Rodway v The Queen

[1990] HCATrans 49

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Hobart No Hl of 1989

B e t w e e n -

DAVID CHARLES RODWAY

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J

Rodway

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT HOBART ON WEDI\TESDAY, 14 MARCH 1990, AT 10.18 AM

Copyright in the High Court of Australia

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MR K PROCTER: May it please Your Honours, I appear for the

applicant in this matter.	(instructed by Murdoch,
Clarke, Cosgrove & Drake)

MR A.R. JACOBS:	If it please Your Honours, I appear for the respondent, together with my learned friend,
MR D. COATES.  (instructed by Director of Public
Prosecutions).

MASON CJ: Yes, Mr Proctor.

MR PROCTOR:  Your Honours, as the certificate of conviction,

at page 540 of the appeal books, reveals, the

applicant was, on 8 March 1989, convicted of three
counts of indecent assault, contrary to section 127

of the CRIMINAL CODE, and 63 counts of defilement,

contrary to section 124(1) of the Code'.. The

indictment, which is set out in the front of the
appeal books, indicates that there were three

separate complainants: one named Klug, one named

Stocks and one named Wheeler, and that the first

date on which any offence was alleged

have occurred was in or about June 1982, and

the last relevant date was in or about October

1986.

These charges were, of course, brought pursuant

to chapter XIV of the CRIMINAL CODE, and that
chapter is headed "Crimes Against Morality", and

section 124, as it read in relation to the charges

against this applicant, read, subsection (1):

Any person who has unlawful carnal
knowledge of a girl under the age

of 17 years is guilty of a crime.
Charge: Defilement of a girl under 17 years

of age.

And section 127 provided that:

Any person who unlawfully and indecently

assaults a female is guilty of a crime.

Now, section 136 of the Code, again, as it stood before amendment in 1987, subsection (1) read:

No person shall be convicted of any crime under the provisions of any of the foregoing

sections of this chapter, or of an attempt to commit the same, on the evidence of the person in respect of whom the crime is alleged

to have been committed or attempted, unless

the evidence of such person is corroborated in

some material particular by other evidence

implicating the accused.

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So, in our submission, there was a blanket prohibition against conviction on either of the charges which the applicant faced, unless the evidence in relation to any matter of

complaint of the complainant, was corroborated in

some material particular by other evidence

implicating the accused.

Now, the history of the matter is set out

by His Honour Mr Justice Underwood, at pages 570

to 572 of the appeal books, and if I could summarize,

the applicant was charged with, substantially, these

offences, before justices on 12 November 1987. He

was committed for trial on 16 May 1988. There was

an initial indictment filed on 31 January 1989, and

in the circumstances outlined by His Honour

Mr Justice Underwood, of an application to sever

counts and quash the indictment,	a fresh indictment
was prepared and filed on 9 February 1989,	That

is the indictment, of course, which is set out at the

front of the appeal book, and, in respect of which

the applicant was convicted of 65 of the 75 charges

which he faced.

Now, the other important item, in my submission,

in the chronology is, of course, the substantial

amendments which were effected to the provisions

I have just cited from the CRIMINAL CODE by

Act No 71 of 1987, THE CRIMINAL CODE AMENDMENT

(SEXUAL OFFENCES) ACT of that year. Now, that Act

by section 7 repealed section 124 and substituted

another section which read:

Any person who has unlawful sexual intercourse

with another person who is under the age of

17 years is guilty of a crime.

And the charge became:

Sexual intercourse with a young person

under the age of 15 years.

And, of course, the main alteration in that is the

removal of the requirement that the person with whom
intercourse is had be of a particular gender.
Similar changes were effected, but simply by amendment,

rather than by repeal, to section 127, the indecent assault provision, by substituting "another person" for "a female"; that is by section 10 of the 1987 Act.

Now, of course, the applicant was charged,

the indictment reveals, under the old sectionsl24

and 127, because, of course, it is conceded, they

were the ones that were applicable and created the

crime in the period between 1982 and 1986, during

which these offences were alleged to have occurred.

But there was another significant amendment, most

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significant, in our submission, and that is

that section 136 - or subsection (1) of that section

as I have just read out - was, by section 17 of the

amending Act of 1987, repealed, and a section was

substituted which removed the requirement under

any rule or practice on:

a judge to give a warning to the jury to

the effect that it is unsafe to convict a

person on the uncorroborated evidence of a

person against whom the crime is alleged to

have been committed.

And, by subsection (2) it prohibits a:

warning of the kind ..... unless -

the trial judge is -

satisfied that the warning is justified

in the circumstances.

MASON CJ:  When did the new 136 come into operation,

on 12 November 1987?

MR PROCTOR:  Your Honour, it came into operation, in my

submission,on 26 November 1987, and that conclusion

is reached by reference to the provisions of the

ACTS INTERPRETATION AMENDMENT ACT 1981, which is

also in the legislation that has been handed up.

Section 8 of that Act amended section 9 of the

principal Act by substituting a new subsection (2)

and, in effect - I am sorry, subsection (3), in our

submission, is the relevant one - provides that

an Act will commence on the:

fourteenth day after the day on which

that Act receives the royal assent.

And, on the face of the Act of 1987 it received

the royal assent on 12 November 1987, therefore,

we would argue, it commenced on 2Ethof that month,

and my learned friend indicates that that is accepted

by the Crown.

So, it is our submission, of course, that this

amendment clearly became operative after the times

when the offences were alleged to have been

committed, and secondly, it became operative after

the date upon which the applicant had been charged with a number of the matters which had indictment.

At the trial it was submitted that the old section 136,

if I can call it that, still applied, and that the

applicant could not therefore be convicted unless the

evidence of each complainant was corroborated in some

material particular.

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The learned trial judge Mr Justice Neasey,

at pages 483 to 487 of the appeal book, that is in

volume 3, ruled on that submission and,in essence,

he ruled that firstly the requirement for

corroboration:

was not merely a procedural law -

but, he is transcribed as saying:

but contained a substantial substance to the element in that it conferred a benefit or immunity from conviction upon

a person in certain circumstances who

had been charged with one of the

relevant offences.

His Honour then went on to consider whether that

was an accrued right, and His Honour's ruling was

that it was not, and he said, at line 13 on page 485:

Therefore, I'm of opinion that such a

right, speaking generally, did accrue

under the previous form of Section 136.1

at the time of a person's formal committal

for trial on one of the relevant -

and it is transcribed as -

defences.

I would believe that that ought to have read

"offences". He then asks rhetorically:

What was the position of the accused then?

When was he committed for trial?

And, having been informed that it was 16 May 1988,

he ruled that the repeal, of course, become effective
before the date upon which any right accrued to

the applicant, and, of course, it is the applicant's

submission before this Court, and it was before the

court below, that that ruling was erroneous and

that section 136, as it read before the 1987 amendment,
did still apply to the trial of this applicant.

The starting point for our submission on that point, of course, is section 16(1) of the

ACTS INTERPRETATION ACT 1931, and that, in common
with similar Acts in Britain and in other States of

Australia, reads:

Where an Act repeals any other enactment then,
unless the contrary is expressly provided,

such repeal shall not -

and (c) is relevant:

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affect any right, privilege, obligation,

or liability acquired, accrued, or incurred

under any enactment so repealed.

And, perhaps (e) is of some relevance:

affect any investigation, legal proceeding,

or remedy in respect of any such right,

privilege, obligation, liability, penalty,

forfeiture, or punishment as aforesaid.

MASON CJ:  You rely mainly on (c) rather than (e)?

MR PROCTOR: Yes, I do, Your Honour. And, in any event, it

is my submission that subsection (c) is really only

a restatement of the common law principle as

enunciated in - perhaps the most well-known example

is, MAXWELL V MURPHY, and that is listed in the

applicant's authorities; it is 96 CLR 261, and

His Honour the Chief Justice, at page 267 in the passag~ which is so often cited, said:

The general rule of the common law is

that a statute changing the law ought not,

unless the intention appears with reasonable

certainty, to be understood as applying to

facts or events that have already occurred in

such a way as to confer or impose or otherwise

affect rights or liabilities which the law had

defined by reference to the past events.

And, His Honour went on to say that:

Changes made in practice and procedure -

are not within that general rule.

At page 270, His Honour determined that

the right claimed in that case, which was a right

to maintain an action which had previously become

statute barred, was not a right,_ · He said:

There are rights in English law -

at the top of page 269 -

which have an existence and a purpose
although the remedy be suspended or
wanting. But the right here in question

is not one of them.

And, it is my submission that the question of whether

or not the previous section 136 applied to the trial

depended both on the principle there stated and on the

principle stated in section 16(1)(c) of the Act,

depended on whether the applicant had an accrued or

vested right. And, the right that we submit he had

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was a right not to be convicted on the

uncorroborated evidence of the complainant

and our submission is that that right accrued

to the applicant as from the dates that the
offences were alleged to have occurred, or

alternatively, at the latest, upon the date upon

which he was charged with the substance of those

offences.

It is submitted that this right is a right

which is analagous to the right which was being

discussed in MAXWELL V MURPHY. In that case the

limitation period had expired as it existed under

the legislation in force at the time, on 19 March 1952,

12 months after the death of the appellant's husband.

The amendment,which extended the period to six years

took effect on 16 December 1953 and the action, which

was the subject of the appeal, was brought on

30 November 1954. So, of course, it was within the

period of six years from 19 March 1951, the date of

the relevant occurrence, but certainly, well after

the period of 12 months which had been provided as a

limitation period previously. His Honour the

Chief Justice, at page 268 of that report, said

this, at the bottom of the page:

If the passing of Act No. 33 of 1953

revived her remedy that means that it

revived a right which had ceased to

exist and reimposed a liability on the

respondent from which he had been

discharged.

To say that notionally the right to

damages continued to exist and only the

manner of enforcing the right had been

destroyed appears to me to ignore the
fact that the right to damages could not

be separated from the right to recover them.

There are rights in English law which have

an existence and a purpose although the

remedy be suspended or wanting. But the

operation for which the appellant contends,

right here in question is not one of them.

it would impose anew a liability that had

ceased to exist. The presumptive

interpretation is against such an operation.

And, it is the applicant's submission that there is

an analogy there.	What His Honour was saying was
that the respondent had a defence.	His liability

had ceased to exist when the original limitation

period expired and to interpret the repealing

legislation as reviving the plaintiff's cause

of action was, of course, to reimpose a liability

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on him which had ceased to exist. In other words,

I would submit, to take away a defence which he had, and it is my submission that that - - -

McHUGH J: Well, it cannot be a defence, can it, because

as 136 stood the onus was on the prosecution to

adduce evidence, in one form or other, or to ensure

that evidence was presented in the trial, which

corroborated the evidence of the complainant? The

conviction could not stand unless that evidence

had been established.	There was no question of a
defence, was there?

MR PROCTOR: Well, it gave the applicant a right to an

acquittal, which he may not have without the

existence of that section, and I use the word
"defence" perhaps loosely in that sense. In the

same way as the Statute of Limitation, of course,

is often said to - and His Honour the Chief Justice

says that in the passage to which I have just referred -

it takes away a liability: it takes away a cause of

action, but of course, strictly speaking, in my

submission, it does not do that because it does not

operate unless it is pleaded, and in that sense it

provides to the defendant a defence. He must plead

it, but -

McHUGH J: Well, he did not have to plead 136.

MR PROCTOR: Certainly, I would accept that, Your Honour,

but the fact remains, in my submission, that

section 136 conferred upon the applicant a right
to a verdict of acquittal unless the Crown did certain

things, and that right was taken away when the

section was repealed and the other section was

substituted, the reasons for which, of course, are

not relevant in the present case.

McHUGH J:  How do you read it? Do you say that 136 is to be

read as a proviso to 124 and the other sections, as

though it read: "Any person who has unlawful

carnal knowledge of a girl under the age of 17 years

is guilty of a crime, providing that no person shall

be convicted under this section on the evidence,"

et cetera, 'unless - - -"?

MR PROCTOR: Yes, that is, in my submission, its effect. It

operates generally within that chapter.

His Honour Mr Justice Williams at page 277 of the

report said this, and I start at line 5:

Assuming, contrary to the opinion

already expressed, that the requirement

that the action must be commenced within
twelve months is not an ingredient in the cause

cause of action but merely bars the remedy

if pleaded, the appellant would not be in any

better position.

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And, about three-quarters of the way down the

page, after note (3), His Honour said:

Statutes of limitation are often

classed as procedural statutes.	But
it would be unwise to attribute a

prima facie retrospective effect to

all statutes of limitation.	Two classes of
case can be considered.	An existing

statute of limitation may be altered by

enlarging or abridging the time within

which proceedings may be instituted.

If the time is enlarged whilst a person is still within time under the existing law to institute a cause of action the

statute might well be classed as procedural.

Similarly if the time is abridged whilst

such person is still left with time within

which to institute a cause of action, the

abridgment might again be classed as

procedural. But if the time is enlarged

when a person is out of time to institute

a cause of action so as to enable the action

to be brought within the new time or is

abridged so as to deprive him of time within

which to institute it whilst he still has

time to do so, very different considerations

could arise. A cause of action which can be

enforced is a very different thing to a cause

of action the remedy for which is barred

by lapse of time. Statutes which enable a

person to enforce a cause of action which was

then barred or provide a bar to an existing

cause of action by abridging the time for its

institution could hardly be described as merely

procedural.	They would affect substantive
rights.

And, His Honour referred to the case of CHANDRA DHAR.MA, a criminal case, and therefore, in my submission, of

some relevance for present purposes, and in that case

as His Honour said, there was a three month t:irre limit:

Before the-three months had elapsed the time

for commencing the prosecution was extended

to six months. The prosecution was commenced

more than three months but less than six

months after the commission of the offence.

And, His Honour cited Lord Alverstone, who said:

This statute does not alter the character

of the offence, or take away any defence

which was formerly open to the prisoner. It

is a mere matter of procedure, and according to

all the authorities it is therefore retrospective.

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His Honour Mr Justice Williams went on to say:

But it would be difficult to say that the amending statute would not have taken away any defence which was formerly open to the

prisoner if it had not been passed until
after the period of three months had expired.

So, of course, at that stage, after the passage of three months with the Act still in force with that limitation period, in my submission, the respondent

in that case would have acquired a defence which

was open to him, and the repealing Act, or the

amending Act would have purported to take that away

and therefore, as His Honour Mr Justice Williams would

seem. to be saying, it would be a deprival of an

approved right and it would not have affected the

trial of Mr Chandra Dharma.

MASON CJ:  Mr Proctor, is it not a problem from your point of

view that 3ection 136(1) in its old form is not

directed to creating an inmrunity in the abstract

after the alleged offence has immediately taken place?

Rather it is directed to the process of trial, and it

is saying that in the process of trial no conviction

shall take place, except in the circumstances

mentioned. Now, in that con.tex"'.::, is it not difficult

for you to say that there is an accrued right at any

time before the commencement of the trial? In other

words, the right does not accrue until the procedure to
which the provision is directed commences to take

place?

MR PROCTOR: Well, it is my submission that where it is a

criminal matter, it does accrue at an earlier time

to that. The case of CHANDRA DHARMA, of course -

the same could be said, that assuming that the

offence had been committed at the time it was

committed, Mr Chandra Dharma was liable to prosecution

and three months later, had the Act remained in

force, he would have become immune from prosecution -

well,he certainly would have had a defence had a

prosecution been launched.

McHUGH J:  But section 136 commences with the words:

At the trial of a person accused -

so it takes its stand at the trial. Does "trial"

for example, include "committal", because if it

does not it would mean that it does not even

operate as at the corrmittal stage?

MR PROCTOR: Well, Your Honour, with respect, it reads:

No person shall be convicted of any crime.

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McHUGH J: Yes. I was looking at 136, which substitutes -

MASON CJ: Yes, the new section certainly is specifically

directed to trial in its opening words:

At the trial of a person.

MR PROCTOR:  Yes, and, of course, the reason for that, no

doubt, is that it is directed to procedures that
will take place at the trial, and directions which

shall and shall not be given - - -

(Continued on page 12)

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MASON CJ:  But although the old section is not as explicit

as the new section in specifically mentioning the

trial, none the less are not its provisions

sufficient to indicate that it is directed to the

trial because it is corrnnanding that there shall be

no conviction?

McHUGH J: And it refers to evidence, both the evidence

of the complainant and the evidence being

corroborated.

MR PROCTER: Certainly, Your Honour, it becomes operative

at the trial. It is of benefit to you at the trial.

and perhaps not before except in the sense that

there may not be a trial if the Crown is of the

view that it has no corroborative evidence. In

that sense, it certainly only becomes of benefit to

you at trial but it does, in my submission, provide

a substantive defence to any person charged under

the provisions of that chapter. You only require a

defence when it comes to trial so, as I say, it

perhaps only becomes operative or of benefit to you

at that point. But the same could be said of the

Statute of limitations. Of course it is of no

benefit to you at all until such time as somebody

brings proceedings and you plead it.

MASON CJ: True enough, but you see you are relying on the old

section as giving you not only a right but an accrued

right. Now, how can you say that the right has

accrued before the trial if the section is directed

to the trial?

MR PROCTER:  Because, in my submission, it operates to provide

a substantive defence to anybody who is charged with

an offence corrnnitted while it is in operation.

As I have said, the trial is simply the time at

which you claim the benefit of the provision in the

same way as the cases to which I am proposing to

proceed, the criminal cases, such as AH HING V HOUGH

and RICHARDSON V SHIPP, which talk about changes to

the presumption of innocence. Obviously they are
only of benefit at the time that the case comes for
hearing too, or the protection against reversing the
onus of proof is only of benefit to you at the trial
but it was held in both of those cases that the

protection against that reversal applied where the

offences were alleged to have been corrnnitted

beforehand - before the change to the law - and,

of course, in my submission, directly in point is

the case of the ATTORNEY-GENERAL'S REFERENCE No 1 of 1988.

MASON CJ: Perhaps you might take us to that case because that

seems to be the principal authority that you have

to support your case.

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MR PROCTER:  Yes, in my submission it is indistinguishable

and - - -

MASON CJ: Well the point may be not that it is

indistinguishable but whether it is correct.

MR PROCTER:  Yes. That case - and I refer firstly to page 3

of the report for the section as it existed, at

the top of the page, section 13(2):

Where the evidence of a child admitted by

virtue of section 12 of the Act is given on

behalf of the prosecution, and the accused

denies the offence on oath, the accused

shall not be convicted of the offence unless the evidence of the child is corroborated in

some material particular by evidence

implicating him.

So, the prohibition, again, similar to the

one in question here was on conviction and it

required corroboration in some material particular.

His Honour the Chief Justice then set out the amendments and,at the bottom of the page in the

last paragraph, said:

I refer to the most significant changes.

The prohibition against conviction of an

accused who denies the charge on oath on

the uncorroborated evidence of a child

under ten is repealed.

That, of course, is the one that I would submit

is directly in point here. His Honour went on to

discuss the case of NEWELL in some detail and,

of course, in that case - a case on appeal from

Tasmania to the High Court - amendments had been

made to the JURY ACT at a time after it was held

the trial of the applicant in that case had

commenced and that was because of His Honour the

Chief Justice in the South Australian case said

the peculiar provisions of the Tasmanian Code

as to commencement of trial which he said had no

application in South Australia.

Your Honours will recall that, in fact, in

NEWELL's case the trial was said to have commenced

some six months prior to the time when the relevant

trial actually took place because the applicant had

been arraigned at that time. His Honour said that

that provision had no relevance in South Australia

and went on to say, at page 6 of the judgment:

The trial -

that is, the trial in this case -

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therefore commenced after the new amendments

came into operation and they must apply to it

unless it can be said that they do not apply

to a trial of charges of offences alleged to

have been committed before the date on which

they came into operation.

He said:

I do not think that NEWELL's case is of

direct assistance on that point. In that

case the date of the commencement of the trial

was determined by statute as being before the

commencement of the amending Act. The only

question for the court was whether the operation
of the amending Act possessed a sufficient

degree of retrospectivity to apply to trials

which had already commenced. It was unnecessary

therefore for the court to consider the question

which arises in this case as to its applicability

to trials of charges of offences alleged to

have been committed before its commencement.

The significance of NEWELL's case for present

purposes is that it treated an amendment affecting

the process of trial by which an accused person's
guilt is determined, as depriving him of a
vested right within the meaning of the canon of

construction relating to retrospectivity.

His Honour went on to refer to three cases: REG V KEYS,

(1885) 6 LR (NSW) 135, where the right to challenge

jurors was treated as a "substantial right"; the

case of MURRAY, where it has held there was no right but
simply a privilege to give evidence; and then to the

case of AH HING V HOUGH, the Western Australian case

to which I have drawn attention :in my list of authorities.

His Honour said, in that case:

a provision reversing the onus of proof which
came into force between the date of the

alleged offence and the date of trial, was

held not to apply. Burnside J (at 99) stated

that "it is not merely a question of procedure,

but a question of taking away a right from

him, a right which he had, to have his
innocence presumed, and of casting upon him

the onus of proving that he was not guilty".

Draper J observed (at 104) that at the time

of the alleged offence "the accused had the

right, subject to the statute law of the time

to be presumed innocent until his guilt was
proved by legal evidence".

TOOHEY J:  Mr Procter, it is rather difficult to apply that

sort of reasoning to this particular section, is
it not, at least in so far as you contend that the

right accrued at the time the offence was committed?

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It seems to involve a thought process by which a person connnits an offence, a relevant offence, on a

particular day and is able to contend, "I can't be

convicted of this offence except on the corroborated

evidence of the person in respect of whom I have

connnitted the offence". It just does not seem to be

a sort of logical sequence. I appreciate you have

an alternative proposition, do you not, as to when

the right accrued?

MR PROCTER:  Yes.

TOOHEY J: Certainly, I find it very difficult to formulate

this as a right which accrues at the date the offence

is connnitted when it is a right which, from its very

nature, goes to the evidence which is required before

a conviction can be sustained.

MR PROCTER:	I appreciate that, Your Honour, but I simply say that in the case of AH HING to which I have
referred, exactly the same proposition could be put that the amendment which had been made reversed the
onus of proof and it made it incumbent upon the
defendant to establish his defence. It was held
that as at the date he was said to have connnitted the offence he had a right to be presumed innocent and
that that right could not be taken away from him
before trial. But, of course, that right, in the
same way as I would say this right, was only of
benefit to him if he was charged and subsequently
tried.

TOOHEY J: Well, it IIJc!.Y be that the propo•iticn in AH HING is open to

some criticism.

MASON CJ:  Mr Procter, what of the individual who has not

connnitted an offence at all under section 124 but

it is alleged that he has, has he got an accrued

right?

MR PROCTER: Well, I would submit that he is deemed to have

accrued a right on the date that it is said the
offence was connnitted.

MASON CJ:  So that, in effect, everyone has an accrued right.

MR PROCTER: Well, on these authorities, for the purposes of

the criminal law, a person who is tried for a crime

said to have been connnitted on a particular date

is deemed to have accrued a right on that date to

the benefit of the defence. Of course, as I say,

it only becomes of value to him if he is subsequently

charged and brought to trial.

McHUGH J: That only emphasizes that the right is to have the

case proved against him in a certain way and does

that not indicate it is a procedural right?

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MR PROCTER: Well, it is, in my submission, not because it is

a substantive defence. It is not simply a matter of

a means of proof. He has the right to be acquitted

unless certain things are done and it would be my

submission that that is far more than a matter of

executive procedure.

DAWSON J: Well, he has the right to be acquitted if the case

is not proved against him. Of course the method by

which the case is proved may be another thing.

MR PROCTER:	Yes.
McHUGH J:	He may be convicted on his own confession; on his

own admission in the witness box; on the evidence

of another eyewitness. He may be convicted although

the complainant is not called to give evidence at

all.

MR PROCTER: Certainly - - -

McHUGH J:  But all that section 136 does is to insist that he

shall not be convicted on the uncorroborated

evidence of the complainant.	So it speaks at the
time of conviction.	Does not the new 136 suggest

that? It repeals the old 136 and then it commences with the words, "At the trial of a person accused".

It indicates that the legislature was regulating the

procedure at the trial and regarded the old 136 as

speaking at the time of the trial.

MR PROCTER:  It is my submission that the fact that the

legislature has chosen in section 136,as it presently

stands, to deal with the question of corroboration

is purely a matter of convenience and coincidence

that one cannot extrapolate back from that to say

what the repeal section meant.

McHUGH J: Well, it may indicate a contrary intention even

if there was the right that you spoke about.	I mean
that by the way.

DAWSON J:  Mr Procter, really, on your argument, there is no

such thin& for the purposes of the application of these principles as a procedural rule. You could not distinguish between any of the attributes of

the trial and this particular one, could you? You

must really be saying that the accused is entitled,

if the crime was committed before any amendment,

to a trial in the old form whatever the nature of

the amendment. And if there is a distinction, what

is it, between this procedural rule and others?

MR PROCTER:  I would submit that the distinction between this

procedural rule, if it be such, and others is that

this rule gives a substantive defence whereas - - -

HlT2/5/DR	16	14/3/90
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DAWSON J: You see it does not, does it? It merely says how

the case against him is to be proved.

McHUGH J: Supposing the day after your client was charged,

the Tasmanian legislature passed an Act which said

that any criminal case could be proved by hearsay

evidence. You would have to contend that that rule

could not apply at the trial of your client. Did

your client have a vested right, or an accrued right,

to be tried on the common law rules of evidence?

MR PROCTER: Well, in the sense that he had a right in that

example not to be convicted purely on hearsay evidence,

I would accept that that analogy must apply.

McHUGH J:  But do not these illustrations demonstrate that you

are avoiding the dichotomy between the procedural
and substantive rights. This is a procedural right;

it is not a substantive right.

MR PROCTER:  I would accept that perhaps a rule which governed

the number of challenges that you had and so on,

although neither are cases that say that that is a

matter of substantive right rather than procedure as is

the case that I have just referred to.

DAWSON J:  To put it another way, if you talk in terms of

accrued rights, the law must have operated on past
events to confer the right but this law has not

operated on anything until at least there is a

trial commenced. It then operates on the trial to

prescribe the mode but until then it has not

operated on anything.

MR PROCTER: Well, in my submission it has because it has

operated to give the applicant a defence and that is

where I draw the analogy between these criminal cases

and the cases concerned with limitation Acts and it

is not a matter, as Their Honours in the court below

said - - -

DAWSON J:  You see that is where you see the distinction most

clearly. The limitation Acts have operated on the

past events to preclude an action being brought,

whereas you cannot say that there is any similar

situation here.

MR PROCTER: Well, in my submission, they have only operated

in the sense that if you plead that the limitation

period has expired then you are entitled to succeed
in the action. If you do not plead it then the

action proceeds and is tried on other evidence.

TOOHEY J:  Mr Procter, with a provision like 136, what is the

earliest point in the proceedings at which that

matter can be raised and a ruling asked for?	Could it
be raised before the trial began?

HlT2/6/DR	17	14/3/90
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MR PROCTER: It could be raised, of course, at committal. If

you disputed committal and the Crown simply called

the complainant and there was no corroboration of

her evidence, then you could point to section 136

and say, "On that evidence I could not be convicted

therefore no reasonable jury properly instructed

could convict me and therefore I ought not to be

committed". Of course that would not prevent the

Crown from indicting you afresh but, certainly, it

would give you some protection at that stage.

In my submission, His Honour Chief Justice King

dealt with the proposition that this was a matter

of procedure, at page 6 in the passage coming

immediately after that to which I was just referring,

when he said:

There is a sense in which laws relating to the

competence of witnesses and the quantum of

evidence required to prove guilt can be said

to deal with matters of procedure. Where such

laws, however, provide substantial protections

against wrongful conviction, they are treated

by the law as conferring substantive rights upon citizens and as going beyond the realm

of mere procedure. Prior to the commencement

of this amending Act there existed an immunity

from conviction, assuming the charge to be

denied on oath, on the uncorroborated evidence

of a child under ten years ..... In a sense that

was a right enjoyed by the defendant in common
with all citizens not to be placed in jeopardy

of conviction on such evidence. The defendant,

in common with other citizens, has been deprived

of that right by the amending Act.

And His Hvnour went on to say:

The amending Act provides no indication of the

intention of the legislature as to retrospective

operation.

construed as not confined to.mere matters of

I think that the Act ~hould be

procedure but as operating as a deprivation of

existing rights, and that on the principles in

MAXWELL V MURPHY it should be held not to

operate retrospectively in relation to offences

alleged to have occurred before its commencement.

In my submission, it must follow that His Honour is

saying that it is at that point that the right

accrues or, at the very least, is deemed to accrue

at the date upon which the offence is alleged to

have occurred. Of course there are matters of

evidence and the competence of witnesses as, indeed,

one of the cases to which His Honour Mr Justice Nettlefold

referred in his judgment in this case, that of

BOLAND. That case was concerned with the competence,

or compellability - I am sorry - of the wife of the

HlT2/7/DR	18	14/3/90
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accused person and it was held that there was no

right; it was a mere matter of procedure. But, it

is my submission that where the alleged right goes

to the very heart of the matter, in the sense that

you cannot be convicted unless the provisions of

the section are me~ then it is something more than
that - something more than a matter dealing with

procedure.

DAWSON J:  But really what you are saying is merely because

it has a detrimental effect viewed through the eyes

of the accused it must affect past rights but that is not so. You see, the law operates on something that is to occur in the future - the trial. It is

directed to the future entirely, not to the past

and the mere fact that that may have disadvantageous

effects to the accused is not to the point.

MR PROCTER:  But so too, in my submission, Your Honour, does

taking away the immunity of the accused's wife.

No doubt, since she was being called by the Crown,

her evidence was detrimental to Mr Boland - - -

DAWSON J: Yes.

MR PROCTER: - - - but it did not deprive him of a defence.

DAWSON J; Well, it may have, if hers was the only evidence.

MR PROCTER:  It may certainly have meant that he was convicted

but it did not deprive him of a defence which the

legislature had specifically given to him.

DAWSON J: You see, it is not a defence. It is merely that in

those cases you may not, with the old procedure,

have been able to prove the crime. With the new

procedure you may be able to. It is not a defence.

MR PROCTER:  In my submission, it goes beyond the procedure -

the matter of whether or not you can prove the crime.

It is something upon which the defendant is entitled

to rely. The legislature has said he cannot be

convicted on uncorroborated evidence. It has not

said he cannot be convicted on the evidence of his

wife. It said that she cannot be called as a

witness and that has been changed. It may be that

that change leads to his conviction but it is not a

matter that goes to the heart of his defence and

it is my submission that that is where the distinction

lies and that the South Australian case and the
case of AH HING and the Tasmanian case of

RICHARDSON V SHIPP which are the only criminal cases

which, in my submission, directly touch on this

point.

DAWSON J: Well, take a case where there is no evidence against

the accused. The Crown is short of evidence and the

HlT2/8/DR	19	14/3/90
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law is changed to say the Crown can prove its case by an averment. Now, that is the sort of thing you

are dealing with. You would say that deprives him

of a defence but it does not really it just changes

the mode of proof.

MR PROCTER: Certainly, I would submit that that falls within

the principle of AH HING V HOUGH that it is a

reversal of the onus. He has a right not to be

convicted unless evidence is called to prove the

matter beyond reasonable doubt.	An averment provision
takes away that right.

TOOHEY J:  But it is a curious right if you try to formulate

it as at the date of the commission of the offence.

What you are really saying, I think, is: the person

who committed an offence while section 136 was

operative could say to himself, or herself, on the

day an which the offence, is committed, "It doesn't

matter what happens hereafter I can't be convicted

of this offence except on the corroborated evidence
of the person against whom I have committed the

offence. That is a right which, at this moment, accrues to me and which I can't be deprived of".

When you formulate it that way there is a certain

unreality about the proposition.

(Continued on page 21)

HlT2/9/DR	20	14/3/90
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MR PROCTER:  Well, it is my submission that the unreality

of the proposition arises from the unlikelihood of
persons thinking in that way but that does not

prevent the analysis of the position from being

just that, that a person could think that way.

It is highly unlikely he would and in that sense

it is unreal but why should not he, just the same as

a person after a limitation period has run is

entitled to think, "Even though I was negligent and

I was liable for damages, I'm not now".

TOOHEY J:  Well, one difference, I suppose, is in the way that

you _iust put it, "I am not now. The law has taken

a particular course as a result of which I can no

longer be prosecuted for this offence", but that is

rather different proposition, it seems to me, than

the one you are advancing at the moment, in so far as
it relies upon the submission that the right accrued

as at the date the offence was committed.

MR PROCTER:  Well, it is my submission that there is no

difference in principle between the two, that a

person would be entitled to say to himself, "I can't

be convicted for that act on the uncorroborated

evidence of the complainant", and, as I say, I

readily concede that it is unreal that someone would

think that way.

DAWSON J:  But you see, it is not that. What he is really saving

. "Th C I h . II

is, e rown cant prove t e case against me . You

are rolling the two steps into one. He has no right

not to be convicted but under the existing procedures
the Crown cannot prove the case against him, whereas

with the Statute of Limitations it is somewhat

different.

MR PROCTER:  Well, with respect, Your Honour, the section

says:

No person shall be convicted -

and it may well be -

DAWSON J:	Unless the case is proved in a certain way. Well, that is the same thing.
MR PROCTER:	It may well be that the jury could be well

satisfied beyond reasonable doubt on the evidence,

therefore the Crown would have proved its case but

he still cannot be convicted as a matter of law

because the evidence is uncorroborated.

DAWSON J:	That is unless the case is proved in a certain way.
MR PROCTER:	Well, it is my submission that it goes further than

that and that the case can be proved or may be proved,

but the jury is not entitled as a matter of law to proceed to

find him guilty and the iudge to convict him unless

Hl T3 /1 /HS	21	14/3/90
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the evidence is corroborated. It says nothing as

to quantum of proof or the things that must operate

on the iury's mind. It is a matter removed from that

which he is entitled to raise as a matter of defence

and say, ''.That evidence is not there, therefore I can't

b e convicte , not, . d" "Y ou sou n t convict me , and h 1 d ' · "

in that sense, it is my sul:.miss ion it is more than the

way something is proved or the quantum of proof.

MASON CJ:  Now, Mr Procter, the thrust of your argument so

far has been to endeavour to establish that there is

a matter of defence or immunity accrued at the time

of the commission of the alleged offence. Do you

have any specific argument to support your alternative

submission that the matter of defence or immunity

accrues at the time that the accused is charged? The

alternative view, of course, the one put against you,

is that the sections speak to the trial and that the

trial commences at the time of arraignment, or perhaps

at committal.

MR PROCTER:  Yes. Well, the learned trial judge held that there

was a right which would accrue at the date of

committal and he said that at page 484 in the passage

to which I have just referred.

TOOHEY J:	Mr Procter, what was the date of the charges?
MR PROCTER:	The date of the charges was -
MASON CJ:	It was 12 November 1987, was it not?
MR PROCTER:	Yes, the 12th. His Honour, Mr Justice Nettlefold at pages 568 to 569 of the appeal book held - I am
sorry, he did not hold, because it was not necessary,
but he said:

If the repeal had taken effect after the

appellant was committed for trial, he may

well have had a specific individual right to be tried in accordance with the old section.

His Honour Mr Justice Underwood took a different view

and, at page 600, he said:

Such a right cannot accrue to any person in the sense referred to in the cases
until a person is in jeopardy of

conviction on indictment. That jeopardy

does not arise until an accused person

is called upon to plead and enters a plea

of not guilty and thereby ..... the trial is

deemed to begin.

HlT3/2/HS	22	14/3/90
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His Honour Mr Justice Wright who, of course, in

his judgment in this case simply reaffirmed the view

that he had expressed in the case of CARRICK said,

in that case - and that is number 11 of 1989 and it is in the

bundle of authorities, and I refer to page 25 at line 4:

Furthermore, as the immunity provided

in the repealed section is against

"conviction" only and not against
"prosecution", the only point at which
it is legitimate to consider the

existence or non-existence of such an

immunity is at the conclusion of the

prosecution case.

So, Their Honours had divergent views as to when, if

at all, this right would accrue. Of course, it seems,

just by the way, inherent in that reason that

Their Honours all accept that this is not a matter of

mere procedure and that it can become a right at

some stage; Their Honours simply differ as to when

that occurs. It is my submission that all the steps

that Their Honours identified are only steps in a

chain which began at the time when the applicant was
charged on complaint with the substance of the matters
that he faced on indictment and that is the first

stage in the chain which ends with the verdict of

th~ jury and the conviction or discharge of the
prisoner.

It is my submission that once that process has been set in motion then the applicant, in this case,

was in jeopardy and it is my submission that his rights,

if any, fall to be assessed at that point.

MASON CJ:  You are treating section 136 as speaking to the

criminal pr6cess, are you, as a basis for this

argument, hot to the trial, but to the criminal

process?

MR PROCTER:  Yes. Their Honours all seem to be taking as a

point of reference the question of jeopardy and, of

course, I concede that, on one view, you are not in

j e op a rd y u n t i 1 such t i me as-: issue is j o in e d and the tr i a 1

commences but it is my submission that in a less strict
formulation you are in jeopardy from the time you are
charged, that that is when the criminal process begins

and, as I say, it culminates in the verdict of the

jury and either conviction or discharge and it is my

submission there is no logical reason to choose, for

example, the date of committal for trial. All that does

is operate as an order that you appear in the supreme

court and, of course, as I have said, you could

well wish to avail yourself of this right before that
in an effort to avoid that consequence and it is my
submission that there is no logical reason to take

any point in this chain other than the commencement

HlT3/3/HS	23	14/3/90
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of it as being the time upon which this right accrues,

if it does at all.

DAWSON J:  Except that if the section is directed to the trial

at the point that you have a trial - that is where it

commences - then the section operates and it operates

in such a way as an accrued right arises and you

can identify the point. I mean, in a sense, a person

is in jeopardy from the moment he commits the crime,
but it is not in any helpful sense. You really have to

look to the section itself and to see that to which

it directs itself, and that is to the trial, and

when the trial is commenced you can then see the

point of operation.

MR PROCTER:  Yes, but it is mysubmission that the fact, as I have

pointed out previously, that you could well avoid
committal on the basis of this section if it was

enforced - - -

DAWSON J:  But that is a very different thing. Committal

proceedings are	proceedings of a very
different sort.

MR PROCTER:  Yes, and certainly there are administrative

proceedings.

DAWSON J:	Whether a person is committed or not is determined by looking forward to the trial and seeing if there
would be enough evidence according to a particular
standard to  enable a ease to be made out, but
it is looking prospectively.
McHUGH J:	Can I ask you, how do you seek to avoid the operation

of the new section 136 because it says that:

At the trial of a person accused of a crime under chapter 14 or 20 -

that 1s you - no rule of law ..... shall require a judge.

Section 16 does not help you. How do you avoid the

operation of the new section 136?

MR PROCTER: 

I avoid that by the submission that while ever the

old section 136 remains for the purposes of this trial
unrepealed, of course, the new one cannot operate.

McHUGH J: 

But does that not indicate that the new section 136

is inconsistent with the old section 136? It

repeals it in terms in section 17. Take the case of

somebody charged with bestiality under section 122

of the Act, and who was not arrested until after the

new section 136 came into operation. Surely it would be clear that the new section 136 applies to him and,

HlT3/4/HS	24	MR	PROCTER	lei-/ 3 /90
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if it does, then it seems to indicate clearly enough

that there is no accrued right at the time of the

offence.

MR PROCTER:	Well, it is my submission that there is no reason to distinguish in principle between section 122 and
section 124.

McHUGH J:  No, I know. I appreciate that, except section 124

has now been changed.

MR PROCTER:  Yes, but, of course, this applicant was charged

under section 124 as it stood before the Act of

1987 came in.

McHUGH J:	Yes, I know.
MR PROCTER:	I do not contend that anything turns on that.
McHUGH J:	No, that is because section 16 saves that liability.
MR PROCTER:	Yes.
GAUDRON J:	Mr Procter, the old section 136 would operate,

would it not, by a direction to the jury at the end

of the Crown case, is that correct?

MR PROCTER:  Well, it could operate, I would submit, at two

stages; one, at the end of the Crown case when there·

could be a submission of no case to answer on the basis

that in law there was no evidence capable of

constituting corroboration and the trial judge would

have to rule on that. If he accepted that submission

he would direct the jury to acquit but it.could

operate at a later stage, in my submission, because

the learned trial judge could well find there was
evidence capable of constituting corroboration but

he would have to direct the jury that unless, in

fact, the jury found there was corroboration, they

would not be entitled to bring in a verdict of
guilty.	So it could operate at both those points.

McHUGH J:  But would the trial judge be obliged to acquit at

the close of the prosecution case? Would he not

be entitled to insist that the whole of the

evidence be closed first? I mean, you may go into

evidence and provide the necessary corroboration.

MR PROCTER:  Well, I would submit that in a criminal trial you

are entitled to have the matter assessed then and

it is· on that evidence could this jury properly

instructed convict? I mean, the accused person or

his witnesses may well incriminate him in other

respects, but that does not remove the efficacy of

the submission of no case to answer at that stage

and the question, as May and O'Sullivan says, on

this evidence, could a reasonable jury, properly

HlT3/5/HS	25	14/3/90
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iristr.ucted, proceed to conviction or find him guilty?

And that is a different question from the one the

jury faces which is, "Will we find him guilty on
this evidence" and, of course, they have the benefit

of whatever evidence the defence calls or adduces.

MASON CJ:	Mr Procter, we seem to have covered the matter
fairly comprehensively.

MR PROCTER:  Yes. I have, in the outline - I do not really

wish to address any further - referred to the

provisions of section 35A of the JUDICIARY ACT which,

in my submission, make this an appropriate case for

special leave and, unless Xour Honours specifically

wish me to address on that, I do not propose to

accept, as I say, to refer to those sections.

MASON CJ:  Yes, well I suppose there is one point that arises

in connection with that. If you were to succeed on

the argument that you have put to the Court, what would intervale you, because there appears to be,

in the present case, a lot of similar-fact evidence

which amounts to corroboration and would, therefore,

satisfy the requirements of section 136(1) in its

old form?

TOOHEY J:  Just while you are answering the Chief Justice,

Mr Procter, would you also take into account too

that your notice of appeal does not seem to raise
the factual question of corroboration. In other
words, it does not assert, by way of appeal, that
if the legal proposition is made good, then your
client could not have been convicted because there
was no evidence capable of corroborating the evidence

of the particular complainants.

MR PROCTER:  Well, I accept that, Your Honour. My submission

on that is - I do not quarrel with the proposition

that there is evidence that was ruled to be admissible

which is capable of constituting. corroboration, but

my argument is that the applicant was entitled to

have the jury determine whether, in fact, that

evidence was corroborative and no doubt the Crown

would argue that because he was convicted of matters
in respect of each complainant, the jury must have
accepted that evidence, the evidence of that complainant,
but it does not follow as a matter of logic, in
my submission, that the jury must say, "Well, we

accept that the evidence of this complainant

corroborates in a material particular the evidence

of that complainant". The jury simply was not

asked to consider that question.

The matter of corroboration was not referred to

at all in the summing up and, therefore, it is my

submission that if my submission is correct that

the old section 136 applied, then a matter which the

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jury had to consider was not considered by the

members of the jury at all.

TOOHEY J:  There was no proper trial, in other words?

MR PROCTER:  Yes. That comes back to the distinction between

the no case time and the time of verdict, but I

would concede that a no case to answer submission

on the basis there was no evidence capable of being

corroboration could not have succeeded but it is

my submission that it must go further and it is not
the function of a court of appeal to say, "Well,
the jury must have accepted that this evidence was

in fact corroborative".

MASON CJ:  No, that is true but, of course, we are not a

court of appeal in the sense in which you make that

statement. You have to satisfy us that it is an

appropriate case for the grant of special leave and

in determining whether or not we should exercise that

power in your favour it may be material to consider

how the case stands.

MR PROCTER:  Yes, I appreciate that, Your Honour. It is my

submission that - I base the submission that this 1s an

appropriate case for special leave fundamentally

on the obvious conflict between the Tasmanian court

and the South Australian court and it is my submission

that that, in itself, is sufficient justification for

the grant of special leave within section 35A.

Thank you, Your Honour.

MASON CJ:  Thank you. Yes, Mr Jacobs.

MR JACOBS:  Thank you, Your Honour. It is the respondent's

submission, firstly, as set out in our submissions,

that a matter of this type is not within the

definition of a right that a person can accrue.

I suggest none of the authorities show a right being held to exist in circumstances like this and I compare

that with something like the presumption of innocence

as in AH HING's case, or the fundamental right to

a trial by jury as in NEWELL's case, or the right to

be heard or the right to receive natural justice.

I do not suggest by that that a person has not got a

right not to have procedure changed mid-trial.

Certainly once the trial commences I suggest a
person has a right to have known at the start the
procedure and rules to be followed and to have them

applied, but assuming for the moment that Your Honours

find that it is a right that can be acquired, I

suggest clearly that has not happened here.

I suppose my learned friend has directed his

submissions at that in his fourth point, where he

says at the conclusion:

HlT3/7/HS	27	14/3/90
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It is as logical to regard this as the

appropriate date as it is so to regard

any of the dates selected by the learned

trial Judge or the Judges in the Court

of Criminal Appeal -

referring respectively to the date the trial

commenced or to the date of committal. But to the

point that was raised by one of Your Honours a few

moments ago as to the position if a right such as this

could be accrued at the date of the charge, I would

suggest it would be a strange situation if two

people were alleged to have been parties to the one
act and one because he was charged here on 12 November
and the other one who was charged some two weeks later

could receive trials in a different form because of

that matter.

In fact, in such a circumstance, the prosecuting

authorities could, if need be, simply withdraw the

first charges and recharge the man 14 days later.

Now, I would ask what can possibly be an injustice

to a man because at a trial some year or two later

he is tried according to the procedural rules then
applying and applying 12 or 14 days after he is
charged. It is not suggested, for example, that the
person has to do something in that fo~tnight that

are going to affect later matters. So it is not as

if things are frozen in time, or it is not as if he

is required to do something such as file a defence as

he may in a civil matter. He proceeds on unaffected

at all by the technicality of whether he is charged

on the twelfth of the month or some time after the

twenty-sixth of the month.

Two of the cases I want to refer to - and one

is BOLAND's .case which my learned friend has quoted,

and there we are certainly dealing with a question

of a wife being called as a witness rather than the

applicant in that case, but the court there did say	that if the previous EVIDENCE ACT giving immunity to a
wife in giving evidence, if it amounted to a right or privilege, or in fact the words used were "even if such immunity amounted to a right or orivilege".
that, if I may read ·it - I think Mr Procter referred
to· this before - prior to.9 May there had been no
act done bv her towards availing herself of that
right or privilege. According such right or privilege
as she had under the pre-existing law, was at
9 May 1973 a mere right or privilege in the abstract
which could not be regarded as a right or privilege which had accrued or been acquired within the
meaning of the ACTS INTERPRETATION ACT.

In the South Australian case, ATTORNEY-GENERAL'S

REFERENCE NO 1 the court - and with respect to the Chief Justice, I suggest incorrectly - categorized

what it says at the bottom of page 6 of that judgment

to be:

H1T3/8/HS	28	14/3/90
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In a sense that was a right enjoyed

by the defendant in common with all

citizens not to be placed in jeopardy of conviction on such evidence. The defendant, in common with other citizens,

has been depreived of that right by the

amending Act.

DAWSON J:	Well that is the point, is it not?
MR JACOBS:	That is the point.
DAWSON J:	For a right to become an accrued right the law

conferring the right has to have something on which

to operate.

MR JACOBS:	Yes.
DAWSON J:	In this case you say there is nothing on which it

can operate until there is a trial. Until that

point the applicant is in no different position from

any other member of the community.	That is about
it, is it not?

MR JACOBS:  That is about it, Your Honour. I think the issue

comes to grips - there is certainly a clear distinction

between the decisions of the appeal courts of South

Australia and Tasmania and they really come to grips on that paragraph there.

DAWSON J:	What do you say about NEWELL's case?
MR JACOBS:	Well, I say NEWELL's case, Your Honour, really only

applied to the fact of a case then in operation but

I suggest that the - - -

McHUGH J:	The trial had statted there, had it not?
MR JACOBS:	The trial had started, because of section 351(6) of the Tasmanian CRIMINAL CODE that says that a trial
commences on plea, but I suggest - the decision is
there and I quote from Mr Justice Dixon, as he then
was, at the bottom of page 712, and that of
Mr Justice Evatt support the contention I now make.
Mr Justice Dixon says at the bottom of page 712:

This was the position he occupied when the JURY ACT 1936 altered the law and

made the concurrence of ten sufficient

for a conviction or acquittal. When it

says that this should be so "on the trial

of any criminal issue", should these

general words be understood as applying

to a trial already begun of issues already

joined? In my opinion they should not.

They should be taken to mean on the trial

of any criminal issue joined after the

commencement of the Act.

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If I may repeat those words, "They should be

taken to mean on the trial of any criminal issue
ioined after the commencement of the Act", and

reading from the conclusion of the decision of

Mr Justice Evatt, on page 713:

In view of this overriding principle, which cannot be overlooked on the

question of construction, the better

interpretation of the recent Tasmanian

Act is to confine it to "criminal issues"

joined after the Act was passed.

DAWSON J:  And the right to trial by jury is a substantive

right, not a procedural one, at least in the view of

Chief Justice Latham. So the distinction is not

between procedure and substance but rather between rights which have accrued and those which have not.

MR JACOBS:  Yes, but I would suggest that those judgments I

have read out support my contention, the Crown's

contention that the matter arises from the

commencement of the trial.

MASON CJ:  You do not agree with the suggestion made by

Mr Justice Wright that the right accrues under the

section on committal?

MR JACOBS:	No. It is certainly my submission that it
MASON CJ:	You rely on section 351(6)?
MR JACOBS:	Yes, I do, if it please Your Honour, and I merely say, as to my learned friend's point, on the proviso
point, that the jury, in reaching their decision in respect of the three complainants, the findings of guilt in respect of that must, of necessity, have
accepted the evidence of each of those three complainants, which evidence is clearly corroboration.

TOOHEY J:  I am sorry, I do not follow that submission,

Mr Jacobs. The jury must have accepted the evidence

of the complainants?

MR JACOBS:  Of each of the three complainants and that their

evidence is strongly - the similar fact	component of
it, which is set out in my submissions,	is evidence
strongly corroborative of each.

TOOHEY J:  It is rather difficult for this Court, to take that

view, though, is it not, in the absence of any

direction to the jury as to corroboration?

MR JACOBS: 

It is my submission that when the evidence,set out

in page 4 of my submissions, is so massive, as I
suggest it is, covering some eight points on which

all three, plus Miss Gow, gave similar evidence, and

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a further 10 when three of them did and a further

three where two did, when looking at their evidence

in-chief there is such a striking pattern going

through it all, I suggest that it moves beyond some

occasional matters requiring corroboration and

amounts, in fact, in effect, to three lots of

evidence that are as one, so to speak.	The same
story is told by each of the three girls.	It has

been accepted by the jury in each case and it must,
in the circumstances, have been accepted by the jury
as corroboration, albeit the word was not directed

to them.

I think the only other thing I want·to refer

Your Honours to is that of course, as my learned

friend referred, there is a power in the Crown to

file an ex officio indictment, section 310(3),

irrespective of any matter at committal. If it

please the Court, those are my submissions.

MASON CJ:  Thank you, Mr Jacobs. Yes, Mr Procter.

MR PROCTER:  There is only one m.atter to which I would wish to

refer Your Honours and that is that the submission

that a person charged two weeks later should not be

disadvantaged, as opposed to one charged on

12 November; of course, the same submission would

apply to a person tried two weeks after the repeal

came into effect and my learned friend would not

see anything wrong with that advantage accruing to

the person whose trial started earlier. So it is

my submission that there is no reason to distinguish

between that and a person who had been charged two

weeks earlier if, in fact, the process has started

as at that date. If Your Honours please.

MASON CJ:  Thank you, Mr Procter. The Court will consider

its decision in this matter and will adiourn to take

the next case at 12 o'clock. -

AT 11.50 AM THE MATTER WAS ADJOURNED SINE DIE

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