Trainor v The Queen

[2004] HCATrans 354

[2004] HCATrans 354

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M4 of 2004

B e t w e e n -

PATRICK MICHAEL TRAINOR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 SEPTEMBER 2004, AT 2.01 PM

Copyright in the High Court of Australia

MR I.D. HILL, QC:   If the Court pleases, I appear with my learned friend, MR G.J. BURNS, for the applicant.  (instructed by J.R. & A. Hoban)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friend, MR R.A. ELSTON, for the respondent.  (instructed by Director of Public Prosecutions (Victoria))

HAYNE J:   Yes, Mr Hill.

MR HILL:   There is a preliminary matter, your Honours.  That is in respect to a notice of motion that has been filed and there is an affidavit in support of the notice of motion sworn by our instructing solicitor, John Raymond Hoban, on 1 September 2004 simply asking that this Court receive the transcript of evidence of the complainant contained in the application book in camera so as to preserve the situation from the trial whereby she gave evidence in camera.

HAYNE J:   In effect, do I understand you to want to have an order that would prevent search of the file insofar as the file comprises that part of the application book?

MR HILL:   Indeed, your Honour.

HAYNE J:   What pages of the application book precisely is it said that you should have such an order?

MR HILL:   We would say, your Honour, at pages 6 to 274 inclusive.

HAYNE J:   Yes.  Mr Holdenson, do you want to be heard on this?

MR HOLDENSON:   No, your Honour.

HAYNE J:   Mr Hill, if we were to make an order that pages 6 to 274 of the application book not be open to search without the leave of the Court or a Justice first had and obtained, would that meet your requirements?

MR HILL:   It would, your Honour, and it would seem to protect the complainant.

HAYNE J:   Yes, well there will be an order that pages 6 to 274 of the application book not be open to search without the leave of the Court or a Justice first had and obtained.  Yes, Mr Hill.

MR HILL:   Thank you.  Your Honours, the central issue in the trial was the reliability and the credibility of the complainant.  The case was in large measure one of word against word, oath against oath.  The presentment initially contained 30 counts.  The jury were directed at the end of all the evidence to acquit in respect to 11, leaving 19 counts remaining for the jury’s consideration.  The trial judge gave what might be described as the traditional separate consideration direction to the jury, and that can be found at the appeal book pages 281 and 282.

The crux of the application here is that that direction should have been supplemented in the circumstances of this case, in accordance with what five judges of the New South Wales Court of Appeal said in Markuleski, that is, that the traditional separate consideration direction should have been supplemented so that some reference was made as to the effect upon an assessment of the credibility or reliability of the complainant if the jury found itself unable to accept the complainant’s evidence with respect to any count.  That is, to ensure a balance of fairness ‑ ‑ ‑

HAYNE J:   Well, now, the propositions you have just advanced are propositions, are they not, which run a serious risk of inverting burdens of proof and diverting the attention of the jury from what, at least on one view, is the critical question, namely, has the Crown proved beyond reasonable doubt the commission of the offence, that is, establish each of the elements of each of the offences?

MR HILL:   That, your Honour, is effectively what the Victorian Court of Appeal said, with respect.  We say no, and we say that the decision of five judges, in particular Chief Justice Spigelman and Chief Justice at Common Law Wood, in the New South Wales Court of Appeal decision of Markuleski are to be preferred.  Certainly, there is a risk, but that risk can be overcome by proper direction.  This was a particular case where – and not an uncommon case, where we say that the jury needed to be given careful direction about the central issue in the case, namely, the credibility and the reliability of the complainant, not simply left ‑ ‑ ‑

HAYNE J:   But so to put it puts it as if the complainant is on trial.  Not so, the accused is on trial.

MR HILL:   That is so, your Honour, the accused is on trial, but this was oath against oath, the Crown bear the onus of proof beyond reasonable doubt.  The applicant at all times had denied the charges.  He gave evidence on oath.  He adduced evidence of his good character, his good standing within the community.  He could do no more in his defence.  The Crown called evidence from the mother and brother of the complainant, that is, from his estranged wife and his son, and that evidence supported the applicant’s denial of the charges.  That meant, in the circumstances, the only evidence on which the jury could convict and on which they, to base a conviction, had to be satisfied beyond reasonable doubt was that of the complainant, and we know from the ultimate verdict that the jury did not accept her in respect to every count.

HAYNE J:   We are not persuaded beyond reasonable doubt by her evidence, not rejected.

MR HILL:   That is so and I am very mindful with what your Honour said in - I think it is MFA if I might, but I will come to it in a moment, the initials get lost after a while, but it was the case that dealt with Jones’ Case, and it was the case, in effect, in which your Honour affirmed the reasoning in Markuleski at least on the Jones point.

HAYNE J:   But what should the jury have here been told?

MR HILL:   The jury should have been alerted here to the crucial matter, we say, which is to indicate that any doubt that they may form with respect to one aspect of the complainant’s evidence ought to be considered by them when assessing the overall credibility of the complainant and, therefore, when deciding whether or not there was a reasonable doubt about the complainant’s evidence with respect to other counts.  That, your Honour, is largely taken from what Chief Justice Spigelman said in Markuleski.  Certainly, the dissenting judge, Mr Justice Grove, did not agree that the direction as indicated was crucial stating simply that it may be prudent in some cases to give such a direction.

So what we are contending is that in the circumstances of this case, which again we say are not unknown, that the jury needs some assistance, some guidance in an area that appellate courts, at least in New South Wales, have found to have troubled juries in the past, and that that can be given term by a simple formulation of words which does not invite propensity reasoning.  Juries are very good, we often say, in accepting direction, instruction, and not doing what they are told not to do.  It is not sufficient, we say, simply as it was suggested in the Court of Appeal’s decision, to leave it to a jury’s commonsense that if they did have a doubt about the complainant’s credibility that that would necessarily, in their deliberations, flow on.  The reason for that is they were told to give a separate consideration to each count.

Indeed, in this trial, there was a further reason as to why the jury should have been directed regarding the credibility of the complainant and any doubt that they may have as to that credibility or reliability in respect to one count, being able to be taken into account by them in respect to further counts, and that reason was this.  In this trial, the jury had been directed to acquit on 11 counts.  They came back effectively, as a result of the instruction of the judge and returned verdicts of not guilty.  His Honour in his instructions to them at page 282 of the appeal book, line 13 said:

Each count must be considered separately and in the light of the evidence which applies to it, and I stress again those 11 counts are no longer before you and have no role in your consideration.  They are simply finished.  You ask yourselves as to each count separately:  am I satisfied beyond reasonable doubt by the evidence that Mr Trainor is guilty of this crime?

Now, we say that if the jury applied what his Honour said there, if we take, for example, one of the counts on which they found the applicant not guilty, they would have said to themselves, “We found him not guilty.  His Honour has told us in respect to a not guilty verdict that that is simply the end of it, it has no further role in our consideration, and we are to apply separate consideration to each count”, that they would have simply moved on to the next count.

Our submission is that we can assist our juries in their task and sometimes even matters which may seem to have some commonsense to them need to be underlined or underscored with the jury.  Indeed, Chief Justice Spigelman in Markuleski said at paragraph 185 of the extract that has been filed:

the case law on inconsistent verdicts, particularly in the context of sexual assault cases but not limited to that context, indicates that there is a recurring difficulty in this respect.  It may appear to be obvious that a reasonable doubt about one aspect of a complainant’s evidence ought to be taken into account when assessing that witness’s evidence on other matters.  However, there have been a significant number of cases in which courts of criminal appeal have acted on the basis that the jury may have failed to do so.

In the light of the number of cases it is desirable that the traditional direction as to treating each count separately is supplemented in a word against word case.  Some reference ought to be made to the effect upon the assessment of the credibility of a complainant if the jury finds itself unable to accept the complainant’s evidence with respect to any count.

Chief Justice Wood at Common Law at paragraph 257 and following:

On the other hand, there is merit, as a matter of common sense, in reminding the jury that the existence of a question mark in their minds concerning the credibility, or reliability of the evidence given by a complainant or central witness in relation to one count, may properly be taken into account, in conjunction with all the other circumstances of the case, when they consider the reliability or credibility of the evidence of that complainant or witness in relation to the other counts.

An additional consideration arises so far as the giving of a direction of this kind may alleviate the concern which might otherwise subsequently arise, where differing verdicts are returned in relation to a multi count indictment.  In such a case, the court may feel greater confidence that the jury has focussed closely upon the issues of reliability and credibility of the evidence going to each charge, and has found good cause for differentiating between the individual counts.

In addition here, there was the difficulty of those 11 counts the jury were directed to acquit on and told that they took no further part in the matter.

HAYNE J:   Now, a Markuleski direction was not sought at trial?

MR HILL:   It was not sought at the trial.  It was not sought in Markuleski itself and that was not seen as being fatal.  At the moment, Markuleski, we can say is being applied in New South Wales courts.

HAYNE J:   Well, GAR is some qualification at least.

MR HILL:   Some qualification, but a completely different factual situation and we included the extract from Lebler which is a much more recent decision of the New South Wales Court of Appeal handed down in December of last year indicating that trial judges in New South Wales and the Court of Appeal are still following Markuleski, albeit with certain qualifications.  We say that the very circumstances and nature of this charge demanded that this jury be assisted in respect to a fundamental error.

We say that the Court of Appeal in its analysis, and this moves to a different point, did not analyse the matter properly in any event.  It is insufficient simply to do as his Honour Justice Buchanan did and turn to those counts on which the accused was acquitted and give some reason for the acquittal.  That cannot, we say, be an exercise in accordance with the appellate court’s jurisdiction.

HAYNE J:   Why not?  I am not following why you say that is not right.

MR HILL:   There is no attempt to reconcile the verdicts.  If we take, for example, what his Honour said at appeal book page 387, the first paragraph on that page is the passage where his Honour actually analyses the evidence and if, by way of illustration, we could start at the end of that paragraph, his Honour says:

Count 25, the assault which caused injury to the complainant’s coccyx, formed part of the same incident as count 26.  The complainant told her mother at the time that the injury occurred when she was wrestling with her brothers.

All of that is true.  Count 25 the jury acquitted.  Count 26 which was said to be an act of incest following the assault, the jury convicted on.  We say there has been no attempt to reconcile what, on the face of it, is an inconsistent and unreliable verdict.

HAYNE J:   Earlier on that page, his Honour refers to variations that had occurred in the course of evidence given by the complainant.  Is that a proper matter to take into account in determining whether the verdicts are inconsistent?

MR HILL:   In part it is, your Honour, and we do not shy away from that.  It may be, for example, that a complainant in respect to one or two counts has a bad memory, is inconsistent, and they are matters that are relevant to take into account, but if you have a situation whereby the reason given for the jury acquitting is that, for example:

count 21 took place in a communal laundry that was open to the residents of the Sale unit and anyone using the stairs would walk past the laundry.  Count 23 concerned an incident which occurred shortly before dinner in a tent.  The complainant said that she yelled out.  There was evidence that normally many persons would be nearby –

and the jury acquit on those, we know that the jury must have formed a view adverse, at least on those counts, to the credibility and/or reliability of the complainant.

It is for that reason that a direction as we contend should have been given and the Court of Appeal should have analysed it as such, that it is not sufficient simply to look at the not guilty counts in performing the appellate exercise.  For example, if one was to look at the guilty verdicts one would see in this case that the nature of the evidence was similar.  There was a count on which the jury convicted which was a count of incest said to have occurred in the bathroom of the home that the applicant shared with his family and, of course, the complainant at a time during the day when others were about.

The task in reconciling verdicts is going to be made more easy if such direction as Markuleski is authority for is given because an appellate court can more readily take into account the fact that the jury has considered these issues.  We say that here not only have the Court of Appeal in Victoria put aside any direction that would encompass what we say should

be given, but the Court of Appeal itself did not look at the issues in that light, that it is not sufficient simply to look at the not guilty verdicts and say whether those not guilty verdicts individually can be rationalised.  One has to look at the guilty verdicts which after all are being submitted are unreasonable and capable of being supported.

The test, of course, is one of logic and reasonableness and we recognise that the constitutional power of the jury has to be given all the weight that it is.

HAYNE J:   Thank you, Mr Hill.  Yes, Mr Holdenson.

MR HOLDENSON:   With respect to the giving of a Markuleski direction, the best it gets for the applicant, in our submission, is the judgment of the Chief Justice of the Supreme Court of New South Wales, the judgment of Chief Justice Spigelman.  At paragraph 187 of his Honour’s judgment, his Honour says that its “absence” in the given case is “not necessarily fatal” and then by reference to the judgment of this Court in Crofts, goes on to say that it all depends on the “facts of the case and the conduct of” the case.

With respect to this matter and as to the conduct of the case, this contention being raised here under the guise of Markuleski did not constitute any part of the defence case or the approach of the defence at trial before the jury.  Defence counsel never put any such contention to the jury in his final address and we know that because there is a summary of the final address within his Honour’s charge to the jury, and it takes several pages.  With respect to the content of that no exception was taken.  It is to be found in the application book, the second volume at pages 349 to 350.  Your Honours will not find anything along the lines of Markuleski contained within those two pages.

Could I take your Honours to a passage at page 350, that is the second page in which the learned trial judge summarises the defence case, because in this case counsel at trial indeed put a contrary contention.  At 350, line 16, defence counsel: 

reminded you that these counts all occurred in the majority a long time ago, that there is no corroboration, no complaint; that you must in each count look at them individually and intellectually.

So in this case, defence counsel went to the jury and said, look at each count individually, intellectually.  Now, in those circumstances, it is submitted, no direction of a Markuleski nature having being given, no exception taken with respect to that, counsel having gone to the jury as he did, that is a pretty good indicator that the person in the very best position of all to determine whether or not the failure to give what we will call a Markuleski direction has operated adversely to the then accused, was of the view that the warnings, and there were plenty of them in this case, were both appropriate and fair.

It is in those circumstances that the respondent says by way of submission in this Court that the applicant is immediately precluded from contending that this is a suitable vehicle for the grant of leave and all the more so if this is to be given by way of a direction, that is something in respect of which the trial judge is bound to give a direction, it certainly cannot be said on the facts of this case that it was something in respect of which the learned trial judge was bound to assist the jury with a direction.

Now, moving on from the conduct of the case, to use the phraseology of the learned Chief Justice, to the facts of the case, if one examines what it was that was before the jury at the end of the charge to the jury, that is immediately prior to the commencement of their deliberations, there had certainly, as was indicated by our learned friend, already 11 directed acquittals.  But the 11 directed acquittals in this case came about by reason that the complainant gave no evidence whatsoever with respect to those counts specified on the presentment, and hence that passage at page 282 to which our learned friend took you as to how it was that those matters were no longer to take any role in their consideration was absolutely correct and the reason for it is placed before the jury because two lines above that his Honour said:

Each count must be considered separately and in the light of the evidence which applies to it -

There was no evidence that applied to those 11 counts.  For all the jury knew some prosecutor, if they knew that prosecutors drafted these things, had a flurry of drafting counts and just drafted 11 extra ones.  It was not a situation where the complainant gave a little bit of evidence about them and the judge, notwithstanding Doney’s Case, took them away.  This Court is in a better position than all of that ‑ ‑ ‑

HAYNE J:   We will not pause to look at the length of this presentment, Mr Holdenson.

MR HOLDENSON:   No, and that is what makes this case different from Markuleski, Lebler, GAR and so on - Markuleski, six counts; GAR, two counts, one day apart; Lebler, three counts, 20 or 30 minutes apart.  This was 30 counts representing 19 separate courses of conduct which we have characterised as incidents or transactions, over a period of time in excess of six years.  The complainant, when one has regard to the transcript and the manner in which she gave her evidence was she was just not able to recall everything and ‑ ‑ ‑

HAYNE J:   Now, what do you say about Mr Hill’s complaint about 387, that there is either no or no sufficient examination or at least elucidation of why the verdicts are not inconsistent?  He particularly refers to counts 25 and 26.

MR HOLDENSON:   With respect to counts 25 and 26, could we take your Honour to our outline of argument and in particular at page 412 of the application book, but when I say that, this is indeed confirmed when one has regard to the summary of the evidence relevant to those two counts from within his Honour’s charge to the jury.  Counts 25 and 26 very much related to one incident.  The first count, count 25, common assault and the complainant said that the applicant had been drinking, as in alcohol and he pushed her and she fell over.

Now, just pausing there, one of the elements of that offence of common assault, the common law offence, is the intentional application of force.  So the first thing is the jury are able to proceed on the basis that there is an issue about intention.  Somewhat surprisingly, we say, this was a case in which the learned trial judge gave the jury a direction with respect to the effect of intoxication.  It is in his Honour’s charge to the jury and the jury might therefore have determined that there was an issue as to whether or not the applicant was sufficiently or so intoxicated as to not be able to form the requisite intention or voluntariness, so there is something in that.

Then she sustained an injury and she gave - and there was evidence about this from a number of witnesses in the trial – some inconsistent statements as to how it was that she sustained the injury in circumstances where this judge in his charge to the jury gave the jury a direction with respect to the effect of inconsistent statements or prior inconsistent statements.

If I could just remind your Honours, in this State the common law rule applies with respect to the effect of the admission of a prior inconsistent statement, unless adopted and accepted as true and correct, it goes to credit.  So the jury were very much in a position whereby they could determine for a number of reasons other than a finding as to credibility that they could acquit on count 25 but nevertheless convict on count 26.  It was not an assault which was carried out in order to perpetrate the sexual offence.

CALLINAN J:   There was also a problem about dates, was there not?

MR HOLDENSON:   As I stand here I do not recall whether there was a problem with dates on those two counts.

CALLINAN J:   I thought she was taken to a doctor when she was ‑ ‑ ‑

MR HOLDENSON:   Yes, as to when it occurred.

CALLINAN J:   Yes.

MR HOLDENSON:   Yes, that is right.  Albeit we do not find in the judgment below chapter and verse as to all the evidence that was before the Court of Appeal with respect to count 25 and count 26 all set out over a couple of pages, the point is, the court below were very much aware of their obligations with respect to the determination as to whether or not verdicts were inconsistent.  There is cited in one of the footnotes to the judgment below decisions of this Court with respect to the determination of inconsistency which, of course, go back to the Victorian case some 23 years ago of Bacash.  It is all there.  There is nothing in the point about counts 25 and 26.

But, in any event, your Honours, in our submission, should keep in mind the approach of appellate courts, including this Court, to cases of this nature and we have identified those matters at the head of 413 of the application book.  First, in cases of this nature, sexual offences, incest, many years, many counts, as I have set out in paragraph 3.7.1, it is notorious that juries convict and acquit without there necessarily being the requisite incompatibility or inconsistency.  Furthermore, by reference to the case of Kirkman in South Australia, this Court has held that on occasions juries are merciful.

In those circumstances, keeping those two matters in mind, there is no, in our submission, inconsistency between counts 25 and 26.  Then when one moves from that to look at the structure of the counts that are before this Court, incidents and counts, there is no questionable inconsistency, in our submission, which gives rise to the necessity or even desirability of there being a Markuleski direction.  So this Court, in our submission, can readily determine that such a direction as that now sought – not that it was, of course, once not sought – but as is now sought, could achieve nothing. 

So if this Court were to grant special leave and consider the matter, it would be stuck with a set of convictions and acquittals in respect of which there is nothing that needs explanation.  It is all readily explicable and so the Markuleski direction would have no work to do.  But just on the Markuleski direction, the question was put today and it seems to me as I read the cases that it is about the first time the question has ever been put, what is the content of the direction?

Chief Justice Spigelman posits a number of examples.  It might be said in this case in a manner in which there was no impact upon the burden of proof and nothing which would lead to some sort of propensity or tendency reasoning, it might be said that there is something of such a direction in any event.  It is at page 281.  Our learned friend took your Honours to 281 to say that is where there is the separate count consideration direction.  At the foot of 281, at line 27, his Honour said:

It may be that the same logic applies to two of more of them, or as a matter of reason that logic will dictate the verdict in each such count.

Now, if this was a case where the defence came up with a knockout point or where some of the evidence given by the complainant was inherently implausible, which could therefore only lead a jury to reject the complainant’s evidence with respect to a given count or group of counts, then that sort of direction is more than sufficient, in our submission, and they got it tucked away in that form.

Anything more, in our submission, is very dangerous and all the more so in this case because in this case the accused got into the witness box and gave sworn evidence.  So if the jury, by way of a direction, are told that they can take into account the rejection of evidence in determining what to do elsewhere on the presentment, an accused person who gives sworn evidence, whose evidence with respect to one count is absolutely rejected, then the accused is in grave danger of having this very same reasoning taken into account against him when the jury proceeds to consider the other counts on the presentment or indictment and that is another thing which makes this case a little different from some of the New South Wales cases.

Now, in Markuleski the accused did give evidence and that happens in many, but not all, and that is a problem, in our submission, that cannot be overtaken if there is to be a separate count, separate consideration direction as was considered to be only appropriate in the circumstances of this case.  Now, on occasions, juries for various reasons are directed not to so analyse the counts on a presentment, different ball game then, not this case, not Markuleski either for that matter.

So, in our submission, in this case, one, it is not the way the case was conducted.  It is not an appropriate set of facts for there to be such a direction.  In any event the giving of such a direction can only too readily operate adversely to an accused person and all the more so where the accused person gives sworn evidence.

Now, albeit it did not seem to be addressed orally, there are also a number of grounds with respect to the inconsistency of verdicts.  Indeed, on the draft notice of appeal it is grounds 1, 2 and 5.  In our submission, albeit not set out over pages and pages, the court below did more than adequately address the differences in verdicts returned.  There were 19 incidents over the six‑year period.  There is only the one incident, that is incident No 17, which gave rise to a number of counts where there was a difference in verdicts, more than readily explained, in our submission, by what we have just set out in the space of a paragraph, that is set out in the judgment.

In those circumstances, with respect to the inconsistency of verdicts point, in circumstances where there is no doubt that the court proceeded in accordance with High Court authority, it is not a case where there ought to be a grant of special leave with respect to that matter.  There is no error and no error of principle with respect to the court’s reasoning.

Your Honours made the point when our friend was on his feet with respect to the New South Wales cases and how it is that subsequent to Markuleski there has been a qualification.  As we read the cases and, indeed, there are more than those that have been cited in the judgment below and on the lists of authorities in this Court, as we read those cases there has been very much a backward step from the unequivocal holding identified in the headnote to Markuleski, albeit as Mr Hill says, there are directions and comments being given.

But as we read the cases that get through the New South Wales Court of Criminal Appeal, and I do not suggest that that is all the cases that are decided in New South Wales because you do not get what happens in the trial courts there, it is a far cry from this sort of a case where there are 30 counts over six years on a presentment.  Unless there are any further matters with which we may assist, your Honours.

HAYNE J:   Thank you, Mr Holdenson.  Yes, Mr Hill.

MR HILL:   True it was there were 19 separate incidents.  The jury were left with 13.  After a two‑night deliberation they ultimately convicted of six, acquitted at six in a swift decision, we say, in respect to counts 25 and 26.  True is it that counsel who appeared then for the applicant at the trial did not ask for a Markuleski direction, but we say in answer to that briefly that this Court has said in Crofts that the overriding duty of the trial judge still remains to ensure that the accused receives or secures a fair trial.

At page 350 of the appeal book, which our learned friend relies upon in respect to the judge’s charge or synopsis of what counsel for the accused said, your Honours were taken to that passage of his Honour:

He reminded you that these counts all occurred in the majority a long time ago, that there is no corroboration, no complaint; that you must in each count look at them individually and intellectually.

Well, of course, that is so.  They do have to look at the facts of each count individually and intellectually.  The purpose of the Markuleski direction is to tell the jury no more than what this Court said in Jones and what it said in MFA about Jones was that a doubt as to the credibility or the reliability of the complainant in respect to any one count may be considered by the jury in its determination of other counts on the presentment.  That was the point that needed underlining and to be brought home to the jury.

If I could take Justice Callinan’s point regarding counts 25 and 26.  Your Honour, you are right that there was a problem regarding the dates as to the incidents, the dates when she went to the doctor, but that difficulty with the dates infected both counts, not just count 25 but also count 26 because it relates to the same incident.  She says as a result of having been assaulted, and we quickly point out that the jury did convict the applicant of an earlier account of assault, being count 11, I believe.  So they had convicted him of assault earlier but here in respect to counts 25 and 26, albeit with the problem with the dates, they convict him of part of the incident but find him not guilty of the other part which is the precursor to it, the assault, the fracturing of the coccyx and thereafter the act of intercourse.

We say that type of incident does show and demonstrate questionable inconsistency and that when one looks at the reasoning of the Court of Appeal, Justice Buchanan, which we accept for the purposes of this argument that reasoning, that that reasoning shows that this is the type of case where in those not guilty verdicts or the majority of them, the likelihood is that the jury did make a finding adverse to the complainant’s credibility because they found her account inherently improbable or alternatively contradicted by other reliable evidence.  In those circumstances, that is a finding against her credibility and reliability and had the jury had that brought to their attention that they could use that in their deliberations, the result may well have been different.

We say that our learned friend has misunderstood the point regarding the acquittals.  It is not a question that there was no evidence for the jury to consider.  It was the effect of what his Honour told them was the result of those not guilty verdicts, that is that you enter a not guilty verdict as the jury was entitled to believe having being told that it was of no effect, it was at an end; that when they came to consider there the counts before them and having determined to find the accused not guilty, they no doubt would have said, consistent with what his Honour had said, that is an end of the matter.  If the Court pleases.

HAYNE J:   Thank you, Mr Hill.

We are of the opinion that it is not arguable that there has been any miscarriage of justice in this case and for that reason special leave to appeal is refused.

Before parting with this case, my attention is drawn to the fact that a copy of the trial transcript has been filed in the Court.  Accordingly, it would seem, subject to anything that counsel would say to the contrary, that the earlier order pronounced should be extended so that it will read that pages 6 to 274 of the application book and the equivalent pages of the copy transcript filed in the Court, namely pages 22 to 324 of that transcript, not be open to search without leave of the Court or a Justice first had and obtained.

Does counsel wish to be heard about that aspect of the matter?

MR HILL:   No, your Honour.

MR HOLDENSON:   No, your Honour.

HAYNE J:   Very well.  Adjourn the Court to 2.00 pm on Tuesday, 14 September in Sydney.

AT 2.49 PM THE MATTER WAS CONCLUDED