SKA v The Queen

[2010] HCATrans 290

[2010] HCATrans 290

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S100 of 2010

B e t w e e n -

SKA

Applicant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 NOVEMBER 2010, AT 10.17 AM

Copyright in the High Court of Australia

MR H.K. DHANJI, SC:   May it please the Court, I appear for the applicant in that matter with my learned friend, MR C.E. ALEXANDER.  (instructed by Crawford & Duncan)

MS D.M.L. WOODBURNE, SC:   May it please the Court, I appear with MS J.A. GIRDHAM for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr Dhanji.

MR DHANJI:  Thank you, your Honours. Your Honours, this is an application for special leave to appeal from a decision of the Court of Criminal Appeal of New South Wales in relation to the dismissal of the applicant’s appeal against his convictions in the District Court. His appeal to that court was brought pursuant to section 5 of the Criminal Appeal Act 1912. It was to be determined by the Court of Criminal Appeal in accordance with section 6 of that Act. There was one ground of appeal with respect to the conviction. It was not in form expressed as being that the verdict of the guilty was unreasonable or could not be supported having regard to the evidence, but it was properly understood by the Court of Criminal Appeal as an appeal on that basis.

The primary contention on behalf of the applicant is that the Court of Criminal Appeal erred in that it, in determining the applicant’s appeal, failed to make an independent assessment of the evidence.  That failure is manifested in two primary ways; firstly, the failure to consider all and only the relevant material relating to that appeal and, secondly, failing to apply an independent analysis to the material that was considered.  That first primary contention has three limbs and those are that her Honour did not have regard to all the evidence, that her Honour had regard to matters which were not evidence and her Honour failed to have regard to the trial judge’s opinion.  Those three matters are limbs, if I can put it that way, of the first aspect. 

If I can take, however, the matters in reverse order and begin with the way in which her Honour dealt with the material that her Honour did take into account.  That will, in turn, lead into a consideration of the material that should have been taken into account and, I hope, will then lead to an understanding of the significance of the failures of the Court of Criminal Appeal in this matter.  If I can say very briefly something about the nature of the inquiry required of the Court of Criminal Appeal.

The proper approach to the question of whether a verdict of a jury is unreasonable or cannot be supported having regard to the evidence has been considered by this Court in a number of authorities.  The primary authority is that of M v The Queen (1994) 181 CLR 487 and the joint reasons of his Honour Chief Justice Mason and Justices Deane, Dawson and Toohey. Justice Gaudron, of course, also agreed in relation to the principle to be applied, although disagreed in the result, and her Honour’s opinion in that regard is at page 508. That decision, that is the decision or the reasons of the majority in M, was most recently affirmed only last week by this Court, of course, in R v Nguyen. 

Your Honours, in relation to M v The Queen, as I said, I will deal very briefly with the statement of principle coming from M. The majority reasons at pages 492 to 493 contain the critical aspects. If I can go perhaps first to page 493. Their Honours there set out in a passage that is oft cited, and I do not apprehend the need to read it out, the question which the Court of Criminal Appeal must ask itself, that is:

whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 

Their Honours go on to refer to the status of the jury in relation to that question.  Over the page, their Honours elucidate the manner in which that question is to be examined because, as is revealed in particularly the judgments of Justices Brennan and McHugh in M, the simple phrase “open to the jury to convict” hides some controversy as to precisely when that test will be satisfied. What their Honours said halfway down the page at page 494 after referring to Ratten v The Queen was this:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 

Their Honours then go on to refer to the advantages of the jury and the need to make allowance for the advantage held by the jury. 

GUMMOW J:   That next sentence –

It is only where a jury’s advantage in seeing and hearing the evidence –

That assumes testimonial evidence in the ordinary course of things, does it not?  When you get into the world of videos you are not into the ordinary system of the jury’s advantage in seeing and hearing the evidence because it is not given in court in the ordinary way. 

MR DHANJI:   That is so.  The manner in which that would operate in this case, we ultimately submit, is that there is the capacity to reduce that advantage but the function of the Court of Criminal Appeal is not materially changed.  So if I can perhaps digress momentarily, there will be cases where there is evidence given in the ordinary testimonial way in which the advantage held by the jury is relatively slight.

An example might be a circumstantial case where there is no dispute as to the primary facts.  In such a case, there being no dispute as to the facts, the question being the inference to be drawn from those facts, the situation is akin to the Warren v Coombes‑type situation and the advantage that the primary fact finder has is significantly reduced.  So where, as here - and I will come to this in due course - we have a form of testimony where the advantage held by the jury is significantly reduced, it does not alter materially, in our submission, the task of the Court of Criminal Appeal.

GUMMOW J:   I took you off your course, I am sorry.

MR DHANJI:   That is quite all right, your Honour.  What their Honours in the joint reasons said might be usefully contrasted with what was said by Justice Brennan and again I have indicated I will be brief in relation to this aspect of the matter.  But his Honour Justice Brennan said at page 501 towards the last paragraph on that page:

The test whether it was “open to the jury upon the whole of the evidence to be satisfied beyond reasonable doubt that the accused was guilty” was adopted expressly by Gaudron J. and me in Knight v. The Queen and, without express reference, by the majority in that case.  But the test conceals an underlying controversy –

What his Honour says, over the page, having discussed the nature of that controversy and his Honour’s view as to how the controversy is resolved, in the penultimate paragraph on page 502 his Honour said:

And so, for both constitutional and practical reasons, an appellate court can seldom interfere with the verdict of a jury merely on the ground that the verdict is unsafe and unsatisfactory where there is evidence to support the verdict.

That is in sharp distinction to the majority reasons where their Honours refer to most cases where an appellate court has a doubt.  Again, if I can perhaps briefly refer to his Honour Justice McHugh’s reasons, particularly at page 525.  His Honour there in the first full paragraph states this:

In my opinion, the correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused’s guilt.

I appreciate we are again in the territory of formulations which may, on their face, have some equivalence but may, on examination, have some difference.  His Honour goes on to say, in effect, that the “open to the jury” test is too high a standard, sets the bar perilously close to asking whether there is a sufficiency of evidence.  Indeed, however, the “open to the jury” test, as explained by the majority, is significantly broader than that.  His Honour then goes on to say that:

To go beyond asking whether a reasonable jury must have had a reasonable doubt about the accused’s guilt would be an unwarranted intrusion into the jury’s right to determine the facts in a criminal trial.

In essence that you have to be somewhere above, open to the jury in a very bare sense, but you cannot go beyond whether a jury must have.  That view, whether a jury must have had a reasonable doubt, was referred to and explained in the joint reasons of his Honour Justice McHugh, your Honour Justice Gummow and Justice Kirby in MFA v The Queen. I will not take your Honours to it, but at paragraphs 56 and 57 it was referred to as the strong view, that is the stronger view, as opposed to the broad view in the majority reasons in M. 

The ultimate effect, in terms of this case in relation to MFA v The Queen, is that all six Judges of this Court in that case made it clear that the proper test to be applied was the test in the majority reasons in M v The Queen.  As I say that has been affirmed as recently as last week in Nguyen.  The key aspect that perhaps commences, in the applicant’s submissions, in relation to what happened in this case is in fact at page 492 of M. I should indicate, the passages that I have already referred your Honours to at pages 493 and 494 in M were in fact referred to by her Honour Justice Simpson who gave the reasons of the Court of Criminal Appeal.  They were referred to by her Honour at application book 759, but her Honour did not refer to the passage at page 492 towards the bottom of that page where their Honours said this, and it is about point 8 on the page:

In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by makings its own independent assessment of the evidence –

There is a reference there in the footnote to Morris v The Queen, equally one can also find that statement in the decisions in Chidiac and Ratten, and indeed that is not purporting to be an exhaustive list.  The approach, however, in the Court of Criminal Appeal was, in the applicant’s submission, not to undertake an independent assessment of the evidence.  If I can take your Honours to perhaps beginning at page 759.

FRENCH CJ:   You are not suggesting that an independent assessment of the evidence requires a review of everything that was put before the jury in the trial.  It has to be defined by the issues raised in the Court of Appeal, does it not?

MR DHANJI:   Yes.  It is defined by the issues between the parties.  I should indicate this perhaps now.  In terms of the issues between the parties, and they were defined at trial, in the Court of Criminal Appeal – and I will come back to this in due course – it is fair to say that her Honour perhaps did not get as much assistance as she was entitled to, but in terms of the issues as defined between the parties, they were defined at trial and by the case that ultimately went to the jury.  At 759, as I have indicated, her Honour made reference to M v The Queen and referred to the passages at pages 493 and 494, but, as I have indicated, not to the passage at 492.  Then if I can take your Honours to page 463.  At this point, it is fair to say, her Honour has made those references to M and her Honours also at this point summarised the evidence or provided a summary of the evidence at trial.

FRENCH CJ:   This is 763 you are taking us to, is it?

MR DHANJI:   Page 763, your Honour.  Her Honour, at about line 10, says – this is all under the heading “Were the Verdicts Unreasonable?”, so this is her Honour coming to consider the question having, as I said, referred to M and provided a summary of the evidence, and her Honour says:

The approach taken on behalf of the appellant was, essentially –

not exclusively, but essentially –

to attack the reliability of the complainant.  In that regard, a number of points were made.

and her Honour lists over the next few pages a total of ‑ ‑ ‑

FRENCH CJ:   There were 13 points and she dealt with six of them, did she not, expressly?

MR DHANJI:   Expressly dealt with – I think that is right, your Honour – six of them, but before one even gets to whether her Honour did or did not deal with all the points is the question of the manner in which her Honour was dealing with these points, and this is at 767 at line 21.  Having set out the various points, her Honour says:

These were essentially jury points.  I do not propose, therefore, to comment on each point made.  It is appropriate, however, to make some observations that might help to shed some light on the approach that may have been taken by the jury.  In doing so, I will retain the point numbering –

So her Honour there is relegating the points to points that were jury points, that is, matters within the ambit of the jury to evaluate, and that is certainly true at trial, but it was not true in terms of the inquiry her Honour was required to undertake.  Her Honour, in dealing with the points with which she did deal, gives some indication of the matter in which that approach has affected the analysis of, or indeed, in the applicant’s submission, lack of analysis, of the points with which her Honour did deal.  So over the page her Honour has set out a passage of evidence.  This is in relation to a criticism with respect to the lack of specificity with respect to the events the subject of individual charges and her Honour, in commenting on that, says:

There is in these last answers no vagueness of uncertainty, or running together of a pattern of behaviour.  Those answers give a clear and explicit account of a specific incident.

GUMMOW J:   You complain about paragraph 117, do you not?

MR DHANJI:   Yes, that is so.  So, going in turn, I will come to that now, that first paragraph at 115.  It might be so that there is a clear and explicit account, but that does not provide any analysis of the reliability of that account having regard to the vagueness of the other evidence and the complaint that is raised, but, as your Honour Justice Gummow indicates, and perhaps on even firmer ground – well, your Honour did not indicate that and I will not take that liberty – but, as your Honour Justice Gummow indicates, we do rely on paragraph 117 and there her Honour says:

These answers, in my opinion, were sufficient to enable the jury to conclude (if they accepted the complainant’s evidence) that the specific incidents the subject of the charges had occurred.

Of course, the key issue was the Court of Criminal Appeal’s obligation to determine if it accepted the complainant’s evidence, that is, to conduct the independent assessment and then, ultimately, to make a determination as to whether there was any advantage such that having regard to that advantage and the facts of the matter, that advantage was sufficient to justify or sufficient to warrant the verdict or whether there was ‑ ‑ ‑

GUMMOW J:   Paragraph 117 has to be read with 123 and 124, I suppose.

MR DHANJI:   That is true.  Again, in my submission, they are consistent in approach, that is, her Honour’s view is it is not necessary to dissect every argument put.  All were put to the jury, so again relegating to the jury the role and failing to herself embark upon the tough task required and, indeed, obviously all were rejected is a clear enough statement but, of course, as we have pointed out is perhaps obvious.  If they were not rejected, of course, there would have been no need for the applicant to appeal against his convictions. 

CRENNAN J:   What do you say about 124?

MR DHANJI:  Paragraph 124, her Honour says:

I am satisfied, on the evidence, that it was open to the jury to reach the verdicts it did. 

Insofar as her Honour uses the formulation “open to the jury”, it is apparent from what has proceeded that whilst that is the expression used in M, that expression of itself, as Justice Brennan points out, hides a controversy and the approach that precedes paragraph 124 establishes that in determining whether it was open to the jury her Honour has adopted something much closer to what Justice McHugh was talking about in M as the danger of that test, that is, it comes perilously close to asking whether there was a sufficiency of evidence.  Her Honour does go on to say:

To the extent that it is relevant –

and, indeed, that qualification again would suggest, in our respectful submission, a misapprehension because it was not a question to be qualified.  It was the central question and the qualification to the extent that it is relevant would suggest the very absence of centrality of that primary question. 

Insofar as her Honour then goes on to say that she would be satisfied beyond reasonable doubt on the evidence, there is no analysis as to why it is that her Honour would be so satisfied and, indeed, that reasoning process could not be confidently thought not to be infected by the process her Honour had already undertaken because, in effect, what has occurred insofar as her Honour expressed her own view is an inverting of the process required by M because to determine whether it was open to the jury to convict one cannot make, in a practical way, sense of that determination without first coming to a view oneself.  So, without oneself first embarking upon that independent assessment of the evidence, there is nothing to measure the reasonableness of the jury’s verdict against. 

So her Honour, having gone first to the jury’s verdict and then expressed her own view, as I say, has inverted the process.  There is no analysis as to how it is that her Honour so satisfied, and indeed, in the applicant’s submission, any reasoning process that could be elucidated must be called into question because of that inversion of the process.

GUMMOW J:   You refer to this inversion point in your written submissions.  I just cannot find it at the moment.  I am sure it is there.

MR DHANJI:   Your Honour, it is there.

GUMMOW J:   Anyhow, do not stop now, your junior will find it I am sure.

MR DHANJI:   Yes.  I will have that turned up shortly, your Honour.  So the failure to articulate, and I do not think your Honours particularly need assistance in relation to the various ‑ ‑ ‑

GUMMOW J:   Paragraph 43, I think.

MR DHANJI:   Thank you, your Honour.  I am reminded we have put on our list of authorities Dinsdale v The Queen in a different context, obviously in the context of a Crown appeal, the statement that the Court of Criminal Appeal’s opinion must be expressed as well as – in fact I have lost the precise phrase - it must be expressed as well as formed, and a reference to the well‑known case of Soulemezis v Dudley (Holdings), that is at paragraph 21 of Dinsdale.  As I say, your Honours ‑ ‑ ‑

GUMMOW J:   What is the citation?

MR DHANJI:   Dinsdale (2000) 202 CLR 321, your Honour. I am sorry, at paragraph 21 in the reasons of Justice Gaudron and your Honour Justice Gummow was the passage I was referring to. Your Honours, that, in a relatively brief summary, is what we would say with respect to the test and the approach of the Court of Criminal Appeal.

The point which I think I had reached was to compare this situation with the error that occurred in Morris v The Queen (1987) 163 CLR 454. At the bottom of page 473 - Morris was a case which had – while it is a different type of case – had some similarities in that there was in issue at trial the reliability of the evidence of a single witness, albeit the reliability of the accused himself, with respect to an admission that he had made.  At the bottom of page 473 in the reasons of their Honours Justices Deane, Toohey and Gaudron, their Honours said this:

In treating the question of the reliability of the admission made as one of credibility to be determined by the jury, the Court of Criminal Appeal failed to perform an independent assessment of the only evidence which linked the applicant with setting fire to the deceased persons. 

So, just by way of perhaps illustration or example in the applicant’s submission it can be seen that the problem that arose there is very similar to the problem that arises here.  In dealing with the matter in the way her Honour did there is also, as has been indicated, a failure to have regard to matters that were of significance and her Honour was required to have regard to. 

In the written submissions we have pointed out that there were a number of matters, not the least of which was the significance of the evidence of the complainant’s sister, L, but also the alibi evidence.  If I can perhaps take up the issue of the alibi evidence and that will lead into the issue of the trial judge’s opinions expressed in the granting of bail and on sentence, albeit not in the form of a report. 

The alibi, or at least part of it, was referred to at page 766 at paragraph (xii).  That is a reference there to the evidence of a Mr Jacob who established that the applicant was not at his home between 9.00 pm and 11.00 pm and it made it, in a practical sense, not possible for the applicant to commit this offence on 23 December 2006.  That was the date, or at least close to it, that the complainant attached to the offences, the subject of counts 4 and 5.

That was, in fact, as your Honour the Chief Justice has indicated, just a subset of the matters that were dealt with.  That was one of the matters that was not deal with by her Honour Justice Simpson in the paragraphs under paragraph 118.  In relation to that, had her Honour had regard to what was said by the trial judge in expressing the opinion that the trial judge did, her Honour, in our submission, might have had a greater appreciation of the significance of that matter.

FRENCH CJ:   Mr Jacob was not cross‑examined, I think.

MR DHANJI:   He was not challenged, that is right.  In terms of the significance of the alibi, as I say, it is useful to look at the trial judge’s opinion and his Honour the trial judge’s opinion was expressed at application book 687 beginning at about line 30.  His Honour says:

In this case, the only evidence that the offender committed any offences came from the complainant, a twelve year old girl.  She gave her evidence in a very forthright and almost compelling manner.

That has some significance, which I will come to later.  His Honour goes on to provide some short analysis of the evidence, and at the bottom of the page his Honour says this:

There was alibi evidence which made the complainant’s evidence of the occurrence of events in 2006 very difficult to sustain if not completely impossible.  She had placed these events as occurring in the three days or so before Christmas.  The alibi evidence given by the accused, his wife and other persons called on his behalf made that impossible.  Now it is true that a jury could reject all that evidence and accept her evidence that; obviously is true.  But the question has to be asked if they were reasonable and applied the tests that I gave, how could they do it?  There was nothing to choose between the evidence of the complainant and the evidence of the accused.

There has been reference to that last sentence, “There was nothing to choose between the evidence of the complainant and the evidence of the accused”, and the reference that has been made in the written submissions is a reference to that situation in general, but the situation, indeed, is more particular because his Honour is there, of course, referring to the evidence of alibi.

FRENCH CJ:   What his Honour is doing here is assessing the prospects of success on appeal for the purposes of a bail application.

MR DHANJI: Yes. I should indicate, his Honour was asked for a certificate pursuant to section 5 of the Criminal Appeal Act.  He was not asked for a report, which his Honour had the power to provide under section 11, but what his Honour effectively did was provide an opinion that might have been expressed in a report and, indeed, might more usefully have been expressed in a report because it would have made these issues perhaps clearer and would have assisted the Court of Criminal Appeal in fully understanding the very real difficulty that his Honour is referring to.

The reference to the alibi and the dates before Christmas has to be seen in context of what happened at trial.  At trial, the indictment, which is at page 2 of the application book, provided a range of dates with respect to counts 4 and 5.  The range of dates was - your Honours perhaps do not need to go to it - between 1 December 2006 and 25 December 2006, but what occurred was that by the time the matter went to the jury, having regard to the evidence of the complainant, that range of dates had narrowed considerably and the matter, in fact, went to the jury on a much reduced basis in terms of the timeframe in which it could have occurred.  There is a discussion between his Honour the trial judge and counsel at page 467 in application book 1.  His Honour says in this discussion at line 49:

It could have happened on the 22nd, the alibi notice as such doesn’t go to the 22nd but the alibi evidence does.  Because evidence has been given that places him in places where she was not on the 22nd and on the 24th.  That is not the subject of the notice but subject to the evidence.  I’m not going to let the jury have the view or decide this case on the basis that any time in December is good enough.  In my view the evidence on which the Crown case is based is it’s the 22nd or the 23rd, that’s the evidence.  Maybe the 24th but no other time.  There’s no possibility on the evidence of any earlier weekend raised in December or any other day so I wouldn’t allow you to address on that.

There is subsequent discussion.  It is true that the Crown Prosecutor revisits the issue and attempts to dissuade his Honour from the view that his Honour had taken, indicated in the passage I just read.  Your Honours, when his Honour summed up on the issue - and this is at page 642 at the top of the page, his Honour told the jury:

In relation to the events of 2006 her evidence was that these assaults occurred, it might have been the Friday night, which would have been 22 December, it might have been the Saturday night which would be 23 December.  Possibly the Sunday; she might have been staying over on the Sunday, the 24th.  She just relates it to Christmas, the period around Christmas. 

So his Honour has there specifically directed the jury that that is the Crown case in relation to the point in time at which these events are alleged.  His Honour then, at page 645, says this at line 21 dealing with the alibi evidence:

Obviously what occurred in 2004 is different from what occurred in 2006 because in 2006 there is positive evidence given by the accused and people supporting him that he could not have committed these offences.  In 2004 there was no alibi evidence.  However, be very cautious against drawing a conclusion that that creates some difference.  It all still depends on whether she is honest and reliable.

And in a line that might give some indication as to where things have perhaps have gone askew his Honour says this –

If she is honest and reliable about 2004 you might find it difficult to conclude she was not honest and reliable about 2006.

Now, one does not know, of course, in what order the jury determined things, but if they determined things in date order and had regard to that direction, there is clearly the scope that the instructions in relation to the alibi in relation to 2006 were not fully put into effect.  So that is how it went to the jury in the oral directions.  Your Honours, we have this morning provided in a supplementary list of materials the written directions that were provided to the jury as MFI S and the relevant passage begins at page 4 under the heading “Alibi”:

The accused has tendered evidence intended to show that at the time the offences of December 2006 were allegedly being committed, he was somewhere else and not with the complainant –

His Honour then refers to those specific dates, the 22nd, the 23rd and the 24th and goes on over the page to say:

If the Crown fails to satisfy you beyond reasonable doubt that the alibi evidence should be rejected, then you must acquit the accused.

The Crown must disprove the alibi.

That direction, of course, then needs to be seen in the context of the evidence which was given ‑ ‑ ‑

KIEFEL J:   The Crown case was that the alibi was false, was it not?

MR DHANJI:   No.  The Crown had a difficulty, because the Crown did not challenge Mr Jacob’s evidence and, indeed, did not challenge the evidence in relation to the whereabouts of the applicant on the 22nd or the 23rd. 

CRENNAN J:   Was there not some suggestion of a false alibi in relation to events earlier in the day before Mr Jacob’s evidence?

MR DHANJI:   There was.  What occurred was this.  This is the evidence that was put by the Crown as somehow being consciousness of guilt on the part of the appellant, although the trial judge was not persuaded that it should go to the jury on that basis, but to answer your Honour’s question, what occurred was this.  The applicant provided an alibi notice in relation to events earlier in the day on the 23rd as a result of conversations he had with the person who was providing the alibi.  He was subsequently advised by that person that she was, in fact, mistaken about the precise date with respect to the alibi and it was ‑ ‑ ‑

FRENCH CJ:   It was between she was away, as between 23 and 30 December.

MR DHANJI:   She was in fact on holidays and not in Sydney and she got her weeks mixed up.  But the significance of all that was, in the applicant’s submission, really not very much because it was a false alibi in relation to a period of time that was, in fact, not materially relevant because it was the afternoon in circumstances where the applicant, in fact, had an alibi which was not challenged for the critical period, that is, for the time in the evening, and that was not challenged ‑ ‑ ‑

CRENNAN J:   On the 23rd.

MR DHANJI:   On the 23rd.  So insofar as the Crown sought to seize upon this and suggest it somehow suggested consciousness of guilt, it was, as the trial judge appreciated it, a somewhat bold approach given that he had, indeed, a truthful alibi and there was no suggestion of any untruthfulness on the part of the person who had provided the alibi to him.  The evidence given by that witness – that witness was a Mrs Krishna, and in the cross‑examination of that witness at application book 246 she was asked this, line 22:

Q.Ma’am was it ever suggested to you by [the applicant’s wife] or [the applicant] that they were at your place on 23 December?

A.No.

Q.And as you’ve told my learned friend [you told the Crown] that that suggestion came from you?

So, in essence, the alibi, such as it was, was one that, in fact, came forward from that witness and had never been suggested to her by the accused or anyone on his behalf.  So whilst there was that aspect of the case, it was not a matter which took things very far, and indeed I think we make the point in our reply.  The respondent, in their submissions, has placed some weight on that aspect of the matter, but indeed, as we say in our submissions in reply, if that matter was given weight by the jury, it is again perhaps an explanation as to how something that was not on analysis of real significance in the determination of the guilt of the applicant, has been given undue significance.

GUMMOW J:   Which paragraph in your reply?

MR DHANJI:   At paragraph 18, your Honour.  The last sentence of that paragraph.  I have turned to the trial judge’s examination of that alibi evidence and his Honour’s opinion based upon that alibi evidence to, as I indicated at the outset, indicate in a way the worth of the trial judge’s opinion in a case such as this even where it does not go to issues of credibility.  What can be seen here is the trial judge had a very clear appreciation of the case and how it went to the jury and the difficulties with the jury’s verdict.

The other aspect of that submission, with respect to the alibi evidence, of course, is the fact that in the Court of Criminal Appeal, insofar as her Honour did refer to the alibi evidence, it was only the evidence in relation to the 23rd and then, indeed, did not deal with that at all.  The respondent has not taken issue with the applicant’s submissions with respect to the significance of a report of a trial ‑ ‑ ‑

KIEFEL J:   Just before you go on just on that alibi question, you say that the respondent gives it undue significance.  But does not the trial judge in his charge to the jury at the passage you took us to at page 643 give it some significance in relation to the views that they may or may not take about his credibility?

MR DHANJI:   That is so and that, in a sense ‑ ‑ ‑

KIEFEL J:   He does not say it is irrelevant and he does not suggest that it has no significance. 

MR DHANJI:   No, and, indeed, it was not irrelevant.  It was a matter that was brought by the Crown.

KIEFEL J:   Which the jury had to consider.

MR DHANJI:   Particularly having regard to the fact that the Crown had addressed on the matter in the way that the Crown had addressed.  They had received an address from the Crown suggesting that he was not only lying, but lying out of a consciousness of guilt.  His Honour has indicated that he was not prepared to allow this “consciousness of guilt” evidence and so was obliged, in those circumstances, to assist the jury with at least a credibility‑type warning, although, again, close inspection of the direction is such that the jury was never actually told explicitly not to follow a path of reasoning that just because he lied he is guilty, the admonition of this Court or the – perhaps not the admonition, but the suggested direction of this Court in Zoneff v The Queen in relation to isolating the use of a lie as credibility, as opposed to consciousness of guilt, a direction which skirts around it, perhaps, but does not actually give the critical direction in relation to not reasoning in that way.

But perhaps to answer your Honour Justice Kiefel’s question more directly it is fair to say that insofar as his Honour gave directions, there was a need to because of the manner in which the arguments had been presented by the Crown.

KIEFEL J:   Yes, I see.

MR DHANJI:   The trial judge’s opinion is, in our submission, a matter which her Honour ought to have had regard to.  As I said there has not been issue taken with the authorities to which we have referred.  But perhaps I might just say this, that it is instructive - and whilst I appreciate that this was not a report pursuant to section 11, it performed in many respects the same function and it would be somewhat artificial to suggest that if someone handwrote “Report” at the top of the page it would somehow take on a magically different quality. 

The effect of what his Honour did was to provide an opinion that might have come in a report pursuant to section 11.  Such a report in the Act was in 1912, when the statute was enacted, a mandatory requirement and I have provided you with the supplementary materials the Criminal Appeal Act 1912 as it was, and what section 11 provided was that:

The judge of the court of trial shall, in case of any appeal or application for leave to appeal, furnish to the registrar his notes of the trial, and also a report, giving his opinion upon the case, or upon any point arising in the case ‑ ‑ ‑

GUMMOW J:   That appears from that decision from 1912 State Reports, does it not?

MR DHANJI:   Is it Dent, your Honour?

GUMMOW J:   Yes, I think that is it.

MR DHANJI:   Yes, I do not think Dent is on the list but I think your Honour is quite right.  There is then a second paragraph which absolves the judge of the need to provide notes if “shorthand notes have been taken” but that passage applies only to notes and notes are a distinct item from the report.  So if there has been shorthand taken, there is no need to provide notes but there is still the need or was still the mandatory requirement to provide the report. 

This is an aside - this section, section 11, is in very similar terms to the English Act of 1907 and, in particular, section 8 is the equivalent provision, the difference being that the reference to shorthand notes is not in section 8 of the English Act, there being another provision of that Act making the taking of shorthand notes mandatory and it seems they were somewhat more advanced than we were at that time in terms of being able to provide shorthand reporters.

The significance for present purposes is that section 11 was the subject of some attention in 1979 and we have provided the Criminal Appeal (Crimes) Amendment Act 1979 with the supplementary materials and your Honours will see that that effected an amendment – it is on the last page of that Act where section 11 was amended to read:

After “trial” where firstly occurring, insert “may, and, if requested to do so by the Chief Justice,” -

shall, the word “shall’ coming from the original Act.  So what happened in 1979 was it became optional on the part of the trial judge to provide a report, unless there was a request from the Chief Justice, in which case it became mandatory.  At the time of this amendment, there was some debate as to whether the word “may” should be in the Act, in effect, whether there should be a capacity on the part of the trial judge to volunteer a report.

The result was that that went into the Act and it is at that point that New South Wales Act took a different turn from the situation in England and, indeed, Canada, because in those jurisdictions whilst there was an equivalent provision prior to 1979, those jurisdictions took a course which made the provision of a report mandatory, if requested, but otherwise provided no power to the trial judge to provide a report.

So, we have, in effect, an Act which still allows a trial judge to provide a report and the applicant’s submission is that if a trial judge is so minded to do so, within the framework of the Act, that is a matter which the Court of Criminal Appeal must have regard to.  The degree to which the Court of Criminal Appeal finds that useful will necessarily vary from case to case but as we have attempted to illustrate in this case his Honour’s opinions might have been - if regard had been had to them, would have assisted the Court of Criminal Appeal.

If I might, perhaps just as an aside, refer to another aspect of the decision in MFA v The Queen.  In that case there was no report from the trial judge, but there was reference in the Court of Criminal Appeal to the opinion expressed by the trial judge on sentence as to how it was, and I will take a step back.  MFA v The Queen, your Honours will recall was an unreasonable verdicts case, the argument being that the verdicts of the jury were inconsistent.  The sentencing judge and the trial judge made comment on sentencing as to how, in his mind, the verdicts could be reconciled, and reference was had to that.  I do not ask your Honours to go to it, but reference was had at paragraph ‑ ‑ ‑

GUMMOW J:   What is the citation?

MR DHANJI:   Sorry, your Honour.  MFA v The Queen (2002) 213 CLR 606, and perhaps paragraph 24 on page 613 in the reasons of Chief Justice Gleeson, Justices Hayne and Callinan, there is a reference – and this is a passage from the judgment of the Court of Criminal Appeal, and your Honours will see about halfway down the page “The judge”, that is a reference to the trial judge. I am sorry, I did say I was not going to take your Honours to it, but – there is a reference there:

The judge was impressed by the youthfulness of MA and was prepared to make considerable allowances for him on that account.

Over the page, just at the very end of paragraph 24, before the commencement of 25, we have what is being said by his Honour Acting Justice Smart in the Court of Criminal Appeal:

Like the judge, in evaluating the evidence I would bear in mind the age of MA at the time of the incident, about twelve, and his age at the time of the trial, about fifteen, and the difficulties he experienced in giving evidence.

At page 632, in the reasons of Justice McHugh, your Honour Justice Gummow and Justice Kirby, at paragraph 89 it reads:

The foregoing point of distinction between the counts upon which the appellant was acquitted, and those on which he was convicted, was noticed by the trial judge on sentencing and by the Court of Criminal Appeal.  In our opinion the distinction deprives the appellant of the argument –

It is provided by way, perhaps more of illustration than of principle, but ‑ ‑ ‑

FRENCH CJ:   How does the Court of Criminal Appeal apply the trial judge’s opinions expressed in the reasons for judgment in the bail application to the task that they have to undertake?  I mean, he has a conclusionary statement:

I find it impossible to see how any jury acting reasonably could be satisfied beyond reasonable doubt.

MR DHANJI:   Yes.  That, as a bare statement, would not be of particular assistance to a Court of Criminal Appeal conducting its own independent assessment because it tells you nothing about how the Court of Criminal Appeal itself should reach its ‑ ‑ ‑

FRENCH CJ:   Does the rest of it rise any higher than argumentative observations?

MR DHANJI:   With respect, it does.  It provides, in a sense, an analysis – I do not suggest it is a complete analysis – but an analysis that went beyond the analysis of the Court of Criminal Appeal as to the difficulties.  If I can perhaps answer your Honour this way.  We have the observations of this Court in Fox v Percy and like cases as to the advantage enjoyed by tribunals at first instance and that advantage may relate to the ability to observe demeanour, but it also relates to the ability to observe the unfolding over time.

FRENCH CJ:   The emersion in the detail and the nuance, I suppose, which goes well beyond demeanour.

MR DHANJI:   That is right.  So the trial judge having been immersed in the nuance and the detail with a keen appreciation of what ultimately was in issue expressed an opinion and related it – and I accept that a more fully reasoned report would have been of greater assistance – but did relate it to the difficulty in the trial, and particularly, to pick up the example, the problem with the alibi evidence.  So it may well be that in a given case a Court of Criminal Appeal will receive such a report and be assisted in terms of the view taken by the trial judge, be assisted in terms of the aspects of the evidence that one needs to go to but then ultimately completely reject that view particularly.

KIEFEL J:   What do you suggest then, that the trial judge’s opinion could be used by the Court of Criminal Appeal as something like guideposts to understanding the conclusion he reached, which would require a little detail, to identify the issues and the problem areas that the trial judge saw as perhaps tending to the reverse of the jury?

MR DHANJI:   Yes, your Honour.  His Honour’s bald conclusion, as I say, as a bald conclusion is, in a sense, not of use, but it is not without significance and it is entitled to some deference, but given that the Court of Criminal Appeal has to make its own assessment, it cannot simply substitute that opinion. 

KIEFEL J:   That is right.

MR DHANJI:   So what the Court of Criminal Appeal in such a situation, in our submission, should do is note that a trial judge immersed in the detail of the nuance has reached a conclusion, that is a person whose very office entitles his or her views to some respect, that acknowledging the advantage in having watched the matter unfold, that there is at least a real prospect that there is some substance to the reasons for coming to that view and to examine with some care those reasons before ‑ ‑ ‑

KIEFEL J:   But, necessarily, it will be the issues identified by the trial judge which are going to be of the greater relevance to the Court of Criminal Appeal.

MR DHANJI:   Yes, insofar as we are dealing with this aspect of the matter in terms of the trial judge’s advantage having been immersed.  There are potentially other situations where the trial judge’s advantage with respect to ‑ ‑ ‑

KIEFEL J:   For that reason the trial judge might see issues that are not put by the lawyers and might not be so evident from the transcript.

MR DHANJI:   That is so, and, indeed, I said earlier on that the Court of Criminal Appeal perhaps did not get as much assistance as it was entitled to and your Honour’s point is, in my respectful submission, well made, points that may not have been seen by the lawyers.  His Honour was keenly aware of the basis upon which it went, well, at least counts 4 and 5, to the jury and the difficulty that that necessarily created with respect to the jury’s verdicts because, having regard to the evidence, and I should say the evidence in relation to the 22nd, 23rd and 24th was not challenged, it is difficult to conclude other than his Honour’s opinion was well formed.

GUMMOW J:   The phrase in section 11, “the judge’s opinion upon the case” , which is the language that goes back to 1907, I guess, in the UK, would encompass an opinion of a judge that someone had been convicted who should not have been, would it not?  Would it go that far?

MR DHANJI:   Yes, your Honour.

GUMMOW J:   That phrase “opinion upon the case” is followed by the disjunctive “or upon any point arising in the case”, which may be something less drastic, I suppose.

MR DHANJI:   Yes, quite.  I apprehend your Honour is ahead of me, but the point being that when we are talking about the opinion upon the case that is the whole of the case and that, of course, ties in ‑ ‑ ‑

GUMMOW J:   It is what the Chief Justice was taking up to you.

MR DHANJI:   I am sorry, your Honour?

GUMMOW J:   It is what the Chief Justice was raising with you.

MR DHANJI:   Yes.

GUMMOW J:   The formation of the opinion is conditioned by the matters the Chief Justice was putting to you, I guess.

MR DHANJI:   Yes.  So we have a significant number of authorities in Courts of Criminal Appeal in this country where regard has been had to opinions of trial judges, and there is reference, indeed, on the list.  I think we have put on a single authority.  As I say, I do not apprehend the need to take your Honours to that.

So to backtrack slightly, the proposition that has been put is the failure to, in essence, properly apply the test in M by making an independent assessment of the evidence, the failure to have regard to the views of the trial judge, which would have, at least, the capacity to significantly assist in that process.  The other aspects of this matter were the evidence to which the Court of Criminal Appeal was required to have regard, and going back to section 6, the appeal was to be determined within section 6 by having regard to the evidence, that is, the court –

shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence –

Some weight, of course, needs to be placed upon those words “having regard to the evidence” because in this case the evidence‑in‑chief or at least the vast bulk of the evidence‑in‑ chief of the complainant was given by the playing of a videorecording pursuant to section 11 of Evidence (Children) Act 1997.

GUMMOW J:   Just before you get onto that, which branch of 6(1) is re M explaining?  It is not using the language of 6(1).

MR DHANJI:   Yes.  Whilst M speaks in the language of unsafe and unsatisfactory, it is explaining the “unreasonable, or cannot be supported having regard to the evidence” branch and in this case it is unnecessary to draw any distinction between those two matters - unreasonable or cannot be supported having regard to the evidence.  In some other cases ‑ ‑ ‑

GUMMOW J:   What is the content of that phrase “unreasonable”?

MR DHANJI:   The content of that phrase “unreasonable” is the expression in M that a verdict will be unreasonable if it was not open to a reasonable jury to convict, but when I say that, as I said at the outset, some care must be taken not to fall into the trap referred to by his Honour Justice McHugh, but to understand that the reasonableness is a reference to an exercise that is mandated and must be conducted by the Court of Criminal Appeal conducting its own independent assessment to then provide some measure against which the jury’s verdict can be considered.

I should indicate that there is useful discussion in MFA v The Queen in relation to the contextual indication of what section 6(1) means or “is driving at”, to use the words in paragraph 50, and it is certainly true at paragraph 49 in the reasons of Justice McHugh, your Honour Justice Gummow and Justice Kirby. There is a reference to “the setting aside of a jury’s verdict is, on any view, a serious step”, a reference to the contextual indications in paragraphs 50 and 51, but ultimately, and as is clear from the conclusion to those reasons, what is said there is, albeit with greater attention to the statute, not different to what was said in M because, of course, in M there is a reference to the place of the jury. 

What is also acknowledged, of course, in all of these cases is the place of the legislature and the legislature has made provision to require or place a duty on the Court of Criminal Appeal to intervene if, in that court’s view, there is a significant possibility that an innocent person has been convicted.

GUMMOW J:   Paragraph 45 of MFA is important really.  In 1966 the legislation was changed in England and the words “unsafe or unsatisfactory” were put in the statute.  That did not happen in New South Wales.

MR DHANJI:   Yes, that is so.  That is the change that, in fact, in a sense, lay behind the appeal in M v The Queen because his Honour Justice Sully in the Court of Criminal Appeal in New South Wales in M v The Queen made reference to the English position and indicated that if that had been the position here he had a lurking doubt that would require an acquittal to be entered, but in MFA the appeal was, of course, allowed by this Court to the extent that there is a material difference.  The lurking doubt test perhaps does not well express the position in this country, but as the very result in M v The Queen shows, a reasonable doubt held by a Court of Criminal Appeal is one that must be given effect to unless the jury’s advantage is such that the verdict can be regarded as being open.

FRENCH CJ:   I just want to test this statement in her Honour’s judgment at paragraph 113, page 767 – “These were essentially jury points” - by applying it to the alibi evidence (xii):

Mr Jacob’s evidence established an alibi –

et cetera.  When her Honour says that “These were essentially jury points”, and of course it picks up (xii), that, one could assume, does not involve a suggestion that Mr Jacob’s unchallenged evidence could have been rejected by the jury.  It must be taken, must it not, as a reference to the inferences that are to be drawn from his unchallenged evidence in relation to the credibility of the complainant and that is how her Honour has characterised the point in (xii).  I am not putting that one way or another.  I am just trying to understand what it means to say that a point like that is a jury point.

MR DHANJI:   Yes, your Honour.  It is, in my submission, very difficult in the context of that particular part of the evidence to understand what it was about Mr Jacob’s evidence that was a jury point.  I appreciate, perhaps in the absence of challenge, the manner in which your Honour has put it is perhaps the only way one could understand it, but the difficulty, in my respectful submission, is that not only did her Honour not deal with that evidence, her Honour appears not to have appreciated its significance in that ‑ ‑ ‑

FRENCH CJ:   How did the prosecution try to deal with that?

CRENNAN J:   Can I just ask you to factor this in when answering the Chief Justice?  As I understand it, (xii) on page 766 is the case which has been put on behalf of the appellant, so that statement is a framing of a point made by the appellant, but as I understand the evidence at 181 and 182 of the application book – 181 at about line 48, the complainant is asked about this issue about the date, and Christmas Eve is mentioned, and she is asked:

Q.       Why did you say, “I think so”?
A.       Because I wasn’t completely sure that it was that day.

Then over on the next page at about line 23, she is asked:

Q.       Why did you use the words around and about?

A.Because again like I wasn’t exactly sure what date it was.

I mean, one possibility about what her Honour is referring to in paragraph 113 is that there were contests in the evidence about these matters and it was for the jury to resolve the contest.  The alibi dealt with the 23rd only, as I understood it; between 9 pm and 11 pm.

MR DHANJI:   Your Honour, can I deal with it this way?  The alibi notice dealt with 23 December, but the evidence itself provided alibi for the 22nd, 23rd and the 24th, and the answer to the Chief Justice’s question in relation to, what does one make of her Honour’s reference to that being a jury point, the reason I say it is difficult to know what to make of that is because the isolation of that date in the absence of reference to the 22nd or the 24th, in the absence of reference to the manner in which the case went to the jury, that is, restricted to those dates, suggests that her Honour failed to appreciate the significance of not just the 23rd, but the alibi evidence in relation to that range of dates, and the impact of that evidence having regard to the manner in which the case went to the jury, and those are the ‑ ‑ ‑

CRENNAN J:   When you talk about the alibi evidence in relation to the other dates, what are you referring to?

MR DHANJI:   Yes, your Honour.

GUMMOW J:   Where do we see that?

CRENNAN J:   Where do we see that?

MR DHANJI:   Yes.  Your Honours, if I can take your Honours first to application book 302 at line 20, this is the applicant, the exchange is as follows:

Q.       Now on the 22 December 2006, that’s the Friday--
A.       That’s correct yeah.

Q.       Do you recall going somewhere with your daughter [Sh]?
A.       That’s correct.  She had a concert in Blacktown, 22nd that is a Friday on the evening 6.30 or something like that she had a concert and we attended her concert.

Q.       From about what time in Blacktown?
A.       Around from 6.30 to 9.30, I’m not sure it’s – it went on pretty late.

Q.       And did anybody stay over at your place that night?
A.       On the 22nd?  No.

Q.       Apart from your family?
A.       No, no-one else.

Then he goes on to speak of the 23rd.  I will not take your Honours through that because we have Mr Jacob.  Perhaps just a specific reference at page 303.  He refers at line 13:

A.       We came back to our house and spent the time in my house until eight-thirty maybe quarter to nine.  And after that we went to Sylvester, my uncle Sylvester Jacob’s house.  He was just coming back from India on that particular night.

Now, I should say, this is all to be seen in the context of the manner in which it was suggested that these sleepovers occurred.  They were ordinarily social occasions followed by the complainant remaining behind.  It was not realistically suggested or, indeed, it was not suggested by anyone that there were occasions when the applicant having been out until sometime around 10 o’clock at night then had the complainant somehow come and stay.  Then towards the bottom of page 303 there is the discussion of the 24th and the critical part in relation to the 24th is in relation to the evening and at line 45:

A.       It was the Sunday, we went in the morning – I think we went for some shopping or something like that.  And in the evening we had formal dinner in [BCR] and [LMR’s] house, that’s where we spent the evening with them.

I will take your Honours to it but, ultimately, there is evidence from – that was a large gathering and there is evidence from people, other witnesses, that that in fact took place and the applicant ‑ ‑ ‑

GUMMOW J:   “Thirty, forty people”.

MR DHANJI:   Yes.

GUMMOW J:   Page 304, line 18.

MR DHANJI:   Yes.  If I can go to the evidence of the applicant’s wife at application book 398, and just while your Honours are turning that up I should indicate the applicant’s evidence was not challenged in relation to the dates that I have referred to.  At 398 at line 36 the applicant’s wife refers to their daughter –

performing at the Blacktown La Valette Centre, they had a Maltese show out there.  It’s a Maltese club actually and she was performing that evening, and yeah, we were there all evening until about 8.30.

Q.       Can you recall whether you were at home on the morning of the 23rd?

A discussion of the ‑ ‑ ‑

FRENCH CJ:   Sorry, is this a discussion of the 23rd or the 22nd?

MR DHANJI:   It moves on to the 23rd.

FRENCH CJ:   Sorry, I am just looking at lines 30 to 40, the ‑ ‑ ‑

MR DHANJI:   I am sorry; 30 to 40 is the 22nd.

HEYDON J:   Line 18 speaks of Saturday, 23 December.

MR DHANJI:   Yes, no, I am sorry, there is some confusion.  I am sorry, your Honours, about line 35 the question is – so the discussion of the 23rd beginning at line 18, and then at 35:

Q.       On the night before that, did you go to something with your daughter, some function?

That is the reference to the performance.  There is then a discussion of some photographs that were taken and were tendered.  Page 401 at line 15, there is a reference there to two photographs being tendered and if your Honours just go back to page 400, there is the question at line 41:

do you recognise those as being photographs?

Q.       Were those photographs taken on the one day at the same place?
A.       Yes the one at Blacktown yes.

Q.       And was that in the evening of that day?
A.       Yes that’s right.

Q.At the concert about which you’ve given evidence?

A.Yes that’s right.

So that is the concert on the 22nd, and further questions and answers, and then, as I indicated, the photographs are tendered.

Those photographs are on page 559 of the application book and the significant thing about those is that they have a date stamp on them.  So, your Honours, that was the evidence of the applicant’s wife in relation to the 22nd.  In relation to the 24th, if your Honours go to application book 401 at line 29:

Q.       So on 24 December, that is Christmas Eve, what did you do that day?
A.       We went over to [BCR] and [LMR’s] place.

Q.       When was that?
A.       That was 24th evening.

Then it flows from there in relation to that particular evening, and then there is further evidence given in relation to the 25th, although the 25th is actually outside the relevant date range.  At application book 424 is the relevant evidence of Mr Jacob at line 14 – I am sorry, your Honours, if you go back to page 423, line 40:

Q.       At about 8pm on 23 December 2006 did you arrive back in Australia at Sydney International Airport?
A.       Yes, I did.

The questions that follow are all in relation to that date.  Then there is a reference to going home, at the top of page 424, arriving home at about 9.00 pm.  Then at line 13 or so:

Q.       A short time after you arrived did [the applicant], the accused, visit?
A.       Yes.

Q.       And [the applicant’s wife] and their two children arrived at your home with some food?
A.       Yes, they did.

That evidence was not, as I have indicated earlier, the subject of challenge by the Crown.  At application book 432, this is in the evidence of [BT], the sister‑in‑law of the applicant.  I am sorry, I have led your Honours astray.  That is 25 December in relation to that.  Just excuse me for a moment.  I am sorry, your Honours, page 446.  This is the evidence of [BBR], the brother of the applicant’s wife and this evidence – I am sorry, I will go back to page 445.  There is a reference to 23 December 2006 at about line 47.  Mr Jacob returning and, in effect, just further evidence in relation to that.  Then at line 39 the question:

Q.       On 24 December did you go to your brother [BCR’s] place?
A.       Yes I did.

Q.       And was that in the evening?
A.       Yes it was in the evening.

Q.       Did you see [the applicant] and his family there?
A.       Yes they were.

In effect, there it is consistent with other evidence in relation to this largish gathering on the 24th which again was not the subject of challenge.  So that is the evidence, and I apologise it has been a little bit stilted, but that is the evidence which covered those three dates on which the Crown case, in relation to counts 4 and 5 was based and, critically, those three dates in relation to which ‑ ‑ ‑

FRENCH CJ:   So what was the scenario put by the prosecution to the jury confined, as they were, to the 22nc, 23rd and 24th upon which the jury could have been satisfied beyond reasonable doubt that these events happened on one of those days?

MR DHANJI:   Your Honour, could I come back to that question?

FRENCH CJ:   In the respondent’s submissions there is, I think, a reference rather to the uncertainty about the date. 

MR DHANJI:   Yes.  The prosecutor, from recollection, may have addressed, having – the Crown attempted to deal with it in this way.  It is at page 484 at line 32 the prosecutor says, “I want to talk to you then about the indictment itself.”  Now, that is the context in which this submission is made.  Now, I do not suggest there is anything deliberately improper in relation to what occurs here, but, of course, the indictment, as it stood, referred to a significant date range and a date range beyond the case that went to the jury:

You’ve all got a copy of the indictment.  Remember [the complainant] was 10 years old when she was telling the police about these things; she’s 12 now.  Again I’ve mentioned to you, “But you remember significant things but you don’t remember exactly when they happened.”  [The complainant] remembers in relation to the last two counts on the indictment, which are she said just before Christmas 2006 that there was a sleepover on that occasion, presumably for some pre‑Christmas function or just a regular sleepover.  This was in my submission a regular sleepover because these families were close.

So that suggests perhaps a failure to grasp the nettle, if I can put it that way, in relation to that issue.  It does continue towards the bottom of that page.  The prosecutor speaks about people making mistakes as to dates and seizes upon the mistake made by Ms Krishna.  That is the false alibi or the witness that provided the false alibi.

GUMMOW J:   What date was being suggested here as the date?

MR DHANJI:   No date was suggested.  I think, if I can put it in these terms, what is being put there is that there is, in effect, a rubberiness. 

FRENCH CJ:   Is it right that the prosecutor has not addressed the jury on the basis of confinement of the dates to the 22nd, 23rd and the 24th and how they are to deal with the evidence to which you have just taken us?

MR DHANJI:   Your Honour, I will be corrected if I am wrong in this, but my recollection is that there is no attempt by the Crown to suggest how these events could have taken place either consistently with the alibi evidence or on the basis of a rejection of the alibi evidence.

FRENCH CJ:   That is putting to one side the evidence of Mrs Krishna which simply went to his credit, the scenario there being that he had seized upon her mistake and tried to use it to his advantage?

MR DHANJI:   Yes.  Your Honour, I should say this, the Crown Prosecutor had resisted the trial judge’s decision or determination that the basis for the Crown case was those dates, and certainly the Crown Prosecutor did refer to some other evidence similar to the evidence your Honour Justice Crennan referred me to.  There is, I think, a particular passage that the prosecutor seized upon.  It is at page 156 of the cross‑examination of the complainant and at line 31 on page 156 the complainant was asked this:

Q.       And you remember his Honour asked you some questions about some dotted lines and perhaps some renovations?
A.       Yeah.

Q.       And you said so far as you were concerned and correct me if I’m wrong, or somebody will anyhow, that so far as you were concerned that plan showed the house as it was when you used to go to it?
A.       Yeah.

Q.       And that’s right up until you say, 23 December 2006?
A.       Yes but it may have – may have not been 23 December –

2006.  Now, that answer, on its face, is a reference to the questions about renovations, but then the exchange goes on –

Q.       I see--
A.       --like I guessed that it may have been the day before New Year’s Eve because I do remember some celebrations around then but it could have been maybe even a week before that.

Q.       I see so why are you changing that?
A.       Well because I’ve thought of it.  I thought maybe – and I’ve watched the video –

that is the video of the evidence‑in‑chief –

I’ve thought, oh well then I think I thought that it may have been the day before New Year’s Eve, but it may have not been.  I thought it was around that time--

and then she has corrected, the New Year’s Eve is clearly just a simple mistake –

Q.       The day before Christmas Eve?
A.       Yeah it’s Christmas Eve, sorry.

The trial advocate or the Crown intervenes and says –

Your Honour can I just ask at this stage, make an objection and are we talking about when some renovations were done here.  It appears that the witness is responding to something other than renovations.  My friend used the date 23 December.  The witness responded it seems that she’s not responding to the question about renovations to a house.

As I said, this exchange is something that was seized upon during argument as to what the Crown case was and the manner in which the jury could be addressed and the manner in which they were to be instructed.  The result, however, was, having regard to all that had occurred, that the Crown was unsuccessful and, indeed, it is perhaps not surprising given that we have answers insofar as they might be thought to relate to the date of counts 4 and 5 that were volunteered in a non‑responsive manner in cross‑examination after the evidence had been given in which the applicant had, by and large, tied herself to the days around Christmas.  So the Crown, as I say, had that passage in mind but was ruled against and, I think it is fair to say, then never really grappled with the issue that the Crown was faced with in terms of the address to the jury.

KIEFEL J:   Justice Simpson says in that subparagraph (xii) on page 766 that “The complainant had committed herself to the 23 December date”.  Is that incorrect?

CRENNAN J:   I think that is appellant’s account, is it not?

MR DHANJI:   I am sorry, this is (xii)?

KIEFEL J:   Subparagraph (xii).

MR DHANJI:   Yes, but insofar as her Honour is stating that, “The complainant had committed herself to the 23 December date”, her Honour is putting an argument that was put on behalf of the applicant rather than her Honour’s own conclusion.

FRENCH CJ:   Sorry, was there a challenge to the defence witness’ evidence in relation to the events of the 22nd, the 23rd and the 24th?

MR DHANJI:   No, your Honour.  Whilst we are on this subject and in terms of the reference there to the argument being based solely on the 23rd, it is also relevant to note that when her Honour summarises the evidence at the beginning of her judgment in dealing with the defence case her Honour does not deal with in particular the 22nd.  If your Honours go to application book 756, there is discussion there of the evidence in relation to the contest between the parties with respect to the closeness of the relationship and the capacity for the applicant and his wife to have sleepovers, and her Honour summarises that at paragraph 82 of her reasons:

The point of all this evidence appears to have been to limit the extent of the interaction between the families, and cast doubt upon the complainant’s evidence as to the frequency with which she stayed at the appellant’s home.

So it is a summary of that general evidence with respect to opportunity because, as your Honours will appreciate, in addition to this direct alibi evidence, there was general evidence suggesting lack of opportunity.  At 83 her Honour says:

The appellant then gave evidence about his activities on 23 December 2006.

Then, at paragraph 85 refers to:

The following day, 24 December –

but makes no reference in that account to the events of 22 December which, as I have sought to demonstrate, are critical having regard to the evidence in the trial.  So I have gone back and dealt with the difficulty with respect to the alibi evidence and before leaving it I should make the point that I have picked out that alibi evidence as perhaps the most stark example of relevant evidence which did not form part of any analysis in the Court of Criminal Appeal and, having regard to the issues, an analysis of that evidence was crucial. 

There is other evidence which I will not take your Honours to in detail, such as the evidence of the complainant’s sister, L, which again was of significance in relation to the issues because of the complainant’s evidence that L was present on each of the occasions, the subject of counts and, indeed, on, speaking in the generality, many, many occasions, yet despite the asserted frequency of these events the complainant’s account was not supported by L and, indeed, in circumstances were L was said to have woken up, gone to the toilet, come back and certainly on occasions L would have, on the complainant’s account, woken up to find the applicant in the bed with the complainant herself, L, and the applicant’s daughter.  So the absence of support from L was not easily explained and was a matter that required close attention in any independent analysis of the evidence.

FRENCH CJ:   That was point 8 in the list of points, I think, that her Honour identified as, if you like, supporting the applicant’s attacks on the reliability of the complainant.  So that is also dealt with under the general rubric of a jury point.

MR DHANJI:   That is so.  It was one of the matters as to which, I think this is perhaps what your Honour has just said to me, as to which comment was not made.

GUMMOW J:   This expression “essentially jury points” in paragraph 113 may have its content from what her Honour said at 112 in the third sentence:

It was within the jury’s province and function to evaluate them, individually and in conjunction with one another, in order to determine whether they case doubt on the evidence given by the complainant.

MR DHANJI:   Your Honour, what her Honour says at 112 is plainly so.  They were legitimate jury points.  It was, in the conduct of the trial, within the jury’s province and function to evaluate them and make the determination but that task required of the jury could not, of course, somehow be brought up into the Court of Criminal Appeal and applied to the Court of Criminal Appeal’s task.

GUMMOW J:   Well, there may be a problem, too, with that phrase “the essential evidence”.  Do you see that towards the end of 112?  To warrant conviction on all counts, some counts?

MR DHANJI:   Yes, quite so, your Honour.

KIEFEL J:   Could I just be clear about the alibi evidence.  I do not mean to go over it again and again but in the way you have put the alibi evidence as it should have been left to the jury ranging over the period of time from the 22nd through to the 24th, was that put in that way in the Court of Criminal Appeal?  It is just that that paragraph (xii) on page 766 indicates a narrowing by the appellant himself which might have taken her Honour off course?

MR DHANJI:   Your Honour, the answer is no.  That relates back to the concession I made ‑ ‑ ‑

KIEFEL J:   That her Honour was not assisted.

MR DHANJI:   That her Honour was not assisted.  In that regard, it ties in with an exchange his Honour the Chief Justice raised with me in relation to the significance of the trial judge’s opinion and the capacity of that opinion to, in a sense, make up for inadequacies otherwise apparent because the task of the Court of Criminal Appeal, whilst conducted in an adversarial context, was defined by the issues at trial.

If I can just perhaps take up the matter raised by your Honour Justice Gummow.  Her Honour’s reference to “the essential evidence of the complainant was sufficient to warrant conviction” ties in, in effect, with the complaint that has been made in relation to the need to look beyond the core evidence that would be sufficient to warrant a conviction and examine the evidence that is available and capable of impacting upon the reliability.  The point has been made in the written submissions that in a case of this kind one has above the “’tis/’tisn’t” distinction between the parties little other than the surrounding circumstances against which the allegations can be tested, although, of course, in this case it perhaps does go beyond that because of the alibi evidence in relation to counts 4 and 5. 

Your Honours, that is what I would wish to say with respect to the test of the application of M v The Queen.  I have said nothing in relation to counts 1 and 3, and evidence with respect to the movie, The Invincibles ‑ ‑ ‑

FRENCH CJ:   The Incredibles.

MR DHANJI:   The Incredibles.  I am sorry, I have a note which says The Indictables, I modified it to The Invincibles, it is in fact The Incredibles.  It is not a movie I have seen.  I will not take your Honours through that evidence suffice to say that that evidence that has been picked out with respect to the dates in relation to counts 4 and 5 and the difficulties that surround – provides, as I have indicated, an example which then ties in and provides a demonstration as to the usefulness of the trial judge’s report, but that is not to downplay the significance of other material evidence which tended to cast doubt in relation to other aspects of the matter.

Indeed, getting to the M test, there was of course the issue of the evidence to which the court was required to have regard.  I referred your Honours to section 6 and section 11 of the Evidence (Children) Act and the evidence in this case in relation to the complainant’s evidence‑in‑chief.  The evidence was the sight and the sounds which emanated as a result of the playing of that videotape. 

Now, it is not quite the same as the autoptic proference referred to in Evans v The Queen, but it is a form of evidence which has qualities beyond the bare testimony in that, in particular in this case, there were visual aspects that were essential to its understanding.

Insofar as the Court of Criminal Appeal was required to determine the matter on the evidence, that required the Court of Criminal Appeal to determine the matter having regard to the sights and sounds emanating from that videotape and what other evidence there was available.  Clearly in the case of the oral testimony the Court of Criminal Appeal was not in a position to witness that testimony because it had happened some time previously and the court was availed of a transcript to, in effect, fill the gap that would otherwise exist.

The Court of Criminal Appeal raised the matter.  Ultimately the submission was made that the Court of Criminal Appeal should view the video and that having been done the applicant’s submission is the Court of Criminal Appeal was required to view the video, for the very reasons raised by his Honour the Chief Judge at Common Law, Justice McClellan, that is it has the capacity to reduce the advantage in a practical sense, but in a more technical sense it was the evidence.

Now, I do not suggest that in each and every case the Court of Criminal Appeal will be required to view evidence provided in this manner because, of course, the appeal is conducted in the adversarial context and the parties may, in effect, agree or assist the Court.  Indeed, there is in the light of these technologies, a heavy burden on counsel before courts of criminal appeal to assist in the efficient disposal of matters.  So it would be expected that counsel would, in the ordinary course, come equipped to indicate whether some more convenient means of addressing the matter can be adopted.

But here there was no such agreement.  The application ultimately was that the evidence should be viewed.  However, that was not done.  I should say at this point that the situation pertaining here is subtly, but importantly, different from a situation such as that where the trial itself is videorecorded because, in that situation, the videorecording of the trial is the creation of another record in the same way that the transcript is a creation of the record.  It is not the evidence.

So in terms of section 6 and the requirement to have regard to the evidence, there is not the obligation to have regard to one form of record over another, that is, videorecording over transcript, subject again to the adversarial context.  Again, counsel would be required to, if it was sought to have the court view parts of a videorecording of a trial, it would be necessary for counsel to make that application.

Indeed, in such a case it would be necessary not only for the application to be made but for some submission to base the application, that is, some submission as to what the court would achieve by viewing the evidence.  Obviously enough, the court would need to hear from the opponent as to whether there was anything that needed to be viewed in addition in order to balance the viewing.

FRENCH CJ:   Which was the legislation that governed the taking of the videorecording, by the way – is there reference to both the Evidence (Children)Act and the Criminal Procedure Act? 

MR DHANJI:   Yes.  I am sorry, your Honour.  It is the Evidence (Children) Act.

FRENCH CJ:  That was the one that was applicable at the time?

MR DHANJI: As a result of the transitional provisions in force, it was applicable at the time. In terms of the practical effect, section 306U of the Criminal Procedure Act is, in essence, in the same terms but ‑ ‑ ‑

GUMMOW J:   Does it still have this section (1AA), that the “child may, if the child so chooses”?  It does not arise in this case but it is an odd provision.

MR DHANJI:   It is not immediately apparent that it does, but I will endeavour to come back to that with some greater certainty.

FRENCH CJ:   You do not point to any advantage that you have lost by the Court of Criminal Appeal not having viewed the videorecording.

MR DHANJI:   Your Honour, the significance in this case again ties in with the benefit of the opinion given by the trial judge, and your Honours may recall when I read from the trial judge’s opinion, his Honour made reference to the matter in which the complainant gave her evidence and referred to it as almost compelling.  Indeed, in a sense it would have had to have been to overcome the very significant difficulties, particularly having regard to the alibi.

The benefit of viewing the video in this case, in essence, would potentially have been to provide independent confirmation of what was there said or the opinion expressed by the trial judge which had the potential to provide some explanation as to how the jury managed to arrive at, in the applicant’s submission, unreasonable verdicts because that explanation, in a sense, would put this case squarely within the framework of what has been said in Fox v Percy, both well prior to Fox v Percy and subsequently, that the notion of an ounce of intrinsic merit being worth pounds of demeanour and, in essence, what was raised by this appeal was a real danger, if one accepts the trial judge’s opinion and it was capable of being confirmed by the video, that what was seen to be a compelling version overawed the jury, having regard to the relevant facts.

KIEFEL J:   But having regard to the trial judge’s opinion, this could work against you.

MR DHANJI:   In a sense, I appreciate that there is a ‑ ‑ ‑

KIEFEL J:   I am just trying to fit his Honour’s view of it being compelling and yet, obviously given the opinion he reached on the bail application, not sufficient to overcome the objective evidence.

MR DHANJI:   Yes, because when his Honour is talking about compelling, his Honour is not talking about compelling in the general sense, that is, compelling having regard to the manner it was given and the evidence which surrounded it.  His Honour was suggesting it was compelling only in a very narrow sense because it was in that narrow sense that she gave evidence of the various events, but in any broader sense it was not at all compelling because it simply did not sit with ‑ ‑ ‑

KIEFEL J:   So the Court of Criminal Appeal is supposed to look at the video to determine what his Honour meant by compelling?

MR DHANJI:   I not submit that in the absence of a particular submission that the task of the Court of Criminal Appeal was confined in any particular way but rather, I make the submission – and I appreciate that it is perhaps one made on somewhat technical grounds – that the obligation under section 6 was to have regard to the evidence and that the court did not do that and the court failed to do that in the absence of any suggestion by the parties that some alternative would be equally as convenient.

KIEFEL J:   Does that mean that in every case the Court of Criminal Appeal is required to have regard to the video evidence, it being the evidence on the distinction that you have drawn earlier where an appeal is brought on the grounds such as this?

MR DHANJI:   No, your Honour, because in the context of an adversarial system the obligation will fall to the parties to assist ‑ ‑ ‑

KIEFEL J:   To identify an issue.

MR DHANJI:   That is so. 

KIEFEL J:   Would you mind summarising that issue again for me here?  What is it that the Court of Criminal Appeal would be looking for in the video?

MR DHANJI:   I am sorry, I may have misled your Honour in terms of the applicant’s submission.  There is the distinction between two cases; one in which the videorecording as here – well the sights and sounds emanating from the recording is the evidence, and a second situation where a videorecording of the trial as it takes place is, in a sense, a record of the evidence as opposed to being the evidence itself.  In that latter case, because it is a record of the evidence and not the evidence within section 6, the obligation does not arise in the same way.  The obligation will arise as a result of the manner in which the case is argued. 

In the former case, it is subtly different in that, in effect, because it is the evidence, the default position becomes the need to view the evidence or have regard to the evidence and that default position is then capable of modification by the parties on the basis of a submission that the parties are content for the matter to proceed by way of transcript, and that is where the heavy obligation will fall to counsel, to identify whether some more convenient means can be adopted.  But before I go too far, I should say this, that unlike a record of proceedings in which there is, in the ordinary course, not only oral testimony recorded but also, having regard to those involved’s awareness that the matter is being recorded, there will be from time to time gestures made by a witness and the parties involved will indicate that for the record the witness is indicating a distance of perhaps one metre. 

In this case, the matter did not proceed with the same assumptions.  It proceeded on the assumption that it would be viewed by anybody who was to have regard to it and so, whilst transcript was prepared, to take perhaps the clearest example, at least one point in the transcript there are words in brackets which indicate demonstration.  Your Honours will see that at application book 115 just around line 10 on the page.  Your Honours, that is perhaps the most stark example.  There are, however, I think, a significant number of points throughout that transcript where it is apparent or, indeed, very likely that there is something more than the written word required to actually appreciate the evidence.

FRENCH CJ:   The jury did not take this video away with them when they retired, they just had the edited transcript, did they not?

MR DHANJI:   The jury did not take the video into the jury room.  They were provided ‑ ‑ ‑

FRENCH CJ:   They would have had all the other physical exhibits?

MR DHANJI:   They would have had the physical exhibits.  The issue in relation to such an item going to the jury room was a subject of the decision in NZ and that is, in fact, the decision her Honour Justice Simpson referred to.

CRENNAN J:   What do you say about Justice Simpson’s rationale for not looking at the video, which I think is set out at 762 in paragraph 108, where her Honour talks about being concerned about creating an imbalance and unfairness to an accused person?

MR DHANJI:   Yes.  That is a legitimate concern.  However, it is a concern that is secondary to what we submit are the constraints of the legislation, but perhaps answering the question in a more practical way, it is also a matter that is capable of being, firstly, addressed by submissions of the parties.  Secondly, it really falls into the category of, if I can put it this way, the court saying, “Well, we have access to evidence of a higher quality in relation to this part, but because we do not have evidence of a uniformly high quality, we cannot embark upon the assistance that we would receive from viewing the best quality evidence that we can.” 

That situation, and there is reference – I have not put it on the list – but there is reference in the applicant’s reply to the observations of his Honour Justice Callinan in Thomas v Mowbray and, as I say, it is not on the list, but his Honour’s observations were, in essence, to the effect that in any curial context it will be the case that ‑ ‑ ‑

CRENNAN J:   It was on the uniform standard point in paragraph 13.

MR DHANJI:   That is right.  The reference is at paragraph 13.  I am sorry thank you, your Honour.  I am just half a second behind you.  At paragraph 13.  Thomas v Mowbray is (2007) 233 CLR 307 and the observations are at paragraph 599. The point being, as is, in a sense, almost self‑evident, that one does not have forensic contests without there being in the ordinary course some deficiencies in the available evidence and conflict resulting as a result of those deficiencies. If there were not the deficiencies, there would not be the conflict.

GUMMOW J:   The deficiency here would be a product of the legislative regime.

MR DHANJI:   That is precisely so and that is the first point that I made. 

FRENCH CJ:   Incidentally, the trial judge’s references to the compelling character of the complainant’s evidence related to the whole of her evidence, did it not?

MR DHANJI:   I am sorry, I just need to be a little bit careful in the way I answer that.  As I read his Honour’s observations, it related to the manner in which she gave her evidence and insofar as I understand your Honour is referring ‑ ‑ ‑

FRENCH CJ:   It is beyond the videorecording, it is into the cross‑examination as well, yes.

MR DHANJI:   I am sorry, I took your Honour’s question to be broader than it was.  Yes, it related to the video and the supplementary evidence‑in‑chief and cross‑examination.  The question I was actually answering was, insofar as it was given the appellation compelling, that related not the whole of her evidence in the sense of her evidence in context but the manner in which it was given.

FRENCH CJ:   I do not want to oversimplify it, but this, in a sense, reduces to the proposition that the matter having been put to the Court of Criminal Appeal, this was evidence to which they were obliged to have regard under section 6.

MR DHANJI:   That is right.

FRENCH CJ:   And the utility of it, from your point of view, was that it had the potential to confirm or support the trial judge’s characterisation of her evidence, or undermine it of course.

MR DHANJI:   Of course, but it was, as your Honours point out, in a sense, an obligation that existed independently of their being, on the applicant’s case, some utility.  However, in terms of the complaint, it is, of course, useful for the applicant to add that there would have potentially been real utility.

KIEFEL J: Could I just go back to the point of distinction about what is evidence and what is the recording of evidence. Phrases in Part 6 of the Criminal Procedure Act appear to be the giving of evidence in the form of a recording.  I am looking at 306U and 306Y, in particular, that the court may determine that evidence not be given in the form of the recording, but the point being that the words seem to be that that be their evidence‑in‑chief but the evidence is taken to be “in the form of a recording”, that is to say, the giving of the evidence is taken to be by recording.

MR DHANJI:   Yes, it is an odd expression because I think it is not really the recording, it is the playing.  The recording happens some time earlier.

KIEFEL J:   No, no.  It is a deeming provision, is it not?  It would then equate the recording with the evidence that was otherwise given in trial.

MR DHANJI:   Yes.

GUMMOW J:   It says “in the form of a recording”.

MR DHANJI:   Yes, I am sorry.  It is not a verb it is ‑ ‑ ‑

GUMMOW J:   So may give evidence‑in‑chief “in the form of recording”.

MR DHANJI:   Yes.

KIEFEL J:   So that stands as the evidence they have given in the trial?

MR DHANJI:   Yes.  It may have been more precisely expressed as by the playing of a recording in terms of what ‑ ‑ ‑

KIEFEL J:   Well, I am not sure where that leaves the argument that the evidence ‑ ‑ ‑

GUMMOW J:   “In the form of a recording . . . that is viewed or heard.”

MR DHANJI:   Yes, that is then the effect of ‑ ‑ ‑

GUMMOW J:   It seems the recording need only have a sound.  It may have images as well, is that right?

MR DHANJI:   Yes.

GUMMOW J:   It is viewed or heard?

MR DHANJI:   Yes.

GUMMOW J:   So it is evidence‑in‑chief in the form of a recording that is viewed or heard?

MR DHANJI:   Or both.

GUMMOW J:   Or both, yes.

KIEFEL J:   As would be evidence‑in‑chief.

GUMMOW J:   Yes.

MR DHANJI:   Yes.

KIEFEL J:   The videorecording was never made an exhibit, I take it?

MR DHANJI:   No.

KIEFEL J:   It would follow from these provisions?

MR DHANJI:   That is right, and the decision in NZ and so the submission we make rests on section 11 and section 6 of the Criminal Procedure Act.

KIEFEL J:   That stands as the evidence they have given in the trial.

MR DHANJI:   Yes.  I mean, it may have been more precisely expressed as by the playing of a recording, in terms of what ‑ ‑ ‑

KIEFEL J:   I am not sure where that leaves the argument that the evidence ‑ ‑ ‑

GUMMOW J:   In the form of a recording that is viewed or heard.

MR DHANJI:   Yes, well that is then the effect of ‑ ‑ ‑

GUMMOW J:   It seems the recording need only have a sound.  It may have images as well, is that right?

MR DHANJI:   Yes.

GUMMOW J:   As in viewed or heard.

MR DHANJI:   Yes.

GUMMOW J:   So it is evidence‑in‑chief in the form of a recording that is viewed or heard.

MR DHANJI:   Or both.

GUMMOW J:   Or both, yes.

KIEFEL J:   As would be evidence‑in‑chief.

MR DHANJI:   Yes.

KIEFEL J:   The videorecording was never made an exhibit, I take it?

MR DHANJI:   No.

KIEFEL J:   Follow from these provisions.

MR DHANJI:   That is right and the decision in NZ.  So the submission we make rests on section 11 and section 6 of the Criminal Procedure Act.  Just by way, perhaps in passing ‑ ‑ ‑

FRENCH CJ:   Yes, go on, Mr Dhanji.

MR DHANJI:   Thank you, your Honour.  Your Honours, that deals with the evidence given by way of the recording.  The other aspect of this matter relates to the Court of Criminal Appeal having regard to material that was not before the jury, in effect, the reverse problem to the complaint with respect to the failure to take into account all of the evidence.  Your Honours, at application book 744 her Honour is dealing with, or at least, and if I go back a page to 743 at paragraph 25 of her Honour Justice Simpson’s reasons, her Honour says:

It is appropriate here to comment on one feature of the manner in which the complainant gave her account to Detective Bagnall.

That is the interviewing officer for the purposes of the video –

It was quite common, throughout the interview, for her to use what might be described as a continuous tense – best described by illustration –

and her Honour gives the illustration over the page.  This aspect of the matter was of some significance.  I would not submit that it was necessarily the applicant’s best point in the Court of Criminal Appeal, but certainly it was a matter raised and one that was entitled to proper consideration, the substance of the complaint being that the manner in which the complainant described these things lacked a direct connection to a specific event that might be made the subject of a count for the purposes of the indictment.  In dealing with that matter her Honour, having given examples at paragraph 28 of her reasons, says:

This speech mannerism can best be explained by an early answer given by [the complainant] (in a passage that was excised from that which went to the jury) -

and then goes on to set that out.  That is not, as has been contended by the respondent, the use of material not before the jury by way of illustration, but rather it is being used by way of explanation as is the passage referred to at paragraph 29.  It is material that is referred to, in essence, not directly but indirectly again at page 763 and on page 763 at (i) her Honour, in setting out the attack or summarising her Honour’s approach to the attack says:

examination of the transcript of the complainant’s interview with Detective Bagnall reveals the speech patterns to which I have already referred –

So that is going back to the earlier passages.  Her Honour then, at page 767 at (i) says:

It is true that the complainant’s answers to detective Bagnall were characterised by the speech patterns I have mentioned.  But it is also true that Detective Bagnall was fully aware of the need for the complainant to be specific as to the individual events the subject of the charges.  She pressed the complainant to focus on those events.

and then gives reference to – now, that is in the context of not an analysis of the argument but a comment that her Honour makes.  In terms of the example her Honour gives, there is a similar quality:

He would always do the same as always . . . every time –

Now, again, as I say, I do not go to this specifically because it necessarily was the applicant’s best point before the Court of Criminal Appeal, but insofar as it was dealt with, her Honour has dealt with it having regard to material that was not properly to be taken into account.  Your Honours, as I said at the outset, there is, in the applicant’s submission, a failure on the part of the Court of Criminal Appeal to make an independent assessment of the evidence.  The critical aspects of that phrase being the assessment required by M v The Queen and evidence, that is, all of the evidence – and I have addressed your Honours in relation to the absence of analysis and some of the matters that were not taken into account and matters that were taken into account that should not have been. 

Ultimately, her Honour was dealing with an appeal that had some real substance reflected in the trial judge’s opinion because the Court of Criminal Appeal had a case that relied solely on the evidence of the complainant.  The account given by the complainant had some inherently improbable qualities in that it was the Crown case that these events occurred with the applicant’s wife in the house, requiring the applicant to at times absent himself for periods in the order of half an hour, a case in which this was said to occur in the circumstances where doors remained open. 

It required the applicant to get into the complainant’s bed in circumstances where, with the inclusion of the applicant, there were a total of four people in the bed in circumstances where nothing was said by the applicant, or allegedly said by the applicant or by the complainant which raises, perhaps, the trial judge’s experience over the jury in terms of his Honour’s experience of how these things normally unfold but perhaps following it in a less empirical way but in terms of pure logic it created, clearly, a situation where there was surely a likelihood, at least in the applicant’s mind, that the complainant would alert her older sister, three years older, who was in the bed, or that the complainant’s sister would indeed wake up to see something peculiar happening ‑ ‑ ‑

GUMMOW J:   Now, assume you are correct about all of that, what remedy do you want from us, looking at page 20 of your written submissions?

MR DHANJI:   Your Honours, we have sought that this Court quash the decision of the Court of Criminal Appeal and enter an acquittal.  We have put on an alternative, that is, the remitter of the matter to the Court of Criminal Appeal.

GUMMOW J:   For rehearing?

MR DHANJI:   For rehearing, in the alternative.

HEYDON J:   If you want an acquittal, you want us to watch the video, do you?

MR DHANJI:   Well, I was about to the point that ‑ ‑ ‑

HEYDON J:   We would have to attend to the whole of the evidence.

MR DHANJI:   If your Honours determine that this Court should perform the task that was required at the Court of Criminal Appeal, it would become necessary for this Court to watch the video.

FRENCH CJ:   How much longer do you have, Mr Dhanji?

MR DHANJI:   I think I have about five minutes or so, your Honour.

FRENCH CJ:   Yes, all right.  Perhaps you can finish then.

MR DHANJI:   Thank you, your Honour.  The other aspect of the matter was the difficulty faced by the applicant in terms of the shifting.  The first events were in 2001.  They were initially alleged to have taken place in January.  That shifted when it became apparent that the applicant simply did not live in the home in which events were alleged to have taken place.  In relation to counts 1 to 3 which were all part of a single episode, or connected series of events, the sequence of those events is, in the applicant’s submission, curious at least in that it involved, on the Crown case, the applicant going into the room in which the complainant was sleeping – this was the events that were tied to watching of the movie, The Incredibles. 

Rather than being a peripheral matter to this event, the movie was, in fact, central because the complainant’s evidence was that the movie was, in fact, on at the time that this was occurring.  Her evidence was that the movie was still playing when the applicant came in.  I will not take your Honours through this and I will run through this reasonably quickly, but that is at application book 130.

So it was central, and of course there was the uncontested evidence that indeed it could not have been The Incredibles playing, but more particularly these counts required the complainant to go in, engage in count 1, be interrupted in relation to that by the complainant rousing her cousin to play the clapping game causing the applicant to leave, subsequent to which the applicant is, on the Crown case, said to have gone back, again roused the complainant by committing count 2, again being stopped, this time by the complainant getting up to go to the toilet with her sister, L, who was in the bed with the applicant, on the Crown case, following the two girls to the toilet and subsequently returning and then with the complainant and L having got back into the bed, having on the complainant’s account, returned to the bed to commit count 3, all in circumstances where there is no suggestion that the applicant’s wife was not in the house.  The evidence that the doors were left open was unchallenged.  The evidence that light come in was unchallenged.  That is at application book 173.

When that inherently improbable account is placed next to the absence of evidence that might have been forthcoming from L, and then placed in the context of the alibi evidence, to which I have already taken your Honours with respect to counts 4 and 5, the evidence in relation to the unavailability of the movie, The Incredibles, in relation to counts 1 to 3, the evidence in relation to the applicant moving into the house in relation to the 2001 events, there raises, very clearly, on all the evidence available in this case the real possibility that an innocent man has been convicted.

The Court of Criminal Appeal, in our submission, failed in the task of properly assessing all that evidence in coming to the conclusion which the applicant submits follows.  May it please the Court.

FRENCH CJ:   Yes, thank you, Mr Dhanji.  The Court will adjourn until 2.00 pm.

AT 12.54 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

FRENCH CJ:   Yes, Ms Woodburne.

MS WOODBURNE:   May it please the Court.  The Crown case was not, either by the evidence or by the directions, confined on counts 5 and 6 to three days of the 23rd, the 24th and 22 December.  Indeed, it was never part of the Crown case that the offence could have occurred on 24 December because, as the complainant herself said and as was not in issue, at application book 98, line 30 the complainant said:

And they came to our house on Christmas Eve.

It was never part of the Crown case that any of the offences occurred anywhere other than in the applicant’s own home.

If your Honours go to the directions in respect of the matter at application book 642, your Honours will see that the trial judge began by telling the jury that:

In relation to the events of 2006 [the complainant’s] evidence was that these assaults occurred, it might have been the Friday night, which would have been 22 December, it might have been the Saturday night which would be 23 December.  Possibly the Sunday; she might have been staying over on the Sunday, the 24th.

Now, as I have pointed out to the Court, the 24th was, in fact, never asserted to be a relevant date.  The trial judge continues –

She just relates it to Christmas, the period around Christmas.

GUMMOW J:   Was the trial judge invited to correct that?

MS WOODBURNE:   No, he was not.  At the following line is why he did not need to be corrected in that regard because he put the matter in the hands of the jury:

Now you have to consider very carefully what she said,

In our submission, the jury, indeed, did that, because ‑ ‑ ‑

GUMMOW J:   Just a minute:

If she was assaulted as she said on any of the days in that period ‑ ‑ ‑

MS WOODBURNE:   Yes, and that again is related, as she said.  So what the jury’s attention was directed to was what she said in evidence and if I can take your Honours to what she said about the 2006 incident forming the basis of counts 4 and 5.  It is extracted in our written submissions in a convenient form at paragraph 5.45.  Your Honours will see from what is extracted there that the complainant was never prescriptive about those dates.  She began by saying it was:

About, just before Christmas, around then.

Later she said she did not remember the day and pressed to remember whether it was a week day or weekend, she said:

It was, I think it was a Friday –

A Friday –

No, wait, it was, it was the day before Christmas Eve.

That is put back to her:

Q58     The day before Christmas Eve?
A        Yes, I think so.  I think that was when.

Now, what happened in the evidence, of course, is that she was asked about the particular dates in cross‑examination and, as we have stated at paragraph 5.46, the complainant explained that she was not exactly sure what date is was.  She knew it was before Christmas, she remembered some celebrations around that time, but it could have been maybe even a week before that.  So although she had nominated the date of 23 December in her interview, it was  ‑ ‑ ‑

GUMMOW J:   Wait a minute.  You have taken us to questions 56 and 58.  Does question 23 bear on it?  Page 92, question 25.

MS WOODBURNE:   Yes, and ‑ ‑ ‑

GUMMOW J:   All I am saying is, 5.45 is an incomplete account.

MS WOODBURNE:   Yes, I accept what your Honour Justice Gummow says, however, at application book 93, question 25, that answer “just before Christmas” is consistent with the evidence that we have pointed out in the paragraph 5.45.  Now, in our submission, the jury was entitled to have regard to the evidence which showed, firstly, she had not, contrary to what his Honour told them, claimed that the events happened on the 24th when there was a large gathering of family at her own home on Christmas Eve.  The jury was, secondly, entitled to have account of the fact that she did not claim to be certain about the date of the 23rd and not only was the jury entitled to have regard to that, that was entirely consistent with the Crown case.  Indeed, your Honours will have seen from the indictment in application book page 3 that the charge, count 4 and count 5, is specified as being between 1 December 2006 and 25 December 2006. 

FRENCH CJ:   How did the Crown put it to the jury?

MS WOODBURNE:   The Crown put its case to the jury upon the basis of her uncertainty as to the dates and more directly by way of cross‑examination of the applicant that he was not, contrary to his own claim that he could remember every single day in December, that, in fact, he could not have a recall of every day of that month.  That was put at application book 1.

FRENCH CJ:   So far as the closing address went, Mr Dhanji took us to some passages, I think, in the Crown closing address which focused upon the uncertainty as to precise date in her evidence.  Is that a fair indication of how the Crown put its case?

MS WOODBURNE:   Yes, from my recollection, your Honour, that is ‑ ‑ ‑

GUMMOW J:   Where do we see that?

MS WOODBURNE:   You would see that ‑ ‑ ‑

FRENCH CJ:   I think it is around 484, 485, is it not?

MS WOODBURNE:   Yes, and beginning at about line 32.  The Crown Prosecutor, of course, drew attention to the indictment and to the fact that the complainant had remembered that the last two counts were just before Christmas and the Crown went to the issue of the false alibi and that was for a purpose not to assert, because Mr Jacob was not challenged, not to assert that the event could, indeed, have happened on the 23 December, but rather to challenge the applicant’s claimed recollection that he could remember every day within December 2006.

FRENCH CJ:   So this did not go to the primary facts as to what happened on those dates, but rather to his credit?

MS WOODBURNE:   Yes, because it brought into question his claimed recollection.  Now, not only were the jury entitled to recognise that the evidence fell in the way I have just described, so was the Court of Criminal Appeal entitled to recognise, and indeed correctly did so, that the complainant was not certain about the particular date of the offences in December.  If your Honours go to the judgment of the Court of Criminal Appeal at page 746 ‑ ‑ ‑

GUMMOW J:   Paragraph?

MS WOODBURNE:   At paragraph 36, her Honour correctly identified that initially the complainant had said that the date of the 2006 allegations occurred “just before Christmas, around then” and that when she had been asked to be more specific, she said it was the day before Christmas Eve.  Her Honour did not leave the matter there.  At page 749 at paragraph 53 her Honour pointed out that the complainant during the course of her evidence was asked about the 2006 events and when they had occurred:

She said that initially she had thought that was the day before New Year’s Eve, because she could remember some celebrations, but that she then thought it could have been a week earlier than that.  She concluded that it may have been the day before Christmas Eve.

Then, further, at page 754, paragraph 70, her Honour specifically refers to the notice which was directed to the:

assertion that the 2006 events had occurred “the day before Christmas Eve” –

Then her Honour made an independent assessment of that evidence because her Honour stated:

(although, it will be recalled, the complainant was not dogmatic as to the date).

So when the applicant makes the claim that the Crown did not challenge the applicant as to the dates of 22, 23 and 24 December it must be borne in mind that, firstly 24 December was not part of the Crown case.  The complainant was not prescriptive about 23 December and not about the 22nd either because she said in evidence it may even have been a week before that, but she clearly was not sure of the date. 

GUMMOW J:   Where did she say that – “a week”, where did she say that?

MS WOODBURNE:   She said that at application book page 156 at line 45.  Sorry, at about line 40 it begins where the complainant says, “Yes ‑ ‑ ‑

GUMMOW J:   Before that is “before New Year’s Eve”.  A week before that would be New Year’s Eve.  That would be Christmas.

MS WOODBURNE:   Your Honour, in our submission, that is clarified.  New Year’s Eve is clarified by the following question:

Q.       The day before Christmas Eve?
A.       Yeah it’s Christmas Eve, sorry.

She is saying sorry because New Year’s Eve she had not meant to say.  She was clearly referring to Christmas Eve.

HEYDON J:   Ms Woodburne, on page 182 at about line 28 the last question in re‑examination for the complainant or that went to this subject, the complainant ended up by saying:

I do remember the last time was before Christmas, some time within December.

You rely on that?

MS WOODBURNE:   Yes, we rely on that.  It was not necessary for the jury to reject the unchallenged evidence of Mr Jacob.  However, it is apparent from the judgment of the trial judge on the application in relation to bail that his Honour seemed to believe that acceptance of the complainant’s evidence about the last incident in December involved a rejection of the evidence of Mr Jacob and those other witnesses who gave evidence on about 22, 23 and 24 December.

FRENCH CJ:   So you say it was open to the jury to accept all of their evidence and conclude that it must have happened on some other day?

MS WOODBURNE:   Yes, and certainly that is the way the ‑ ‑ ‑

GUMMOW J:   Some other day being after 1 December?

MS WOODBURNE:   Yes, within December.  Your Honours, might I now move to what is the applicant’s amended notice of appeal ground 3 and that is the contention that the Court of Criminal Appeal failed to properly consider whether the verdict was unreasonable.  Now, in our submission, that contention depends on a number of propositions which, it is submitted, do not withstand scrutiny.  The first such proposition is that her Honour Justice Simpson’s references to the jury during the course of her review reveals that the court simply dismissed matters as jury points thereby effectively abdicating the responsibility to make its own independent assessment. 

However, the independent assessment required was of the reasonableness of the verdict. So much is made clear by the terms of the statute itself. I refer to section 6(1) of the Criminal Appeal Act 1912 which employs the phrase “the verdict of the jury” and, as stated by this Court in M v The Queen (1994) 181 CLR 487 at 493, in answering the question whether the court:

thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty –

the court must pay full regard to –

the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and hear the witnesses.

GUMMOW J:   Wait a minute.  It says “entrusted with the primary responsibility”.

MS WOODBURNE:   Yes, it does say that.  Your Honours, what that entailed was that the Court of Criminal Appeal had to keep in mind that view of the facts which the jury was entitled to take in the proceedings and the references by her Honour Justice Simpson to the jury must be seen in that context.

Further, her Honour Justice Simpson’s use throughout her review of terms such as “in my opinion I see little force” and “I am satisfied” militates, in our submission, against the conclusion that there was a failure to actually perform the task that had been required.  It is necessary to go to the judgment of the Court of Criminal Appeal to see the indicators of this independent assessment.

Your Honours will see at application book 763 that her Honour posed the question by way of the heading “Were the verdicts unreasonable?”  Under that heading her Honour marshalled together the applicant’s 13 points by which the applicant sought to attack the reliability of the complainant and your Honours will have seen that the first point related to the submission that the applicant’s speech patterns, that is, her use of the conditional tense, created a vagueness or uncertainty, even when related to specific events, such that that, it was submitted should have operated upon the minds of the jury when they came to assess the complainant’s credibility or reliability.

Now, her Honour agreed at page 767, point 52 that certain answers quoted by her Honour, alone would be unsatisfactory to prove a specific incident on a specific occasion.  However, over the page at page 768, her Honour referred to other evidence which is extracted on that page and her Honour positively concluded at paragraph 115 that there was no vagueness or uncertainty and the complainant gave a clear and specific account of a specific incident.  At paragraph 117, her Honour stated:

These answers, in my opinion, were sufficient to enable the jury to conclude (if they accepted the complainant’s evidence) that the specific incidents the subject of the charges had occurred.

Of course, the applicant’s claim is that her Honour’s approach was merely to consider whether there was evidence which, as a matter of law, supported the verdicts.  However, such a fundamental misapprehension of the task required of it, should not, in our submission, be ascribed to the Court of Criminal Appeal.

Now, the first reason why such misapprehension should not be attributed to the court is because the court clearly recognised that the ground of appeal against conviction fell within the first limb of section 6(1) of the Criminal Appeal Act.  Indeed, it said so at page 759, about point 14, paragraph 94.  The second reason why the court’s assessment just pointed to at pages 767 and 768 cannot fairly be dismissed as an exercise in considering only whether there was evidence which, as a matter of law, could support the verdicts is that her Honour was actually responding to the particular complaints made. 

Her Honour was not applying an incorrect test about whether the evidence was sufficient to convict in a legal sense, but making an assessment of the complaint about the complainant’s speech patters.  Similarly, in respect of point (iii) set out at page 763, point 53, continuing over the page to 764, point 23, relating to whether the sleepovers and the incidents occurred around every one or two nights or every one or two months.  Her Honour at page 769, point 23, stated ‑ ‑ ‑

GUMMOW J:   Paragraph?

MS WOODBURNE:   Paragraph 1 ‑ stated ‑ ‑ ‑

FRENCH CJ:   Paragraph 119, I think, is it not?

MS WOODBURNE:   Yes, paragraph 119, the last sentence:

Her explanation given in cross‑examination may well have been sufficient for the jury.

This conclusion, however, followed upon her Honour’s own independent assessment of the argument for she said:

I see little force in the criticism of the complainant’s evidence about the frequency of the offences.

Thereby, indicating effectively that it was reasonably open to accept that explanation given by the complainant.

GUMMOW J:   Sorry, but 119(iii) is responding to 111(iii), is it not?

MS WOODBURNE:   Yes, it is, to the controversy about whether she meant to assert that there were sleepovers and the offences committed every one or two nights or whether, as she indeed said in evidence, it was “every one or two months”.  In the following paragraphs on page 769 at paragraphs 120, point 25 and paragraph 121, point 34, her Honour’s conclusions “Nor do I see any great moment” and “are of similarly little moment” indicate, contrary to the applicant’s assertions, that her Honour did indeed perform an independent assessment of the evidence.  On the same page at paragraph 122, although the paragraph is numbered (vi), looking back at her Honour’s earlier numeration at page 765, it appears that ‑ ‑ ‑

GUMMOW J:   You referred to (iv), I think - “Nor do I see any great moment”.

MS WOODBURNE:   Yes.

GUMMOW J:   Well, how does that respond to 111(iv)?

MS WOODBURNE:   How does it respond?

GUMMOW J:   Yes.

MS WOODBURNE:   That was the point about the alterations to the applicant’s home and whether the complainant, when she said she could not recall any renovations or alterations to the house, whether that was a factor that undermined her reliability. 

GUMMOW J:   But the accused’s evidence was that the whole place was in a state of disruption and mess so there would not have been the opportunity.

MS WOODBURNE:   Yes.  The accused’s evidence was that, but also before the jury was the plan of the house which showed the area of the renovation.  There was also the evidence of the complainant’s mother, the complainant’s father and the sister, L, in relation to those renovations.

GUMMOW J:   You may be perfectly right about that, but why are they not in paragraph 120(iv).  That is all I am asking.  Those matters would be – if they are right – a weighty answer to the disruption argument.

MS WOODBURNE:   Yes.  I am sorry, I have lost the reference that your Honour is directing me to.

GUMMOW J:   The numeration is the same.

MS WOODBURNE:   Yes.  The point I was making about what appeared to a mistake about the numeration is in respect of paragraph 122.

FRENCH CJ:   So the renovations point is dealt with in paragraph 120, it is not?

MS WOODBURNE:   Yes, and I was moving ‑ ‑ ‑

GUMMOW J:   And not otherwise.  All I am trying to put to you is, you say there are a lot of matters that would have bolstered (iv), but they are not there.  That is all I am saying.

MS WOODBURNE:   Your Honours, in relation to paragraph 122, this is in respect of the complaint about the release date of the DVD of The Incredibles.  The applicant has pointed to the last few sentences of that paragraph:

What was important was, not her description of the surrounding circumstances, but her description of the event.  The jury was plainly prepared to accept her account.

Now, the applicant relies upon that to assert that her Honour merely noted that the jury had accepted the evidence but failed to consider whether the evidence ought to have been accepted in light of evidence concerning those surrounding circumstances, but, in our submission, that cannot stand because her Honour in fact conducted an assessment of whether the evidence concerning the release date of The Incredibles DVD undermined the complainant’s account. 

This assessment occurred earlier at page 750 where her Honour extracted evidence relating to the issue noting that the complainant was not in fact prescriptive about watching a DVD of The Incredibles on that occasion.  Her Honour continued her assessment of that issue at application book 769 at paragraph 122 affirming that the complainant was far from definitive about watching The Incredibles DVD and considering it in her assessment to be hardly surprising.

Her Honour’s independent assessment of the evidence, in our submission, culminated over the page at page 770 in her finding at paragraph 124 where her Honour stated that she was:

satisfied, on the evidence, that it was open to the jury to reach the verdicts it did. 

HEYDON J:   She expresses a personal satisfaction beyond reasonable doubt of guilt.

MS WOODBURNE:   Yes, and then follows with that.  In our submission “I am satisfied” means beyond reasonable doubt but if there is any doubt whatsoever about that, that is clarified by the following sentence.  Now, the next proposition relied upon by the complainant about why it is her Honour failed to carry out a proper assessment as required of her ‑ ‑ ‑

CRENNAN J:   You mean the applicant, not the complainant.

MS WOODBURNE:   I am sorry, yes I do mean the applicant – is that the Court of Criminal Appeal did not dissect every argument put on behalf of the applicant and, in particular, the applicant complains that her Honour failed to address certain of those 13 points that her Honour had marshalled in the judgment.  We have responded to each of those matters in our written submissions, particularly at paragraphs 516 to 528.  I will not repeat those at the moment, for I need to move on.

However, on the question of whether the task had been performed by the Court of Criminal Appeal, it should be noted that the whole of the judgment needs to be taken into account when assessing the complaint made by the applicant because although her Honour began the distillation of the 13 points at page 26 of the judgment which is on page 763 of the application book, her Honour’s summary of the evidence from the outset and in the earlier pages of the judgment was conducted from a perspective of an appreciation of the significant issues in the trial.

FRENCH CJ:   Can I just ask, I am sorry, this may be an unnecessary unease on my part, but how would her Honour reach a conclusion that she would be satisfied beyond reasonable doubt on the evidence without making some assessment from the printed record of the credibility of the complainant?  I am just wondering whether there is any risk that making that kind of assessment somehow informs or affects the task she has to carry out as a member of the Court of Criminal Appeal.

MR WOODBURNE:   Yes.  In the circumstances of this case it was uncontroversial that the complainant was a compelling witness, but her Honour’s approach was to, in fact, consider the complaints made by the applicant in the context of the transcript of the trial and that was appropriate and in accordance with the duty that the court was required to perform.

FRENCH CJ:   She undertakes that task in the framework of, or she is required to undertake it in the framework of section 6 on the basis of the case put to the Court of Criminal Appeal.

MS WOODBURNE:   That is right, but there can be no doubt from a reading of the judgment of the Court of Criminal Appeal that there has been close attention to the whole of the transcript because the analysis of the evidence, even when it is summarised, shows that there is a keen appreciation of the issues at the trial.  Now, I have already mentioned the question of the alibi evidence, but the other complaint mentioned today was that her Honour Justice Simpson failed to deal with the evidence of L, the complainant’s sister.  However, her Honour quite succinctly noted at page 753 at top of the page, paragraph 65 that, indeed:

L said nothing in the interview that corroborated any of the specific allegations made by the complainant. 

However, as her Honour Justice Simpson noted she did confirm that there had been sleepovers –

on an irregular but reasonably frequent (at least once every three months) basis –

although she did not recall any occasion when the applicant had been in bed.  In our submission, on ground 3 of the amended grounds of appeal, rather than fail to perform the duty required of it, the Court of Criminal Appeal proceeded on the correct principles which it stated at page 759 and on that page it is important to note that her Honour, at paragraph 98, relevantly quoted from the decision in M v The Queen that:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

The Court asked itself the right question and appropriately identified and assessed the one ground of appeal which was unreasonable verdict and which had at its heart a review of the evidence which the Court of Criminal Appeal, in our submission, conducted.

Your Honours, I move now to ground 1 of the amended notice of appeal, and it is the respondent’s submission in respect of that ground that there was no error arising from the fact that the Court of Criminal Appeal did not view the video of the complainant’s interview with police.  Your Honours, just in relation to the status of the video it should be noted that the video was not an exhibit in the proceedings, rather it was the means by which part, and only part, of the complainant’s evidence‑in‑chief was adduced.  This conclusion is derived, not only from the fact that the video was not marked as an exhibit ‑ ‑ ‑

GUMMOW ACJ:   It was given an MFI, was it not?

MS WOODBURNE:   It certainly was.  The conclusion that it was not an exhibit also derives from the legislation which governed the proceedings at the time, namely the Evidence (Children) Act 1997 (NSW). That Act has now been repealed and its provisions substantially re‑enacted in the Criminal Procedure Act 1986.

KIEFEL J:   Are the words the same?  I do not have a copy of the Children’s Act.

MS WOODBURNE:   I believe they are substantially the same.

FRENCH CJ:   I think there might be a reproduction in the annexure to the applicant’s submissions.  They are right at the back.

MS WOODBURNE:   That is correct.  There is a reproduction in the annexure and the relevant sections which are not reproduced are contained in the decision of NZ (2005) 63 NSWLR 628 at 278.

FRENCH CJ:   I think the statutory provisions are at page 644, are they not?  Are they the ones you are referring to?

MS WOODBURNE:   I am sorry, your Honours, I had prepared a piece of paper which took us through step by step, but that is not available.  In essence, the Evidence (Children) Act 1997, section 7 provided that interviews with children are to be recorded. Interviews with children mean interviews with children under the age of 16 years. Section 9 of the Act makes provision for ways in which evidence of a child may be given and specifies at subsection (1)(a) that the:

evidence of a previous representation to which this Part applies made by the child in any criminal proceeding wholly or partly:

(a)in the form of a recording of the previous representation made by an investigating official of the interview in the course of which the previous representation was made and that is viewed or heard, or both, by the court ‑ ‑ ‑

FRENCH CJ:   The previous representation or the definition of it as it appears in, I think, section 4 – it is picked up in the Evidence Act, I think – but that is essentially an out of court statement.

MS WOODBURNE:   Yes.

FRENCH CJ:   Was the child on oath when this videorecording was done?

MS WOODBURNE:   The child in this case entered the courtroom, gave short evidence on oath.  The child then left the courtroom, the video was played and when she returned to the courtroom she affirmed the contents of her video

GUMMOW J:   What is the answer to the Chief Justice’s question?

MS WOODBURNE:   Was the child on oath?  The child was not on oath when she was interviewed by the police officer.

FRENCH CJ:   You say she incorporated the video into her oral testimony by reference?

MS WOODBURNE:   Yes, but she was certainly not given an oath by the police officer.

GUMMOW J:   Where do we see that?  Where do we see her initial oral evidence?

MS WOODBURNE:   Your Honours see, firstly, that the complainant gave evidence at page 49 of the application book where she was sworn.  After giving some evidence, she left the witness box at application book page 53.  The evidence which was adduced by way of the videorecording was then played and then the complainant returned to the witness box at application book 75.

GUMMOW J:   She was re‑sworn, I see.

MS WOODBURNE:   She was re-sworn on that page and she was asked about whether there was anything she wanted to say about the video and that appears, contrary to what I said, to be the extent of the adoption, as it were. Your Honours, section 11 of the Evidence (Children) Act made provision for the child to give evidence-in-chief in the form of a recording.

GUMMOW J:   Well, here it was partly in form, was it not?

MS WOODBURNE:   Here it was indeed partly in form.  Then section 15A made provision for:

The court may order that a transcript be supplied to the court or, if there is a jury, to the jury, or both, of all or part of evidence of a previous representation to which this Part applies made by a child that is given in the form of a recording if it appears to the court that a transcript would be likely to aid its or the jury’s comprehension of the evidence.

In fact, what occurred was that whilst his Honour initially refused the jury access to the transcript, that transcript was ultimately incorporated into the rest of the transcript of the trial and provided to the jury at the outset of the summing‑up.  The video not being an exhibit, the applicant cannot, it is submitted, complain that there was some automatic error generated by the failure of the Court of Criminal Appeal to view it, rather, the error is said to derive from a failure of the court to exceed to a request by counsel to review the video. 

Request, in our submission, puts the matter a little too highly.  Notably, senior counsel who appeared on the appeal did not urge or require that course upon the court.  If your Honours look to application book volume 2 at page 710, point 53, it is there that there is a discussion about the DVD initiated by the chief judge at common law, Justice McClellan, who asked senior counsel for the applicant “Do you submit that we should all have regard to that?”  At line 42 Mr Dawe states:

Apart from the transcript?  Well, I don’t, no.  Unless, of course, your Honours feel that you need to view the video to see the demeanour of the young girl during the course of the interview.  It is the interview to which I would like to refer mainly today, because that was the basis of the Crown case, really.

It is there that his Honour, the chief judge at common law, raises the question of whether that gives an advantage to the court that is not usually had in the ordinary course.  It should be recalled that senior counsel had appeared at the trial.  If there was some forensic purpose to be achieved in looking at the video, he was in the perfect position to be able to identify it.  In our submission, one cannot help but conclude that his rather faint acquiescence and his failure to urge that course upon the court was borne out of his experience in having viewed the videorecording at trial.  He saw no advantage to the applicant’s case in requiring that the Court of Criminal Appeal view it.

Of course, we know from counsel’s own address that the complainant was, as counsel said at page 511, point 44 “a bright young lady and quite an accomplished communicator”.  It is wholly understandable, in our submission, that whilst not wishing to be seen to stand in the way of such an approach, he did not urge or require the court to review the recording.  Significantly, counsel pointed to no feature of the evidence that could not adequately be discerned from the transcript.

In the court below that is, in the Court of Criminal Appeal, the unreasonableness of the verdict was said to arise from uncertainties and inconsistencies in the complainant’s evidence, both in‑chief and in cross‑examination and contrary evidence from other witnesses, but that had nothing to do with the video because, in substance, it was about the discrepancies between what she said and the other evidence in the case.  It was not how she appeared when she said it.

All of that was apparent from the transcript, indeed, only from the transcript for the video contained only the evidence‑in‑chief and not even the whole of it.  Just in relation to the complainant’s adoption of her evidence in the video, at page 87, about line 54 and going over the page:

apart from the things that you’ve told us about, is everything else that you told the police officer the truth?
A.       Yes it is.

Your Honours, it was not until the applicant’s reply filed in the special leave application, which your Honours can see at page 829, point ‑ ‑ ‑

GUMMOW J:   Wait a minute.  That is not very fair to her really because what she said in the video shifted around and indicated uncertainties and second thoughts.  The word “true” becomes difficult, does it not?

MS WOODBURNE:   That question:

Q.You’ve told us about a couple of things, that you might be confused about the school holidays of when you were four –

relates to the ‑ ‑ ‑

GUMMOW J:   No, it is the next words:

but apart from the things that you’ve told us about, is everything else that you told the police officer the truth?

MS WOODBURNE:   “Yes it is.”

GUMMOW J:   It is a very lengthy recitation which has all sorts of twists and turns in it, does it not?

MS WOODBURNE:   Yes, about which she was cross‑examined.  Your Honours, on the question of forensic purpose it is worth noting that it was not until the applicant’s reply in the special leave application, which is at page 829 at about point 45 that a reason was identified for viewing the complainant’s video, namely:

in order to determine if it was given in a manner that may have caused too much weight to be placed on it –

This seems to suggest that the jury was somehow ill equipped to prevent themselves from being hoodwinked by an 11‑year‑old girl.  It also fails to acknowledge, in our submission, that the jury formed the view that they did after the judge warned them, in effect, that being an intelligent and articulate witness did not necessarily equate to being accurate and reliable.  That appears at page 633, line 30, the paragraph beginning “The next thing”.  There his Honour firstly said that he was not going to express an opinion about what the jury should do.  He explained why by stating:

if I were to do that I would be making myself the thirteenth member of the jury and I have told you already I have no intention of doing that.

Over the page at page 634 his Honour departs from that for the very purpose of giving the jury a warning.  At line 20 the paragraph beginning “The next thing” in the second sentence his Honour says that:

You might think that she is very intelligent that is the way she came across to me, I will express a view on that.  That does not necessarily mean that she is accurate or reliable, but it does mean that she is intelligent, she expresses herself well.

In any event, this argument about the forensic purpose for which the video might be viewed was an argument that the Court of Criminal Appeal had no opportunity to consider because such an argument was not put to that court.  Indeed, the Court of Criminal Appeal specifically noticed the absence of argument on the issue and correctly concluded, in our submission, at page 762 at line 42 that:

The task that has to be undertaken, in accordance with M (and other authorities), requires an evenly balanced approach.  It seems to me that that evenly balanced approach cannot be achieved where the evidence of one witness (or more than one witness) is given in a manner that is apt to have a disproportionate impact.

The evenly balanced approach was an approach that was required and the assessment performed by the court ‑ ‑ ‑

GUMMOW J:   The trouble is that statement of principle in re M, which everyone accepts, is not addressed to this situation which flows from the distortion of the previous system by the New South Wales Parliament’s legislation without, perhaps, fully thinking through what were the consequences of it in terms of the Criminal Appeal Act, for example.

MS WOODBURNE:   Yes, however, it is quite clear  as your Honour Justice Gummow points out that M gave no consideration to this issue.  However, the Criminal Procedure Act – and, your Honours, I will have to provide the section later because I do not have it to hand – the Criminal Procedure Act provides for the evidence of witnesses given in criminal proceedings – I believe it is section 39(1) to be recorded.  Now, the Department of Justice and the Attorney‑General is responsible for that recording. 

In New South Wales at the moment there is no provision for trial proceedings in the District Court to be videorecorded and that is why some of the arguments raised by the applicant on this application do not really arise in this case.  Insofar as a recording of the children’s interview, such as this is concerned, the procedure is that the video is played and, like all other witnesses’ evidence in a criminal proceeding, that evidence is recorded by way of audio recording.

GUMMOW J:   Sound.

MS WOODBURNE:   Yes.

GUMMOW J:   It is the sound that is recorded, is it?

MS WOODBURNE:   It is sound.

GUMMOW J:   From the video?

MS WOODBURNE:   Yes.  So the circumstances are that in a case such as the present the video does not become an exhibit.  However, the audio from the video is recorded and should, but was clearly not done in this case, be transcribed to be incorporated properly into the transcript.  We know that the jury got that but that seems to be by some mechanism arranged by his Honour.

FRENCH CJ: The admissibility of the video evidence is provided for in section 12 of the Evidence (Children) Act and it is really evidence of – they call it previous representation – one might call it in a generic sense an unsworn, out‑of‑court statement. So you have an unsworn, out‑of‑court statement which is recorded and then that recording, at evidence of the previous representation is made admissible by section 12.

MS WOODBURNE:   That is correct.

FRENCH CJ:   On the face of it it does not actually have to be sworn to by anyone?

MS WOODBURNE:   Well, this section does not address that.  However, in practical terms, in this case ‑ ‑ ‑

FRENCH CJ:   That is what happened here, but I am just trying to look at how one characterises this recording.  There is a special rule of admissibility for it?

MS WOODBURNE:   Yes, it is.

CRENNAN J:   Then there were rulings, were there, in relation to excisions to be made?

MS WOODBURNE:   Those rulings occurred before the recording was played and, indeed, what was played to the jury was an edited recording and that partially explains that in the Court of Criminal Appeal the court had access to two transcripts – the unedited transcript and the edited transcript, precisely because it seems the audio recording was not typed out by the reporting services branch. 

Now, the video not being an exhibit, there being no course urged upon the Court of Criminal Appeal that the video be viewed for an identified forensic purpose, in our submission, the contention that the Court of Criminal Appeal erred by failing to review the recorded video of the complainant should be rejected. 

Your Honours, if I might turn now to ground 2 of the applicant’s amended notice of appeal.  The respondent’s case on this ground is that there was no failure to have regard to the trial judge’s opinion which is reproduced in the ground of appeal, namely, that:

“the jury acting reasonably could not have convicted” the applicant.

As your Honours are aware, this view was expressed by the trial judge in his judgment on application for bail after conviction.  The view is specifically stated at page 689 of the transcript at line 22, where his Honour stated:

In my opinion the jury acting reasonably could not have convicted the accused.

It should be noted at the outset that there ‑ ‑ ‑

GUMMOW J:   The first question is, was this judgment of 6 February 2009 in the materials before the Court of Criminal Appeal?

MS WOODBURNE:   It came into the possession of the court because it was tendered by senior counsel for the applicant and marked as exhibit A in the hearing at page 726.

GUMMOW J:   Thank you.  It was admitted without objection.

MS WOODBURNE: Yes, it does appear that is the case notwithstanding the objection that was raised on the page before at page 725, line 57. Your Honours, it should be noted that, as no doubt you are aware, there is an appropriate mechanism by which a trial judge may, and if requested to do so by the Chief Justice, furnish to the registrar his notes of trial and a report giving the judge’s opinion upon the case or any point arising in the case. That mechanism, we know, is set out in section 11 of the Criminal Appeal Act and that is extracted in our written submissions at page 816 of the application book. 

No such report of course was furnished by the judge of his own volition, or requested by the court in this case. Nor did the judge, of his own volition, or upon request, provide a certificate that the case was one fit for appeal. Provision is made for a judge to do so by section 5(1)(b) of the Criminal Appeal Act and that is set out at application book 816 at point 45.  Indeed, his Honour refused the request for a certificate stating at page 683, point 30, that he was not prepared to sign it because it would not “be of any point”, it not having any:

binding effect on anybody and the fact that I granted it would not be likely to cause the Court of Criminal Appeal to be more persuaded about the correctness of the jury’s verdict than if I did not grant it.

FRENCH CJ:   That is a fairly universal objection.

GUMMOW J: Section 5(1)(b) seems to imprecate a power in a judge to grant a certificate, assumes the power to grant it.

MS WOODBURNE:   Of his own volition.  I do not know whether his Honour was being ‑ ‑ ‑

GUMMOW J:   Does it say – is it upon application?  It is not clear, is it really?

FRENCH CJ:   It gets you past the leave requirement, does it not?

MS WOODBURNE:   It does, because leave is required where a question of fact arises on an appeal and, of course, this appeal was wholly or essentially about a question of fact.

GUMMOW J:   But the refusal of a certificate seems to be unreviewable, is that the idea?  If someone applies for a certificate and it is refused.

MS WOODBURNE:   Yes, if someone applies for a certificate and is refused, they are then required to seek leave from the Court of Criminal Appeal.  Now, notwithstanding the fact that his Honour did not avail himself of the opportunity to provide a report and notwithstanding that he refused the certificate, his opinion was well known because, as I have mentioned earlier, the judgment on bail in the hearing of appeal was put before the Court of Criminal Appeal and the remarks on sentence were also before the Court of Criminal Appeal and his Honour expressed his opinion in that document. 

The applicant’s submission that Court of Criminal Appeal did not have regard to the judge’s opinion that they jury acting reasonably could not have convicted the appellant is tantamount to saying that the Court admitted the judgment on the application for bail only to disregard it and, in our submission, that did not happen and the suggestion should not be accepted.  Indeed, that suggestion is plainly contradicted by the Court of Criminal Appeal’s specific reference to his Honour’s opinion on some seven occasions, beginning at page 775 point 18 where there is specific reference to the judgment concerning bail and the strong view held by the judge:

that the jury, acting reasonably, ought not to have been satisfied beyond reasonable doubt of the appellant’s guilt –

There is a further reference at page 781, point 41 ‑ ‑ ‑

FRENCH CJ:   That reference that you just took us to, I think, is in the context of the appeal against sentence, is it not?

MS WOODBURNE:   That is so.  That is the case with each of the seven references and that, of course, is the applicant’s submission that because those references appeared under the heading of sentence that the court must be taken not to have had regard to the trial judge’s opinion on the conviction appeal.  But, in our submission, that takes a somewhat artificial and compartmentalised approach to the judgment as a whole because as we know by reason of the tender of the judgment on the application for bail it was apparent to the court at the time of the very hearing of the appeal and before any judgment was written that the trial judge had expressed an adverse view of the conviction.

FRENCH CJ:   Do you concede that his opinion is relevant to the function of the Court of Criminal Appeal under section 6?

MS WOODBURNE:   His opinion blandly stated is not relevant, because it is of no assistance.

FRENCH CJ:   Was anything he said relevant?

MS WOODBURNE:   However, he did say some other things which were taken into account, in our submission, by the Court of Criminal Appeal.  But what weight that could be attributed to each of the points that were mentioned is quite a different matter and ‑ ‑ ‑

FRENCH CJ:   My question was is any of that actually relevant to their function?

MS WOODBURNE:   Their function is to perform their own opinion.  Before I move on I might give your Honours the other six references.

GUMMOW J:   Are they in your written submissions?

MS WOODBURNE:   Some of them are, yes.

GUMMOW J:   Are they collected anywhere in your written submissions?

MS WOODBURNE:   Yes.

GUMMOW J:   They are all in the portion dealing with sentencing, are they?

MS WOODBURNE:   They are all in the portion to do with sentence.  However, what her Honour does is nominate particularly the complaints or the factors specifically set out by the trial judge.  We can see at page 782, point 11, for example, her Honour Justice Simpson refers to the fact that the trial judge:

did not accept the complainant’s evidence about what had happened in 2001 -

Then later at page 784, point 28 there is reference to the trial judge’s view in the remarks on sentence, about comments he made about:

the adequacy of the evidence to support the allegations, and, in some instances, defence evidence in contradiction of the Crown case.

FRENCH CJ:   Some if this, as it were, segues into the fact‑finding function that the trial judge has in sentencing within the framework of the jury’s verdict and constrained by it.

MS WOODBURNE:   Yes, and no.  Yes, it did, although her Honour Justice Simpson made specific comments about whether particular views were, one, appropriately expressed in the remarks on sentence, but also about whether certain factors were relevant to the determination of the objective seriousness of the matter.  There is a further reference at 789, point 1, and that is a reference to the matter I have just referred about, the question of the appropriateness of his Honour’s remarks in the remarks on sentence, and at 790, point 20, there is a reference to the sentencing judge being explicit in his views that the convictions were unsafe.

Earlier, in the remarks on sentence at page 766 at point 49 through to 777, point 28, her Honour referred to specific things that the trial judge mentioned on the question of the reasonableness of the verdict.  It should be noted that in expressing the view that his Honour did, he made it plain that his view did not stem from anything to do with the complainant’s demeanour because in the application for bail at page 688, point 42, he said that, “Personally I found the complainant ‑ ‑ ‑

GUMMOW J:   We have been through this this morning.

MS WOODBURNE:   Yes, there is ‑ ‑ ‑

GUMMOW J:   There was some discussion between the Chief Justice and counsel about this.

MS WOODBURNE:   Yes, but there is something I want to add to what was gone through this morning because there was a suggestion that the comment related to her presentation, but if one looks at ‑ ‑ ‑

FRENCH CJ:   The bottom line was, he said there was nothing to choose between them in terms of demeanour and apparent honesty and so forth, is that not right?

MS WOODBURNE:   Yes, and honesty is the point because he said the applicant also appeared to be a perfectly honest witness and encompassed in that in that is the conclusion that the complainant was an honest witness.  So not just compelling in her ‑ ‑ ‑

FRENCH CJ:   Both appeared as honest witnesses.  I mean, it may be a jury might decide something else, but his Honour could see nothing to choose between them in terms of appearance, I think.

MS WOODBURNE:   That is right but that observation really did nothing to assist the task of the Court of Criminal Appeal because all it did was just state what the issue was that the jury had to resolve and it is patently clear that the jury took a different subjective view to his Honour.  Indeed, when one examines the specific matters referred to by his Honour in the application for bail, it can be seen that they largely correspond, both with the matters that were put to the jury and also the arguments that were advanced in the Court of Criminal Appeal.

All of those arguments were, in our submission, readily apparent from the transcript and in that circumstance, the weight to be given to the observations made by his Honour need not have been great because it did not assist the Court of Criminal Appeal’s task.  But, in any event, in our submission, the Court of Criminal Appeal was fully cognisant of his Honour’s views, did have regard to them and, in any event, dealt with the issues raised by the matters he referred to.

Your Honours, just reverting to the question of the process that had to be undertaken by the Court of Criminal Appeal, there was a suggestion by the applicant that there was some inversion of the process.  However, our submission is that there is no two‑stage process to be inverted because there is no difference between the court forming its own view of the reasonableness of the verdict and the court making an assessment of the reasonableness of the verdict.

If the applicant is suggesting to the Court that forming its own view means a subjective view of the credibility of witnesses and then comparing that subjective view against the view of the jury, then that would put the appellate court, in effect, in the same position as the jury, or as the 13th, 14th and 15th jurors, rather than as a court of criminal appeal objectively determining whether it was open on the evidence to convict.

The test under section 6(1) of the Criminal Appeal Act is whether the court forms an opinion that the verdict of the jury was unreasonable or could not be supported by the evidence, but that is not addressed by the court subjectively assessing whether it believes the accused was guilty, but what is required is an objective analysis of the evidence to determine whether it was open to convict and, as her Honour Justice Simpson said on the question of the test to be performed and, as I have already pointed out to your Honours, at page 759:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.

Your Honours, if I can move to ground 4 of the amended grounds of appeal and that ground asserts that:

The Court of Criminal Appeal erred in failing to find that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence. 

The matters relied upon by the applicant, in our submission, whether taken alone on in combination, do not show the verdicts returned by the jury were unreasonable or cannot be supported having regard to the evidence.  I rely on our written submissions, however, I will respond to that list of matters set out in the applicant’s written submissions at paragraph 75 from about point 34.  There the point is made that the Crown case was reliant solely upon the evidence of the complaint.  That is so, but it does not more than state the fact.  As his Honour told the jury, it is not necessarily unusual in a case such as the present that there is no other witness to the events. 

It might be noted that the jury were, indeed, warned about the fact that the complainant was the sole witness.  That appears in the written directions, MFI S.  However, they were not precluded thereby, as a matter of law or otherwise, from convicting on that basis.  The applicant next points to the inherent unlikelihood of the events occurring as the complainant alleged with four people in the bed.  To the extent that it suggested, as it seemed to be at trial, that four people could not fit in the bed, such assertion should not be accepted.  There was evidence at the trial that L, M and Sh, three children, commonly shared that bed when there was a sleepover.  The bed was a queen-size bed and it was set up by the applicant as shown in the photos exhibit A1 which appear at application book 563.

GUMMOW J:   Is this in your written submissions, it is 20 to four?

MS WOODBURNE:   No, these specific points are not.  So the pillows were set up across what would ordinarily be the side of the bed.  That is at page 315.  It was the applicant’s evidence at page 315 that the bed was set up in this way because there was just no way these three children could have slept in the bed in the ordinary way. 

Now, that evidence could be regarded as patently unacceptable.  Of course, set up in the alternative way it was meant that there was more room for the applicant to fit into the bed and to the extent that it is suggested that four people in the bed meant that it was less likely that the applicant would commit these offences in the presence of others, particularly M’s older sister L, and his own daughter, Sh, then that likelihood had to be measured against other matters such as the set up providing the opportunity for the applicant to access M in the way that he did, the fact that he had a reason, an opportunity to enter the room, whether it to be to turn off any movie they were watching until they had fallen asleep or to check on the children. 

The next point raised by the applicant that the complainant’s evidence that nothing was said by her or the applicant at the time of the relevant events, this submission echoes a submission made by the applicant’s counsel in his closing address to the jury at page 510 that the fact that the applicant said nothing was:

Not your average paedophile[’s] behaviour you might think.

This, perhaps, more is an interesting kind of expert evidence submission from the Bar table but, be that as it may, it can be acknowledged that the trial judge made a similar point in the remarks on sentence at page 695 at point 30 and the Court of Criminal Appeal referred to this matter at page 777, point 9 where her Honour Justice Simpson noted that the trial judge regarded it:

as a marked departure from the stereotype of child sexual abuse offending commonly seen in the District Court –

and her Honour added, in the Supreme Court.  So it seems the applicant may not have behaved as paedophiles commonly do because he did not enjoin the complainant to keep the matter secret.

That issue perhaps raises questions whether, if a departure from a stereotype is available to demonstrate the inherent unlikelihood of an event, whether adherence to a stereotype such as male offender known to the victims as a family member, with the sexual abuse taking place in the offender’s home, is available to demonstrate the likelihood of the event taking place.  It is not necessary here to deal with such matters because in the circumstances of this case, the young age at which the conduct, according to the complainant, started, that is, at a time when she did not really understand what was happening, meant that the complainant had been conditioned to accept this conduct thereby reducing the need for the applicant to enjoin the complainant to keep silent.  As to the fact of the complainant’s evidence that she said nothing at the time, this overlooks the complainant’s evidence that in order to stop what was ‑ ‑ ‑

FRENCH CJ:   What are we addressing here in relation to the Court of Criminal Appeal’s judgment?  What point are you meeting?

GUMMOW J:   We seem to be descending into minutiae and hypothesis really.

MS WOODBURNE:   The reason I am descending into that is because the applicant’s ground of appeal and amended notice of appeal ground 4, is that:

The Court of Criminal Appeal erred in failing to find that the verdicts of the jury are unreasonable or cannot be supported having regard to the evidence.

What the applicant in essence asked this Court to do is to, if it were to find favour with the submission made by the applicant, is to ask this Court to perform for itself, presumably by viewing the video, although no party has been invited to make submissions about that specifically, to view the video for itself and to come to the conclusion that the Court of Criminal Appeal was wrong when it came to the conclusion that it did.  So that explains why I am, I accept, descending ‑ ‑ ‑

GUMMOW J:   Why is it not in the written submissions?  We have 20 pages of written submissions on each side.  It is a one day case, it is a quarter to 4, your opponent needs a reply.

MS WOODBURNE:   Yes, certainly, your Honours.  In respect of ground 5, I rely on the written submissions and they are the submissions of ‑ ‑ ‑

FRENCH CJ:   That line of argument is reflected in paragraphs, is that 5.50 and onwards of your written submissions under the heading “Verdicts not unreasonable or unsupported having regard to the evidence”?

MS WOODBURNE:   Yes.  Certainly some of the arguments are put there and I was not intending to repeat those particular ones but attempting to respond to some of the arguments put by the applicant.

CRENNAN J:   Do you have any submissions to make about what order should be made in the event of success on the part of the appellant?

MS WOODBURNE:   Yes.  Our submission is that the matter should be remitted for the Court of Criminal Appeal to perform the task, if it is found that it was not done so properly because part of the applicant’s case, of course, is that there was this fundamental failure to have regard to the video. 

As I have just mentioned, certainly the parties in this forum have not been invited to make submissions on what your Honours might consider about the demeanour or the matters in the video.

FRENCH CJ:   It is really being put to us on the basis that it is a non‑compliance with the section 6 requirement to have regard to the evidence and that it might have something to say about the question whether the evidence was compelling in the sense that the trial judge made that observation in the context of a decision about a bail application.  It does not give us much of a direction as to ‑ ‑ ‑

MS WOODBURNE:   Your Honours, they are the submissions of the respondent.

FRENCH CJ:   Thank you, Ms Woodburne.  Yes, Mr Dhanji.

MR DHANJI:   Your Honours, I can be brief, I hope.  Firstly, in response to a question that was raised by your Honour Justice Gummow in relation to section 11(1AA).  That is found in the Criminal Procedure Act provisions, just not as a separate subsection, it is embodied. A provision to similar effect is embodied within section 306U of the Criminal Procedure Act subsection (1), the last sentence there:

The vulnerable person must not, unless the person otherwise chooses, be present –

Your Honours, the respondent spent some time dealing with the issue in relation to the timing of counts 4 and 5, as I sought to make clear on behalf of the applicant.  That was picked out as, firstly, an example, but perhaps more importantly, in revisiting that area the respondent is effectively simply revisiting the debate that took place before the trial judge at the end of the evidence, and I have referred your Honours to the references in my submissions earlier.  The difficulty is that one has to have regard to all the evidence.  There is other evidence. 

There is, for example, the evidence at application book 220 of the complainant’s mother which was to the effect that the occurrence of these sleepovers was – and she was not definitive – more frequent on weekends.  That is at line 50 on page 220.  The point of taking your Honours to that evidence is not to say that that provides in some way an answer or a pinning down with some precision but rather, that there is evidence across the trial from various witnesses, the end result of which was when the evidence closed, the trial judge formed the view, after argument with counsel, that the Crown case was, having regard to all the evidence, necessarily based upon those ‑ ‑ ‑

GUMMOW J:   Just remind me again, where does the trial judge say that?

MR DHANJI:   Is your Honour looking for the debate or the summing‑up?

GUMMOW J:   Yes, the resolution of the debate.

MR DHANJI:   The resolution of the debate.  Application book 569, line 28.

HEYDON J:   Did you say 569?

MR DHANJI:   I am sorry, your Honour, 469.  The trial advocate is seeking to make clear what can be said.  Line 28:

So your Honour permit me to say to the jury that when she’s first asked about this she says “just before Christmas, around then”.  I intend to refer them to – and then refer them to she thought it was on a Friday or the day before Christmas Eve.

HIS HONOUR:  Yes, you can say that, but the “around then” has to be qualified.  You have to point out to them that her case is these events occurred on 22, 23, or 24 December.  That’s the case that was put and I’m not going to allow some other case to be put.

GUMMOW J:   Was it put in the address?

MR DHANJI:   Not precisely in those terms, your Honour, no.

GUMMOW J:   I think you used the word “rubbery” before.

MR DHANJI:   I did use the word “rubbery”, your Honour, probably not the finest ‑ ‑ ‑

FRENCH CJ:   It was put in terms of her uncertainty about precise dates, but I do not think it then exposed a particular range of dates which the jury might have regard to.

MR DHANJI:   No, it did not and, in that regard, did not comply with, indeed, what his Honour had said.  No exception was taken and the applicant has to, to an extent, live with that.  However, when it came to the actual directions that were given, the trial judge directed the jury in relation to those dates and also directed the jury as to the alibi relating to those dates and I have taken your Honours to that and I will not take you back to that.

There is really two things that flow.  The first is the primary submission which is the case that went to jury was the case that I took your Honours to in my initial submissions, but the second thing that flows, that if somehow, as the Crown seeks to do, it can now somehow move outside the dates ruled on by the trial judge, there is a subsidiary problem for the respondent and that is this.  If the jury did in fact rely upon this other evidence, they have done so in disregard for what has been said in the directions of the trial judge, both with respect to the days upon which the count took place and the alibi evidence. 

That raises a different but related question in relation to the reasonableness of the verdicts and it is one that is perhaps a bit more like the debate that occurs in an inconsistent verdicts case because it raises a question as to the process that indeed went on or places a question in relation to the verdicts themselves having regard to the directions that the jury were given.  The respondent’s submission in relation to other aspects is to say, well, the jury were given warnings about this and the jury were given warnings about that, but if the jury in fact stepped outside the directions they were given as to the dates in which these events occurred and the alibi, it is cold comfort, in my respectful submission, to note that there were all these other warnings.

The applicant’s submission is that one does not get to that point because the case that went to the jury is the case in relation to those particular dates.  To an extent there is again a difficulty saying it was not the Crown case that it was the 24th but one of the problems was, of course, that there was this, I think, and it may have been, and this shifting.  If I can turn to the unreasonable ‑ ‑ ‑

FRENCH CJ:   There is a little bit of rubberiness in the direction to the jury, was there not, at 642 when his Honour referred to the particular dates but then says, “She just relates it to Christmas, the period around Christmas.”?

MR DHANJI:   Having regard to what his Honour had said, albeit in the absence of the jury, it is clear enough that what his Honour is intending to say there is that it is any one of those dates, having regard to the evidence in relation to when it could have occurred and the evidence that it is close to Christmas.  If I can put it this way, it is not said as somehow expanding.

GUMMOW J:   It does not look as if that period means any time since December 1.

MR DHANJI:   No, quite so.  More particularly, whilst his Honour has been perhaps somewhat less precise than might have been ideal, at 645 where his Honour is dealing with the alibi it is clear that insofar as counts 4 and 5 are concerned – this is at line 22:

Obviously what occurred in 2004 is different from what occurred in 2006 because in 2006 there is positive evidence given by the accused and people supporting him that he could not have committed these offences.

That can only be 22, 23, 24 December and so those two aspects of the directions looked at in combination make it clear that what his Honour is telling the jury is precisely what his Honour ruled in debate with counsel.  The respondent seeks to address at least some of the submissions of the applicant with respect to the application of the M test by, in effect, putting to the Court that the applicant’s case or the applicant’s argument is that the Court of Criminal Appeal applied a sufficiency of evidence test.  That is not the applicant’s complaint.  That overstates the applicant’s complaint and, indeed, it is not incumbent upon ‑ ‑ ‑

GUMMOW J:   It is, however, put against you that Justice Simpson’s reasons have to be read by giving her credit for following through or tending to follow through what she had said at the outset at paragraphs 94 and 95, through to 98.  If there is any doubts as to the, perhaps, looseness, if one might say, of later language at paragraphs 112 and thereabouts, they can be understood by referring back to 94 and 99.

Your Honours, in response to that what her Honour does not refer to at that part of her reasons is in respect of the applicant’s argument the critical part of M v The Queen (1994) 181 CLR 487 at 492, where at the bottom of the page in the joint reasons their Honours say, with respect to the question:

The question is one of fact which the court must decide by making its own independent assessment of the evidence –

It is not some assessment of the verdict, which was close to what the respondent was putting, but rather the independent assessment of the evidence.  That passage was not referred to and an examination of what follows on pages 760 and after would tend to indicate that that process, indeed, did not occur.

To the extent that the respondent has put to your Honours that the matters raised by her Honour Justice Simpson reflected distillation of the arguments put on behalf of the applicant, or we have put on in the supplementary material, the applicant’s written submissions to the Court of Criminal Appeal, and your Honours may need to have regard to that material, but that material makes it plain that it was not solely an attack on the reliability of the complainant but rather, the applicant, not surprisingly, relied also upon the evidence in the defence case. 

It is important to note that in relation to the assessment of the complainant, it is not, as the respondent has put it, a situation where the applicant complained to the Court of Criminal Appeal that the jury was somehow hoodwinked by an 11 year old.  It is important to note it was not put to the complainant at trial nor was it argued on the appeal that the complainant was consciously lying.  It was perhaps more the focus was on the reliability of the complainant in a broader sense. 

In terms of the function of a Court of Criminal Appeal and the need to assess the jury’s advantage, it brings into play a significant consideration.  It is certainly not Warren v Coombes, a situation where you have uncontested facts from which inferences are to be drawn, but by the same token it is not a case like Chidiac where the key witnesses were accomplices who were either lying through their teeth in relation to the central aspect of the matter or not.  It is somewhere between those two, and ‑ ‑ ‑

CRENNAN J:   It is a complaint, was it not, that the allegations were too general in their nature?

MR DHANJI:   Part of the complaint, yes.  Part of the complaint, but more particularly it was that nothing happened, so in the sense that the argument was that nothing happened it was not so much that they were even general as they did not occur at all and the generality was an argument that was raised in relation to reliability, along with a host of other arguments with respect to reliability.

The final point that I would make, your Honours, is in relation to - and it follows up on what your Honour Justice Crennan has said about generality and to an extent what might be seen as a shifting of position forcing the applicant to adjust to meet cases that were not initially put.  The trial judge thought to deal with the unfairness by the rulings that were ultimately made, but insofar as that shifting took place, the applicant was of course in a difficult position in terms of answering the case.

Ultimately, in our submission, the observation made in Vetter v Lake Macquarie City Council (2001) 202 CLR 439, and in that matter Chief Justice Gleeson, your Honour Justice Gummow, and Justice Callinan at paragraph 36 quoted from a statement of Lord Mansfield, saying towards the end of paragraph 36:

As long ago as 1774 Lord Mansfield said that all evidence is to be weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted.

That observation is apposite in this case because of the real difficulties created for the applicant and, ultimately, in terms of the exercise required of the Court of Criminal Appeal, there was a need to bear in mind that very real difficulty.  Those are our submissions in reply, thank you.

FRENCH CJ:   Thank you, Mr Dhanji.  The Court will reserve its decision.  Court will adjourn until 10.15 tomorrow morning.

AT 4.07 PM THE MATTER WAS ADJOURNED