RMM v The Queen

[1998] HCATrans 234

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S23 of 1998

B e t w e e n -

RMM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 1998, AT 10.22 AM

Copyright in the High Court of Australia

MR M.A. GREEN, QC:   If it please the Court, I appear for the applicant in this matter, together with my learned friend, MR S.J. ODGERS. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE:   May it please the Court, I appear for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

MR GREEN:   Your Honours, this application initially raises the question of an application for an extension of time in which to bring the matter and, in that regard, I rely on the affidavit that has been filed of Janet Kae Witmer.

GLEESON CJ:   Is that opposed, Mr Crown.

MR BLACKMORE:   It is only opposed in the sense that, in the terms of the argument, we suggest that ultimately this is not a matter in which an extension of leave would be granted.

GLEESON CJ:   So you do not want to raise any separate opposition to the ‑ ‑ ‑

MR BLACKMORE:   No.

GLEESON CJ:   Well yes, you have that extension of time.

MR GREEN:   Thank you, your Honour.  The other matter too, of course, is an application that the initials of the applicant be continued to be used to identify the case.

GLEESON CJ:   Is that opposed, Mr Crown? 

MR BLACKMORE:   That is not opposed.

GLEESON CJ:   Yes, we will give that direction.

MR GREEN:   Thank you.  Your Honours, in our submission, this application raises two matters of general importance, and the first is that the majority of the Court of Criminal Appeal misapprehended and, we say, misapplied the test for deciding whether the conviction was unsafe.  In that regard we rely on not only M in the High Court, but, in particular Jones v The Queen (1997) 149 ALR 598, in particular at pages 607 and 608. Your Honours, our submission is that Jones in the High Court did more than simply reaffirm M; it did several other things.

Firstly, it identified as erroneous the test used by the Court of Criminal Appeal in Jones.  Particularly it held that the majority in Jones held that to limit an appellate court to finding error only when it decides that the jury must have had a doubt was erroneous and it referred to tests such as that as the stricter test, that is not consistent with the open to the jury test formulated by the majority in M.  May I take your Honours just briefly to page 608 of the judgment of the majority in Jones, where, in looking at the various bases or tests which had been used as the High Court, the majority, said erroneously by the individual judges, it referred to, for instance, at the top of page 608, Justice Sully’s judgment, acritically, where he said:

that the jury must have had a reasonable doubt about the acceptability, in the requisite legal sense, of the complainant’s version.

It suggested a similar criticism for that of Justice Priestley and then, in particular, it went on to look at the then Acting Chief Justice’s judgment, Justice Mahoney, who agreed with Justice Sully, and their Honours said in the High Court, referring to the test that:

the Court of Criminal Appeal must make up its mind:

in the sense of deciding whether it is satisfied that the court has or the jury must have had...a reasonable doubt as to the accused’s guilt.

The Court then went on to suggest that his Honour, although, at one particular section of his judgment referring to the “reasonably open to the jury” test, but addition to that, his Honour applied the much stricter test outlined above.

It is clear, in our submission, in this particular case, that his Honour did similar things.  For instance, in his judgment the then President, Justice Mahoney, in that part of his judgment which is reproduced at the application book page 61, at line 6, his Honour said:

In these circumstances, I do not think that the facts of the alleged assault and the lack of corroboration of themselves are sufficient to warrant this Court concluding that, within the current authorities, the jury or this Court must have had a reasonable doubt as to whether the assault occurred.

Again, in his judgment reproduced on page 68 of the application book, referring to a particular inconsistency, a problem in the Crown case as demonstrated in the inconsistency in the complainant’s evidence, he said, line 15:

I would not see in it a matter which warranted or required the court to conclude that her evidence that the assault took place was the subject of doubt within the existing authorities.  I do not accept that this Court should conclude that the jury, in the relevant sense, must have had a doubt or that, insofar as it may be relevant, this Court should have a doubt as to the conclusion that the assault took place.

And your Honours, Justice McInerney agreed generally with the reasons of the President.  Now those tests are very similar to the tests criticised by the majority, we would submit, your Honours, in Jones.

The other important thing we say that the High Court in Jones did was to isolate and explain what it called “the application” of the test in M and it did this at page 607 of Jones in the Australian Law Reports, having set out, at the top of that page 607, the general principle.  Then their Honours at line 9 went on to say:

The majority judges explained the application of the test as follows:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.  It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

And therefore, your Honours, we submit that this was identified, perhaps not by the majority, but certainly by the then Chief Justice Justice Brennan at page 599, as a general criterion; that is:

a doubt experienced in an appellate court will be a doubt which a jury ought also to have experienced.

Except in this very narrow circumstance, and his Honour ‑ ‑ ‑

GLEESON CJ:   May I interrupt you to ask this question?  You are seeking a new trial?

MR GREEN:   No, we are seeking an acquittal.

GLEESON CJ:   I see.

MR GREEN:   Or a new trial, of course.  Justice Brennan said:

Their Honours stated the exception thus:

And then he goes on to reproduce that part of M which I have just referred to.

So, your Honours, this principle, plus the proper application of it, points clearly to further errors in the judgment of the Court of Criminal Appeal.  His Honour, the President, looking at inconsistencies in the complainant’s evidence said, and this is at application book page 68, line 14, referring to the inconsistencies, and I think I have already read that particular section.  As I have suggested, of course, Justice McInerney agreed with his reasons, but more particularly there is demonstrated, in our submission, on page 60 of the application book, where his Honour the President said, at line 24:

In the present case, this Court is not able to say with certainty whether the jury, in hearing the complainant and the appellant in evidence before it, could treat what was seen of the witnesses as of importance in this regard and whether it did so.  But it is not unlikely that that is what occurred.  The advantage which the jury had in this regard may have been sufficient to warrant the acceptance of the complainant and the rejection of the appellant, even in the absence of corroboration.

It can be seen, in our submission, your Honours, that that is what we would say, respectfully, a very vague application of a principle that bears no resemblance at all, by the very clear principle set out in M and also in Jones.  Indeed, we would submit, respectfully, that his Honour the President, in this case made much the same errors as he did in Jones.In Jones he had serious doubts about the conviction, but solved them by what we would suggest respectfully is a rather vague reliance on the jury’s advantage in hearing the evidence.  Indeed, his Honour goes so far, at the end of his judgment, pages 69 and 70, to express those concerns, rather graphically, as his “personal apprehensions” at line 12:

I think it is proper to record my personal apprehensions in relation to the conviction of an accused person upon evidence such as the present.

He talks about the possibility of error in situations where the complaint is uncorroborated.  He says:

the possibility of error exists.

And he is particularly concerned about the uncorroborated evidence in this case of a child - well she was 13 at the time of the trial.

So, your Honours, coming to this case, the jury’s advantage, in our submission, may have explained some deficiencies in the Crown case, the complainant’s evidence, but it certainly could not explain them all, for instance, on the principle set out in the High Court on this matter, the manner in which - and that is the only criterion in which a doubt ought to be absolved - the complainant gave her evidence may have explained why the jury accepted her on, for instance, why she was so slow to complain or, for instance, the different terms of her complaint to different people.  But the manner in which she gave her evidence before the jury could never explain the enormous difference between what she told the police and what she told the court, as to the alleged assault.  She told the police that” he put his penis in my vagina, it was hard, it hurt”, and her vagina was sore.

Now, contrary to that, she told the court that he put his penis down there, in the first fold of skin only, and it hurt a little bit inside, but mainly outside.  And this is what Justice Hulme correctly, in our submission, referred to as “a volte face” on page 91 of the application book at the top:

But rarely does one find a volte face of that dimension.

The manner in which she gave her evidence could not have explained the implausibilities, as his Honour Justice Hulme in dissent, of course, illustrated.  For instance, that the offence was alleged to have occurred in a room in which her cousin was sleeping at the time in a bed very near by, that the complainant’s mattress was close to the door and it would have been difficult for a person of the size of the applicant to enter it without disturbing that.  That nothing was said by either the complainant or applicant during the alleged assault.  It would not be capable of explaining away the fact that, in the trial, her evidence was uncorroborated and nor, of course, the fact that both to the police in a recorded interview, and later to the court, the appellant strenuously denied these allegations.

McHUGH J:   But, in some ways, so it seems to me at all events, that the “open to the jury test” is a harder test for you to get over than the “jury must have had a doubt” test.

MR GREEN:   Well, we do not see it that way, your Honour; we see it very much the other way, indeed.  Surely, to say ‑ ‑ ‑

McHUGH J:   The Court in Jones did not criticise the actual statements in the Court of Criminal Appeal; what we said was that, in our view, their discomfort was attributable to a misapprehension as to the manner in which the test in M should be applied, rather than to the terms of the test and throughout Jones, we referred to the “open to the jury test”.  Well, why was it not open to the jury in this particular case?

MR GREEN:   Your Honour, I am not insisting on the precise words; I am conscious of what you said in the majority in Jones, and that is why I referred to those particular sections.  It is not only the words, but of course it is the manner in which they were put; it is the whole manner of the expression of the test in the terms - and that is what I am arguing here.   But it was not open in this case for the jury to convict, because of the real problems in the Crown case, in the complainant’s evidence, which were not explained by the evidence, or the tenor or the manner in which she gave her evidence, and could not have been explained.

McHUGH J:   Well, I have got to say - it is probably my lack of comprehension - I dissented in M, because I thought the “open to the jury test” became perilously close to applying the test for determining whether there was a sufficiency of evidence to go to the jury.  But the majority took the other view and we applied it in Jones.

MR GREEN:   And the Chief Justice, of course, commented on what your Honour said.

McHUGH J:   Yes.

MR GREEN:   Just finally on that, this was a case, of course, where the appellant gave sworn evidence, and there is no indication that he was unsettled, except in a couple of subsidiary matters that Justice Hulme points out, in his sworn evidence, consistent with this fairly long record of interview, electronically recorded record of interview, and then we have the difficulties, of course.  The inconsistencies, of course, were acknowledged by the majority in this case by Justice Mahoney and also by Justice McInerney, but they overcome them, we say and we argue, in an incorrect manner.  It is not enough, in other words - as Mr Odgers and I argued in Jones, and we are arguing in this case - for an appellate court simply to say, look there are real problems in this case, there are real doubts, but the jury must have absolved those in some particular way.  That is not M and that is not Jones.  In this case, we submit your Honours, that the two judges ‑ ‑ ‑

McHUGH J:   If Jones and M mean that if there are various inconsistencies or problems it is not open to a jury to be satisfied beyond reasonable doubt, then maybe you should be granted special leave for the purpose of, as far as I am concerned, hauling it back in.  It seems to me to be a dreadful intrusion into the jury’s discretion or power in these cases.

MR GREEN:   Well, perhaps that is the case, your Honour.  I would fall on that gratefully.  Perhaps Jones did not, as a Supreme Court judge recently suggested to me in argument on another matter, perhaps Jones did not clear it up.  So this, we would suggest, is the vehicle perhaps to do that.

GLEESON CJ:   When does your client complete serving the minimum term of his sentence?

MR GREEN:   In September this year.  The other matter, of course, is the Palmer matter, your Honours.  This is another matter of general importance, where his Honour ‑ ‑ ‑

McHUGH J:   That is another one of my dissents, in Palmer.

MR GREEN:   I noted that.

McHUGH J:   And I was pleased to see that the New Zealand Court of Appeal followed me in a case called Tennant instead of the majority in that case.

MR GREEN:   Yes, well Mr Odgers and I are a little bit worried about that this morning.  But this is a very clear example which raises, in our submission, the possibility of a real miscarriage of justice, because when his Honour gave this direction, which is repeated in the application book on page 39, he raises this question which followed on what the Crown Prosecutor obviously put to the jury, line 40:

a rhetorical question.  He asked you to ask yourself why would she make this up?  Well that is quite a proper course for you to take, but it is equally obvious that you should also ask yourself why did she not complain?

Well, there are at least two things ‑ ‑ ‑

GLEESON CJ:   Was there any objection taken to that?

MR GREEN:   No there was not.  There are at least two things wrong:  first of all, there is nothing equally obvious in the two questions at all.  The juxtaposition in itself is substantially incorrect; one is a permissible question, the other is not; and secondly, the real danger in this case, of course, was what has been ventilated in E in this State and also in Palmer, a reversal of the onus of proof, particularly put, as his Honour did on the same page, the top of page 39 your Honours will see, it starts at page 38:

The Crown’s case depends entirely upon the view you take of the accuracy, reliability, the truthfulness and the reliability of the evidence given by Miss McAuley.

GLEESON CJ:   May I ask, was it put to the complainant in cross‑examination that she had made this up?

MR GREEN:   I am not sure that it was put in those terms, but certainly it was put to her that it did not happen.

GLEESON CJ:   If cross-examining counsel put to here that she had made it up, either directly or in effect, why is it not proper for the Crown Prosecutor, dealing with that evidence in his address, to say, why would she make it up?

MR GREEN:   Well, because there is a difference, and this is what the majority said in Palmer, there is a very great difference between asking a complainant in examination and cross-examination why she made this up or why she did not make it up, and cross-examining an accused in the witness box on the same question and equally, in my submission, it must be equally impermissible, the majority said in Palmer that that was not on, and it must be equally impermissible for a judge, without any ventilation of motive, to raise the question, particularly in these terms, when he is talking - your Honour, can I just finish by reading what he said on page 33, where he says to the jury.  He asked:

why would you, in the circumstances of this case, find the accused guilty?

You would only do so if you accepted that the witness -

the complainant -

was a truthful witness and that her evidence was reliable -

Now, here we have a judge then raising this question, in that context.  In other words, it raises the very danger that was alluded to in E, and recited, of course, with approval by this Court in Palmer, that this involves a possible reversal of the onus of proof, because it suggests to the jury that unless you can find the complainant a liar, then you ought to convict the accused in this case.  That is the real error and, in regard to those matters, your Honours, those are my submissions.

GLEESON CJ:   Yes, Mr Crown.

MR BLACKMORE:   As tempting as it is to take up your Honour Justice McHugh’s offer of a trip to Canberra, we would suggest that unfortunately this is not the vehicle.  Each of these cases ‑ ‑ ‑

GLEESON CJ:   Especially where, by the time the issue has been reviewed, the man will have long since served his minimum term.

MR BLACKMORE:   Yes, of course, that is another issue of great practicality.  Each of these cases, M and Jones, depended largely upon their facts, and I do not think it is often really appreciated that the facts in both those cases were quite distinct.  In M’s Case there was evidence from the complainant on her own, but there was also other evidence that she had previously complained about her sister sexually attacking her and that she had consulted a psychiatric registrar, and that evidence was before the Court.  In addition to that, in M’s Case, there was an allegation of unequivocal sexual penetration and yet, on medical examination, it was found that her hymen was in tact.  These are the sort of factual issues which the court comes to grip with when it considers an unsafe and unsatisfactory verdict.

Essentially we say, in this case - I will come to Jones in a minute - no issue or principle arises.  The law has been clarified, as much as it needed to be clarified in Jones following M, but in fact ‑ ‑ ‑

McHUGH J:   There is, in one sense, is there not, because Justice Mahoney used the word “must” as the appropriate criterion for determining whether the verdict was unsafe and unsatisfactory, whereas the M test, as applied in Jones, was whether it was open to the jury to be satisfied beyond reasonable doubt.

MR BLACKMORE:   Well, we submit that that is not an issue of principle, because the principle has already been determined as it needs to be, in Jones, where exactly the same words were used.  If I might also just submit this, in relation to that point:  there is, in our submission, little practical and reasonable distinction between using the word “must”, in those circumstances, and this, that if he had said this, that I find that the appellant has not satisfied the court that it was not open to the jury to convict the appellant, there really is not very much distinction between the two propositions of him putting forward a positive proposition as opposed to perhaps putting it in the way in which the “open to the jury” test is read.  Perhaps there is a distinction, but it is not a very great distinction; it is not the distinction my friend suggests that it is.

GLEESON CJ:   As I understand it, there is no suggestion that the issue that divided the judges in the Court of Criminal Appeal was a question of principle; it was simply a question of the application of the principle to the facts of the case.

MR BLACKMORE:   Exactly, and we submit therefore this is not a question of principle in this case, and the reason that it is not an appropriate vehicle is because the facts in the case simply are not sufficiently strong for the applicant to suggest that the jury, in fact, made an error.  This was a case which depended upon the sole evidence of the complainant.  Some of the facts were somewhat unusual in that the allegation was that it happened in a bedroom in which there was another girl sleeping.  That, with respect, is a rather unusual factual aspect of the case, but it is not so unusual at all.  In Allen, which is another case for leave today, the very same allegation is made.  It is perhaps an unfortunate fact that this is something that can and does occur in those circumstances.

GLEESON CJ:   How old was the complainant?

MR BLACKMORE:   About 12.  The other aspect of the case ‑ ‑ ‑

GLEESON CJ:   What was her evidence on, what I might describe as, the non‑issue of consent?

MR BLACKMORE:   In a practical sense she said she just lay there, because she was frightened.

GLEESON CJ:   She did not allege she protested?

MR BLACKMORE:   No.  That is the unusual aspect, I suppose if you like, that she is laying there and allegedly he is attempting to have sexual intercourse with her and, as I understand it, he was a large man, it was a smallish space, so there were a couple of other factual issues involved in that, but even having regard to that, those matters were all well and truly before the jury.  Clearly, this is a case where, of all cases, the assessment that the jury made of the complainant was vital, and it is the one thing that this Court and, of course, the Court of Criminal Appeal, could not have available to it and, with respect, that is precisely the point that Justice Mahoney made, which ties in exactly with what the Court said in Jones.  In the application book at the bottom of page 58 to the top of page 59, Justice Mahoney does say, at line 10:

But were the matter to be judged merely on the written record, it may be that I would entertain a reasonable doubt as to the appellant’s guilt.

But then goes on to say:

However, in the present case, two things at least are to be borne in mind:  the nature of the issue to which corroboration would go; and the advantage which the jury had in seeing the complainant and the appellant in evidence before them.

GLEESON CJ:   Well until the time comes, which may not be very far away, when appellant courts have video of the trial proceedings - as I understand they do, in some places now - an appellate court can never know for sure what impression, good or bad, might have been made by a witness on the jury.

MR BLACKMORE:   That is true and that is why, with respect, the jury is given the constitutional grounds to make verdicts and it would be, in our submission - a Court of Criminal Appeal would be loathe to overturn them, unless there was something clear, as M’s Case said.

GLEESON CJ:   There are very few people whose noses actually grow longer when they tell lies.

MR BLACKMORE:   No, but equally, on paper, what can be an absolute denial, can, when someone observes someone saying it, appear less than convincing, and it is an everyday occurrence and, with respect, that is exactly why juries are there to determine those issues.  It is something which is clearly within everyday occurrence for a jury to determine that issue.  It is not a peculiar legal issue.  Some might say even lawyers would not necessarily be the best people to make such a decision, but juries do have to make that assessment on a day-to-day basis and they were in a position, in this case, to make such an assessment.

I have addressed in the written submissions, I do not propose to go through them seriatim, the inconsistencies.  We submit that it is - the inconsistencies of themselves are not such - and Justice Mahoney was correct in his assessment of these - that would change the assessment of the credibility of the complainant.  Essentially this was a case about whether or not the complainant was telling the truth.  Reliability was not in issue.  She could not have been mistaken about what had happened.  She was either telling the truth or not telling the truth. 

The issue that my friend raises about penetration, whether full penetration took place or partial penetration, with respect, again was a matter before the jury.  She explained that by saying that, in the interim period I had received sex education and therefore I realised that, in fact, what I had said was not right and that, quite fairly and honestly, and if she had wanted to make the case worse, one would have thought, for the accused, and she was making it up, why would she not just maintain that situation.

So we respectfully say, this is not the vehicle, as much as perhaps we would accept the invitation, this is not the vehicle, because simply, the jury’s verdict, when looked at in that way, cannot be overturned in the Court of Criminal Appeal, because essentially the appellant cannot satisfy the Court that it was not open to the jury to convict.  That is why, with respect, I agree with your Honour Justice McHugh, it is a hard test for the appellant to get over.

In relation to what Justice Mahoney said with respect to his concerns about corroboration, we would respectfully say that they were general concerns.  When read in the context of his judgment he was expressing a general concern, not specifically in relation to this case, but generally in relation to cases of this sort, and that when in fact he came to analyse the specifics and went through them, he was satisfied that this case met the appropriate test.

In relation to the point, why would the complainant lie, very briefly, we submit, again it is not a matter of principle that needs to be established, Palmer’s Case has clarified the law in that respect.  In any case, this was a case where there was no suggestion that the accused was lengthily and unfairly cross-examined about that question, why would the complainant lie?  In Palmer’s Case the evidence was that the accused was open with him, why would she lie, you give us a reason why she would lie.

GLEESON CJ:   I have seen transcripts of trials in which a complainant, when challenged by cross-examining counsel asked the question herself, why would I lie?  I am not sure whether everybody is supposed to sit by in embarrassed silence and pretend they ignore that question.

MR BLACKMORE:   That is the very practical problem involved and, your Honour, in earlier decisions in the New South Wales Court of Criminal Appeal, has pointed to this problem, that, particularly in a case such as this, and could I say in Justice McInerney’s decision, he addresses this point, this was a witness who had a motive not to lie about it.  This was apparently a close family relationship here, this was an uncle, she visited the uncle for the purpose of horse riding, which she apparently enjoyed.  There were very

good reasons why she would not make up such a story, and the jury are going to therefore, whether it be said or unsaid, almost the first thing they are going to say to themselves, well why would she make the story up? 

The fact that that point was articulated by the judge and obviously by the Crown, and perhaps engendered by the fact that that was put to the complainant, simply brought it out into the open and, with respect, his Honour then contrasted that point by saying, yes, all right, well that is a question; we also have the question of why would she wait to complain, why is there no corroboration?  So, in essence, he was minimising the effect of that question by contrasting those two points.

With respect, this is not Palmer’s Case; this was a case where the Crown had addressed on the issue - I am not suggesting that that was necessarily appropriate, but it happened; it happened before Palmer’s Case, it happened before all of those recent cases in New South Wales on this point - and the point was not taken.  The appellant’s counsel at trial did not consider that it was a matter which unfairly prejudiced his client at trial.  It was not taken at the Court of Criminal Appeal, despite some of those decisions having been taken.  It is taken for the first time in this Court.  With respect, is not a matter, in our submission, the Court would grant leave to argue, considering there is no issue of principle involved.  Those are the respondent’s submissions.

GLEESON CJ:   Yes, Mr Green.

MR GREEN:   Just on the last matter, the Palmer matter, your Honours.  The situation, when this appeal was argued in the Court of Criminal Appeal, that was on 3 May 1996, all that the court had at that stage, of course, was F, which did not decide the question at all.  E was handed down three weeks after the argument in this particular case.

GLEESON CJ:   Yes, the affidavit that appears on page 95 of the application book makes it evident that what has happened here is that, in the case of a trial that was conducted back in September 1995 and then an appeal that was heard and determined in 1996, some new hope has been gained by decisions that were given a long time later.

MR GREEN:   Yes, and indeed, we say then, why should the appellant in this case, the applicant, be denied the benefit of the High Court’s decisions in those particular matters?

McHUGH J:   It might be better to say, why should he not be denied.  On that basis, every time there was a new development in legal principle, we would have to reopen cases that were heard and determined years before; there must be an end to litigation.  It is different if the point was firmly taken, but this point, the Palmer point, was not taken.

MR GREEN:   Well, no, but of course, when it is so close, these were not matters that are exercised or the original hearing was not years before; these were matters of months and a couple of years we are talking about.  And also, your Honours, the miscarriage of justice, in this case, is enough, in our submission, that is illustrated on both grounds, and in the Palmer ground to, to get us over the hurdle as required for the Court to look at it.  It is a matter of importance.  If indeed there should be some argument about the High Court entertaining a ground of appeal which was not argued in the Court of Criminal Appeal - I notice in a quick reading of a case of Gipp, that was handed down only earlier this week, that that matter was the subject of some concern and debate and, I think, your Honour and Justice Hayne dissented from the majority in that, so perhaps this is a vehicle for looking at that particular matter.  It is, in our submission, a very good vehicle for looking at it, because there is involved here, in our serious submission, a real miscarriage of justice if he is so denied the benefit of the High Court’s decision in Palmer and in Jones.

Your Honours, apart from that it is just not a matter, to answer respectfully a matter raised by your Honour the Chief Justice, this is not just a matter of the appellate court not applying already decided principles; it goes further than that.  Justice Mahoney, in our serious submission, came to the wrong conclusion because, confronted with real difficulties in the Crown case, he applied the wrong test.

GLEESON CJ:   That is the question on the merits of the application, is it not, whether the decision of the Court of Criminal Appeal is accountable for, on the basis of some erroneous application of principle, or whether it is accounted for simply on a different view of the facts that was taken by the majority as compared with the minority.

MR GREEN:   It goes very much, in our submission, your Honour, to a real and dangerous, we would submit, misapprehension and misapplication of principle which has led to a miscarriage of justice.  Applying Justice Mahoney’s test, we would submit that an appellate court could almost never get over the advantage of the jury in seeing and hearing the evidence.  As I put to your Honours earlier in my argument, to suggest that - well there are real difficulties and concerns about this, but the appellate court says then, but they must have been overcome by the jury’s advantage.  That is never good enough, and that is the serious error in the way that Justice Mahoney and Justice McInerney approached this.  In other words, they were concerned, and particularly the President, at the real problems,

and he expressed graphically these concerns.  He was concerned, he had doubts.  He had a doubt and to resolve that in an incorrect manner ‑ ‑ ‑

GLEESON CJ:   No, he said he may have had a doubt.

MR GREEN:   No, in our submission, your Honour, he in no uncertain terms, in everything that he said, illustrates that he had doubts about it.  The passage I referred your Honours to, at the end of his judgment, expresses that graphically.  So that this is a matter of general importance, your Honours, because of that erroneous attempt to solve the problem raised by the real difficulties in the Crown case.

Finally, on perhaps a more practical matter, could I address something your Honour the Chief Justice said about finishing his minimum term in September.  That is not, in our respectful submission, a proper consideration that should have anything to do with your Honour’s determination of the application.  Indeed, first of all, a conviction is a conviction, and that is the matter, of course, that we are attacking here; whether he does his time or not is very much secondary.  And, secondly ‑ ‑ ‑

GLEESON CJ:   That was a response to a suggestion that this case ought to be made a vehicle for further clarification of some law that has already been a subject of decisions by this Court, and it is true that that exercise in clarification would be undertaken under no particular pressure, in the case
of an appellant who had long since served his term of imprisonment.

MR GREEN:   Thank you, your Honour.  Of course, the other practical consideration is there is no guarantee; indeed, on present policy, there is every indication that he will not be released after his minimum term, because these people who are serving time for these particular offences, I am instructed, are not easily released on parole, particularly when they are still disputing their commission of the crime.

GLEESON CJ:   Thank you, Mr Green. 

In so far as the application for special leave to appeal is based upon what is said to have been a misapplication of the principles enunciated in M v The Queen (1994) 181 CLR 487, and later considered by this Court in Jones v The Queen (1997) 149 ALR 598, we are not persuaded that the outcome of the appeal to the Court of Criminal Appeal in any material respect turned upon the point now sought to be agitated by the applicant. The outcome of the case in the Court of Criminal Appeal turned upon a detailed examination of the facts and circumstances of the case and the division in the court reflected a different view of the facts taken respectively by the majority and the minority.

In relation to the second basis upon which the application has been advanced, that is to say the brief reference by the trial judge to a rhetorical question asked by the Crown Prosecutor in the course of address, it is noted that no objection was taken and no application for redirection was made at the trial.  The Court does not consider that the case raises any issue appropriate for the granting of special leave and the application is refused.

AT 11.07 AM THE MATTER WAS CONCLUDED