WGC v The Queen

[2007] HCATrans 254

[2007] HCATrans 254

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A2 of 2007

B e t w e e n -

WGC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 25 MAY 2007, AT 2.05 PM

Copyright in the High Court of Australia

MR D.H. PEEK, QC:   May it please the Court, I appear with my learned friend, MR D.M. RUSSO, for the applicant.  (instructed by Scammell & Co)

MR J.P. PEARCE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (South Australia))

GUMMOW J:   Thank you, Mr Peek.

MR PEEK:   If the Court pleases, can I take the Court immediately to the important portion of the summing‑up by the learned trial judge at page 10 of the application book.  If I can start just above the number 10 on the left, his Honour says that:

there is one important matter that the accused does dispute and that is as to when those acts occurred.

KIRBY J:   It might be as well if we do not use the name of the person.

MR PEEK:   No, I was not, your Honour.  I have in fact pencilled in “complainant”, if that is suitable to the Court?

KIRBY J:   Yes.

MR PEEK:  

It is, of course, the prosecution case, and on the basis of [the complainant’s] evidence, that they occurred in February 1986 and at no later time.  If, on all the evidence, you are satisfied beyond reasonable doubt that they did in fact occur in February 1986 at a time when you might think [the complainant] was 13, then you would likely find the accused guilty on both counts and you would not have to consider the question any further.  But if you are not satisfied beyond reasonable doubt that those acts of sexual intercourse occurred in 1986, but if you think they occurred in February 1989 or thereabouts, as the accused said they did, then I must instruct you as to how you will deal with that finding.

As you know, in February 1989 [the complainant] was still 16 years of age, she was under the age of 17.  So, even on the accused’s account of events, the ordinary elements of the offence would be made out.  But you must then consider whether the accused has a special defence available to him under the law.

His Honour then alludes to that offence.  His Honour then on the next page goes on to say something about the way that that defence sits in the case and I will not read that but if I can just go to the last three lines on page 11:

So if you are not satisfied beyond reasonable doubt that the acts of sexual intercourse with [the complainant] occurred in 1986, as the prosecution says they did, you will then consider if they happened in 1989, as the defence says they did.  If you are satisfied beyond reasonable doubt that they did occur in 1989 –

and I pause to add that that is a somewhat troubling statement because of course it was not for the accused to establish anything beyond reasonable doubt but I want to stay with the main point –

you will still convict the accused on each count unless he has satisfied you on the balance of probabilities, first, that at that time he believed [the complainant] was 17 years of age or more and, secondly, that he then had reasonable grounds for believing that.

His Honour then says something more about the factual basis of the case and the defence and then if I can just read the last two lines on page 12 of the application book as follows:

I should stress here that you are not being asked for separate verdicts depending on the findings you make as to when the incident occurred.  You will be asked the single question with respect to each count ‘How do you find the accused, guilty or not guilty?’.

KIRBY J:   The count is on page 2 of the papers.

MR PEEK:   On the information, yes, your Honour.

KIRBY J:   The count alleges the offence against section 49(3) which is relevant to both possibilities, but the particulars are limited to the Crown’s allegation in respect of the January 1986 happening of the events.

MR PEEK:   In February 1986, your Honour, but yes.

KIRBY J:   So how does one then, as it were, change the offence from that which the Crown has alleged into something which is raised by a defence?

MR PEEK:   Exactly.  Your Honour, that, of course, forms a considerable part of what I refer to as the first special leave question.  Can I just speak to my outline of argument, or summary of argument at page 100 in direct answer to your Honour Justice Kirby.

KIRBY J:   The knife in the napkin, as Justice Hayne often likes to put it, is that juries often have the opportunity of coming at their single verdict by different routes and the question is, is that within that rule or is it within a rule that you must get unanimity on the count charged and not have half the jury or some of the jury reaching it on a different logic and therefore not having the unanimity which is the essence of jury trial on the matter which is charged?

MR PEEK:   And, interestingly, in this case we only had a majority verdict in any event but that complicates it even further.

KIRBY J:   It was a very long consideration by the jury, I think, was it not?

MR PEEK:   Yes.  It was certainly a substantial consideration by the jury, and, as I say, a majority verdict.

KIRBY J:   Yes.

MR PEEK:   We say that this is an excellent vehicle to resolve a number of the issues that your Honour has just highlighted which are all in fact very closely intertwined with what I simply style as the first of two special leave questions at page 100.

GUMMOW J:   How is the possibility of this defence ever going to lead to a safe conviction in this sort of factual scenario?

MR PEEK:   I am sorry for being obtuse, is your Honour referring to the great lapse of time or the uncertainty of the way that the case was conducted?

GUMMOW J:   Given the chronology in this case.

MR PEEK:   Yes.  We would say that that is right.

KIRBY J:   In short, is it the logic of your submission that the Crown must in some way charge in the alternative or seek special verdicts in order to reach a unanimity on one or other of the hypotheses?

MR PEEK:   Indeed.

GUMMOW J:   Yes, that is the question.  Is that what you say has to be done?

MR PEEK:   I am sorry, your Honour, that is what we say.  Indeed, I am sorry.  We say that there are ways to remedy this.  It is not just a situation that cannot be addressed.  You could have alternative counts and, indeed, in this case there were discussions before the jury were ever empanelled between the Crown and the defence when it was made quite plain this was the defence, so there could have been in this case an alternative count.  But perhaps more expeditiously, one could certainly have the situation of a jury being asked a simple question as to whether if they return a verdict of guilty they do so on the basis of the 1986 date or some other date, namely, the 1989 date, in this present case.

HAYNE J:   By what right would the judge ask that question?

MR PEEK:   Your Honour, we submit that that would not be prohibited in South Australia.  I know that there is a good deal of learning on special verdicts.

HAYNE J:   What I was rather asking was, what is it that positively permits it?

MR PEEK:   I have a difficulty in answering that question because I have, of course, looked.

KIRBY J:   I thought you had answered it in the manner of the English common law, if it is not prohibited it can be done.

MR PEEK:   That was what I was actually, I think, opting for, if it please your Honour.

HAYNE J:   If you were not then you are now?

MR PEEK:   I take Justice Hayne’s point, of course, and I have looked for something specific on that, but we do submit that in South Australia there is no legislative problem in relation to that nor is there any common law decision in South Australia that would prevent it from being done.

HAYNE J:   But do we begin debate of the leave application on an assumption that the information is not duplicitous and that there is no technical difficulty of that kind, whether duplicity or some other rubric, about the information?

MR PEEK:   It certainly is not patently duplicitous, I entirely agree, but we do get to a situation where here – and this is another strand of the first special leave argument, of course – there is uncertainty in the verdict and that, I agree, is not properly to be called duplicity but is a very close animal, if I can put it that way.

HAYNE J:   Is it any different in substance from the homicide case where a verdict of manslaughter is returned and the evidence would have justified two paths, different paths, to the conclusion of manslaughter?

MR PEEK:   I understand, your Honour.  There is, of course, a body of case law which deals with that and, indeed, to the extent that I would submit it is rather sui generis that that particular common law aspect in relation to murder and indeed manslaughter, but when one ‑ ‑ ‑

HAYNE J:   The premise for the Court of Appeal seemed to be that the date was not an essential part of the specification of the offence.  The offence was the offence under section 49(3) and because the date is not an essential characteristic there may have been some question about sufficiency of particularity and particularisation but one offence is charged, a single verdict is returned.  If those two steps are right, why is it not right to say the jury can get to that verdict by any number of different paths about which they need not agree.

MR PEEK:   Because, your Honour, first of all there are a good number of freestanding statements in the case law of Australia and I have set out some of them within the outline which say that a lack of unanimity in relation to that situation in fact results in a bad verdict.  There are a number of reasons why that is so but I – and, of course, some of the older treatises and cases refer more to the idea of autrefois convict and acquit, but in the more modern jurisprudence, and particularly including the case of S v The Queen in this Court, the reason was put much more on the basis that, for example, the sentencing court needs to know of what the accused is being convicted.  The Court will see that extract from S v The Queen starting at the bottom of page 105 of the application book and then ‑ ‑ ‑

KIRBY J:   That is pragmatic and practical, and I understand that argument and it is an argument in your favour but anterior to that is the accused’s right to have a jury of 12, or by majority in South Australia, pass on his or her guilt and if the jury are not directing their attention to the basis upon which alternatively that guilt is alleged, you can, in the words of the judges in KBT:

It is, thus, impossible to say that the jurors must have been agreed as to the appellant having committed the same three acts.

MR PEEK:   I agree, and perhaps I jumped ahead of myself one step there, Justice Kirby, but certainly I have in fact referred to KBT, or really the proposition that your Honour just puts to me, both KBT and S in the High Court.

KIRBY J:   That is four Justices in KBT.  What was the Court?  Was that a Full Court?  Was that the entire Court in KBT?

MR PEEK:   Your Honour, we have KBT in ‑ ‑ ‑

KIRBY J:   Do not worry about it.  It is a bit beside the point.

MR PEEK:   If your Honour pleases.  There were five Justices sitting in KBT, your Honour.

GUMMOW J:   The proposition, which seems very basic, that it is quite unobjectionable for a verdict to be reached by undisclosed and available alternative pathways, are the alternative pathways being spoken of pathways of fact or are they pathways that involve a particular statutory defence as to one of them but not others?  Do you see what I mean?

MR PEEK:   We would answer that in this way, I think ‑ ‑ ‑

GUMMOW J:   Is there any discussion of this?

MR PEEK:   Your Honour, yes, there is.  Later in the outline I refer to the question of juries’ unanimity and at page 108 of the application book and I particularly rely on the Full Court decision of Victoria in the R v Beach at my paragraph 52 and I have extracted a central portion of the judgment on which we would rely.  It is a strong statement by their Honours but the only reason that the appeal was not allowed in Beach was that there was a count 2 on the indictment in that case which specifically charged causing this injury by negligent driving and therefore, and only because of that reason, the court came to the view that they could be satisfied that the jury were unanimous on the matter of the negligent driving.

KIRBY J:   No, but I think Justice Gummow’s question is directed to the fact that we are not here solely in the realm of the common law and common law principles about juries being able in murder/manslaughter to come to different conclusions by different routes.  We are in the business of applying a double statutory provision.  One is the statutory provision which your client invoked by a statutory defence and the other is the statutory provision authorising exceptionally the taking of a jury verdict.  Now, the question is whether that interposition of statutory gateways means that the Parliament has intended that it should be unanimity on the particular in respect of which Parliament has enacted these special laws.

MR PEEK:   Yes.  We suggest that that is the intention of the legislature and on a closely related aspect, if not the same, the Court will see that I deal with the interpretation of this statute at page 103 of the application book, more particularly, in the area of the first strand which is this, is it a material particular that the date alleged must be proven against the accused but it is, nevertheless, in answer to what the Bench has just put to me, because, of course, that then focuses the attention on one particular date and ergo you must therefore have unanimity on that date.

GUMMOW J:   Justice Layton dealt with this, to some extent, did she not, on page 73 at paragraph 10?  Do you quarrel with that – I suppose you do – as to the significance of particularity of dates?

MR PEEK:   We would, your Honour.  Just going back to the common law principles for one moment, the common law background is that dates averred in information or indictment will be material if in fact the question of an age of a complainant or something allied to that is a part of the offence being charged, and so we do disagree with what her Honour Justice Layton said there and, of course, with what Justice David did.

We say that the common law is clear that in this type of offence where age is an essential ingredient then the actual date averred is a material particular which must be proved and hence you do not get the spectre of what happened here, of moving from a 1986 date in an indictment to a 1989 date but in circumstances where you do not know how many of the jurors have agreed on one and how many on the other.  We take that one step further at paragraph 23.

KIRBY J:   There is some support for the notion that it is different in the case of a statutory formulation because the whole point of KBT, as I now look at it, is that the statute had said that you have to have the offender being shown to have done things on three or more occasions and the point that the Court unanimously made was that they have to be the same three occasions, there cannot be some jurors saying “some occasions” and other jurors saying “another”, that that is just not what Parliament intended.

MR PEEK:   That would be exactly the same situation here, we would respectfully submit to your Honour, that there is a choice between two occasions, some three years apart, and as we submit at paragraph 10, very different in terms of the factual matrix and, of course, from the point of view of ultimate sentencing should it come to that.  I do not know that I need necessarily read out paragraphs 8.1 and 8.2 because there are some details there that do not need to be read on to the transcript, but the Court is aware that the situation on the applicant’s evidence, namely, intercourse in February 1989 and the situation of the complainant at that time and what led up to all of that is very different.

KIRBY J:   It is a different criminality, certainly, for sentencing purposes.

MR PEEK:   It is, in our respectful submission.

KIRBY J:   You had better leave a minute for your Longman point, if you are pressing that point.

MR PEEK:   Yes, thank you for that, your Honour.  I am obviously going to have to rely on my written submissions, but we are pressing that in the sense that the Court will have seen that the matter of the Longman ‑ ‑ ‑

KIRBY J:   The delay here was 13 years, was it not, depending on which ‑ ‑ ‑

MR PEEK:   Well, 13 or 16, depending on which date you are taking, of course, your Honour.

KIRBY J:   The judge did use “I give you a warning”?

MR PEEK:   Your Honour, the specific passage that we would ask the Court to consider here is at page 16 at point 10:

In all those circumstances you should exercise great care, indeed, in evaluating [the complainant’s] evidence, and you should not convict the accused on her evidence alone unless, after scrutinising it with that degree of care and paying heed to my warning, you are nevertheless satisfied as to its truth and accuracy.

We submit, as you can see in the written outline, that it is essential that the jury be told that in fact they are faced with something dangerous, that they are permitted to do that dangerous thing if they pay very close regard to a clear strong warning which relates to the particular circumstances.

KIRBY J:   I think we understand, but in this case, given that the critical dispute, ultimately boiled down, your client did not dispute having sexual relations, it was when it happened and that for the purpose of differentiating and establishing that and finding alibi and other things the delay is not insignificant for that particular matter.

MR PEEK:   Yes.  In fact, critical, because the Court will have picked up that in fact two important witnesses for the defence were lost to the defence because of the delay.  This is indeed referred to by his Honour at the bottom of page 15 of the application book, but the man, “Stewart S” – if I can put it that way – who was said on our evidence to have had intercourse with the complainant in certain circumstances of which the Court is aware, had died by the time of trial and the female “Chrissy S” who had been present on the houseboat expedition in 1989 when we say the intercourse occurred, simply could not be found, despite our best endeavours.  So there were two absolutely critical matters that were lost to us in a forensic sense.

GUMMOW J:   Mr Peek, can you just look at your draft grounds of appeal?

MR PEEK:   Yes, certainly, your Honour.

GUMMOW J:   Putting to one side 2.4, which is there at page 98, if you put aside 2.4 for a minute, which the Longman point, I suppose.

MR PEEK:   It is the Longman point.

GUMMOW J:   Yes.  Do 2.1, 2.2 and 2.3 adequately reflect what you now say is the legal questions thrown up?  What does this word “invalid” mean?

MR PEEK:   Yes, perhaps I need to tidy those up and see if they need redrafting but the pith and substance is there as to what we want to advance.  Perhaps that language could be ‑ ‑ ‑

GUMMOW J:   You also said to us at one stage that it was not quite a point about the framing of the charge but it was close to it.  That is not reflected here, I do not think.

MR PEEK:   That perhaps needs to be, your Honour, but as I have put in the argument, there are a number of points radiating out from what I have termed the special leave point and perhaps I need to be a little bit more specific should leave be granted in relation to those aspects.

GUMMOW J:   In a way, one needs to know how you say these issues should properly have been presented in terms of the charge.

MR PEEK:   Yes.  I can certainly answer that question, and that is ‑ ‑ ‑

GUMMOW J:   It is because of that complaint that you say things went wrong, really, or things were permitted to go wrong.

MR PEEK:   Yes.  Our very first point was that the jury should not have been permitted to gambol off into the question of what happened in 1989, they should have been firmly restrained to consider only a question of whether this charge could be proven to have occurred in February 1986.  That goes to both the material ‑ ‑ ‑

GUMMOW J:   In answer to Justice Hayne, you also postulated some questions which you said were open at common law, remember, of the jury?  That does not seem to find a reflection here, either.

MR PEEK:   That was in answer to Justice Hayne as to how in fact a trial judge could handle a situation such as this, as I interpreted his Honour, and my answer there is that you could, if you get to a situation where it emerges during a hypothetical trial that there are a number of routes to a conviction, ask the jury on the return of their verdict as to which route they had taken.  Now, as to whether that can or cannot be done at common law of course is a big question.

GUMMOW J:   That might be a big question and if you want to agitate it it has to be in the grounds, I think.  That is all I am putting to you.

MR PEEK:   In that case I will in fact add a reference to that, if the Court pleases.

GUMMOW J:   If you wish to do so, yes.

MR PEEK:   Yes.

KIRBY J: The other point that was raised by Justice Gummow, namely, whether your client was entitled to the verdict of the jury on the statutory point raised by section 49(4) and to have a unanimous verdict on that point of statutory decision.

MR PEEK:   Yes.

KIRBY J:   It is not a common law principle, it is a statutory decision that they have to make.

MR PEEK:   I appreciate what your Honour says.  We would maintain that that would so both at common law and under statute but obviously we can make that more particular in the ground as well, but that is already at the heart of our argument, we would respectfully submit.

KIRBY J:   Yes.

HAYNE J:   Mr Peek, I know time has gone, but, if we come to the point where you are to have a reply I would want to know two things.  One, your argument seems to assume that it is proper to lay a between dates count.  Here the between dates constituted a single month, the month of February.  Second, which may be wholly separate or may be related, is it the consequence of your argument that the judge should not have put to the jury the possibility of finding guilt on the accused’s admission of having sexual relations with the complainant at the later date, that is, should the only issue that has gone to the jury have been, did sexual contact of this kind occur in or about February 1986?  Perhaps you might think about those things and you might deal with them in reply.

MR PEEK:   If your Honour pleases.

GUMMOW J:   Mr Pearce, we will not hear from you at the moment but we will give Mr Peek a busy few minutes which we will then occupy by dealing with application 8 and then we will come back to Mr Peek and come back to you.  Does that make sense?

MR PEARCE:   If the Court pleases, thank you.

AT 2.34 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.06 PM:

GUMMOW J:   Yes, Mr Peek.

MR PEEK:   Thank you, your Honour.

GUMMOW J:   Do we have any revised grounds of appeal?

MR PEEK:   I do, your Honour.  If I can go to page 98.

GUMMOW J:   Take us through them fairly slowly.

MR PEEK:   Yes, your Honour.  Ground 2.1 should now read that the learned trial judge erred in failing to direct the jury that the date of commission of the offences, namely, February 1986, was a material particular required to be proven beyond reasonable doubt (by virtue of the correct construction of section 49 Criminal Law Consolidation Act and the common law).

GUMMOW J:   Yes.

MR PEEK:   In relation to 2.2, I would strike out the word “invalid” and substitute the words “uncertain or void” and leave it otherwise as standing.  In relation to ground 2.3 I would again strike out the word “invalid” and substitute the words “uncertain or void” but also add to the very end of that ground, if the Court pleases, striking out the full stop and adding “and not having inquired of the jury as to the basis of their verdict”.

GUMMOW J:   Yes, thank you.  Anything else?

KIRBY J:   Can I just raise with you a matter that obviously disturbed Justice Hayne when you raised this issue earlier and he asked you a question then.  There is in a lot of learning a clear indication of judges that there are very strict limits on the extent to which judges can interrogate juries and that is for very ancient reasons of the habit of some judges in centuries gone by to intimidate juries by interrogating them and, as it were, making them give their reasons where their reasons are secret and the defence of its integrity is the fact that they are a microcosm of the community acting in secret.

Now, may it not be wise, because I have a similar concern that Justice Hayne appeared to indicate, to add something like, “to seek and receive special verdicts in respect of the matters identified at trial”?

MR PEEK:   Rather than the word I chose of “inquired”?

KIRBY J:   You can leave it in and seek to support it.  It may be that the proper understanding of the law supports the power of a judge to interrogate, but ‑ ‑ ‑

MR PEEK:   No, I am not in any way pushing your Honour’s suggestion away, I am more than happy to adopt that form of words that your Honour has suggested rather than my own suggestion which, as you say, may lead to further difficulties.

GUMMOW J:   How would it now read?  How would 2.3 then read?

MR PEEK:   At the end of the present ground after the word “matter” it would read “and not having sought a special verdict from the jury as to whether they found the charge proven on the basis of intercourse occurring in 1986 or 1989”.

GUMMOW J:   Yes, thank you.  Now we will hear from Mr Pearce.

MR PEEK:   If the Court pleases.

GUMMOW J:   Is there anything else you wanted to add?

MR PEEK:   I was conscious of the fact that I had not answered Justice Hayne’s question but I understood that that was to be in reply and if that is still case, then I will leave it until then if that is suitable to the Court.   I am in the Court’s hands.

GUMMOW J:   Very well.

KIRBY J:   I think you have had more than enough time.

GUMMOW J:   I think you have.

MR PEEK:   I have had a fair go, your Honour, I appreciate that.

GUMMOW J:   Yes.  Yes, Mr Pearce.

MR PEARCE:   If the Court pleases.  The respondent’s contention is that there is no principle warranting a grant of special leave here and the reasoning of the Court of Criminal Appeal is sound and that the nub of this appeal lies in the quite idiosyncratic nature of the facts of this case.  If I may I will just start very briefly with the facts and then move to some of the legal principles.

The case was unusual in that the complainant was saying that these acts, the two acts giving rise to the two counts, took place on a houseboat holiday with the family in 1986.  The way the issues were joined at trial there was no dispute that the acts took place, that there was an act of cunnilingus and an act of intercourse and it is particularised but the dispute was whether it occurred in 1986 or 1989.  There was much commonality between the two cases, that is, that of the Crown and of the accused.  It is that commonality that, in my submission, removes any possibility of uncertainty as to verdict or the spectre alluded to by Mr Peek of latent duplicity. 

If I may at this point I will just digress to address the issue raised arising out of KBT.  In that case the dilemma was that there were multiple acts of intercourse alleged and the concern of the Court was whether or not the three acts giving rise to the charge were properly identified.  That, of course, does not arise on the facts of this case because the acts giving rise to the counts were clearly identified.  The issue that arose at trial was, did they happen in February 1986 or February 1989?

KIRBY J:   But there is this commonality that there is a statute which the jury has to pass upon and the statute needs to be identified and passed upon and, according to KBT, there has to be unanimity in the jury in the application of the statute in that particular case.  That is the question whether that is the principle that applies equally to, did it happen in 1986 or 1989 and if it happened in 1989, did the accused believe that she was over the age of 17?  It is an entirely different way to reach a verdict of guilty to say, no, no, or, yes, but no, than to reach a verdict on the 1986 hypothesis.

MR PEARCE:   Not in my respectful submission and I will deal with that now.  Section 49(3) of the Criminal Law Consolidation Act creates the offence of unlawful sexual intercourse with somebody between “the age of twelve years and under the age of seventeen”. It creates one offence. It must be proven by the prosecution beyond reasonable doubt that an act of intercourse took place between the accused and the complainant, that she was of the requisite age, that is, between 12 and 17, and that the act of intercourse was unlawful, that is, that there was – it might be the case here – a lawful medical examination or the like we submit, at trial. Or, if we then turn to section 49(4), the defence upon which the accused ultimately availed himself.

There is one offence, in my submission, which is created.  It is not a material particular whether that offence took place in 1986 or 1989.  The material particular, the element of the offence that must be proved is that the complainant was of the requisite age at the time the intercourse took place.  That proposition is dealt with in my outline of argument.  I will not elaborate further upon that but I say that there is one offence created and it is not a material particular exactly when that incident took place.

HAYNE J:   Does this not bring us to the nub of the point against you?  Ordinarily speaking, the date would not be a material particular.  What makes the date material in this case is the potential for engagement of the defence.  The offence propounded against the accused was an offence for which there was no defence of the kind provided by 49(4) because the offence propounded against the accused was of conduct occurring at an age when the complainant was not within the ambit of the 49(4) defence, so, is  not this the nub of the point against you, and it is a point not about verdict, it is a point about charge and particularisation of charge.

MR PEARCE:   The respondent would be in big trouble or have great difficulties if the law is as it is presently phrased, where the recent amendments to the section changed the ages that are relevant for the offence to be committed.  Amendments now separate unlawful sexual intercourse with someone under 14, on the one hand, and between 14 and 17 on the other.

HAYNE J:   May that not have the consequence that the information will now take on a perhaps undesirable complexity, there will be alternative charging, but it goes to the jury with the issues squarely presented as alternatives.  That may in the grander scheme of things be undesirable.  I understand why prosecutors would say it to be so, but are we not here concerned with charging not verdict?

MR PEARCE:   To answer that directly, if the law as it currently stands applied to this offence there would be a problem because it would be arguable that the complainant was under the age of 14, therefore, the accused would run the risk of being found guilty of an offence under section 49(1) as opposed to 49(3).  They are separate offences.  In the respondent’s submission what the accused faced in this trial was the possibility of being convicted for the one offence arising out of the one set of facts.

If it was open for him to be found guilty of different offences arising out of those one set of facts, then the argument would have force but, in my submission, given those unusual facts of this case and given the law as it then stood, he never faced that risk because he was always being tried for one offence, for one incident giving rise to the two counts for which he was charged.  If the respondent’s contention is correct that the dates are not a material particular, that they are not elevated to the status of an element of the offence by virtue of the applicant availing himself of the 49(4) offence, they were not material particulars and, therefore, it was still open for the jury to convict, consistent with the matters I have raised in the outline. 

The respondent’s contention is that section 49(3) creates the offence. Section 49(4) is not offence creating but creates a defence to the charge and that that defence to the charge was left here for the jury to consider if they had a reasonable doubt about the offences occurring in 1996, as alleged by the complainant.

To pick up on your Honour Justice Hayne’s point, the respondent would have a difficulty if the facts of this case did not allow or permit the applicant to avail himself of the 49(4) defence but here that was fairly and squarely left for the jury.  So in the respondent’s contention, no miscarriage of justice arises on that ground. 

If I may address one other aspect that arose in the course of my learned friend’s submissions concerning the Victorian decision of Beach and it picks up on this notion of, is it necessary for the verdict to be specific to a particular method of committing the offence?  The example given was manslaughter by unlawful and dangerous act or criminal negligence.  Here the offence of unlawful sexual intercourse can be committed in many ways, two of which are particularised on this information, though too manslaughter, murder may be committed in various ways. 

The issue that arose in Beach was that the offence of culpable driving could be committed in a number of particular ways, each of which was set out in the statute and it was necessary for the prosecution to particularise accordingly.  There was then ambiguity about the basis on which the jury convicted the accused but that, in my submission, could not arise here because count 1 relates to an act of cunnilingus.  Whether it occurred in 1986 or 1989, it was common ground that it was the same act. 

Similarly, count 2, the act of penile vaginal intercourse, always the same act that the parties were talking about, it was just simply a question of the date.  So there is, in the respondent’s contention, no ambiguity that arises there, as perhaps occurred in Beach, though where the respondent has referred in its outline to Stebhens and the various paths that a jury may travel to arrive at a verdict for a particular offence, we submit that the same principles arise on this offence as would arise for the homicide offences that were referred to.

KIRBY J:   But the homicide offences are a little different, are they not, because there is not the requirement for the jury to pass upon a statutory defence of some particularity?

MR PEARCE:   True, but what this jury was being asked to do was to decide whether there had been an act of sexual intercourse, whether the complainant was between 12 and 17 at the relevant time and whether that was committed in circumstances where it was unlawful.  Those three questions, those three elements, are the same whether the jury took the view, were satisfied beyond reasonable doubt that it all took place in 1986 or whether they had a reasonable doubt about that, took the view that it occurred in 1989.  They asked the same questions of themselves and their verdict is the same.  It gets back to the point made earlier by Justice Hayne.  Unless there is anything further, they are my submissions.

GUMMOW J:   Yes, thank you, Mr Pearce.  Yes, Mr Peek.

MR PEEK:   In answer to your Honour Justice Hayne ‑ ‑ ‑

GUMMOW J:   Before you get to that, Justice Hayne has something further to put to you.

HAYNE J:   It is my duty to inform you that you are not bound to ‑ ‑ ‑

MR PEEK:   Anything will be taken down.  It is being recorded.  I understand that.

KIRBY J:   You are looking so happy to have another help from Justice Hayne.

HAYNE J:   I wonder whether the error that you in truth seek to assign is that the Court of Criminal Appeal should have held that the only offences charged by the information were offences in respect of – I think we probably need neither of which – section 49(4) of the Criminal Law Consolidation Act 1935 (SA) could be engaged and that would be ground 2.1.

MR PEEK:   Yes, your Honour, that certainly is a substantial portion of the proposed argument under ground 2.1.  In other words, that is how we seek to make out our ‑ ‑ ‑

GUMMOW J:   Yes, I know, but you have not said it, it seems to me.Your present 2.1, which you say is just epexegetical of 2.1, as just indicated to you, would become 2.2, then you would have 2.3 and 2.4 and you have not any mileage, I think, on your present 2.4 which is long delay because that really was not the point.

MR PEEK:   If I can adopt that suggestion and Justice Hayne’s wording, and add that ground.

GUMMOW J:   It would have to be put to Mr Pearce.

MR PEEK:   Yes, if I can adopt that wording, if it please the Court.

GUMMOW J:   Yes, thank you.  Yes, Mr Pearce.  Mr Pearce, if we were to grant leave, you have heard what has been said as to the proposed grounds, is there anything you want to say?

MR PEARCE:   I am sorry, I did not catch the first of that, your Honour?

GUMMOW J:   If we were minded to grant leave, is there anything you want to say as to the grounds as now framed as the grounds of the appeal?

MR PEARCE:   Only this one matter, that is, the offence that was ultimately left to the jury was a defence that arose by virtue of a claim by the accused, contrary to what the complainant had to say, but claimed by the accused, the offence took place in 1989.  The defence that was left, despite the learned trial judge, in my submission, directing the jury in a matter that was favourable to the accused regarding the burden of proof, that it was necessary, in my submission, on a construction of 49(4) for the jury to be satisfied on the balance of probabilities that the offence took place in 1989, as alleged.

The jury were not expressly directed on that point although, in my submission, the directions on that ground were in fact favourable to the accused and therefore the defence having been left, there is no miscarriage of justice that arises from it.  I am not sure that directly answers your Honour’s question.

HAYNE J:   I think that the point you make may have to find reflection in the ground by providing that the only offences charged by the information were offences in respect of neither of which the defence provided by 49(4) of the Act could be engaged.

MR PEARCE:   It effectively being the threshold question, it then would activate the operation of that offence.

HAYNE J:   Essentially what was charged against the accused was an offence the conduct of which occurred while the complainant was more than 12 but less than 16 years old.

MR PEARCE:   Less than 17.

HAYNE J:   Yes.

MR PEARCE:   That is why I say, and I am sorry to repeat myself, that it is the one offence irrespective of when the offence took place.

GUMMOW J:   Thank you.  You have heard what has just been said, Mr Peek?

MR PEEK:   Yes, I have, your Honour.

GUMMOW J:   Thank you.

There will be a grant of special leave in this matter.  The grounds of appeal which presently appear on page 99 of the application book will need to be revised.  There will be no grant of leave in respect of ground 2.4 as it stands.  There will be a grant in respect of four other grounds, as indicated in the course of the argument this afternoon, in particular, with Mr Peek in the course of his reply.

The Court will now adjourn to Tuesday, 12 June 2007 at 10.15 am in Canberra.

AT 3.28 PM THE MATTER WAS CONCLUDED