now,

the question was: was the evidence admitted to

impeach the credit, and did the Full Court use it

in that way?

MR BREWSTER:  Yes. Perhaps I could come, Your Honour, to

the question of relevance that I adverted to

earlier when Your Honour asked me a question.	It
is a question of a process of reasoning as to
whether the actions of one person can be used to
determine the truth of other matters.	Can the

reactions of a person who claims to have been told
something be used to determine, or used to draw

inferences as to whether in fact that person was

actually told something. Is that a process of

reasoning which is open in any circumstances, or is

it not?

TOOHEY J: That is not the point here, is it? I thought the

point here was whether the reaction of the person

to what he or she had been told was admissible as

to the truth of the matters, the subject of what

they had been told.

MR BREWSTER:	The Federal Court was not directly concerned with the truth of the matters but whether the
complaint had been made, or had been made in the
terms alleged.
DAWSON J:	It can go to a number of things, in terms of

whether the complaint had been made at all, the
seriousness or nature of the complaint. It could

go to either of those things, could it not?

MR BREWSTER:  Yes. It could go to a lot of those things.

It is relevant. We would say inferences can be

drawn, various inferences could be drawn to attract

a grant of special leave. There must be, in our

submission, a point of principle, a point of law

and that would be that whether or not the

Federal Court actually got it right or got it wrong

is not to the point. It is whether, as a process

28   9/2/94

of reasoning, this type of reasoning is available,

whether one can determine such facts from the

reaction of a person.

BRENNAN J:  The question of whether a Court got it right or

got it wrong might be very relevant if the getting

of it wrong involves the Court going off on an

excursion of their own, which is inconsistent with

the manner in which the trial was conducted and

which never gave the parties to the proceeding any

opportunity to deal with it.

MR BREWSTER:  Yes, Your Honour, but that is a different

point. I would, if I could, like to keep these

fairly discrete. While they are related, for the

purposes of analysis, in my submission, I would
prefer to keep them discrete and come to the

natural justice point.

BRENNAN J:  I do not understand that there is any dispute

about the proposition that if the question was,

"Was a complaint made?", or "Was a complaint made

of the accused touching the girl in the manner in

which it was alleged by the Crown?", that the

conduct of the mother would be relevant to

determine whether any such complaint was made to

her in terms of her own evidence. In other words,

when she says that such a complaint was made, is

her evidence to be believed in that respect? There

is no dispute about that, as I understand it, from

the Crown.

MR BREWSTER:  Perhaps at the end of the day that is a

concession that has been made, but where does that

lead one; inexorably, to the question of the

evidence of the child. One cannot compartmentalize

these things. Take, for example, whether a

complaint was made at all. If there is doubt that

a complaint was made at all because of the evidence

of the mother, that inevitably must impact on the

evidence of the child if she says a complaint was

made.

BRENNAN J:	The father says there was a complaint made, and you obtained that evidence from them.
MR BREWSTER:	Yes.
BRENNAN J:	And you used it and relied on it.
MR BREWSTER:	Yes.
BRENNAN J:	And then it came to the Full Court and the Full

Court said, "We're not going to be too sure about whether it was made.".

29   9/2/94

MR BREWSTER:  Perhaps I do not have to go that far. I will

resile from that and go back a step. The Full

Court was not satisfied that the complaint had been

made in the terms that were alleged.

BRENNAN J:  What were the terms alleged in the mother's

evidence?

MR BREWSTER: That the child said that the respondent had

taken her from the bedroom, put her on his knee and

had - I cannot remember the precise - - -

BRENNAN J: Where do we find that?

MR BREWSTER: At page 74, commencing at line 19. This is

the evidence of the mother:

She said, "Mr Martin came and got me out of bed and he took me into the lounge room and

told me that he wanted me to read him a book

and he sat me down on his knee on the couch

and he told me to pull my knickers down and I

told I wasn't going to and he said that he

would tell me that she'd been a bad girl if

she didn't do it. So he did it anyway."

There were further descriptions of reading a

Dr Seuss book:

So eventually, apparently, he let her go back

to bed.

Those are the terms of the complaint.

TOOHEY J: There is a bit more to it than that, is there

not, if you drop down to line 26.

MR BREWSTER:	Yes, sorry:
And then he rubbed the front of her and she apparently told him to stop and she said that
he said he'd tell me that she was a naughty
girl.

Those are the terms of the complaint made to the

mother. The Federal Court, whilst they mentioned

this specific complaint, looked at the matter and,

in my submission, properly looked at the matter

against the backdrop of the whole history of this
case. This was not the first complaint. According

to the mother, there had been over a long period of

time constant complaints along the lines of,

"Mr Martin touches me on the fanny." The reaction

of the mother was to continue to send the child to

be babysat at the Martins. The Federal Court

remarked on that and found that to be conduct which

was difficult to explain. It is against that whole

30   9/2/94

backdrop that the complaint and its terms were
something that they felt the jury should have had a

doubt about because of the evidence of the mother.

That may or may not impact on the evidence of

the child. If it is as to the precise terms of the

complaint, it actually has no impact on the

evidence of the child - I withdraw that.	I have a
recollection that the child agreed in

cross-examination that she had told her mother in

general terms of this complaint but it was confined

to whether or not she had told her mother that the

respondent had sat her on his knee, because the
evidence of the child in the trial was that they

had both been lying down together on the couch. There was no mention of sitting on the knee. I

will see if I can find that, Your Honours.	I have
a reference elsewhere in the material.

BRENNAN J: There is a reference at page 55 to what was

said.

MR BREWSTER:  Yes. I am not sure if that is the way I have

challenged the child as to precisely what she had

told her mother. Perhaps we could come to that if

it is relevant, but it was put to the child that

she had told her mother that the respondent had put

her on his knee and it was put to the child that

that was not right, on the evidence that she had

been giving and my recollectiom is the child

conceded that that was not - - -

TOOHEY J:	Mr Brewster, I am not about to ask you why these matters were extracted in cross-examination, but
having been extracted, what use was made of them by
the accused? Was it as Mr Crispin suggests that it
was used as a basis for suggesting that the mother
did not believe the child's account?

MR BREWSTER: Yes, my friend has put it fairly; that does

not appear in the - except in the passage he quoted

at page 77, as I recall - does not appear because

addresses are not transcribed, but I would concede

that.

TOOHEY J:	Is it right to say or do you accept also that that was the basis upon which the matter was argued
before the Full Court, in this relevant respect?
MR BREWSTER:	Yes, I did take the point that His Honour

Mr Justice Brennan adverted to, that it is an

impermissible line of reasoning before an appellate

court and it was not in the actual outline of

argument, and the Full Court picked up on the

conduct of the mother themselves during the course

of argument and I did put that proposition at that

point to the Full Court. I would concede I did not

31   9/2/94

say to the Full Court that it should draw an
inference that the complaint was not made or was

not made in the terms alleged, and I will come to

what I say flows from that in due course.

But, as a general principle, the reactions of

one person, as I say, can be used in this way. For

example, if A gave evidence that her friend B had

said to her that X, a passing acquaintance, was

being sought by the police and they were going to

charge him with the Belanglo Forest backpacker

murders, and then evidence emerged that A had

accepted a lift to Sydney the following day with X,

would that not be relevant to draw a number of

inferences, one of which - an inference that is

opened is that it casts doubt on the statement

being made that she was told these things. Is not

that not a permissible line of reasoning? Is that

not an inference which is logically open? If so,

then the evidence that A had accepted the lift to Sydney with B the following day is admissible, is

relevant, and can be used to mount an argument and

to have inferences drawn, that no such thing was

ever said.

Now, there might be other inferences that can

be drawn, that A was brave, foolish, disbelieve B,

there might be in a number of inferences, but one

that can logically be drawn is one that - - -

DAWSON J:  What you cannot do is to say, because of the

reaction you disbelieve A that, therefore, for that

reason you disbelieve B.

MR BREWSTER: Well, in my submission, you can, if B gave the

same evidence.

DAWSON J: Well, you can put them into the balance and see

what you think the evidence establishes in the end, but it does not establish that Bis not telling the

truth.

MR BREWSTER: Well, it may raise a doubt overall.

DAWSON J: That is a different thing.

MR BREWSTER: Well, that is impugning the evidence of Bin

the sense of raising a doubt about whether Bis

being accurate.

DAWSON J:  The words of the draft notice of appeal impeach

the credit of, I think.

MR BREWSTER: Well, that is another way of saying that

because - or take my A and B backpacker case. The

evidence in that situation may be compelling that

32   9/2/94

this person was not told that. It would be

extraordinary if a person - - -

DAWSON J: That is that person, but therefore that person,

perhaps, was lying.

MR BREWSTER:  Yes.

DAWSON J: But if someone else gives evidence independently

you cannot say, because that person's evidence is

not accepted, the other person was lying. You may find there is insufficient evidence in the balance

to accept the second person, but that is a

different thing.

MR BREWSTER:  In my submission, it flows that not accepting

A may mean that there is a doubt in relation to the

evidence of B. That may flow from one fact, the

probability of A behaving that way, or from a

matrix of facts; B's demeanour in giving evidence

or other inconsistencies in B's evidence. But, one

cannot compartmentalize these things. It would be

a totally artificial exercise of Chinese walls that

do not exist, to say, "Well, there is a doubt so

far as A is concerned about whether she was told

this, so we do not accept her evidence about

whether she is told. But, B, now let us look at B

completely separately, B says that she told A.

There is nothing inherently improbable about that

or in the way she gave evidence. We must put to

aside and totally ignore A's reaction. Therefore

one accepts B." In my submission, that is

impermissible.

DAWSON J:  One has got to keep one's thoughts very clear in

this matter. You cannot use A's evidence to impugn

B's evidence. You may say, in the upshot, because you do not accept A's evidence, then the necessary

evidence to establish the case including B's

evidence is insufficient, but that is different.

MR BREWSTER: Perhaps I am misunderstanding what flows from

Your Honour. That could be, that could be

considered to be impugning B's evidence because in

the end result one has not been satisfied beyond

reasonable doubt that B told this to A. B has said

she told it to A, therefore one must have a doubt

about B's evidence. Now, whether that is

categorizing it as impugning B's evidence, or taking account of all the factors, there is a reasonable doubt, in my -

BRENNAN J: That is not the way in which the jury could or

should approach the matter.	The question is was a
complaint made.	You have got A's evidence which

might be subject to a doubt, and you have got B's

33   9/2/94

evidence. In the light of both pieces of evidence,

is the jury satisfied, or not?

MR BREWSTER:  Yes. That, in my submission, is taking it

back to the present. That is exactly what the

Federal Court did.

BRENNAN J: That, in its term, of course, even if you are

right in that, and I do not know that you are, but

if you were right in that, what is the validity of

a line of thinking in light of section 76C which
says, "Here is a complainant in a sexual case who,

under cross-examination, has said that she made a complaint, there is a doubt as to whether she did

make a complaint and, therefore, because there is a

doubt about that the evidence that she gives is, to

an extent, subject to criticism or to less

credibility than it would otherwise have."?

MR BREWSTER:	I am not sure, Your Honour, that the Federal Court went quite that far. Perhaps their
expression was not crystal clear but - - -

BRENNAN J: It said, "Whether or not the jury were entitled

to rely beyond reasonable doubt upon the evidence

of the complainant, having regard to the

inconsistencies in the case", and then it added

this other factor. What is the relevance of adding

the factor of, "Query, no complaint", in the light

of section 76C.

MR BREWSTER:  One answer would be what I understood had

fallen from His Honour Justice Dawson that, whilst

complaint is inadmissible under the Act, it was brought in by the defence and having done so it could be said it buttresses the evidence of the complainant. When one then looks at all the

surrounding circumstances and has a doubt about the

complaint, then exit the buttressing, we have then

the uncorroborated evidence of a child which is

subject to a number of inconsistencies.	The
Federal Court did not express themselves in

precisely that way but that could be the effect of

what they have done and, in my submission, that

line of reasoning cannot be impeached.

If I can take up again perhaps this issue of

impeaching the evidence of another. Are we not

allowed to impeach, assuming we are impeaching the

evidence of the child - I do not make that

concession that the Federal Court did impeach the evidence of the child, but assuming they did - is

it impermissible as a matter of logic that one

should have a doubt about the evidence of, in my

case, B, because of the reactions of A; is that

impermissible as a matter of logic? I would say,

no, it is not impermissible as a matter of logic.

34   9/2/94

Then why, I ask rhetorically, should not the

reactions of a third person be used to cast a doubt

or to impeach the evidence of another? It would

have to be on the basis, in my submission, of

fairness to the person whose evidence is being

impeached, and I make the point in my written

submissions, that might be a powerful consideration

if the person being impeached was the accused, but

the complainant is not on trial; issues of fairness

to the complainants do not arise.

If I could turn now to the issue of procedural

fairness, which has two aspects to it: first of

all, is the Federal Court entitled to proceed on a

basis not argued before it or the jury; and

secondly, did they give the appellant, the

applicant, in effect, notice of what they were

going to do; was the issue agitated so that there

was procedural fairness within the conduct of the

appeal. Dealing first of all with the point of
special leave, Lewis' case, which is referred to in
the written submissions, establishes the
proposition that the Crown is entitled to
procedural fairness.

We say that while criticism could be made of

the way the Federal Court went about this, that the
issue was agitated before that court, fairly
extensively, the issue of the mother's conduct

generally, and it is at pages 196 to 199 and

further at pages 205 to 208. Could I just take

Your Honours particularly to page 196. The whole

issue of the relevance of the conduct of the

complainant's mother begins at line 22 on page 196,

where His Honour Mr Justice Wilcox says:

Mr Ibbotson, I just cannot resist saying

this to you: the behavior of the mother I find

really strange here.

And he goes on to outline how she was not an

ill-educated woman; she was someone with tertiary

qualifications and some qualifications in child

sexual abuse, but continued to send the child back

to be minded by the respondent's wife, despite

constant complaints. At line 40 His Honour says:

I suppose the relevance of all this is

not to criticise the mother but to cause one

to wonder whether or not which evidence can be

relied upon.

Now, I concede that that is not flagging for the

Crown precisely the point that, can we rely on the

mother's evidence that the complaint was made in these terms. But it flags in general terms that

His Honour regards the conduct of the mother as

35   9/2/94

relevant consideration and relevant to questions of the reliability of evidence that is given. And the

issue of the mother's conduct is agitated at some

length and the Crown, the respondent to that

appeal, was given the opportunity to make

submissions to explain the mother's conduct.

So the issue was agitated. It is not a case

like Lewis. Lewis, Your Honours might recall, is a

decision of the Court of Criminal Appeal of the

Northern Territory, where the court heard - it was

an application for leave to appeal, and everyone

assumed that that would be disposed of and then, if

leave granted, that the appeal would be heard.

But, instead, when Their Honours granted leave to

appeal, granted the respondent leave to amend his

notice of appeal to include a ground that had never

been agitated before them, without waiting for the

appellant to take up that course, amended the

notice of appeal, then allowed the appeal on

grounds which had never been raised in any way

before them. That is a clear case - one could go

further but I will say a "clear case" where the

Crown was denied procedural fairness.

Here, while one could criticize the degree to

which this issue was flagged, clearly the issue was

agitated. The Crown was given the opportunity to

explain how the mother's conduct could be explained

in general terms. It is not a case such as Lewis.

We would say it is a case where the Crown has not

been denied procedural fairness, albeit, perhaps

the point that was later made could have been put

with more particularity. But, in my submission,

there could be a proliferation of appeals if one examined the reasons for judgment of a court and then went back and looked at precisely the argument

and whether that was flagged in precise terms. We

would say that it needs only to be done in general

terms. I would pin this submission against the

backdrop of the fact that this is a Crown appeal

case where, we would say, one could be perhaps and it takes a very exceptional case. This is a	critical of the Federal Court, but it is not very
exception. It is not a Lewis-type case.

The second aspect is: is the Federal Court

entitled to decide the case on a point which was

not taken at the trial or taken before that court.

We say yes. The Federal Court did not, as my

friend suggests, go on a wide-ranging inquiry in the manner of a royal commissioner. The Federal

Court confined itself to the evidence before the

jury. All the facts on which the Federal Court

drew the inference that they drew were elicited at

the trial.

36   9/2/94

It is said by my learned friend that the fact

that the complaints were made and their terms was
unchallenged but, in my submission, it is not

incumbent on an accused to challenge these sorts of

things in the Browne v Dunn sense, to say in

effect, "I put it to you that no complaint was made." One obvious reason is that the accused

person could not give those instructions.	He could
not know what happened.	He could not know, looking

from his perspective, whether the complainant was

making complaints which were false or whether she

was lying when she said she made complaints.	He
could not say what was happening.

All, in my submission, that is incumbent on

counsel to do is to draw out all the facts on which

inferences can be drawn and invite a jury to draw inferences. At the trial the jury was invited to

draw a particular inference, that is an inference

that the mother could not have believed her child.

She knows her child better than the jury, of

course. The dynamics of this family are obviously

complex. There is much that we cannot understand.

There is a matrimonial breakup; there are all sorts

of complications. If she did not accept what was

being said by her child, then how could you be

satisfied beyond reasonable doubt: that is the

submission.

They were asked to draw that inference. But

it was open to them, in my submission, to draw any

inference they liked which was properly available

on the evidence. It would have been open to the

jury to have drawn the same inference that the

Federal Court drew and, when the matter got to the

Federal Court, open to the Federal Court to draw

that inference.

Suppose that the accused was unrepresented and had not advanced any cogent arguments to the jury

and was unrepresented before the Federal Court, as

Lewis was before the Court of Criminal Appeal in

the Northern Territory, the Federal Court denied

the right to go beyond his submissions, confine

themselves to exactly the inferences that he

suggest can be drawn or, similarly, if an accused

person were incompetently represented as an appeal

court, denied the right to go beyond the way the

trial was run and the submissions put to them.

TOOHEY J: That is not quite the point though, is it? Of

course it can go beyond the arguments. The

question is: should it give the other side an

opportunity to be heard if it proposes to deal with

arguments that were not raised before it? It is

not a matter of power of the court, it is a matter
of procedural fairness.

37   9/2/94

MR BREWSTER:  This is bound up with the aspect that I

addressed on a short while ago, that we say that

the issue of the mother's conduct was raised with

the Crown by the Federal Court during the course of

argument.

TOOHEY J: Yes, I understand that argument, but I thought

what you were putting to us a moment ago was not

really the argument that had been put to us by the

Crown. You were suggesting that the Federal Court

has the power to go beyond arguments addressed to

it. With that I do not think there can be any

quarrel so long as the other party involved is

given an opportunity to address those arguments.

MR BREWSTER: Well, again, I am perhaps reading too much

into ground of appeal 2.3 which claims:

the Federal Court erred in finding that the

verdict was unsafe and unsatisfactory on the

basis of speculation about matters that were

unchallenged and uncontested at trial and on

appeal.

TOOHEY J:	I was addressing my remarks in the context of the appeal. Other questions might arise, of course, in relation to issues canvassed, or not canvassed, at
the trial.

MR BREWSTER: Well, as I would read ground of appeal 2.3, it

would say this, or might be interpreted widely

enough to say this, that if counsel, at an appeal,

does not ask the appellate court to draw a

particular inference, they are not entitled to draw

that inference. If that is what is put then, we

would say, it is impermissible, it is not the law.

BRENNAN J: Well, the ground of appeal might be too broadly

drawn, but I mean the substance of it is that the doubt about the making of a complaint when the

making of the complaint was never a subject that

was discussed during the course of the Federal

Court hearing and had been a matter of common

ground at the trial.

MR BREWSTER:  Well, yes. Common ground is, perhaps, a

little too far? It was never the subject of

expressed challenge, but it was not - - -

BRENNAN J: Challenge? It was extracted by

cross-examination.

MR BREWSTER:	Yes.
BRENNAN J:	You can scarcely put it on the basis of challenge, can you?

38   9/2/94

MR BREWSTER:  The evidence was drawn out - if it was to be

challenged, it could have been done differently, I

suppose, if it were to be challenged, on the basis

that the police were told something by the mother.

BRENNAN J:  It was not a matter of challenge, it was being

drawn out in order to expose the inconsistency between the reception of the complaint and the

conduct of the mother.

MR BREWSTER: But, in my submission, that it would have been

open to have drawn it out, to have said, "Now, you

say that your child complained, told you X and Y

and Z, and what did you do about that? You did

nothing, did you?", and leave it at that. If the

Crown then wanted in re-examination to bring up why

nothing was done, the opportunity is available,

and then to invite the jury to draw inferences from

the evidence.	"She has given sworn evidence that
X, Y and Z happened; she said she did nothing.	How

could that be? Surely she is not telling you the

truth, ladies and gentlemen", and -

BRENNAN J: Well, she is not telling you the truth. Where

does that lead in terms of the appeal?

MR BREWSTER:	Then we go back to the first point as to where one is dealing with the uncorroborated evidence of
a child, which is replete, we say, with
inconsistencies - and the Federal Court considered three as significant - when you take out of that the complaint, then in the circumstances of this
case we say you have a verdict which is unsafe and
unsatisfactory.

BRENNAN J: That is another problem. If you are able to

show that the Full Court would have allowed the
appeal in any event, having regard to the

inconsistencies without reference to the question

of a complaint, then it may have been a different

kettle of fish.	But the way in which I read the
judgment at the moment, that was not what would

have led the Court to allow the appeal, it was

those inconsistencies, but then the conduct of the

mother which impinged upon the question of whether

a complaint was made. And from that, then, back to

an impugning of the credibility of the child upon

whom the conviction totally rested, upon whose

evidence the conviction totally rested.

MR BREWSTER:  I will endeavour to deal with that point this

way. Page 229 the Court admittedly did not make it

clear whether or not they would have allowed the

appeal simply on the basis of inconsistencies.

They say at the top:

39   9/2/94

In considering the weight to be given to these inconsistencies, we have to remember

that the complainant's account of the

appellant's conduct is uncorroborated. But,

important as they are, it is not only the

complainant's inconsistencies that cause us to

consider the verdict unsafe and

unsatisfactory.

One reading of that is that the

us to think that. There are other things as well

inconsistencies themselves would have done that.

that reinforce this view that we have come to. In my submission that is, in fact, the logical way of

reading it, it is not only the complainant's

inconsistencies.

If they had said the complainants

inconsistency standing alone would not have caused

us to impugn the verdict, perhaps it would be a

different matter; perhaps it is a matter of narrow

semantics, but nevertheless, this is a Crown

appeal, it would require a very clear case, in my submission, before leave would be granted, and it

is not at all clear that they would not have

allowed the appeal, but for these other reasons.

And then we come to the point that His Honour

Justice Dawson raised, that I respectfully

endorse - - -

DAWSON J:	What point is that?
MR BREWSTER:	- - - that if there is doubt cast on the terms

of the complaint, then the complaint cannot be used

to in any way buttress the uncorroborated evidence

of the child, the inconsistencies can be perhaps

looked at differently. We then have the

uncorroborated, unbuttressed evidence of a child,

subject to inconsistencies.

DAWSON J:	I do not know what force that has in the context of a section which says that the Crown cannot
produce evidence of complaint.  I do not know what
that section means, but - - -

MR BREWSTER: Well, the section was quietly ignored in the

trial, but - - -

TOOHEY J: But it is a somewhat bizarre situation, is it

not, when you have a provision in a statute which

says that no evidence shall be led of a complaint

and that no evidence of a complaint is admissible

in evidence. Evidence relating to a complaint is

extracted by cross-examination, then used as a

basis for repudiating that evidence of the

M(2) 40 9/2/94

complaint and then in turn it is used to throw

doubt on the primary evidence of the complainant.

MR BREWSTER: Well, if it is totally inadmissible and gets

in by consent, we would say, under Jones' case, it

can be used for any purpose that - - -

DAWSON J:  What happens if the defence is recent invention;

can the Crown then introduce evidence of recent

complaint?

MR BREWSTER: In my submission, yes, under subsection (2)

because it does not affect the admissibility of a

complaint if it is otherwise allowable and -

DAWSON J: Otherwise than what?

MR BREWSTER:  Otherwise than under the law that complaints

in relation to sexual offences were allowable as

evidence of consistency and as to buttress evidence

of the complainant.

DAWSON J:  I am not sure.

MR BREWSTER: Well, in my submission, that would be the

logical reading of subsection (2). When - this

recent invention any statement, whether in a sexual

case or otherwise can be made by the person being

attacked, can be bought into evidence which would

otherwise be inadmissible. In my submission it

would be a logical reading of subsection (2) to

extend it to that sort of situation. Otherwise, I

would have to say, Your Honour, I find difficulty

in seeing what subsection (2) means or how it could

apply. I cannot, off the top of my head, think of

other examples where a complaint can come in, other

than recent invention.

But, here it is led by the defence, it is not

objected to, it may be inadmissible, but having got

in under principles in Jones' case, it is

admissible for all purposes, and any inference

which can properly be drawn from it is available to

be drawn. Perhaps query whether the words

"admissible" under any other rule, or "practice"

the word practice would, perhaps, say it is

admissible if adduced by the defence. Perhaps it

is a "practice" to allow defence a reasonably wide

ranging latitude in these matters, but I am not

sure that I can really pursue that point much

further.

DAWSON J: But, it is an odd circumstance, the statute says

you cannot, or the Crown cannot adduce evidence of

the complaint. You say, "Look, we can adduce it in

cross-examination and then deny its use for the

41 BREWSTER 9/2/94

purpose in the circumstances for which the statute

says you cannot use it."

MR BREWSTER:  The statute abolishes any rule of law or

practice permitting evidence to be admitted of

complaint. It does no more than that. It does not

take away the rights of a defence counsel to

cross-examine - - -

DAWSON J:  So that the old blue rule of law saying that you

can use a complaint to strengthen the evidence of

the complainant, to buttress it, as it were, has

gone. You adduce evidence of the complaint not to

buttress the evidence of the complainant but to say

that you cannot buttress the evidence of the

complainant with this particular complaint which

the law says you could not use for that purpose

anyway.

MR BREWSTER:  I query whether section 76C has the effect of

simply - this is the old law. I will try to break

it up, and perhaps this is not quite the way it

should be put, that evidence of complaint was

admissible. There were reasons why it was
admissible but, leaving those aside, it is
admissible. Having been admitted, what can it be

used for? Not as corroboration but as evidence of

consistency of conduct and as buttressing up the

credibility of the complainant, buttressing falling

short of corroborating. The rule that it is

admissible, it can be got in, is abolished, but

does that necessarily say that the ancillary rule

of the purpose to which it could be put once it was

in is also abolished. I query that, Your Honour.

BRENNAN J:  No doubt it is open to prove conduct by a

prosecutrix or by any complainant in a sexual case

which is inconsistent with the allegation that is

made and the hypothesis used to be, I take it, that

if there were no complaint, that would be

inconsistent conduct.	The legislature now says not
so.

MR BREWSTER:  Not quite; they say that a judge has to give a

direction about no complaint, as I recall, but as I understand it, defence counsel are still at liberty

to attack a complainant on the basis there was no

complaint.

BRENNAN J: But you cannot say there is no complaint if

cannot produce evidence of a complaint, surely?

MR BREWSTER: Yes. That is an interesting conundrum. Let

me approach it in a simpler way. I say that

section 76C is not expressed to cover the situation

where an accused person wishes for his or her own

purposes to adduce evidence of a complaint. It

42   9/2/94

simply abolishes the rule that the Crown were

entitled to call evidence of complaint.

TOOHEY J:  It does not say that, but if it does not mean

that then you get some very odd results. For

instance, a complaint might have been made

following a sexual assault in which the

complainant said that she was unable to identify

the person who assaulted her. Now, it would be a

bit odd if the accused was not allowed to bring

that out in cross-examination.

MR BREWSTER:  Yes, in my submission, section 76C cannot be

read that widely, and when it refers to a "rule of

law or practice", it is - - -

TOOHEY J: That might be moving under that subsection (2),

might it not?

MR BREWSTER:  Yes, it could get in that way. It could get

in under other sections of the Evidence Act, where a person can be cross-examined about any statement he made under certain circumstances. That is not

quite the case here when cross-examining the

mother, of course. Anyway, to recapitulate the

point, admissible or not, it is in. It has been

brought in and, once in, can be used to draw any

inference which is properly available as a matter

of logic from the evidence.

BRENNAN J: Having regard to section 76C, was it right for

the Federal Court to approach this case on any

basis save this, that you disregard entirely the

evidence of the mother?

MR BREWSTER:  It can be approached that way, but I do not so

confine it; I submit that the mother's reaction to

these alleged complaints can be used as a matter of

logical inference to cast a doubt on whether the

complaints were ever made and therefore, on the

veracity generally of the witnesses, and that does

include, if we use the word "impugning", impugning

the evidence of the child. I say that that is

available. It can only be excluded - - -

BRENNAN J:  Now let me understand precisely what your submission is. I have understood you to say two

things: one that you just said, namely, that the

conduct of the mother can be used in order to throw
doubt upon the ascertain that the mother received a
complaint and thereby to throw doubt upon the

ascertain that the child made the complaint and

thereby to throw doubt upon the child's evidence as

a whole.

9/2/94

MR BREWSTER:  I would take it in discrete points. All that

the Federal Court judgment stands for is the first

of those propositions.

BRENNAN J:  Throw doubt on the mother's evidence?

MR BREWSTER:  Yes, that is all it stands for. I do not say

that if Their Honours had gone further and said

there is doubt in relation to the child's evidence

in relation to complaint, that Their Honours would

have been wrong, but Their Honours did not.

BRENNAN J: Well that is what I want to get at. The second

point, as I understand you to say, is that the

conduct of the mother can be used, without going

through those steps, to impugn the allegation of

substance that is made by the child, simply because

the mother's conduct is inconsistent with the

allegation made by the child.

MR BREWSTER: That as a matter of principle - leaving aside

the particular facts of this case, the matter of

principle that is available. But I say that this

is not an appropriate vehicle for a grant of

special leave because the Federal Court does not

appear to have done that. They have not gone that

far. They could have but they did not.

BRENNAN J: Could I just press you with one more question.

If the Federal Court went only as far as you say,

namely that the conduct of the mother is relevant

to impugn her own credit so that you do not accept

her evidence that a complaint was made, what is the
relevance of that to the unsafe and unsatisfactory

verdict?

MR BREWSTER:  Then one is thrown back on: what have we got

in this case? We have got the evidence of a child,

we have got a rule of practice that a jury must be
warned that it is dangerous to convict on the

uncorroborated evidence of a child.	As a matter of
logic it is, in my submission, difficult to pick a

safe course between when one can safely convict

when it is dangerous to do so. It is a difficult

philosophical or semantic exercise. But be that as

it may, the Federal Court has to instruct itself

that it is dangerous to convict on the

uncorroborated evidence of a child. The jury

should have borne that in account, but they can

convict if, after scrutinizing it with great care,
they are satisfied beyond reasonable doubt of its
truth. Scrutinizing with great care would involve

not looking at the demeanour of the witness but

looking at the - because one scrutinizes not the

witness with great care but the evidence with great

care, and that means looking at whether there are

any inconsistencies in it. There are

44 BREWSTER 9/2/94

inconsistencies, we would say, more inconsistencies

that are of significance than the Federal Court

picked on. But be that as it may.

So, we are faced with the uncorroborated evidence of child, where the jury should have

appreciated that it was dangerous to convict on

that, but it could only do so after scrutinizing it

with great care - they could not have scrutinized

it with great care, or if they had, they should not

have been satisfied beyond a reasonable doubt.

That is where this case is at.

Now, finally on this point, Your Honours,

could I just go to the discretionary issue.	I rely
again on Lewis' case and this was raised in
argument by Your Honour Justice Gaudron, as I

recall. This respondent was sentenced to a term of

imprisonment of two and a half years on

23 November 1992. A non-parole was fixed of nine

months. He was released sometime after 15 April,

and one could assume, promptly. In my written

submissions I have said that he served just under

four months of this sentence. That is a

miscalculation, it should have said five months -

at point 16 of the submissions, at about line 6. I

also make a counting error on the last line, I have

said he has been at liberty for almost nine months - it is, in fact, almost ten months.

The case has had an unusual history in this

Court. It first came before a bench of three

Justices. It was there referred to a bench of

five, so it has been adjourned once. A date was

fixed and that date was vacated. The respondent,

after conviction, has had the conviction quashed

and then has had this Court consider on 11 June,

and has had the uncertainty and anxiety of that -

has not had that resolved. I am not in any way

being critical of the Court, I hasten to add, so

has had the further anxiety and another date fixed,

then that date has been vacated and the further

uncertainty and anxiety.
It would be a cruel and unusual step, in my
submission, now not put an end to this.	It would

require, in my submission, an exceptional case - a

wholly exceptional case - to put this man through

any more, and the Court should not do so.	They are
my submissions on the special leave aspect -

McHUGH J: Before you sit down, can I ask you about a

matter? Having regard to the terms of 76C has not

the Full Court set up a straw man in this case?

76C draws a distinction between the making of a

complaint in subsection (1) and evidence in

relation to a complaint in subsection (2). Is not

45   9/2/94

the inference to be drawn from the totality of the
section that the·credibility of a complainant is

not to be tested in any way by a reference to

whether or not he or she made a complaint?

Now, if that is so, what relevance does the

process of reasoning of the Full Court in this case

have? The question as to whether the child made a

complaint to her mother was not a matter that

should have been taken into account at all.

MR BREWSTER: Well, my submissions on that point,

Your Honour, are this: first of all, section 76C

should not be construed more widely than its terms

require and, in particular, it should not be

construed so as to in any way impact on the conduct
of a trial by defence counsel. We would be cutting across time-honoured forensic tactics and practices

if that were the case. As Your Honour was saying

to me in argumentum, as I understand, that

section 76C would preclude me taking the steps I

did at the trial.

MCHUGH J: Exactly, but the whole point of 76C - it is not

there for the protection of the accused. I mean,

these amendments to this legislation were all

brought in for the protection of complainants, and

one of the criticisms that was made of the

pre-existing law was that the credibility of

complainants was put in issue by whether or not

they had made a complaint. Now, in some cases this

section might help an accused by reason of the fact

that you just could not lead evidence to the making

of a complaint. But, whether it affects or assists

the Crown or the defence, that fact is that 76C

seems to prohibit any reference to the making of a

complaint.

MR BREWSTER:  Your Honour, I do not have the explanatory

memoranda in relation to 76C but I would submit

that, properly interpreted, it is not brought in

for the benefit of the complainant but for the

benefit of the accused and is part of a balancing

act, a trade off, if I can use that term, so that

whilst the conduct of the accused's case is

restricted by the prohibitions in 76G, for example,

there are benefits for an accused person as well.

In my submission it would not be appropriate just

reading the terms of the legislation without

reference to extrinsic materials, at any rate, to

assume that the whole of Part XA was brought in for

the benefit of complainants. Even if it was, that

there has not been some trade off, some balancing

done by the legislature to seek to keep in - - -

McHUGH J: But it seems an extraordinary proposition that

the case could be conducted the way you conducted

46   9/2/94

it, having regard to the terms of 76C. For

example, you could have even achieved your object

without reference to the terms of the complaint by,

for example, a preliminary question to the effect

that you were aware from 1 May of the nature of the

allegation against the accused. That would not

necessarily involve any reference to the making of
a complaint or of complaint. And then you could have proceeded to make your point from that time

on, whatever it was.	But that is not the way you
proceeded.

MR BREWSTER:  No. I could have. That is the way the Crown

proceeded. In effect, they said, "You were told

something on 1 May and you did certain things." A

jury could be left to speculate what she was told,

although it would not require a great deal of

ingenuity to work out what it must have been. I

could have proceeded on the same basis, hiding from

the jury the precise terms of the complaint but, in

my submission, I was not so constrained by

section 76C. If section 76C wanted to constrain

defence counsel in that way it should have said so

explicitly. It can be properly interpreted, it can

be reasonably interpreted where it says:

Any rule of law or practice permitting

evidence to be admitted in proceedings in

respect of a sexual offence, being evidence

relating to the making of a complaint -

means that an unusual and exceptional rule that the

Crown could, in sexual cases only, lead evidence of

complaint.

McHUGH J: But it may be the case that if this complaint

should not have been admitted into evidence then

the whole trial miscarried, in any event, and the conviction should have been set aside, because it

is just as likely that the jury seized on the terms

of the complaint as evidence to support the Crown

case by the consistency of the complainant's

evidence. They were given no direction about the

matter at all and that is a further problem about

the whole case, it seems to me, that once that

evidence was in, the jury were given no guidance.

I must say, at the moment, I think, having regard

to 76C, it should not have been in.

MR BREWSTER:  I am not going to reject the life-raft that

Your Honour has thrown to me. It does not fall to

me though to impugn - perhaps somebody else should
have done the appeal - the conduct of the case at
first instance and what the judge allowed in and

what he did not because I was responsible for it

and I did not seek any directions from the judge on

BREWSTER 9/2/94

it, but I am not going to say that Your Honour

should not proceed down that path.

Your Honours, as I would apprehend it this

case - from what fell from Your Honour

Justice Brennan - would proceed on a basis of a

decision being on whether special leave should be

granted, and then further argument, both in

relation either to - - -

BRENNAN J:  No, I think you should deliver whatever argument you are minded to deliver.

MR BREWSTER:  I am going now to this, Your Honour. we have

prepared a notice of contention in the matter, and

it can be seen from the arguments. This case first

came before a bench of three confined to the

special leave point, and so a notice of contention

was not appropriate in that case, and then it has
become out of time and has not been accepted by the

Registry, so I would need leave to file it. It

goes to this point.

BRENNAN J:  You need not be concerned about questions of time, Mr Brewster.

MR BREWSTER: Well, could I have leave then to file that?

BRENNAN J: Yes. You can do it de bene esse, as it were.

If special leave were granted, then it will have

its effect.

MR BREWSTER:  If the Court pleases. I hand to the Court a

notice of contention. As is clear from the

judgment of the Federal Court, the trial judge

admitted into evidence evidence that the respondent

had indecently assaulted the complainant on many

occasions, on a number of occasions, at his house
during occasions when the complainant was being
babysat during the day by his wife - the

complainant, her sister and a number of other

children. This was allowed in under the well-known

rules beginning, I recall, with Ball's case of

guilty passion. It is our submission that this

should not have been allowed in. It was the

subject of a challenge and a ruling by His Honour.

We say that for this reason: first of all,

that it needs to be looked at against the backdrop

of this type of evidence, that it is of an

exceptional nature. I will call it similar fact

evidence as a shorthand method, if I perhaps could,

but I do not mean to confine it just to that.

Similar fact evidence, evidence of other offences,

has always been something the law has been

reluctant to allow in as evidence of guilt and has

required a strong case and a strong probative case

48   9/2/94

to do so.	The submissions refer to Harriman.· s
case.	I would also refer Your Honours to the
decision of B v Reg, 110 ALR 432.	I do not think

that is in the authorized reports but I have a dark

fear that I may not have checked that one out.

In particular I refer to the judgment of Their Honours Justices Dawson and Gaudron at

page 445, and Their Honours at about line 33 say

that:

The evidence -

this is of similar sorts of things, of how the

father's previous sexual misconduct involving his

daughter, in this case, was admissible for this

purpose.

It was not otherwise admissible unless it

satisfied the stringent test laid down by the

law for admission of what is called

compendiously, although in many cases

inaccurately, similar fact evidence.

And Their Honours go on to say that the evidence

has to go beyond showing the:

propensity or disposition to commit -

the crime, and later -

it will be admissible if its probative value

for that purpose outweighs its prejudicial

effect.

McHUGH J: Well is that statement consistent with Ball and

the cases that follow it?

MR BREWSTER:	In my submission - well, Ball does not say anything of that nature. Ball was a case where the
evidence was strong and compelling from third
persons and from documents.  The backdrop is
though, Your Honour, it is clearly very prejudicial to produce evidence that an accused person has been guilty of other offences and that the law
circumscribes the condition, the circumstances,
under which that may be done. That is simply the
backdrop.  We would say here that there is no - - -

McHUGH J: It has been admitted in thousands of cases; I

thought your point was a different point, that

there was no identification of the time -

MR BREWSTER:  Yes, it is, but I am just putting it against

that backdrop. Without that point that Your Honour

raises, I would not be on my feet. It is only a

backdrop and I do not want to explore that in any

49   9/2/94

detail. We say this, Your Honour, that the case of

S, 168 CLR 266 - and I saw this morning that my

list of authorities inadvertently had the

Australian Criminal Reports reference. It is

correctly referred to by the authorized report at

paragraph 18 of my written submissions.

Your Honours recall S was a similar case involving

sexual misconduct with a minor and had the

difficulty that the prosecution were unable to

particularize at all the offences with reference to

times or dates or surrounding circumstances. It

was held there that that was an improper method of

proceeding.

Now S was not a similar facts case as such,

and there was a lot more to S, I concede, than this

case. One of the difficulties in S was that of

autre fois convict or autre fois acquit; problems

of latent duplicity and the like but, nevertheless,

we say that underlying the decision of Sis a

notion of fairness.

In particular, one of the bases on which this

Court allowed the appeal in S was that to bring

allegations in such broad and unparticularized

terms denied an accused person the opportunity of,

for example, mounting an alibi defence. The

passages in support of this can be found in the

judgment of Your Honour Justice Dawson. In my

written submission I have said at 276 to 277. It

should be 274 to 275, where it was said, at 275

that:

He -

the appellant in that case -

was precluded from raising more specific and,

therefore, more effective defences, such as

the defence of alibi. Because the occasions

on which he was alleged to have committed the

offences charged were unspecified, he was

unable to know how he might have answered them

had they been specified.

In the judgment of Justices Gaudron and McHugh

at 285 and 286, in particular at 286 at the last

paragraph, it said:

The question of prejudice goes somewhat

deeper than the question whether there was

an -

I am sorry, I should have read from above that.

Perhaps I will not read great slabs of the passage

but effectively the question of alibi was
considered. It was said that the question of

50   9/2/94

prejudice actually went deeper than the effective

opportunity to call alibi evidence and:

Effectively, the applicant was required to

defend himself in respect of each occasion

when an offence might have been committed.

That is the case, yes.

GAUDRON J: Well, does your argument come down to this, that

given the lack of particularity, the prejudicial
value necessarily outweighed the probative value of

the uncorroborated evidence of this child?

MR BREWSTER: That is part of it. That is one - - -

GAUDRON J: Well, does it go beyond that?

MR BREWSTER: Perhaps not as a separate - it is the question

of fairness as well. It is unfair that one should

adduce this evidence - - -

GAUDRON J: Well, that is what I said, that the prejudicial

value necessarily outweighed the probative value.

MR BREWSTER:  Yes. Using "prejudicial" in that broad sense, yes, that is my submission.

BRENNAN J: Well, you can pursue that at 2.15, Mr Brewster.

MR BREWSTER: If Your Honour pleases.

AT 12.51 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

BRENNAN J: Yes, Mr Brewster.

MR BREWSTER: Just to conclude this notice of contention

point; just in summary we say that the prejudicial
aspect of all this previous misconduct is
considerable and particularly prejudicial because
the accused is unable to come to grips with the

allegation because of their lack of particularity.

We would say the probative aspects are not great.

First of all the evidence of the previous

misconduct is only evidence of the complainant, it

is not independent evidence. So there is some

amount of bootstraps implicit in that, and the

previous misconduct is not strikingly similar such

51   9/2/94

as would attract a true description of similar

facts.

The previous misconduct is alleged to have

occurred during the day in one of the children's

bedroom in the respondent's home in the presence

of - presence of in the sense that, present in the

same house - his wife and other children. The

offences alleged, forming the subject of the
indictment, were at night when it was just he and

the two children present, and it was in a different

house. It was not his house, but at the

complainant's house. The probative value is

extremely limited; the prejudicial value

considerable.

That was all I had proposed to say in relation to the notice of contention. Could I just clarify

one issue. I had understood, from what fell from Your Honour Justice Brennan that if special leave were to be granted the question of whether the

verdict was nevertheless unsafe and unsatisfactory,

having regard to the decision of this Court, would

be litigated, or argued, in the light of the

judgment of the Court and, not necessarily by this

Court, the decision would be made whether it be by this Court or with remission to the Federal Court.

If I have misunderstood the position there I

would seek to briefly address on the unsafe and

unsatisfactory issue based on the inconsistencies.

BRENNAN J: Well, if the Court were to get to that you would

be given your opportunity, Mr Brewster.

MR BREWSTER:  Thank you, Your Honour, that is all I wish to

say.

BRENNAN J:  Mr Crispin.

MR CRISPIN:  May it please the Court, if I could just deal with the notice of contention - - -

BRENNAN J:	We do not need to hear you on that, Mr Crispin.
MR CRISPIN:	In that event, may it please the Court, could I

just say something very briefly about section 76C.

76C(l), in our submission, abolishes the type of

situation that would have existed prior to its

enactment in which, during the course of the trial

for an offence of a relevant kind, the evidence of

complaint would normally be led, and whilst the law

was clear that it would not amount to corroboration

none the less it was regarded, if there was a

timely complaint in a consistent fashion, as

bolstering in some way the credibility - - -

52   9/2/94

DAWSON J: Well, it was recognized as having relevance.

MR CRISPIN: Precisely.

DAWSON J:	Now, looking at that section, does that abolish the relevance - if you can do such a thing,
statutorily?
MR CRISPIN:	In my submission, what it does is to say prima

facie, the fact of a complaint being made or not

made does not have relevance. But when one looks

at subsection (2) it plainly contemplates that the terms of a complaint may have relevance. Take the case, for example, where the accused is five foot

two. The complaint made to a police officer

immediately after the incident was, "You'd better

start looking for a basketballer; he was six foot

nine", or something along those lines. In those

circumstances it is a prior inconsistent account.

Alternatively, if I could take up the example offered by the bench before lunch, it may be admissible on the Crown's behalf to rebut an

allegation of recent fabrication. But there needs

to be a separate rule of law or practice to make it

relevant. It does not have relevance per se any

more because of the terms of subsection (1).

DAWSON J: That is not what the statute says.

TOOHEY J:  It would have been simpler if it had simply

omitted the last line and a half - perhaps simply

abolished the rule without making the evidence

inadmissible in absolute terms apparently.

MR CRISPIN: Indeed. But what it means in this case, in our

submission, is - it can perhaps be illustrated by

comparing the situation under the new law with

under the old law. Suppose, for example, this

trial had been conducted prior to the enactment of

section 76C and the Federal Court had been

concerned with a situation in which they had not only the evidence of the complainant to consider

but also evidence of the complaint and they were	able to say to themselves, "Well, the evidence of
the complaint may have bolstered the evidence of
the complainant to some degree. The material about
the mother's inappropriate behaviour derogates from the added force, or the accretion in weight, if one likes, to the Crown case brought about by the fact
of that complaint and its terms."

DAWSON J:	I do not follow that.
MR CRISPIN:	In other words, prior to this, had it been

under the old law, the Federal Court would have

been entitled to say there were two pieces of

evidence, if one likes, that the jury could take

53   9/2/94

into account in coming to its decision.

Firstly - - -

DAWSON J:  But it would have been led by the Crown in that

event.

MR CRISPIN:  In that event it would have been led by the

Crown, precisely, and the Crown case would have

consisted of the two pieces of evidence. On the

one hand there would be evidence of the child and

there would be some supporting evidence, not

corroboration, but supporting evidence, of the

complaint to the mother. In that event a

Federal Court would have been entitled to reason

the mother's behaviour should have been regarded by

a jury as derogating from the force of the

additional weight in the Crown case added to it by

virtue of the mother's evidence.

But, of course, once the Act is in, once the

section is in, prima facie, there is no additional

weight. The Crown puts forward the unsupported

evidence of the complainant.

DAWSON J:  I can understand that, but that should have been

then the subject of injection to the admission of

the evidence.

MR CRISPIN: It could have done, Your Honour.

DAWSON J:  The objection would have been you cannot lead

evidence which has no relevance to the purpose of

knocking it down.

MR CRISPIN:  No, but it would have been, with respect -

DAWSON J: But that objection was not taken, so when it is

not taken, what is the effect? And that was never
adverted to, apparently, at the trial, it was not

the subject of argument, apparently in the Federal

Court and the whole result in the Federal Court has

that pall cast across it.

GAUDRON J: And we have to assume, do we not, that the jury

did have regard, or may have had regard, to it in

reaching its verdict.

DAWSON J: Not having been instructed to the contrary.

MR CRISPIN: They were not instructed to the contrary in

specific terms, it must be conceded. They were

instructed in general terms that there was no

corroborative evidence and - I think the phrase was

used, that there was no evidence from any other

witnesses to any material fact. But they were not

instructed specifically as to what they did with

that evidence once it was - - -

54   9/2/94

DAWSON J: So, it is quite clear that both the trial and the

appeal did not proceed in an ideal manner, having

regard, at all events, to section 76.

MR CRISPIN:  I think that concession must be made,

Your Honour. I must say, in fairness to

Mr Sabharwal, it would have been very difficult to

have objected to the question on the ground of

relevance because - - -

DAWSON J: Why, the statute says it is not relevant, so you

say?

MR CRISPIN: Well, I say it is not relevant for the purpose

for which it was used in the Federal Court, but

for -

DAWSON J: And that is the only purpose for which it was

introduced by the defence, to say that it was

relevant and then to say, "But it is not relevant

in this case".

MR CRISPIN: Yes.

DAWSON J: There is not much point.

MR CRISPIN: But, of course, at the time the objection must

be taken, one does not have the benefit of the

submissions that are going to be made in another

court at another time. There was, for example,
evidence from the mother that the child's general

attitude towards her was quite different the

following morning. The conversation which occurred

in response to that situation with which the mother

was presented could have been relevant for other
reasons. So, it would have been very difficult for
a prosecutor to have leapt to his feet and objected

on the basis that the answer to that question,

whatever it turned out to be, could not conceivably

have been relevant. And, of course, there is

normally a measure of reluctance on the part of the

prosecution to interrupt the cross-examination,

especially of such a critical witness.

DAWSON J: Well at least the prosecutor could have objected

and raised the question for discussion with the

judge - - -

MR CRISPIN: Yes, and in retrospect, Your Honour, that

undoubtedly would have been a - - -

DAWSON J:  - - - or drawn it to the judge's attention, at

least.

MR CRISPIN: - - - preferable course. That concession

simply must be made. But, we submit, none the

less, that having regard to the whole of the

55   9/2/94

summing up and having regard to the use that was

made of the evidence in the cross-examination and

in the trial generally, the overall picture which

emerges is of a use that was negative only; in
other words, it was not, so far as I understand

the -

DAWSON J: But against that background, it makes anything

the Federal Court says, because it is based upon an

error which seems to have perpetuated itself, of

limited relevance.

MR CRISPIN: Yes. There is nothing more that I can usefully

add to that, Your Honour. Thank you.

BRENNAN J:  The Court will adjourn briefly in order to

consider what course it shall take in this matter.

AT 2.26 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.34 PM:

BRENNAN J:  I shall ask Justice Dawson to deliver the

judgment and to make the order of the Court.

DAWSON J:  The short judgment which I am about to deliver is

the judgment of Justice Gaudron, Justice McHugh and

myself.

This is an application by the Crown for

special leave to appeal against a judgment of the

Full Court of the Federal Court allowing the accused's appeal against conviction in this matter

and directing a verdict of acquittal.

It is well established that special leave to

appeal should be granted to the Crown in a criminal

matter "only in very exceptional circumstances":

see R. v Lee, 82 CLR 133 at page 138; Reg v Benz,

168 CLR 110, at pages 112, 120, 131 and 146. That

is especially so where the orders appealed from

result in the quashing of a conviction and the

entry of a verdict of acquittal: see R v Wilkes,

77 CLR 511, at pages 516 to 517.

The particular circumstances of this case contain nothing which warrants departure from

established principle. Whilst we would not

necessarily endorse the approach that was adopted

by the majority in the Federal Court, we do not
think that any point of principle emerges from

56   9/2/94

their judgment. The result arrived at by the

Federal Court was based upon the particular circumstances of the case and the manner in which

it was conducted both at trial and upon appeal.

In the light of this, its decision cannot be said

to have consequences generally for the

administration of justice and, therefore, in

accordance with the practice to which we have

referred, special leave should be refused.

By majority the order of the Court is that

special leave to appeal is refused.

BRENNAN J:  The Court will adjourn until 10.15 am tomorrow.

AT 2.36 PM THE MATTER WAS ADJOURNED SINE DIE

57 9/2/94