Crofts v The Queen M28/1995 [1996] HCATrans 171 (16 April 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M28 of 1995

B e t w e e n -

IAN FRANCIS CROFTS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 16 APRIL 1996, AT 11.18 AM

Copyright in the High Court of Australia

MR D. GRACE, QC: If the Court pleases, I appear with MR O.P. HOLDENSON for the applicant. (instructed by Stary & George)

MR J.D. McARDLE: May it please the Court, I appear on behalf of the respondent. (instructed Mr P.C. Wood, Solicitor for Public Prosecutions, (Victoria))

GAUDRON J: Yes, Mr Grace.

MR GRACE: Thank you, your Honour. If I could first deal with the ground of appeal which is numbered 1b. That alleges the learned trial judge fell into error in failing to discharge the jury as a result of the admission into evidence of evidence of past acts allegedly committed by the applicant upon the victim. It is submitted that the learned trial judge's discretion in failing to discharge the jury after the admission into evidence of that particular material miscarried and that there was prejudice which was unable to be cured by any directions given by the learned trial judge to the jury subsequently. There is no complaint - - -

GAUDRON J: Why could it not be cured?

MR GRACE: Because the nature of the particular evidence, and I will turn to that now very briefly would require the jury to engage in a process of mental gymnastics to be able to exclude it from their minds when they came to deliberate on the substantive counts.

GAUDRON J: I suppose one of the difficulties was, as appears from the transcript, that defence counsel just did not want to draw any further attention to it, so it was a practical difficulty about anything that the trial judge could so.

MR GRACE: With respect, your Honour, defence counsel did apply for a discharge immediately. He asked for the jury to be excluded from the court immediately and that is what occurred. His Honour gave a ruling that in the exercise of his discretion that he would not discharge the jury.

KIRBY J: The point being made is that in order to try to cure it by instruction you call attention to it and your side did not want that. That in a sense signals how, in the drama of the trial, it was judged at the time.

MR GRACE: Yes, I understand that point, your Honour, but the problem in this case was that the evidence adduced from the witness on this issue were details of events of a different nature to the rest of the counts on the presentment. They were details of events which could not be adequately described as being contained within the other events described by the counts on the presentment and that is the damage that resulted from the admission into evidence of that. Once the learned trial judge exercised his discretion in the way he did, there was nothing forensically that defence counsel could have done other than what he did do in his comments to the learned trial judge.

The verdicts of not guilty on the counts that the jury actually deliberated upon and not the ones that they were directed to find the applicant not guilty upon could be explicable by other factors other than the ability to exclude from their minds prejudicial material and those other factors could have been the strict directions given by the learned trial judge to the members of the jury in relation to being satisfied beyond reasonable doubt that the dates encompassed by the counts, which were between dates offences, could be a subject of a finding beyond reasonable doubt on the complainant's evidence and that could be the explanation why there were not guilty verdicts given.

The principle that it is said that the Court of Criminal Appeal failed to apply properly is that contained in the case of Maric v The Queen (1978) 52 ALJR 631 and at page 635 in the judgment of the then acting Chief Justice, Sir Harry Gibbs, at paragraph E his Honour said:

At basis the question is whether the Court of Criminal Appeal can be satisfied that the irregularity has not affected the verdict and that the jury would certainly have returned the same verdict if the errors had not occurred.

We submit that applying that test to this error - and it was acknowledged by the learned trial judge that the error had occurred, that the evidence should not have been admitted - the only result could have been that the trial has miscarried and that a retrial should have been ordered. I take it that your Honours are familiar with the passage impugned and I do not, unless your Honours - - -

GAUDRON J: Yes, but you do have to make the point, I think, do you not, that it simply could never have been cured?

MR GRACE: Yes.

GAUDRON J: Yes. Well, I do not understand precisely how you make that point, Mr Grace.

MR GRACE: Because of the impact that that sort of material must have had on the minds of the jury.

McHUGH J: But why? The accused was acquitted of numerous counts. It does not seem to suggest to me that the jury was prejudiced. It is a totally different taste to Maric. In Maric evidence was wrongly admitted and then relied upon. This evidence was never relied upon. It just faded out.

MR GRACE: It is a matter of impression and it is a matter of the issue as to whether the verdicts of not guilty are explicable for other reasons and the Court of Criminal Appeal in this case in any event referred to cases such as Reg v Johnson, an unreported decision of the Court of Criminal Appeal of Victoria, which said just that, that in cases of this nature verdicts of not guilty can sometimes be explicable by other events. The only count on the presentment that was similar to the evidence that was given that was impugned was a count that resulted in the verdict of guilty.

McHUGH J: But this is a case - the judge is the person on the spot and he has the atmosphere of the trial; he knows what is going on; he sees what happens on the evidence; he sees the counsels' reactions; he sees everybody's reaction, and he thought he should not discharge the jury.

MR GRACE: Yes. Well, I cannot put the submission any higher than I have and if I could now turn to the second ground of appeal, which is ground 1c as appearing in the draft notice of appeal. That related to the absence of a direction given by the learned trial judge in relation to the issue of delay. The general rule, as your Honours would probably be aware, is that such a direction, the absence of which is complained about, ought to have been given. I am sorry, your Honour?

McHUGH J: This is the Kilby direction you are talking about?

MR GRACE: Yes, the Kilby direction ought to have been given and if I could refer your Honours to the decision of the Supreme Court of New South Wales in the Court of Criminal Appeal in the matter of Davies and Others (1985) 3 NSWLR 276 and at page 278 in the paragraphs D, E, F and G the principle is there outlined and the principle, to paraphrase it, is that which appears approximately point G on page 278 of the judgment where his Honour Mr Justice Hunt, as he then was, said:

In my opinion, the trial judge in a sexual assault case should as a general rule, in addition to giving the directions required by s 405B, continue to direct the jury that the absence of a complaint or the delay in making one may be taken into account by it in evaluating the evidence of the complainant and in determining whether to believe her. The usual case where this will arise is where there is no dispute in the evidence as to whether or when a complaint was made.

GAUDRON J: You not only did not get the direction, you got a direction to the oppose effect at page 336.

MR GRACE: Yes, exactly.

GAUDRON J: It is to the directly opposite effect that they should not draw that inference.

MR GRACE: Yes, and that direction was in accordance with the prevailing legislation in Victoria.

GAUDRON J: Is it? The one at page 336, line 20 to 30.

McHUGH J: Yes, and you do not seem to make any complaint about it, but I would have thought it is your best point.

MR GRACE: I do make that complaint, your Honour, and it is certainly a matter that was highlighted by the failure by the learned trial judge to give the direction that was asked for, but certainly the lines from 19 to 29 on page 336 are ones that put the issue so far to one side in the camp of the complainant that without a direction countervailing that of the terms mentioned in Kilby and in Davies the applicant was left in such a prejudicial position that we say the fairness of the trial has been adversely affected to a substantial extent and for that reason the Court of Criminal Appeal, we say, was in error and applying the appropriate test as contained in Davies and in Kilby the court should have held that the failure to give such a direction has affected the fairness of the trial causing error which vitiated the trial process.

GAUDRON J: Mr Grace, I noticed in the decisions in the Court of Appeal that an exception was taken to the directions but I was not able to find it in the application book. Can you refer me to it?

MR GRACE: Yes, I have copies of that for the Court. It is marked, your Honours. It is the only copy unfortunately we had. For some unaccountable reason it was not in the application book. At 564.6 his Honour says:

I don't think I should say, on the one hand, that the delay in complaint can found an inference that the allegations are false and then "But I've got to warn you that delay in complaining does not necessarily indicate that the allegations are false". How can I? I mean, that's exactly what I'm not supposed to do.

MR DICKINSON: No, as I say, your Honour - - -

HIS HONOUR: In my general summary of these warnings I have included that one of the factors that might create a difficulty in the giving and assessing of evidence is the delay. I have mentioned that and beyond saying that, I don't see that it is up to me to make a point for you that delay in complaining might indicate that the allegations are false when, in fact, the section requires me to warm them of quite the contrary.

MR DICKINSON: No, the section doesn't require that, Your Honour. The section says that you are required to warn the jury that delay in complaining does not necessarily indicate that the allegation is false.

Then follows further discussion on the topic and his Honour in the event refused to give the direction that was sought. The words of the section are clearly set out in the judgment of the Court of Criminal Appeal and I will not refer your Honours to those. The Court of Criminal Appeal in its judgment referred at page 396 to this issue at the top of the page and their Honours said this, referring to the learned trial judge:

He said what those terms dictated should be said -

that is referring to the legislation -

Beyond that he was not required in law to go. We cannot think that his failure to comply with the applicant's counsel's request has misled the jury or led to any miscarriage of justice. We are of opinion that these observations are not inconsistent with what this court said in the unreported case of R v Omarjee.

In fact, the court was quite wrong. What Reg v Omarjee said was quite the opposite and the court in Omarjee 79 A Crim R 355 said at page 368 of the reported judgment at about point 7, after dealing with the complaint that there had been the failure similar to what is complained about in this case, the court said:

In our view, the applicant, by reference to the decision of the New South Wales Court of Criminal Appeal in Davies which was concerned with the defect of the New South Wales equivalent of s 61 of the Crimes Act 1958 , made good the submission that, notwithstanding the enactment and terms of s 61, a trial judge should as a general rule give a direction in accordance with Kilby, being a direction which, the applicant asserted, the trial judge here had failed to give. In our view, no reason appears why the general rule should not apply here.

That was one of the bases for the grant of the application for leave to appeal and the allowing of the appeal against conviction in Omarjee's Case. So what we say is that the Court of Criminal Appeal in this case misdirected itself in relation to following Omarjee and if it had followed it properly it would have resulted in a different decision. It is important to note that the respondent relies in part upon the decision of Murray, which is a later decision I believe of the New South Wales Court of Criminal Appeal, but in Murray's Case, which said that the rule is not invariably followed, there was a delay of two days between offence and complaint and even in the case of M v The Queen, in which your Honour Justice Gaudron made comment that the rule is not invariably applied, the delay was one month between the date of the offence and the complaint. In this case we are dealing with delays of up to six years, hence, the need, we submit, for a very strong warning. If I could now turn, your Honours, to the issue concerning sentence.

McHUGH J: I am not sure what you are really saying about 336. I would have thought you would have been throwing all the weight of your argument on the passage that appears at page 336 because it is tailored to this specific case and it seems to be a specific direction to the judge that in this case you are not to draw any inference that this complaint was false because of delay and later on when the judge gives the 61(b) direction he is talking about what the law instructs him to do. I would have thought the critical issue in this case was the passage at 336.

MR GRACE: Yes, I agree with your Honour, but that has got to be coupled with the discussion and the directions in relation to the direction given in respect of delay at a later time in the charge.

McHUGH J: That direction at 336 so far as I can see was not corrected.

MR GRACE: No, it was not corrected, neither was there an application for a redirection on that.

GAUDRON J: I am not too sure about that.

McHUGH J: I thought that there was at page 563 in the passage you handed up. That was counsel's complaint.

MR GRACE: That was more directed, as I understood it, your Honours, to the issue of the delay point which I have earlier referred your Honours to.

McHUGH J: He said:

Your Honour said that because there was a lack of recent complaint, they were not entitled to draw an inference that it never happened and Your Honour came back a little later -

that is a reference to what happened at 336.

MR GRACE: Yes, and later on at page 564 that is also related to the delay point that was made earlier and certainly that is relied upon, your Honours, in conjunction with the comments and the submissions made in respect of that particular ground of appeal. When coupled together it is submitted that it is reflective of error which vitiated the trial process and is sufficient magnitude in this case to justify a grant of special leave.

KIRBY J: You were going to come now to the third point on the statute, but may I ask you this: was that the subject of argument in Cowburn and Geisler and was special leave refused in those cases on this point?

MR GRACE: The same argument, we submit, was not put in Cowburn and Geisler. It is certainly the case that special leave was refused in those cases on this issue. We say that it is implicit in the decision of the Court of Criminal Appeal in this case that there are fundamental flaws in reasoning in applying Cowburn to this particular section. The court could not have found for the applicant in the court below unless the meaning we contend for was adopted. So I know there is an objection made to the submissions that have been made by the applicant in this Court because it is said that it was not argued below, but we submit that there are fundamental reasons why the court would have to have rejected what our submissions are before they could make the finding that they did in this particular case.

The decision in Cowburn we say is fundamentally flawed because it relied upon a concession by junior counsel made in a Court of Criminal Appeal which was wrongly made and wrongly acted upon. We say that there is work for section 3(2)(a)(iii) to do which would be consistent with a finding that the word "conviction" refers to previous or prior convictions. If I could hand up to your Honours a summary of the work that can be done by each of the subsections to section 3(2) of the Sentencing Act 1991 .

KIRBY J: What is the offence to general principle of applying it in respect of the subject defendant or defendants given the policy, Draconian though it may be, that lies behind the legislation?

MR GRACE: Because the convictions referred to in section 3(2)(a), we submit, must mean prior or previous convictions consistent with the definition of that word used in section 376 of the Crimes Act, which means a conviction recorded before the commission of the offence with which the court is dealing with. Now, proof of the correctness of our submission, we submit, is found in analysis of how a court can prove the existence of a prior conviction where an accused denies it in order to have triggered the operation of the serious sexual offender provisions and, your Honours, could I have an extension of two minutes?

GAUDRON J: Yes.

MR GRACE: Thank you.

GAUDRON J: What was the precise provision of the Act?

MR GRACE: Section 3(2) of the Sentencing Act.

GAUDRON J: Yes, thank you.

MR GRACE: Coupled with that, your Honours, is section 376 of the Crimes Act. The essence of the decision in Cowburn and Geisler is that the words "in the same trial" as contained in section 3(2)(a)(iii) are directly referrable to counts on the presentment which trigger the operation of the serious sexual offender provisions, so that if you had three counts on a presentment, all alleging rape, for instance, once you come to the third count which has been the subject of a verdict of guilty, the prisoner is then a serious sexual offender and is to be dealt with.

KIRBY J: Why would that not be the policy of Parliament that, as it were, says, "If you come again, you will fall into the statute"?

MR GRACE: Because the prisoner is not coming again. He has been dealt with on the one occasion simultaneously and due to the order of counts, the fact that they have been dealt with together, he has been treated on the third as being a serious sexual offender, yet this might be his first appearance in a court. If that was not the case and if section 3(2)(a)(i) was the applicable subsection in that particular case, if the prisoner denied the existence of prior convictions, the only way that could be proved would be to bring into operation section 376 of the Crimes Act, which provides that at the time of committing the offence the prisoner had a previous conviction or previous convictions and provides methods of proof of that particular fact.

Now, if that is the method of proof under subsections (i) and (ii) of section 3(2)(a), then the words "in the same trial" should not, in our submission, refer to counts in the same trial which triggered the operation of the serious sexual offender legislation. In the three pages that I handed up to your Honours just a few minutes ago, I set out what work each of the subplacita in section 3(2) can do. In subplacita (i) what is submitted is that "in different trials held at different times" means that trials held at different but previous times on different presentments, provided that the convictions recorded at those trials were convictions for offences occurring prior to the time of committing the offence or offences which triggered the operation of the serious "sexual offender provision".

GAUDRON J: You have to read a lot of words into the definition that are not there.

MR GRACE: Yes, but, unless you read that in, with respect, your Honour, there can be no proving of those prior convictions because, if the prisoner denies the prior conviction, then the only way that can go before the Court is pursuant to the operation of section 376. So, therefore, to adopt the reasoning of the Court of Criminal Appeal successively in Cowburn, Geisler, and now this case, would mean that there is no machinery or mechanism for the proving of prior convictions if they are denied under section 3(2)(a) which must mean, in our submission, that the meaning attributed to the word "conviction" by those successive Courts of Criminal Appeal was in error and this Court should examine the meaning of the word "conviction" as contained in section 3(2) and the point is of sufficient importance to justify the grant of special leave.

GAUDRON J: Thank you. Yes, Mr McArdle?

MR McARDLE: If the Court pleases, turning to the first matters raised by my learned friends, the matter, it is submitted, was amenable to repair by a warning by the trial judge.

GAUDRON J: It was hardly a strong warning, was it? It was almost so weak as to be non-existent, and necessarily so, one would have thought, because counsel would not want to draw attention to what had been said.

MR McARDLE: Your Honour, these matters have to often be handled with a level of delicacy.

GAUDRON J: Yes, it was very delicate on this occasion, was it not?

KIRBY J: The question was not so delicate.

GAUDRON J: More particularly, it is clear as can be from a reading of the transcript that counsel led the complainant into saying what she did.

MR McARDLE: Yes, your Honour, I am not sure what the motive for that was. However - - -

KIRBY J: A little bit of prejudice.

MR McARDLE: I beg your pardon?

KIRBY J: A little bit of prejudice. I hope not.

MR McARDLE: Well, that apparently was explored in the Court of Appeal and you will note that while the matter might not have been resolved, and, indeed, I do not think it was resolved at the trial, it was certainly denied according to the Court of Appeal. I concede that at the trial it was not a matter that was explored.

McHUGH J: Could you just enlighten me? On what basis did the judge exclude this evidence, in any event, in the first place? I would have thought it was all admissible, in any event.

MR McARDLE: With respect, I agree, on the basis of it establishing a relationship.

McHUGH J: It is the relationship evidence, yes.

MR McARDLE: Yes. I agree with that. It is not a matter that I have looked at. It does not appear in the application book.

McHUGH J: No.

MR McARDLE: Yes, it could, in my submission, have been admitted.

McHUGH J: It is the sort of evidence that is led every day in criminal trials. It has been for - - -

MR McARDLE: It is, your Honour. For example, I think, one of the cases that was mentioned in my learned friend's summary was Vonarx, and there is reference to it in that.

Now, this material came out at the conclusion of the re-examination and that was towards the end of the Friday afternoon. Now, counsel for the applicant made his application in, I think, a fairly tentative way at that stage, quite properly wishing to have a look at the transcript to see precisely what was recorded as having been said. On Monday the legal year commenced, and the case was resumed at around about midday or a bit after midday because of the church services and such for the commencement of the legal year. In fact, I think the case recommenced at two o'clock or thereabouts.

A warning was given by his Honour. I concede in the most general terms. It was a matter that needed to be handled with some delicacy, it is submitted, which warning, of course, was repeated in the charge, and the warning was given then and that, at least, has the advantage of not directing the jury's attention to the specific material. I appreciate that it might be said that it is a doubled edged sword, as far as that is concerned, but it is one of those judgments that has to be made and, in my submission, made correctly by the trial judge. It is to be noted, of course, I think, in what his Honour said in the initial discussion about the admissibility of the uncharged acts that his Honour anticipated that there may well be difficulty, as the Court would appreciate, about the possibility of other material coming in, and there was reference, I think, to some references in the course of cross-examination of other events or similar events and such. And, so, the warning was directed to sweeping up all of those.

GAUDRON J: It was most prejudicial, was it not, coming in re-examination. It was not something that could be, in any way, explored at that point of the evidence.

MR McARDLE: There is a certain ambiguity about what is said there because one commences with the question about sexual behaviour in the most general term. Then it appears to relate to incidents of sexual penetration, oral sexual penetration, and how some evidence might be preserved in relation to that. And then she that although things happened she did not have that opportunity. Now, whether she was referring when she said to "things happening" to other sexual episodes, because there was a vast variety of offences, indecent assaults and such, or whether she was referring to the more specific oral sexual penetration is a matter that was not explored and, in the circumstances, could not be.

Now, the matter was, in my submission, considered by the Court of Appeal with the well-established authorities requiring the high degree of necessity for a discharge at that stage and my learned friend has taken you to the authority of Maric's Case and the tests there. Now, the point is to be made that the applicant was acquitted on a number of charges for reasons good to the jury and that would indicate, in my submission, that separate and, indeed, my submission is proper consideration was given to the counts which resulted in a conviction. This is a case, it is submitted, quite different from Maric where the evidence is evidence of an admission. It was admitted admissible. This case depended almost exclusively on the credit of the girl and in some matters her evidence was accepted beyond reasonable doubt. In others, it was not. So, in my submission, the warning given by the jury was adequate. There was no miscarriage and there was no high degree of necessity for a discharge.

Would it be convenient for me to move on to the second matter now, the question of complaint? The law in Victoria, as it does in New South Wales and as apparent in Murray's Case requires certain directions concerning delays. Those directions, of course, have to be triggered by questions or comment. That has been interpreted in fairly wide terms, especially in Murray's Case.

An examination of the cross-examination of the prosecutrix in this case would reveal, in my submission, that the delay matters were not directly approached, if you like. I do not remember seeing a question of, "Why did you wait so long?" Certainly, questions were asked about when she first complained about it; the circumstances of when she first complained about it, which appear to be provoked by some difficulty that she experienced at school. That was immediately beforehand, and those matters were examined by counsel for the applicant.

Now, what is described as a general rule in Kilby's Case is, of course, not a rule of universal application. Indeed, in Kilby's Case no fault was found with the trial judge because such a direction was absent, because of the circumstances of the case. In Murray's Case, which follows and considers Davies' Case which was drawn to the court's attention, it was made clear, in my submission, that it is not a rule of universal application and its absence does not mean that the verdict is unsafe.

The circumstances, of course, have to be taken into account and as your Honour Justice Gaudron wrote in M's Case then in circumstances of a child it is of less account. Now, your Honour in that case drew attention to circumstances where the child was in a situation of trust; the offence occurred by someone part of the family or close to the family. Now, that, of course, is not exactly what happened here but it is very close to it because the offence occurred or is alleged to have occurred by a man who was married to the niece of her mother but, more importantly, was a man with whom her father was staying while he was working in Melbourne. The family apparently normally come from Swan Hill and these events occurred at Melton or thereabouts while her father was doing factory work down here.

One could, in my submission, easily understand the forces and those other considerations which bring her closer to the young child, for example, who might be sexually attacked by her father or something of that nature.

McHUGH J: I understand the force of that argument as an abstract proposition but what concerns me is the absence of the Kilby-type direction coupled with the very specific direction at 336 which is the opposite.

MR McARDLE: Yes. I do not think that direction, that is the direction at 336, was ever really explored the way your Honour has in mind before the Court of Appeal and, in those circumstances, it is submitted that it is not an appropriate matter for this Court because the matter was never really explored or argued there and, indeed, this Court does not have the benefit of the views of the Court of Appeal on the matter, and that is an observation I make of general application, not only to this case.

GAUDRON J: Yes, but the complaint was made about the absence of a direction and that is a complaint that has to be analysed in the context of the whole direction and it is that context which gives point to the complaint that there was no direction.

MR McARDLE: Yes.

McHUGH J: You see, it is not merely a failure to give the Kilby direction. What appears at 336, and so far as I can see was never corrected, is the opposite of Kilby; it says you cannot do what Kirby says you can do.

MR McARDLE: Yes, your Honour. His Honour, I expect, was attempting to give the direction in accordance with section 61 of the Crimes Act which is obligatory. In any event, your Honours, it is submitted, again, it is a matter of judgment; the circumstances of the case. I draw the Court's attention to the nature of the cross-examination of the prosecutrix in this case, that it was not, as I read the evidence, directly put to her, "Look, why didn't you complain?" It was skirted about.

Now, the matter was considered and, in my submission, correctly decided by the Court of Appeal and there remains no miscarriage.

I will move now to the serious sexual offender matters and commence with an apology to the Court because I think that I have been the source of some confusion. Geisler's Case came before this Court. Special leave was not granted there. It was not Cowburn's Case. Cowburn's Case, which is considered in Victoria the authority on the matter, being the first of the cases - - -

KIRBY J: It applied Geisler.

MR McARDLE: It was applied in Geisler and I thought that it also was the subject matter of a special leave hearing. But, in fact, it was Geisler and in order to understand Geisler one must understand Cowburn because although they were separately constituted courts of appeal, they had a common - there were two judges, Justices Crockett and Southwell were in both courts and in Geisler's Case they adopted the reasoning in Cowburn. Both cases were reserved judgments, of course.

In this case now, for the first time it is submitted, a direct attack has been made on Cowburn. In the Court of Appeal it was said Cowburn is distinguishable. Now, you are being invited to overrule Cowburn and it is submitted that whatever the merits of the argument, it is not appropriate because, again, the matter was not explored in the Court of Appeal.

KIRBY J: But if we are going to bring the matter up, the point that is being argued is a relatively short matter of statutory construction and it is a matter of general application and it seems to me at the moment, uninstructed by full argument, that it is a matter that is distinctly arguable and it is - on one view, Draconian legislation should be pretty strictly construed. I think that was conceded by the Crown somewhere because - - -

MR McARDLE: It is important legislation; it has consequences. But, on the other hand, it is legislation which, as I understand the situation, does not have - there is no similar legislation in other States.

KIRBY J: Not yet. It is talked of elsewhere.

MR McARDLE: Yes, well, I do not know.

McHUGH J: The big argument in your favour is the paragraph (b) definition of "serious sexual offender" when you can - - -

KIRBY J: The big argument against you is that you do not normally get punished for something that precedes - that is occurring at the very trial -additionally in that very trial.

McHUGH J: But that is what paragraph (b) does.

KIRBY J: On one view.

MR McARDLE: Yes, the parliamentary debates were examined in Cowburn's Case and it was apparent, In my submission, that the intention of the legislature was to change some of the conventional sentencing rules in - - -

KIRBY J: But it does not have the sanctioning effect of, as it were, preventing extra. It is punishing you additionally for what you are being punished for.

MR McARDLE: Yes, because - - -

GAUDRON J: You would say, would you not, to take a case I saw referred to in today's newspaper: a person breaks into a home; engages in multiple acts of rape. You say that is a serious sexual offender on any view of language and on any view of the definition?

MR McARDLE: Yes, and so did the Court of Appeal in Cowburn, if not in the present case. That is the situation.

McHUGH J: And to take up Justice Gaudron's point, if there was just one act of rape but one punching or some act of violence, then he is a serious sexual offender.

MR McARDLE: We would say yes, because he brings in both the serious offender, the assault-type offences, and the other ones, yes. Without wishing to engage the Court in a political debate about these matters, it is clear, it is submitted, that that was the intention of Parliament and it is clear from the wordings of the Act, no matter how much or what attempts might be made to read meanings into them.

KIRBY J: What do you say about the interaction with the Crimes Act though, the proof of the prior conviction?

MR McARDLE: It may have been that that argument escaped me but if a prior conviction is to be proved it is proved through the mechanism of the Crimes Act. Now, that legislation refers to "prior convictions" and words to that effect. Now, if, for example, the person does not admit to a prior conviction that is not part of the presentment, it is the second part of the presentment, the prior conviction in the traditional sense I think the expression is used, then it is proved in the traditional way.

McHUGH J: Yes. I must admit I had great difficulties following the argument. It is too subtle for me. The fact that the accused may not admit prior convictions did not seem to me to be any sort of an argument against the fact that he can still have convictions in the same trial.

MR McARDLE: Your Honour, if I may say so, I am pleased to hear that. I thought it might have just been me.

KIRBY J: I think we might need a little more elaboration. Of course, if the accused gets up on the matters of substance, it does not arise in this case.

MR McARDLE: Yes, it does not. Yes, I agree with that.

KIRBY J: Unless the Court wanted to say something about - - -

MR McARDLE: Yes, I agree with that, your Honour. I think that that concludes the submissions I desire to make. If the Court pleases.

GAUDRON J: Thank you, Mr McArdle. Mr Grace, it might be helpful if you confine your reply to the question of the serious sexual offender.

MR GRACE: Yes, and could I explain the subtlety that your Honour Justice McHugh had difficulty in understanding, with respect, your Honour. I will give you the example: say, in 1995 a prisoner has been convicted of an offence that occurred in 1994 of, say, two offences of rape in the same trial. In 1996 he is brought to trial charged with a further count of rape which occurred in 1990. When convicted of that further count of rape, on the respondent's argument, he would then be a serious sexual offender. But if he denied the prior convictions occurring in 1995, they could not be proved under any machinery or any mechanism known to the criminal law in Victoria because section 376 of the Crimes Act provides that a prior conviction is only averred where, at the time of committing the offence, the offender had a previous conviction or previous convictions.

KIRBY J: You say Parliament thought about all this?

MR GRACE: Parliament could not have thought about this properly. If that is right, if that argument is right, then the word "conviction" has different meanings depending on which subplacita is applied in the particular case before the court.

McHUGH J: No, "conviction" does not have any different meaning at all.

MR GRACE: But the proof of it does.

McHUGH J: That is a different matter altogether.

MR GRACE: Yes.

McHUGH J: A conviction is a conviction. There is only a conviction; you are either convicted or you are not. Whether you can prove it is another matter, but it does not seem to me to lend any support for an argument that "convictions" in that section means "previous convictions".

MR GRACE: In my submission, with the greatest of respect, it must mean that because without that meaning it makes the operation of the subsection impossible in many, many instances. That is the premise of - - -

McHUGH J: But you also - I am not familiar with proof of convictions in Victoria but is 376 the only means by which you can prove convictions in Victoria?

MR GRACE: No, there are provisions in the Evidence Act which allow a conviction to be proved but not a previous conviction. There are specific provisions which are solely contained in the Crimes Act, sections 376 and 395, that relate to the proving of previous convictions or prior convictions.

McHUGH J: But 376 is talking about adding:

to the presentment a count or counts averring that the offender.....had a previous conviction or previous convictions.

What has 376 got to do with the definition of "serious sexual offender"?

MR GRACE: Because if one looks at section 3(2)(c) of the Sentencing Act, the word "convicted" where second occurring refers to prior convictions.

McHUGH J: But that is a different context altogether to what 376 is dealing with. It is talking about previous convictions being added to a presentment.

MR GRACE: Yes. But your Honour was comparing the word "conviction" in 376 as it appears and the word "conviction" as it appears in section 3(2) of the Sentencing Act and if the Court of Criminal Appeal is correct, then the definition of the word "convicted" where second appearing in section 3(2)(c) has a different meaning to the word "convicted" where first appearing in that subplacita and also a different meaning to the word "convictions" in the remainder of that particular subsection.

McHUGH J: I still do not see it.

MR GRACE: Subparagraph (c) is all about proof beyond reasonable doubt, your Honour, and in order to prove something beyond reasonable doubt, the method or the machinery for proof which is contained in 376 of the Crimes Act must be put into operation. That is the machinery. So that the word "convicted" in section 3(2)(c) where second appearing, in order to apply the Court of Criminal Appeal's reasoning, must have a different meaning to the word "convicted" or "conviction" where it appears elsewhere in the section.

KIRBY J: If you were to get special leave to appeal against conviction, how much longer would the argument on the statutory point take the Court?

MR GRACE: I am told by my learned junior 30 minutes. I would imagine something of that range.

KIRBY J: I assume this is a section that is being applied regularly in the courts of Victoria?

MR GRACE: Yes, daily.

KIRBY J: Daily?

MR GRACE: Daily, your Honour. If the Court pleases.

GAUDRON J: There will be a grant of special leave to appeal against conviction. By majority, the Court is of the view that the decision of the Court of Criminal Appeal with respect to the meaning of the expression "serious criminal offender" in section 3 of the Sentencing Act (Vic) is not attended with sufficient doubt to justify the grant of special leave to appeal against sentence. To that extent, special leave is refused.

AT 12.08 PM THE MATTER WAS CONCLUDED