RPS v The Queen

[1999] HCATrans 271

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S116 of 1998

B e t w e e n -

RPS

Appellant

and

THE QUEEN

Respondent

GAUDRON ACJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 SEPTEMBER 1999, AT 10.18 AM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC:   If the Court pleases, I appear with MS B.J. RIGG for the appellant.  (instructed by Uther Webster & Evans)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent.  (instructed by the Solicitor for Public Prosecutions (NSW))

GAUDRON ACJ:   Yes, Mr Bellanto.

MR BELLANTO:   May I first of all invite the Court to note some corrections in the submissions advanced.  I think I gave the Court these on the last occasion, but I should go through them again.  On page 17, paragraph 81, would your Honours delete the end of the second line, “30 and 35-6” and insert “462 and 464”.

McHUGH J:   I am sorry, Mr Bellanto.  What paragraph is it?

MR BELLANTO:   Paragraph 81.

McHUGH J:   Is it page 17?

MR BELLANTO:   The second line in that sentence, at the end of the line there is a reference to “see pages 30 and 35-6”.  Would your Honours insert instead there “462 and 464”.  On page 19, paragraph 90, second‑last line, there are some page references.  Would your Honours insert after the page reference 165.18, “166.15-167” and delete in the last line in paragraph 90 “p38” and replace that with “page 465”.  On page 20, paragraph 95, second‑last line, the sentence commencing “See transcript references”, would your Honours delete that and delete the last line.

May I at the outset indicate the form of the argument the appellant will present to the Court.  There are five grounds of appeal, four numbered 2 to 5 in the notice of appeal, which was subject to special leave granted on 7 August 1998, and the remaining ground, the right to silence ground, numbered 6, was the subject of leave granted by the Court on 4 March 1999.

KIRBY J:   Was that how it arose out of a question that Justice McHugh asked you at the outset of a previous hearing?

MR BELLANTO:   Yes, your Honour.

KIRBY J:   And that was not a matter that was argued in the Court of Criminal Appeal?

MR BELLANTO:   No, your Honour.

KIRBY J:   And it is not contended that there is any factual, or other basis, on which there could be a reason why the Court of Criminal Appeal might have refused you leave to argue that case, or had you brought it belatedly to them?

MR BELLANTO:   No, was not.  It just did not arise at the time.  The thinking was, I think, at the time that the direction was a direction that was commonly used by trial judges in New South Wales and for that reason it was felt that it was not a matter that cried out for intervention, at least ‑ ‑ ‑

KIRBY J:   I only raise the question because of the issue as to whether - if a matter is not argued in the Court of Criminal Appeal, then it is within an appeal to this Court to bring it to us if it has not been contested and wrongly decided in the Court of Criminal Appeal.

MR BELLANTO:   Yes.  Well, as your Honour has put it is the position.

KIRBY J:   I think we should just press on and hear the argument.

MR BELLANTO:   Yes, your Honour. The partial admission ground, ground No 2, and the inconsistent verdict, ground No 5, are linked, because the admission, or the so‑called admission was capable of explaining the convictions on counts 6, 7 and 8 but not 4. The bias, or judicial interference ground, ground No 3, and the motive to lie ground, ground No 4, are also linked because one of the manifestations of judicial bias and interference is the disproportionate attention the trial judge gave to the reason for maintaining the application for victims’ compensation. Further, the trial judge would not have interfered in the cross‑examination as early as he did had it not been for his view, formed prior to the trial, that the counsel at the trial deliberately misquotes evidence. That was accepted by the court below.

Therefore, it is proposed to argue these grounds in the order of the written submissions, which will then provide a sound working backdrop for the final ground, ground 6, the inappropriate directions by the trial judge on the failure of the appellant to give evidence.

May we make the following six observations on the trial generally. This is the first point we make.  The evidence for the prosecution fell into two categories:  direct evidence by the complainant of sexual interference between 1983 and 1993 between the ages of four and 14; and alleged partial admission to counts 6, 7 and 8 relating to digital penetration.

Second, the appellant did not give evidence at the trial and relied upon the presumption of innocence.  However, he provided on arrest on 5 August 1984 a written denial to Detective Donaldson in these terms:

I RPS have never at any time or in any way vaginally penetrated my daughter I.

Thirdly, the case against the appellant was not circumstantial.

McHUGH J:   When he made that statement, had other allegations been put to him, had allegations been put to him?

MR BELLANTO:   Yes, the broad allegations the subject of the charges were put to him seriatim and he declined, I think with the exception of one charge, to say anything on the advice of his lawyer, and on one charge he said, “What do you want to say?  I think he said “No”.  But, essentially, his response was he did not wish to answer questions on the advice of his lawyer.

McHUGH J:   I appreciate that, but then having made that statement, is it not a Woon‑type situation, where the fact that he just refers to that one area could be taken as an admission, a consciousness of guilt on his part in relation to the other allegations against him?

MR BELLANTO:   It was not a case of answering some questions and not others.  It was a case of electing, on the advice of his solicitor, not to answer questions and then, after the allegations were put to him, it was suggested to the officer that he might make a written statement and, on the advice of his solicitor, he then made that statement.

McHUGH J:   But it is confined to vaginal intercourse, is it not?

MR BELLANTO:   No.  Well, yes.  Vaginally penetrated, yes.  Yes, it is.

McHUGH J:   Why would it not be open to a jury to conclude from the fact that he makes such a selective statement, having regard to the generality of the allegations made against him in the various charges, to conclude that he was admitting the other matters alleged against him which accords with the evidence that Mrs T gave where he said, “I’ve never had intercourse with her but everything else she said is true”.  Does not that confirm that admission, or would it not be open to the jury to take that view?

MR BELLANTO:   With respect, no, your Honour, because that response depended upon what he was told and what he understood the question to mean.  The case against him was a case of vaginal penetration, penile and digital, and when he made that statement he was denying the allegations contained in the Crown case.  He was making a general denial of what the Crown case against him was.

KIRBY J:   By the way, Mr Bellanto, was an order for anonymity made in this case and does it extend to this Court?  I would have assumed it does.

MR BELLANTO:   Yes, your Honour.

KIRBY J:   So, what is the appropriate way to refer to the complainant?

MR BELLANTO:   We will just say “the complainant” and I think the same view should be taken with respect to the girl to whom the complainant complained who has been described as MM, so we propose to take the same course.

KIRBY J:   Yes.

MR BELLANTO:   I am just reminded by Ms Rigg that the statement that he made to Detective Donaldson would cover all charges and all allegations, if your Honour pleases.  As I was saying to your Honours, the third point we make about the case is that the case against the appellant was not circumstantial.  There were no unexplained facts.  There were no facts peculiarly within his knowledge that called or cried out for an explanation.  To use the words of the minority in Noble, there was no strong or cogent network of inculpatory facts.

GAUDRON ACJ:   What is Noble?  Can you give us a reference to it?

MR BELLANTO:   Yes, your Honour.  Noble is the Canadian case referred to in the submissions on page 5 on the right to silence point. The reference is (1997) 146 DLR (4^th) 385. We will be taking the Court to Noble in due course. 

The case hinged primarily on the credibility of the complainant and the defence case was one of complete denial.  The fourth point we make about the case relates to the sequence of events following the last allegation on 31 July 1993, the Saturday afternoon.  These events were as follows:  the day following, that is Sunday 1 August 1993, the complainant complained to her mother, Mrs T.  The appellant was ‑ ‑ ‑

GAUDRON ACJ:   We think we might just refer to the mother as “the mother”.

MR BELLANTO:   The mother, very well.

GAUDRON ACJ:   Consistently with what has been done in relation to other people involved in the case.

MR BELLANTO:   The mother, very well.

GAUDRON ACJ:   Consistently with what has been done in relation to other people involved in the case.

MR BELLANTO:   Very well, your Honour.  The complainant complained to her mother on the Sunday and then the appellant was confronted on the Tuesday, 3 August 1993, by the complainant and her mother - by the mother and her mother.  That is at appeal book page 206.  The appellant was asked by the mother of the complainant’s mother:

“Are you saying that you’ve never touched her with your hands or fondled her or put your penis inside her?”

The appellant replied:

“That’s right”.

The following week there was a phone conversation between the complainant’s mother and the appellant wherein it is alleged the partial admission was made to this effect:

I have never had intercourse with her and everything else she said is true.

And on Monday, 9 August 1993, the complainant went to the Lismore Sexual Assault Clinic and it is alleged she spoke with a Ms Frereichs, the social worker, and the complainant made her statement to the police on 3 February 1994, some five months later, and then the appellant was charged on 5 August 1994, some six months after that.

The fifth point we make is that the complaint was non-specific as to time or event and that was made to the young school friend MM, and that was in 1988 or 1989, when the complainant was nine or 10, not eight as found by the court below.  This is important because the court below found this complaint to MM was shortly after the events in count 4.  However, this cannot be, because the complainant turned nine on 6 February 1988, so that this complaint was referable to counts 5 or 6.

The sixth point we make is that the Court may be assisted by a brief summary of the locations where the offences were said to have occurred.  Count 1 covered a ten month period and was said to have occurred in a bath that was outside the caravan where the appellant was residing at the time and the complainant was staying on this particular property, known as “Close to the Edge”, which was owned by a friend of the appellant and his former wife, their name being the Raphaels. 

At this stage the complainant was aged four.  Count 2 was on the same property, but in the Raphael’s house, where the complainant had been staying for about a week in a young boy’s bedroom and the appellant was staying in the Raphael’s double bed.  This was after Christmas in 1985, when the complainant was aged six or seven.  The third count was on the same property, in the same house, that is the Raphael’s house.  I should say here, your Honours, that the house on the property was about 500 metres from the caravan, the subject of the first count.  The caravan was down on a river-flat area about 500 metres from the house.

Count 3 relates to the house, and the complainant was said to be in Alistair’s room – that is the young boy – and the appellant was staying in the barn next to the house in the loft, and this is said to have occurred in mid‑year holidays when the complainant was aged seven.

Count 4 is alleged to have occurred at a place called Sphinx Rock which is about 25 kilometres from Uki, which in turn is south of Murwillumbah and east of Kyogle.  Sphinx Rock was a communal property owned by the mother and step‑father of the complainant.  They bought 164 acres and sold off 12 acres to the appellant, who moved there in 1987.  When he moved onto his 12 acres he initially built a garden shed for temporary accommodation, where he stayed.  It is alleged, in respect of count 4, that the incident, the subject of that count, occurred in that garden shed.  The period covered by that count is a four‑month period around about the June holidays.

Count 5, which was the subject of a directed verdict, is alleged to have occurred between September and October 1988.  The complainant’s evidence put it in the May school holidays at the bails, a building built by the appellant, and she was sleeping in the kitchen, and she was aged nine.  That count resulted in a directed verdict because the evidence of the complainant was inconsistent with the period referred to in the indictment.

Count 6 is alleged to have occurred in the new house built by the appellant on his acreage after he moved out from the garden shed.  It is said to have occurred in the period July‑August 1989 when the complainant was 10, and it is said to have occurred in the bedroom where the complainant was sleeping downstairs.  The complainant said this incident took place one week after she had finished menstruating, at the age of 102.

In terms of sequence, the next incident, although it is not the subject of a charge, has been referred to as the catamaran incident, and that was an attempt at penile intercourse at the Whitsundays, where the complainant had been holidaying with some friends and the appellant.

Count 7 is also alleged to have occurred in the new house built by the appellant, when the complainant was aged 13.

Count 8, again, was in the new house, when the complainant was aged 14, and this was the last day in July, the Saturday.  The following day the complainant and the appellant went to the Byron Bay markets.  That was the Sunday, 1 August 1993.

The seventh point we make is this, that the trial did not flow, due in the main to the many interventions or interruptions by the trial judge, culminating at the close of the Crown case when defence counsel announced, and I quote, your Honour, “The defence calls Sandra Frereichs”.  That was the social worker that I referred to earlier.  His Honour intervened and said, “You must call your client before you can call any other witness”.

McHUGH J:   Where did that rule arise?  I have never heard of that before.

MR BELLANTO:   That the accused must be called first?

McHUGH J:   Yes.  I mean, if you do not call the accused first you might be subject to some comment but I have never heard of that rule before.

MR BELLANTO:   No, I think that is right, your Honour.  I do not think it is a mandate but the consequences of not following it, of course, is that the client is in court when other witnesses are called and you would be subject to that type of comment, of course, but ‑ ‑ ‑

KIRBY J:   His Honour’s point is on the verb “must”.

MR BELLANTO:   Yes.  Well, I do not think you must.

CALLINAN J:   It is a misstatement of something in the presence of the jury, too.

MR BELLANTO:   Yes.

CALLINAN J:   It is very strongly impliedly critical of the conduct of the defence.

MR BELLANTO:   Yes, your Honour, it is.

KIRBY J:   But perhaps the judge – I mean, given the range of skills of counsel who appear in trials, perhaps the judge was trying to assist counsel if he did not know that this was the rule that had to be observed to avoid serious criticism.

CALLINAN J:   Well, then, he should have said it, in my view, in the absence of the jury.

MR BELLANTO:   Yes.  Whether his Honour was stating what he understood to be the general rule or whether he was anxious that the appellant be called, it is difficult to know but I think the problem is, and it is picked up later on in the submissions, in the “Right to silence” submissions, that he certainly conveyed to the jury, and this was argued in the court below, that there was some deficiency in the way the defence case was being conducted by defence counsel not calling his client and not calling him first, but he certainly, we would say, conveyed to the jury the impression that the way the defence was about to present its case was open to criticism and, of course, it is compounded because his Honour then went on to say:

“That’s what the law says.  It is customary, and the accused must be called first.”

GAUDRON ACJ:   What page are you reading from?

KIRBY J:   That was extracted  ‑ ‑ ‑

MR BELLANTO:   I am reading from the extract that has been provided, your Honour.  It is annexed to the further submissions on the “Right to silence” ground.

KIRBY J:   Is your point that on its own this would not perhaps be fatal to the conduct of the trial but, taken with other matters, it is one further ingredient of the prejudice that the judge exhibited to your client?

MR BELLANTO:   Your Honour, in the court below it was argued as a specific point of prejudice and sufficient to ground a mistrial, and we do make that submission that it is of itself serious, particularly when one takes it into account on the argument on the right to silence because ‑ ‑ ‑

KIRBY J:   We have to be careful that we do not get to a point that no conviction can ever be sustained.  A person is called forward, the judge makes a spontaneous reaction and it is true that on reflection it could have been said differently and should have been said in the absence of the jury, but it has to be seen in the context of the whole trial?

MR BELLANTO:   Yes, your Honour, we accept that and sometimes an appropriate direction can ameliorate a problem such as this and every case has to be considered in the context of the flavour and climate of the case.  But in this case, the way the case was unfolding, the many interruptions, the attitude of the trial judge was becoming quite dominant throughout the hearing in many ways that have been referred to in the submissions, and this outburst or this comment by the judge at this time, at a crucial time, because it cannot be overlooked that the prosecution case had finished, the jury would be focused more than perhaps at any other time on the defence wanting to know what the defence was going to do about these allegations; and then at that critical time when all eyes and ears are on the defence, the judge makes the comment.  We would say that it could not have occurred at a more inappropriate time.

The written submissions we have advanced and placed before the Court are quite detailed and we have endeavoured to provide the Court with the authoritative references in the submissions, and we are content in the main to rely on those submissions with some amplification.  The first ground, ground 2, the partial admission ground, if we can address that at the moment.  The so-called admission to the complainant’s mother in paragraph 11 of the written submissions, “I never had intercourse with her but everything else she said is true”, is important evidence for two reasons.  Firstly, the jury were directed not only that it is capable of being an admission to counts 6, 7 and 8, but that as Crown evidence undenied, it could more readily be accepted as the truth and the appeal book reference is 340 point 7, and 348.  The second reason why this so-called admission is important is this evidence and the direct evidence of the complainant was the only evidence indicative of guilt, particularly with respect to counts 6, 7 and 8.

I should interrupt myself just to indicate to the Court that the ‑ ‑ ‑

GAUDRON ACJ:   What do you mean “indicative of guilt”?  What do you mean by that statement?  Do you mean it was the only evidence other than from the complainant, the only corroborative evidence?

MR BELLANTO:   Yes.

MR BELLANTO:   Yes.

GAUDRON ACJ:    Well, which of those two, both?

MR BELLANTO:   Both.  There was the complainant’s evidence which was the central core of the prosecution case.  The evidence relating to the so‑called partial admission was relevant to counts 6, 7 and 8 as being some additional evidence, apart from the complainant’s evidence, to substantiate the allegations on those counts, but only on those counts.

The verdicts returned by the jury were as follows: verdicts of not guilty in respect of the first three counts and verdicts of guilty in respect of counts 4, 6, 7 and 8.  The trial judge’s view of the ‑ ‑ ‑

KIRBY J:   Remind me about 5.

MR BELLANTO:   That was a directed verdict.

KIRBY J:   Yes, that is right.

MR BELLANTO:   The trial judge’s view of this evidence of the admission in the transcript before the summing up at appeal book reference 209 line 25.  Can I ask your Honour the presiding Judge, Justice Gaudron, does your Honour have the extract that was provided with the papers that I referred to earlier?

GUMMOW J:   Extract of what?

MR BELLANTO:   The extract of the trial proceedings that was not taken out and does not appear in the appeal book.

GUMMOW J:   In what form is it provided to us?

MR BELLANTO:   It was provided with the appellant’s further submissions in regards to the right to silence ground.

GUMMOW J:   Ground 6?

MR BELLANTO:   Yes, your Honour.

GAUDRON ACJ:   Well, I do not appear to have anything that answers that description.

McHUGH J:   No, neither do I.

GUMMOW J:   Nor do I.

MR BELLANTO:   It was sent with the amended notice of appeal.

McHUGH J:   I have the amended notice of appeal, but that is all I have.

GUMMOW J:   There is one sheet at the back of the amended notice of appeal.

MR BELLANTO:   That is it, your Honour, yes.

McHUGH J:   Yes.

GAUDRON ACJ:   We all have that.

MR BELLANTO:   I do not propose to go through it again.  Normally it would not be taken out in the course of a transcription of a court proceedings in New South Wales where the discussion is, according to the transcript, discussion as to order of witnesses, that is what appears in the transcript.  So to amplify what happened on that occasion, one has to ask specifically for the discussion to be taken out.

HAYNE J:   The accused on a trial is not required to state formally the course that the accused will take at the close of the prosecution case?

MR BELLANTO:   No.

HAYNE J:   Simply in Victoria the accused is formally called on to state the course that will be taken, whether the accused will call evidence or not call evidence, and there is no such equivalent here.

CALLINAN J:   And the same happens in Queensland but I had noticed the New South Wales practice often is when defence counsel opens the case, he or she does not tell you anything about the witnesses who are going to be called.  It just seems to be more like a closing speech.

MR BELLANTO:   Yes.

CALLINAN J:   I was innocent enough to protest about it once.

MR BELLANTO:   It is often done now where defence make an opening address at the beginning of the case after the Crown Prosecutor opens.  That is permissible now.  Of course, if you are calling evidence, you have the right to outline the course you are going to take but there is no compulsion.

CALLINAN J:   In fact I think there is.  I think there is some Victorian authority, but it seems to be a New South Wales practice.

McHUGH J:   In New South Wales, at least in my experience in criminal cases, there was nothing formal said but ordinarily at the close of the Crown case counsel would say, “I don’t propose to call any evidence” or “the accused will make a statement” or “I’ll open”, but ‑ ‑ ‑

MR BELLANTO:   Yes, that is usually what is done.  For technical reasons it is probably the best course to take, to explain to the jury or the judge what you are going to do.  As I was saying, the trial judge’s view of the evidence is at page 209 line 25.  Do your Honours wish me to go to these pages as I go through the submissions or can I simply leave it to the Court to note them?

GAUDRON ACJ:   It may be advisable to see them in context.

MR BELLANTO:   Very well, your Honour.  At page 209 line 25 his Honour there said:

I don’t really quite understand that.  He had admitted at least some of what –

the complainant –

had said had happened?

GAUDRON ACJ:   And the answer there comes from the mother.  That was a question from his Honour to the mother and she answered, “Yes”.

MR BELLANTO:   Yes.

KIRBY J:   There was no objection to his Honour’s statement to that effect at that point?

MR BELLANTO:   No, your Honour.  At page 216 line 55 his Honour was giving the jury a direction in relation to the complaint and at the foot of page 216, the last few lines, his Honour referred to admissions and said:

That of course does not apply to the alleged admission made by the accused of which the witness has given evidence, that is direct evidence which if you accept it is capable of establishing an admission by him that he had molested the girl after she was 10 years of age.

KIRBY J:   Again, no protest or objection to the effect that he made no such admission.

MR BELLANTO:   Not at that stage, no, your Honour.

KIRBY J:   I mean this is a not unlike, is it, President Clinton statement:  “I did not have sex with that woman.”  He, in his mind, meant, I did not have intercourse, so we understand that was his purpose, whereas, analysed, he was saying, I did not have intercourse, but I am not denying that I did not have oral sex or oral connection, and that is obviously how the judge here took the statement, that he was denying penetration, but not denying fondling and touching, which amounted to molesting, and that the concentration and focus on intercourse and penetration were to be taken by juxtaposition with sexual conduct in its totality and a denial of the one, but not a denial of the other.

MR BELLANTO:   Well, perhaps, but the real issue became whether he was admitting to the allegations, the subject of the digital penetration counts, 6, 7 and 8.  That became the real issue, and it was left to the jury on the basis that he had made those admissions, and that is why these alleged admissions are so important, because it was left to the jury that his response was an admission in respect of those counts, to digital penetration.

KIRBY J:   Is there a significant difference in law between a non denial and an affirmative admission, in your submission.  In other words, assume that it was open to the jury to dissect what he said and to take the view that what he was saying was, “I did not have intercourse, but everything else she said about the touching and fondling and improper molestation, I am not denying that, and everything she said about that is right.”  Now, would that not amount then, or would it not be capable in the jury’s mind of amounting to an admission of those things, other than penetration and other than intercourse, as a lay person would understand those words?

MR BELLANTO:   By his failure to specifically ‑ ‑ ‑

KIRBY J:   Yes, in the context.

HAYNE J:   But it is not just a failure to specifically deny.  What was meant by the words, “everything else she said is true”?  That is the evidence that you have to confront, is it not, at page 208 line 24 and 25:

“I never had intercourse with her but everything else she said is true”.

Now that is the evidence that is before the jury.  What are they to make of that last clause, if they accept it was said?

MR BELLANTO:   Well, they can only make of it what they understand was put to the appellant when he said it.  I mean, he may, say for argument’s sake, have thought that the girl was talking about cuddling and playing and playing in the attic or playing in the loft or playing in the shed, cuddling ‑ ‑ ‑

KIRBY J:   But that comes back to Justice McHugh’s question at the outset:  was he aware of all of the allegations?  That certainly went beyond cuddling.  And if he was aware of that then at least it is open to a jury to say, “Well, why would he differentiate in denials?  Why would he not deny it all, and does not his denial of part only amount to an admission of the other part?”

MR BELLANTO:   Because the allegations, the formal allegations of the charges - the charges did not spell out that he was fondling, or cuddling, the charges ‑ ‑ ‑

GAUDRON ACJ:   The charges had not been laid at this stage, had they?

MR BELLANTO:   No.

GAUDRON ACJ:   What had been put to the appellant, so far as we know, is what was put by the complainant’s grandmother on an earlier meeting.  Is that not right?

MR BELLANTO:   Correct.

GAUDRON ACJ:   There is no suggestion in this conversation that anything else was put to him?

MR BELLANTO:   No.

GAUDRON ACJ:   So, if it has any context, any relevant context, it is the context of the confrontation with the grandmother?

MR BELLANTO:   Correct.

HAYNE J:   And that includes allegations:

you’ve never touched her with your hands or fondled her or put your penis inside her?”

I read from 207, line 34.

MR BELLANTO:   Yes.  He said, “That’s right”.

HAYNE J:   Yes, and then there is a later part of the same conversation, or a different conversation, in which he says:

I never had intercourse with her but everything else she said is true.

Is that the same conversation, or a different one?

MR BELLANTO:   That is a different conversation, because that is a response to a telephone call the mother made the following week.  There is a time difference as well as a contextual difference.

GAUDRON ACJ:   The particular charges to which it is said this is relevant of charges 6, 7 and 8, is it?

MR BELLANTO:   Yes.

GAUDRON ACJ:   And the charges are sexual intercourse?

MR BELLANTO:   Yes, but 6, 7 and 8 are the digital penetration charges.  They are all laid under section 66C of the Crimes Act, and they are all alleged to have occurred at Sphinx Rock and in the new house built by the appellant.

GAUDRON ACJ:   Thank you.

MR BELLANTO:   The key to the evidence, as your Honour Justice Hayne has just observed, is what the appellant understood by the question, and what he meant by the words, “I never had intercourse with her but everything else she said is true”.  The trial judge seems to have taken the view that this called for some explanation, and this appears at 364, point 15.

CALLINAN J:   But you have to look at page 208 at line 30, too, do you not, which lends a little additional colour to the words, “everything else she said is true”, because he said at line 30, “Since she was about 10.”?

MR BELLANTO:   Yes.

CALLINAN J:   One would not ordinarily think that he would say that unless he was speaking about some – I will put it reasonably neutrally – culpable conduct.  In other words, you cannot just look at the sentence at line 23.  What was he talking about when he said, “Since she was about 10”?  What do you say that that was capable of referring to?  Of which conduct?

MR BELLANTO:   It is difficult to know whether he is contextualising that in terms of location or what they were doing, whether ‑ ‑ ‑

CALLINAN J:   No, because the earlier question is, “How long has it been going on?”.

MR BELLANTO:   Yes.

CALLINAN J:   Now what is “it” capable of referring to?

MR BELLANTO:   If one makes the concession that it may relate to some inappropriate behaviour, it does not advance the argument, we would say, because there is nothing specific.  There is nothing that has been spelt out for him to acknowledge, and it is difficult to know what he was referring to.

CALLINAN J:   He must have been referring to something.  He obviously knew what the question related to.

MR BELLANTO:   Yes, but one does not know.

CALLINAN J:   What was the evidence of other behaviour?  Was there evidence of behaviour other than behaviour involving penetration of some kind?

MR BELLANTO:   Yes, there was.

CALLINAN J:   Where do I find that?

MR BELLANTO:   The girl gave some evidence of fondling of breasts and, I think, kissing on the mouth.  I will take your Honour to the passage in a moment when I find it.

GAUDRON ACJ:   But there is no evidence that she had said anything to the appellant, is there, at this stage?

MR BELLANTO:   No.

GAUDRON ACJ:   The evidence is only that the mother and the grandmother had relayed her complaints to the appellant.  Now, is not the critical thing what they said?

MR BELLANTO:   That is our point, yes.

GAUDRON ACJ:    Well, where is that?

MR BELLANTO:   That is in the passage that your Honours have just ‑ ‑ ‑

GAUDRON ACJ:    That is at 207.  Is that the only evidence that we can use?

MR BELLANTO:   Yes.

HAYNE J:   It is page 206 as well, is it not, 206 line 55, we had a generalised statement.  The complainant:

has told me that you’ve been abusing her for the last 10 years.

Page 207:

might have said “sexually abusing”, in fact I probably did.

Denied:

“Oh come off it.”

Further discussion, and so on.  Do you say it was not open to a jury to take this sequence of evidence and to conclude from that sequence of evidence that the accused man acknowledged improper dealing with the complainant short of intercourse?

MR BELLANTO:   The difficulty is, your Honour, that we are talking about an alleged admission to 6, 7 and 8, and to go into the question ‑ ‑ ‑

GAUDRON ACJ:   Are we?  We are talking about evidence, are we not, capable of corroborating part of the complainant’s evidence.

MR BELLANTO:   Yes.

GAUDRON ACJ:   And, at the very least, if the evidence is accepted and it is accepted that that is an admission of some improper conduct, it at least is evidence of a relationship, is it, that is all relevant to the matters charged?

MR BELLANTO:   Yes, and that is why the catamaran incident was admitted into evidence as part of that unhealthy relationship.

GAUDRON ACJ:   Yes.

MR BELLANTO:   But the problem with the admission point is that the judge left it to the jury that he had made admissions of digital penetration, when he did not.

GAUDRON ACJ:   Where is that?

MR BELLANTO:   I have referred your Honour to the first two page references where that is contained at 209, line 25 and 21 ‑ ‑ ‑

GAUDRON ACJ:   What we have there is at least some of what the complainant had said had happened.  Well?

MR BELLANTO:   Well, at 209 – can I take your Honour to the written submissions at paragraph 14.  Perhaps I should just follow the written submissions because they pick up the relevant pages.  In paragraph 14 there is a reference to his Honour directing at 216.55 - - -

GAUDRON ACJ:   Yes, and that direction is strictly correct, is it not?

MR BELLANTO:   At 216.55 his Honour is referring to, in essence, the digital penetration, we would say.

GAUDRON ACJ:   That is not what it says.

CALLINAN J:   “Molested”.

MR BELLANTO:   That is picked up again in the summing up at page 309 line 19.

GAUDRON ACJ:   Yes.  There is nothing specifically wrong with that, is there?

MR BELLANTO:   He is referring to other evidence that is supporting the girl.

GAUDRON ACJ:   Well:

some evidence which you may think does support the evidence of –

the complainant.

MR BELLANTO:   Yes.  Then if your Honour would go to page 315 line 50 and then page 316 line 21 ‑ ‑ ‑

CALLINAN J:   If you go back to page 315 though, it is the evidence of Mrs T that the accused on one occasion on the telephone admitted to her that he had conducted himself in a particular way but denied having sexual intercourse.  That is quite correct, is it not?  There is nothing wrong with that.

MR BELLANTO:   No, it is not, but this leads into what we say are more direct comments to the jury about the digital penetration.  At page 337 line 40 he refers to the conversation.  What his Honour said was:

“are you saying that you’ve never touched her with your hand or fondled her or put your fingers inside her” –

His Honour should have used the word “penis” there but instead he used the word “fingers”.  That was left to the jury as the admission.

GAUDRON ACJ:   No, that was not.  It was not there left to the jury as the admission.  What was there being dealt with was the grandmother’s evidence.

MR BELLANTO:   Yes, but the grandmother’s evidence was misinterpreted by his Honour because the grandmother did not use the word “fingers”; she used the word “penis”.  Then on page 338 line 25 his Honour refers to what the appellant said and then at line 40 his Honour says:

that is evidence independent…..in the sense that this does not come from –

the complainant –

this comes from Mrs T, who says that the accused used those words –

and then his Honour went on to say to the jury:

Well, a few things, I would say to you about that.

His Honour made an error on page 339, which is not particularly relevant, and it is picked up again on page 339, line 49, where his Honour directs the jury about this conversation – lines 45 to 55 – and then at page 340, line 8, he refers to the conversation not being contradicted by any other evidence.

GAUDRON ACJ:   That is strictly correct too, is it not?

MR BELLANTO:   Yes, your Honour, it is, and then on page 340, line 54, over to page 341, his Honour, from line 5 onwards, tells the jury that:

it would be capable of amounting to an admission, which could cover the last three charges - - -

GAUDRON ACJ:   Wait a minute.  His Honour there drew a distinction as to what they understood by it to be and he does not say what it means.  First of all he directs them to consider what distinction was being drawn.

MR BELLANTO:   Yes.

GAUDRON ACJ:   Yes, and it is only in that context.  He says:

it would be capable of amounting to an admission, which could cover the last three charges – - -

MR BELLANTO:   Yes.  Well we say that it could not.

GAUDRON ACJ:   Well, why not?

MR BELLANTO:   Because the appellant, at no stage, said he digitally penetrated the complainant.  In fact, his Honour told the jury that when the appellant said, “I did not have intercourse with her, but everything else she said is true”, if he meant, as one would probably assume, intercourse meaning penile intercourse, he denied penile intercourse, but then said, “everything else she said is true”.  Now, before he said that, it is suggested that it was put to him that he had put his fingers inside her.  That is what his Honour left with the jury.  In other words, “Are is saying, you have not fondled her or cuddled her ‑ ‑ -”

GAUDRON ACJ:   Well, but ‑ ‑ ‑

CALLINAN J:   Well, at line 29, on page 349, his Honour said, there is this evidence from a source, apart from the complainant, that the accused admitted that he had done to her everything else she had said, apart from sexual intercourse.  Now what is wrong with that?  That is the fact, is it not?

MR BELLANTO:   Well, it depends on what he meant by sexual intercourse.

CALLINAN J:   That was left to the jury.

GAUDRON ACJ:   Exactly, and that is what the trial judge was directing the jury to determine what he meant by it.

MR BELLANTO:   Yes, but if his Honour gave the jury a false picture of what the evidence was, that is, “Are you saying you did not put your fingers inside her?”, now, if he then says, “I didn’t have intercourse with her ‑ ‑ ‑

GAUDRON ACJ:   I should have thought that was favourable to your client, misquoted in that way, because if the jury was left with the impression that that was the only allegation put to him they would inevitably conclude that the so-called admission was one which was denying digital penetration.  I do not see that it advances your case one bit.

MR BELLANTO:   But the denial was sexual intercourse.

GAUDRON ACJ:   Yes, but what I am suggesting to you is you do not advance your case by referring to an obvious mistake made by the trial judge because the consequence of that mistake is in your favour.

CALLINAN J:   And, the judge had earlier said at page 340, line 54:

It is a matter for you, whether you think that a person in his situation would be aware that, in respect of what was alleged to have been done, in law, although not in common parlance, it amounted to sexual intercourse.

So, the judge was very properly leaving, I would have thought, those issues to the jury and no doubt the trial judge would have been criticised if he tried in any way to direct the jury what the persons who used these expressions actually meant by them.  These were jury matters par excellence, I would have thought.  You cannot just read parts of the paragraph.  I think you have to read it all, beginning on page 340, line 40 down to line 35 on page 341.

GUMMOW J:   Now, Mr Bellanto, you have got six grounds.  I have been listening to ground 1 for over an hour, now.  It does not strike me as your strongest ground, or if it is your strongest ground you are in trouble, to my mind.

MR BELLANTO:   Yes, thank you, your Honour.  Before we leave that ground can I make the point that there was a request by defence counsel for his Honour to tell the jury that there was no admission of digital penetration ‑ that there was no allegation of digital penetration and that is referred to in the written submissions and I do not think I need to trouble the Court with that.  I am conscious of what your Honour Justice Gummow has just said.  I will move on, if I may, to the second ground?  This is ground - in our written submissions it is on page 6.  It is the fourth ground, numbered 5 in the notice of appeal, “Inconsistent verdict ground”.  There are really two complaints made.

The court below placed too much reliance upon the concept of the innate fairness of the jury and the so-called supervisory function in circumstances where this principle was inappropriate, and, secondly, to the extent to which the court did look for a reasonable explanation from the evidence itself, the court misconceived the effect of the evidence.  The submission we make is that there is no reasonable explanation for the verdict of not guilty on ground 3 and guilty on ground 4.

This was not a case of misinterpretation of events, but of a total denial, and relevant to this ground is the time constraints the jury may have felt and the pressure, perhaps, to compromise, given that they returned their verdicts ‑ ‑ ‑

GAUDRON ACJ:   Now, am I correct in thinking that your complaint is now between grounds 3 and 4, is limited to that?

MR BELLANTO:   Yes.

GAUDRON ACJ:   Yes, thank you.

MR BELLANTO:   The verdicts were returned.  There was a question asked by the jury, what happens if they were undecided, and if some had had agreed on some counts and not others.  His Honour redirected them on that and then they returned a verdict not long before six hours had elapsed.

The factual differences between grounds 3 and 4 were dealt with by the court below and the court referred to two aspects.  The first one was the location where it said the offences were said to have occurred, and your Honours will recall that count 3 was said to have occurred at Uki on the property known as “The Edge”, and count 4 at Sphinx Rock in the garden shed.  We refer your Honours to paragraphs 35 and 36 of the written submissions relevant to that.  The second basis referred to by the court below for the different verdicts was the complaint evidence, and that is picked up in paragraphs 37 to 45 of our written submissions.

GAUDRON ACJ:   That is the relevance of the evidence of MM, is it, to your submissions?

MR BELLANTO:   The relevance of, I am sorry, your Honour?

GAUDRON ACJ:   The witness MM?

MR BELLANTO:   Yes.

GAUDRON ACJ:   Yes.

MR BELLANTO:   Yes.  The Crown has referred to other differences such as the age, there being a 12 months difference, and the fact that the complainant was described as hypersensitive between the ages of 7 and 8.  We would make the submission that none of these so-called differences explain the different verdicts between 3 and 4, and this leaves the fair play or merciful verdict argument which, in this case, is inappropriate.  We make the point that in Kirkman, which involved child sex charges, the inconsistent verdicts involved one count where the jury needed to have regard to the intent of the accused.  A finding of not guilty did not necessarily mean that the evidence of the complainant was not accepted beyond reasonable doubt.  So that the Kirkman argument does not apply in this case and the submissions make the point in some detail why this case is not a merciful verdict case.

It should also be noted that the evidence of MM was non‑specific as to time and the errors, we say, in relation to the complaint evidence were quite serious by the court below because the court below took the view that the complainant at the time of the complaint was eight years of age when she spoke with MM, whereas, in fact, she was nine or 10, because the complainant’s evidence was that she complained to MM in 1988 or 1989.  MM gave similar evidence.

HAYNE J:   Other than dating it as 1988 or 1989, is there any more specific identification of the point in the sequence of events than that given at page 36 in which the complainant dates her complaint to a school friend after the third incident?

MR BELLANTO:   The evidence at page 36 has to be seen in the context of what happened after that sequence, because the Crown Prosecutor asked the question:

You’ve given evidence of these incidents taking place, did you tell anybody at that stage –

et cetera, and then:

Q. Just stop you there for the moment, up until the last incident you’ve just given evidence about, when you were seven.  Did you tell anybody about those three?

A. No.

The course ‑ ‑ ‑

HAYNE J:   That is, was it open to the jury to conclude from the evidence of the complainant that she had made no complaint to anyone about the first three incidents, but did complain to MM about the fourth, or the fourth and subsequent incidents?

MR BELLANTO:   It was not open, because it was just non‑specific.  The question happened to be asked in the course of her evidence outlining these various events.  She was interrupted and stopped after the third and asked, “Did you complain up until that stage?”, and she said, “No”.  And then after that she continued her narrative, so that there is no significance, we would say, in her being asked at that stage that particular question, because the narrative thereafter continues.

Now, the court below, in effect, underestimated the length of time between count 4 and the complaint to MM, and gave, what we would say, was an unsustainable narrow meaning to the question at page 36 that your Honour Justice Hayne has just referred to.

So, in effect, what we are saying is that the explanation determined by the court below as justifying the separate verdicts is unsustainable because the court misunderstood the age of the complainant, and if it misunderstood the age of the complainant, then the complaint could not have been just after the events in count 4.

HAYNE J:   Why does proximity matter?  Was it open to the jury to reason that they would convict on those counts where there was some supportive evidence out of the partial admission or complaint?  There was no complaint about the first three counts.  There was complaint about subsequent counts.  Therefore, guilty of subsequent accounts, not guilty of earlier counts.  That is the case against you, is it not?

MR BELLANTO:   Yes, but which ones?  I mean, it could be count 5, for example, it could be count 6.  That is the problem.  It cannot be ‑ ‑ ‑

HAYNE J:   Count 5 was directed verdict.  It is only 3 and 4 we are concerned about, and that is why I fasten on 3.  But that is the case against you and it is either good or bad, is it not, Mr Bellanto?

MR BELLANTO:   That is true, your Honour, yes.  We do not propose to take the Court to the written submissions in detail on this ground and would invite your Honours to accept what is contained therein as our arguments.

The second ground, or the third ground in the sequence of argument, is contained on page 11 of the submissions, and it is numbered 3 in the notice of appeal, and it is the reasonable apprehension of bias ground.  The complaint here is that if the court below approached the topic from the perspective of undue judicial interference, the trial judge’s report was irrelevant and the court should have examined the problem on the face of the transcript.

Secondly, if the court below was applying the reasonable apprehension of bias test, the report was not relevant in the sense that the court made it relevant, that is, being part of what the reasonable lay person would know.  Also, the report itself raised a reasonable apprehension of bias.

GAUDRON ACJ:   Those matters you speak of have different bases in legal theory, do they not?

MR BELLANTO:   Yes.

GAUDRON ACJ:   What complaint do you make here?

MR BELLANTO:   In relation to the reasonable apprehension of bias test, the court accepted the validity of the judge’s complaint about counsel.  In other words, the court accepted that counsel deliberately misquoted evidence without going into that issue for itself, so that is the first point we make.  The court should have assessed that on the face of the transcript.

GUMMOW J:   On reading the transcript one might come to the view that counsel was unaware of a number of basic procedural rules and matters and it is in that setting that the whole thing has to be looked at.  How are we to investigate the question of what at the end was the competence of counsel?

MR BELLANTO:   Your Honour, it is not so much ‑ ‑ ‑

GUMMOW J:   Indeed, that incompetence may be further underlined by the failure to object to this bias if there was any.

MR BELLANTO:   Yes, we accept that.

GUMMOW J:   You are meant to get on your feet with a bias complaint.

MR BELLANTO:   Yes.  It is not always fatal but it is a factor, we acknowledge.

GUMMOW J:   A very strong factor in my view.

MR BELLANTO:   Yes, but the point we make here is that the court accepted ‑ ‑ ‑

GAUDRON ACJ:   But what sort of bias are you talking about?  That is why I asked you.  They have different underlying principles.  It might be one thing to say that there was a head‑to‑head between counsel and the trial judge.  That may result in the defence case not being able to be properly put, which seems to be the foundation of the rules that have developed about undue interruption by the trial judge, but the bias here has to be bias surely against the party, is that not right?

MR BELLANTO:   Yes, and his Honour took the view that defence counsel ‑ ‑ ‑

GAUDRON ACJ:   What does that have to do with defence counsel?

MR BELLANTO:   Because the client was unaware of the judge’s view about his barrister.

GAUDRON ACJ:   What does the trial judge’s view about the barrister have to do with anything in terms of bias with respect to the accused or the issues to be charged?

MR BELLANTO:   Because the reasonable objective observer has to be said to know a number of the facts that have taken place in the particular hearing.  The question is:  should that observer be aware that the judge thinks defence counsel deliberately misquotes evidence?

HAYNE J:   Assume for the moment, for the purposes of argument, that that reasonable observer does not know that or is not entitled to know it, what then follows from it?  What is the real allegation being made, that the observer would conclude that the judge had prejudged some issue or what?

MR BELLANTO:   Well, if the judge perhaps would need to step in and take a course in running the trial that he would not have otherwise taken.

HAYNE J:   So what?  What follows?

MR BELLANTO:   Well the jury do not know this.

HAYNE J:   Again, so what?  The question is not simply to be troublesome to you, Mr Bellanto; what is the ultimate complaint?  That the accused did not get a fair trial, because?

MR BELLANTO:   Because the judge had a view of counsel that the jury was not privy to, which caused the judge to take a more interventionist role than he otherwise might have, which gave the jury the impression, we say, the judge was pro-Crown, anti-defence, independent of the issues, but the judge’s role in intervening, for the reasons that he felt were necessary, gave the impression to the jury that, for these reasons which they did not know about, the judge was antagonistic to the defence, they may have thought that ‑ ‑ ‑

GAUDRON ACJ:   To the defence counsel?

MR BELLANTO:   To the defence counsel.

GAUDRON ACJ:   Yes, so there was nothing to suggest he was antagonistic to the accused, the appellant?

MR BELLANTO:   Well, no, but, of course, the difficulty is that through antagonism towards counsel, that can flow on to the defence case.

GUMMOW J:   Antagonism is not the word either; exasperation is probably a better word.

MR BELLANTO:   Well, yes, your Honour, perhaps it is.

KIRBY J:   Your point is that judges have to control their exasperation.  May it be useful for you to point to what you say are the most purple passages that, as it were, go across the line from a robust conduct of the trial – I mean, some judges are more robust in conducting trials, others are nice, quiet people, like the High Court is normally, but it may be helpful to us, from the point of view of advocacy, for you to say to us, well this is what he said, and this is what he said, and this is just beyond the pale.  Can you do that?

MR BELLANTO:   Your Honour, they are ‑ ‑ ‑

GUMMOW J:   What is the pale though?

GAUDRON ACJ:   And, what are we looking at?  Are we looking at the inability of the defence counsel to properly put the case or are we looking at something for which it might be inferred that the trial judge had prejudged an issue in the case?  Not whether he prejudged, surely, counsel’s conduct, but it must be whether he had prejudged an issue in the case.

McHUGH J:   Or even that it indicated he had strong views about the accused’s guilt. After all, judges are required to tell the jury that if the jury thinks they have any opinions, they are to disregard it unless those opinions coincide with their own.  But a judge is entitled to express his or her own view about the facts, even express them strongly.

MR BELLANTO:   Yes, yes.

KIRBY J:   But I suppose a point is reached in any trial that if a judge does it so strongly that he really gets down there into the well of the courts, then that is unacceptable, but he is denying the accused the right of a fair trial.

MR BELLANTO:   One of the difficulties that arose initially was that the judge – and he said this in his report to the court below – “I have had experience with this particular council, I think, on two occasions.  I believe he deliberately misquotes evidence.  Therefore, in this case of RPS I took the view that I should step in early and stop it, stop what I thought was about to occur.”  Now, that is what he said he did, and that is why he said, in effect, “I would not have stepped in as early as I did had it not been for my view of this counsel”.

KIRBY J:   This was a view formed prior to the trial, this “misquotes as a matter of professional practice”?

MR BELLANTO:   Yes, and his Honour ‑ ‑ ‑

GAUDRON ACJ:   Where is the report?

MR BELLANTO:   It is in the appeal book, towards the back, page 391.

KIRBY J:   These reports, they used to be quite common.  Then the Court of Criminal Appeal, I think in Sir Laurence Street’s time, rather discouraged them, and in my 10 years on the Court of Criminal Appeal I can only remember one case where a report was sent and that was Judge O’Reilly.  They are very rare nowadays and, I think, properly rare.

MR BELLANTO:   Yes.

KIRBY J:   Otherwise judges can sort of try to bolster their point of view when it really ought to be looked at from the point of view of what the jury saw and how the case was conducted.

MR BELLANTO:   Yes.  Your Honour, in this case we did not have any involvement with the trial and we came into it at the appellate stage, but it appears that the report was not called for and, in fact, the report is a response to the appellant’s written submissions that were filed with the court below and it is unclear to us how the judge came into possession of those submissions, but it appears that he did and he elected to put in a report responding to the arguments and submissions advanced on behalf of the appellant.

CALLINAN J:   I must say it does read like an adversarial document in parts, page 392 paragraph 11:

I repudiate in the strongest terms –

MR BELLANTO:   Yes.

KIRBY J:   What is going to happen if this becomes the general rule, that judges become advocates and explainers of their own conduct, and get into the well of the Court of Criminal Appeal.  I think it is a very undesirable development.

HAYNE J:   It is a development that has been going on in Victoria for the last 30 years, in which every trial judge is routinely asked for a report and reports.

GAUDRON ACJ:   But in any event, the reason I ask you to take us to it is because I think you may be misquoting the evidence in relation to that report.  I do not think there is anything in that report from which it can be taken that the trial judge interrupted, if you like, more than he otherwise would have done, because of his experience of the first trial.  The trial judge asserts that there was constant misquotation of the evidence.  Was that the case?

MR BELLANTO:   I do not think so, your Honour.

GAUDRON ACJ:   If it was not, then what ‑ ‑ ‑

MR BELLANTO:   What he said was, I think, on a number of occasions, that he would not have interrupted and it was only because of the misquoting the evidence, that he had to be fair to the jury, had to be fair to see the trial was run properly, and that it was defence counsel’s misquoting of the evidence ‑ ‑ ‑

GAUDRON ACJ:   Perhaps nothing is gained by going to the report, in any event.  Do you complain of anything specific to be found in the transcript?

MR BELLANTO:   In the court below the court picked up a number of matters that were said to have arisen, and can I take the Court to appeal book 422.

KIRBY J:   Mr Bellanto, let me just get it straight.  Was this report called for by the Court of Criminal Appeal?

MR BELLANTO:   I understand not.

KIRBY J:   But his Honour is saying, “I apologise to the court for the late submission of this report”.

McHUGH J:   The criminal appeal rules used to have a provision in it, did it not?

MR BELLANTO:   Yes.

CALLINAN J:   There is no obligation to make the report.  A trial judge may make it, I think, under the rules, is that right?

MR BELLANTO:   I do not know precisely whether the court called for it, but it never emerged that the court below said, “We called for a report”.  It was never disclosed that they had called for a report.

CALLINAN J:   I might say, Mr Bellanto, before you leave the report, paragraph 13 at page 392 might give rise to an implication that the judge was making that there was deliberate misconduct on the part of counsel with a view to his taking a bias point on appeal.

MR BELLANTO:   Yes.

CALLINAN J:   Because why otherwise would the judge have referred to an increasingly regular practice of many practitioners, to immediately assume an often alleged bias on the part of the trial judge?  There seems to be no reason for the inclusion of that in the report unless the trial judge was trying to convey a fairly strong criticism, I would have thought, of a counsel in this case, otherwise it is irrelevant.

MR BELLANTO:   Yes, that may well be, your Honour.

KIRBY J:   He might have been trying to say that the appellate judges may not know of this development that is happening, that did not happen in the good old days, that they might not be aware of, but which is a feature of the Bar today which would not have been a feature of it in times gone by and when they were at the Bar, and that they ought to be aware of it.  Maybe that is the sort of thing that needs a report at some time.

MR BELLANTO:   That may be also correct, however, the difficulty is that this was never disclosed to counsel.  He may have a different view, of course, as to whether he was behaving in this way or not.  I think his Honour’s experience with this particular counsel was somewhat limited to two appearances.

So, it does not really, in our submission, seem to add to my learned friend’s ground in relation to the election not to give evidence.  We say it just does not take it any further.  Unless there is anything else, your Honours, those are our submissions.

GAUDRON ACJ:   Yes, thank you, Mr Solicitor.  Anything in reply, Mr Bellanto?

MR BELLANTO:   Your Honour, there is one matter, and it is a small matter, perhaps, but it is the dates that Justice Kirby raised with respect to OGD and the trial.  The trial was in September 1996 and OGD was June 1997, so ‑ ‑ ‑

GAUDRON ACJ:   That was the Court of Appeal’s decision?

MR BELLANTO:   In OGD, yes.

GAUDRON ACJ:   Yes.

KIRBY J:   So, Judge Ducker was not following the Court of Criminal Appeal, he was simply doing the best he could, in the circumstances, with the Act, and with such assistance as he got from counsel?

MR BELLANTO:   Yes.  I am loathe to agree with that proposition, but, yes, doing the best he could, I assume.  But, the form that he adopted in the summing up seems to be fairly close to OGD.

GUMMOW J:   And Vaughan.

MR BELLANTO:   And Vaughan, yes, and Azzopardi which is, I think, before this Court as a special leave application.  Thank you, your Honours.

GAUDRON ACJ:   Yes, thank you.  The Court will consider its decision in this matter.

AT 3.36 PM THE MATTER WAS ADJOURNED