Crofts v The Queen M35/1996 [1996] HCATrans 313 (14 August 1996)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M35 of 1996

B e t w e e n -

IAN FRANCIS CROFTS

Appellant

and

THE QUEEN

Respondent

DAWSON J

TOOHEY J

GAUDRON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 14 AUGUST 1996, AT 10.01 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 a ppellant. (instructed by Robert Stary, Andrew George)

MR J.D. McARDLE: May it please the Court, I appear with MR C.B. O'GRADY for the respondent. (instructed by Mr P.C. Wood, Solicitor, Office of Public Prosecutions (Victoria))

DAWSON J: Mr Grace.

MR GRACE: Thank you, your Honour. The crucial issue in this case for the jury to determine was whether it could accept or rely upon the evidence of the complainant to the requisite standard. In respect of the group of counts upon which the appellant was convicted, the credibility of the complainant was the issue. There was no corroboration. The appellant's defence in respect of those group of counts was, firstly, denial and, secondly, that the evidence of the complainant could not or ought not be accepted to the requisite standard. With the Court's leave, it is proposed to first argue the ground that relates to error in respect of the directions concerning the complainant's delay in making complaint, that is, ground number 2c.

TOOHEY J: Mr Grace, your grounds of appeal perhaps do not reflect really the way in which the argument is to be presented judging from your outline of submissions. It seems to be based upon an unsafe and unsatisfactory verdict or, as I understand your submissions, you are really arguing that there were two errors and that it is not possible to apply the proviso to the errors to correct any miscarriage of justice that might have taken place.

MR GRACE: Yes, that is correct, your Honour.

TOOHEY J: Is that the way we should view it?

MR GRACE: Yes, and in that sense, the verdicts are unsafe or unsatisfactory.

TOOHEY J: It may not be quite the same thing but, at any rate - - -

MR GRACE: But in the Longman type sense that the failure to give the proper direction has resulted in the verdicts being unsafe or dangerous or unsatisfactory.

DAWSON J: It has resulted in a mistrial.

MR GRACE: Yes. In this case, there was no evidence of recent complaint by the complainant. The first complaint was made to her mother on 22 June 1993. That was one and a half years after the last incident complained of and between four to six years after the earliest incident which is referred to in count 1. Count 1 was a count that spanned a period of over two and a half years.

In his charge to the jury, the learned trial judge on a number of occasions referred to the absence of complaint or delay in making the complaint, but his Honour failed to direct the jury that the jury might use the absence of the complaint in its assessment of the credibility of the complainant other than the direction under section 61(1)(b) of the Crimes Act 1958 and perhaps at this stage, your Honours, if I could refer you to section 61 of the Crimes Act. Do your Honours have that section?

DAWSON J: Yes.

MR GRACE: Section 61(1) reads as follows:

(1) On the trial of a person for an offence under Subdivision (8A), (8B), (8C), (8D) or (8E) or under any corresponding previous enactment or for an attempt to commit any such offence or an assault with intent to commit any such offence -

and I will omit reference to subparagraph (a) and go on to paragraph (b) -

(b) if evidence is given or a question is asked of a witness or a statement is made in the course of an address on evidence which tends to suggest that there was delay in making a complaint about the alleged offence by the person against whom the offence is alleged to have been committed, the judge must -

(i) warn the jury that delay in complaining does not necessarily indicate that the allegation is false; and

(ii) inform the jury that there may be good reasons why a victim of a sexual assault may hesitate in complaining about it.

Subsection (2) provides that:

Nothing in sub-section (1) prevents a judge from making any comment on evidence given in the proceeding that it is appropriate to make in the interests of justice.

In this case, not only did his Honour fail to give the direction that was sought in respect of the way in which the jury might use the absence of a complaint in a jury's assessment of the credibility of the complainant, but his Honour gave the converse direction, and that appears at page 269 of the appeal book. At line 19, his Honour says this:

Coming down to this particular case - and I will deal with this again in a different context, but it is valid to deal with it here under the heading of inferences - one inference you should not draw, as a matter of law, in this case, for the reasons I will mention later, is that because the complainant did not complain about the offences immediately after they happened, that they did not happen or that she was not bothered by them or that she consented - not that consent is an issue in this case, but you would not be entitled to draw those inferences. And I will explain that, under a different heading, later.

And later, his Honour did. At page 280, line 3, his Honour said this:

The second matter - and I adverted to this earlier, but I am now giving you the formal direction, relates to the delay in making the complaint. The law requires me to give you this advice, but again, when fully considered, it is a matter that accords with common sense and human experience. Delay in complaining in sexual abuse cases does not necessarily mean the allegations are false; there may be good reasons why victims of sexual assaults hesitate in making complaints about them. The experience of the law confirms the complaints are often not made immediately after sexual assaults. Mr Doherty, in his address to you -

Mr Doherty was for the Crown -

suggested that she was young, confused, feelings of guilt, fear of disbelief, fear of family upheaval, fear of accusation against a family friend were all suggestions that were put forward that may explain such a delay, and there may well be others. Experience has shown that it is not uncommon for such a delay and the law requires me to say that it does not necessarily mean the allegations are false.

Now, there is no complaint about that direction in so far as it replicates the legislative requirements of section 61(1)(b). However, the matter was complicated by two factors. Firstly, the converse direction which, we submit, was clearly in error at page 269 and which related to 280 and, secondly, the failure to give a balanced direction in that the learned trial judge ought to have given a direction to the effect that they could take the failure to complain, or the delay in complaint, as a matter in its assessment of the credibility of the complainant.

TOOHEY J: Leaving aside the question of balance, why do you say there was an error in what was said on pages 269 and 280?

MR GRACE: Because, as a matter of law, that is incorrect.

GAUDRON J: Page 269, to the extent that he said, "you must not draw the inference"?

MR GRACE: Yes.

TOOHEY J: Yes, but I said 269 coupled with 280.

MR GRACE: Page 269 coupled with the failure to give a balanced direction at 280.

TOOHEY J: I understand that, but I thought you were really making two complaints each, as it were, independent of the other. One was that the direction as given was incorrect and, secondly, that the direction was an unbalanced direction because it failed to take into account those considerations. Focussing on the first, is 280 in error?

MR GRACE: Page 280 is not in error. 280 is only in error when taken in context with the failure to have a balance from the accused's point of view, that there would be a countervailing direction to say, "Yet you might take into account the failure to complain, or the delay in complaint, as a matter in assessing the credibility of the complainant".

DAWSON J: It is in error if you read it together with what appears on 269 you would say.

MR GRACE: Yes, it is.

GAUDRON J: Was there a redirection sought?

MR GRACE: Yes, there was, your Honour. At 286, and if I could read from line 4, Mr Dickinson for the accused says this - this is in the course of his Honour's directions, his Honour invited counsel to take exceptions. Mr Doherty for the Crown said he had none. Mr Dickinson for the accused said this:

Two matters, your Honour. 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 when you enumerating the various points and you went to delay in complaint and your Honour pointed out that there were many reasons why one wouldn't complain and the experience of the law is that delay is not uncommon and it does not necessarily mean that the complaints are false.

And then counsel refers to section 61, and I will not refer that to you, but if we go to line 27 on the same page, counsel says:

Your Honour complied with the section; there is no complaint about that. That section is there to make sure that the observe is put to the argument that there has been delay in complaint and the argument about delay in complaint is that indeed it may well mean that the complaint is false and that - - -

and his Honour interrupts -

That is an argument that you run the argument and then I warn them under this section.

MR DICKINSON: I left that out of my address, your Honour, because I was leaving that for - - -

HIS HONOUR: I know you did, but it was mentioned during the trial.

MR DICKINSON: Yes, of course, I'm not saying it's not raised. Of course, it is raised in this trial and - - -

HIS HONOUR: Because it was raised, I've got to give them this warning and that's what I did.

MR DICKINSON: Yes, there is no complaint, your Honour, at all about you giving the warning, but what your Honour has not done, in my submission, is to give the other side of why the matter was raised at all; that the lack of a recent complaint is something the jury can use to found an inference, that inference being that the allegations are false.

HIS HONOUR: 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 say "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 warn 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.

HIS HONOUR: What do you want me to do? Tell them on the one hand because of the delay the allegation might be false but - - -

MR DICKINSON: Yes.

HIS HONOUR: - - - but I've got to tell you that it doesn't mean that it does necessarily mean it is false?

MR DICKINSON: Yes.

HIS HONOUR: What is your next point?

That is the end of the discussion in relation to that issue. We submit that his Honour was clearly wrong. If there was a need for referral to the section, his Honour could have easily referred to section 61(2) which gives an imprimatur for a trial judge to give a direction in the interests of justice. So his Honour, we submit, really did not advert to - - -

DAWSON J: What do you say he should have said, his Honour, that is?

MR GRACE: We say that his Honour should have said that, "You can take the absence of complaint, or delay in complaint, into account in your assessment of the credibility of the complainant".

DAWSON J: But remember, that it does not necessarily.

MR GRACE: Yes, but remember, that it does not necessarily mean that the allegation is false.

GAUDRON J: And what he should not have said is, "You can't draw the inference that it is false"?

MR GRACE: Yes.

TOOHEY J: But if you leave it as you put initially in answer to Justice Dawson, it is not that much different from the pre-statutory direction, is it?

MR GRACE: Yes, it is not much different to that at all.

TOOHEY J: I am just wondering whether the section has to be given some work to do, and I understand the way in which you say that work is to be done would require some care on the part of the trial judge, or any trial judge, in directing in this situation. You give effect to the section but also, to meet your argument, that it does not preclude the jury having regard to delay in considering the credibility of the complainant.

MR GRACE: Yes. What the section does is it compels the trial judge to give that direction where the issue of delay and complaint has been raised during the course of the trial. The old common law did not require that direction to be given, but it was given where the interests of justice so demanded. So all that has occurred is that - - -

KIRBY J: There has been an evening up. The common law has been changed to the extent that the first subsection requires directions to be given which formally might not have been given, but the second subsection permits, in the interests of justice in the appropriate case, the old warning to be given about the importance of timeliness of a complaint.

MR GRACE: Yes.

DAWSON J: It really seems that the section proceeds on the assumption that there was not a balanced direction; there was a danger of the balance direction not being given - - -

MR GRACE: In the past.

DAWSON J: - - - and as Justice Kirby says it was designed to pick it up. Whether that was right or not, I do not know.

MR GRACE: Yes, but it has also got to be coupled with the move away from the requirement that there be corroboration for complainants in sexual cases, and as his Honour Justice Kirby says, 61(1)(a) took away the necessity for that type of direction to be given although, in certain circumstances, it is given where the interests of justice so dictate.

KIRBY J: This is a pattern of legislation which was introduced throughout Australia. Legislation of this kind has been introduced in other States. Is there any consideration of this section elsewhere or of equivalent provisions in other States?

MR GRACE: Yes. In fact, on Friday of last week, the Court of Appeal in Victoria delivered a decision in the matter of Miletic which gives consideration to the section, and the effect of the decision is, in effect, to apply the Kilby-type requirement, which is further followed in Davies in the New South Wales Court of Appeal.

DAWSON J: That does not mean anything to me. I do not know the Kilby-type direction.

MR GRACE: I will take your Honours to that very shortly.

DAWSON J: But it really comes down to what Justice Gaudron said, does it not? I mean, the section gives the judge a discretion as to whether he will give a balancing direction or not, but what you say in this case is that he had got it wrong in the first instance by saying that you must not draw an inference and that is what made it necessary to correct that by giving what might be called a balancing direction.

MR GRACE: Yes, but even absent the error on page 269, even absent that, we submit that the learned trial judge in this case was compelled to give that sort of direction.

DAWSON J: Well, that is more problematical. That may be a matter for discretion because of the section. It does not say that he should, it says there is nothing that prevents him from doing it.

MR GRACE: Yes.

DAWSON J: But you have got the point that, well, what he said in the first instance was wrong and he had to correct that.

MR GRACE: He not only had to correct it, we say he had to correct the imbalance as well, and that was because of the particular factual circumstances of this case where there was no corroboration and there had been such an extensive period of time between the time of complaint and the actual offences. The general rule is that a jury should be directed that in the absence of a complaint, or delay in making one, may be taken into account by it in evaluating the evidence of a complainant in a sexual case and determining whether to believe her.

If I could, first of all, refer your Honours to Kilby's Case [1973] HCA 30; (1973) 129 CLR 460, which is a decision of this Court, and the passage I want to refer your Honours to is in the judgment of his Honour Chief Justice Barwick at the bottom of page 465. Before I read from it, could I just indicate, this case was about whether a trial judge was entitled to instruct a jury on a charge of rape, that the failure of the prosecutrix to complain at the earliest possible opportunity was evidence of her consent, and the Court found that the judge was not entitled to so direct. At the bottom of page 465, Chief Justice Barwick said this, the last paragraph:

In my opinion, for reasons I shall give, the trial judge, at best, if any case could only instruct the jury that a failure to complain should be taken into consideration by them when they were considering whether they would accept the prosecutrix's evidence. he could not in any case, in my opinion, the basis of which I shall later discuss, tell them that the failure to complain bore out the applicant's statement. Thus, in this case, I would see little need to instruct the jury at all as to the effect upon the prosecutrix's credibility of her failure to complain.

Now, that statement was expanded upon in the case of Davies (1985) 3 NSWLR at 267, which is a decision of the Court of Criminal Appeal of New South Wales. At page 277, in the joint judgment of his Honour Chief Justice Slattery at Common Law and Justice Carruthers, at paragraph B their Honours said this:

The third ground of appeal asserts that the trial judge failed to direct the jury adequately as to the use which could be made of the evidence of Anthony John Wilson. The background to this issue may be stated shortly. The complainant gave evidence that, after the intercourse had taken place, she had left the bedroom for the bathroom. In the hallway, either as she went into the bathroom or as she came out of it, she saw Wilson and said to him, "Do you know what they just done to me? They just raped me." Wilson was called as a witness by one of the accused. He said that he had a relationship with the complainant which had ended some months before that evening. He denied that such a complaint had ever been made to him; he did not hear the complainant say anything at all about the behaviour of any other people.

The trial judge gave the jury the usual directions as to the relevance of a complaint made in sexual assault cases, to the effect that it was not evidence of the truth of what was stated but was merely evidence which supported her credit as a witness. He drew attention to the dispute in the evidence as to whether the complaint had been made. The jury was directed that, if a finding was made that no complaint was made, the absence of a complaint did not necessarily indicate that the allegation of sexual assault was false, and that there may be good reasons why a victim of a sexual assault may hesitate or refrain from making a complaint about that assault. (The jury were not directed that, if it did accept that the complaint was made, that complaint - - -

GUMMOW J: What is the significance of this decision? Why are we enmeshed in it?

MR GRACE: I will come to it, your Honour, if you could just bear with me. I just wanted to set out the background for the statement of principle in Davies' Case and the facts are relevant to that. And if I could just continue in that paragraph:

What is said in support of this ground of appeal is that his Honour should have directed the jury that, if it did not accept that the complaint was made, the complainant's failure to complain in those circumstances was relevant (in an adverse sense) to the jury's assessment of her credit generally. No such direction was given or sought.

Now, I will jump the next paragraph which relates to Kilby's Case, and go to page 278 at paragraph D, and after referring to section 405B of the New South Wales legislation which, for all intents and purposes, is identical to the Victorian legislation, their Honours say this:

The point which is made by the appellants, however, is that s 405B does not touch the principles laid down in Kilby's case that, as a general rule, the jury should be directed that it should take into account the failure to make a complaint in evaluating the evidence of the complainant and in determining whether to believe her. All that s 405B does is to make obligatory the directions on what I have described as the other side of the coin. The section does not purport to codify the law relating to evidence of complaint; if it was intended by the legislature to preclude the usual direction referred to in Kilby's case, the section should have contained an express exclusion. A simpler course may have been to exclude altogether the anomalous admissibility of evidence of complaint. But neither course was followed.

I accept the appellant's argument. I am unable to see from the statute generally any legislative intention expressed in s 405B to preclude the trial judge - as a matter of common fairness - giving directions on the other side of the coin to those required by that section. Making obligatory the giving of directions that there may be good reasons for the absence of a complaint or for the delay in making it, whether or not such reasons were suggested in the evidence, is certainly to be seen as tilting the balance in favour of the complainant - no doubt because of the difficulty she may often have in articulating those reasons herself - but it should not be seen as standing the law on its head to exclude what in common fairness and common experience should also be taken into account in favour of the accused. 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.

There have been two cases in Victoria which have dealt with this issue, both in recent times. The first is the decision of the Court of Criminal Appeal in the matter of Omarjee (1995) 79 A Crim R at 355. At page 368, the Court, in a joint judgment, said at about point 5 on the page:

The next grounds argued were 5(i) and 5(ii). They apply to both counts. It is convenient to take them together. Under ground 5(i) it was submitted for the applicant that the trial judge erred in that he failed to direct the jury that the absence of a complaint over a period of some three years, or the delay in making one, ought to (or might) be taken into account by the jury in evaluating the evidence of the complainant and in determining whether to believe it. In our view, the applicant, by reference to the decision of the New South Wales Court of Criminal Appeal in Davies (1985) 3 NSWLR 267 at 277-278; 17 A Crim R 297 at 304-305 which was concerned with the effect of the New South Wales equivalent of s 61 of the Crimes Act, 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 [1973] HCA 30; (1973) 129 CLR 460 at 465-466, 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.

Finally, on this issue, last Friday, 9 August 1996, the Court of Appeal of Victoria delivered its decision in the matter of Miletic, and this issue was squarely raised in that case. Could I refer your Honours to the unreported decision, which I have provided to my learned friends and to the Court, at page 16. At page 16, the Court, in a joint judgment, said this after dealing with one particular ground of appeal which was dismissed - this is at line 3:

That is not, however, the end of the matter. Mr Weinberg argued that, in the particular circumstances of this case, the learned judge was bound to give directions to the jury both as to the danger of acting on the complainant's testimony, which was not confirmed or supported by any independent evidence, and the use to which they could put her delay in making complaint when they evaluated that testimony.

And jumping to the next paragraph:

It was submitted that a warning was required having regard to the nature and quality of the complainant's evidence and the circumstances in which her complaints were first made. Emphasis was laid upon a number of matters. The complainant and the applicant had lived together for some 3 and a quarter years, throughout which, even on the complainant's version, there had been substantial, consensual sexual relations. It was tolerably clear from their respective attitudes that the relationship had ended in bitterness and there was a basis for concluding that such bitterness was accentuated by ethnic differences.

And then it goes on to describe the particular facts of that case. But over the page, at the first paragraph on page 17, reading from line 2 on page 17:

It was conceded that her complaints, when made, were general in character and, in some instances, had a protean quality about them. The general nature of the complaints and the delay in making them necessarily prejudiced the applicant in making a defence to them.

Mr Weinberg argued that those circumstances made it imperative for the learned trial judge to direct the jury to the effect that it would be unsafe to convict on the complainant's testimony unless, having thoroughly scrutinised her evidence, they were convinced of its truth and accuracy, Longman. Indeed, as Mr Weinberg pointed out, the attitude adopted by the prosecutor at the end of the trial, and before addresses and the judge's charge, suggested that he expected that such a direction would be forthcoming. The prosecutor inquired of the learned judge whether he proposed to give the jury a warning "about accepting the evidence of the complainant" in the light of Longman's Case and other authorities, particularly Omarjee. His Honour indicated that he thought such a warning was not appropriate in this case having regard to s. 61 of the Crimes Act 1958 . It was contended before this Court that counsel for the applicant should have pressed the judge to change his mind. We do not agree. The prosecutor had raised the matter and it was apparent from his Honour's firm comments that he was not minded to give such a direction.

In the result no such direction was given. On the contrary, when dealing with the addresses of counsel, the judge said:

And I will not read that particular quotation - - -

GUMMOW J: The heart of it is on pages 19 and 20, is it not?

MR GRACE: Yes. If we go to about point 3 on page 19 it reads as follows:

Mr Weinberg submitted that the learned judge had misapprehended the effect of the section. He further submitted that his Honour had erred in charging the jury as he did on the question of delay in making complaint because the direction was unbalanced. It was said that it should have been attended by a further direction, in the interests of fairness, that the delay could be taken into account by the jury in evaluating the complainant's evidence and in determining whether to believe her.

Then what follows is a history, the legislative history of that particular section, reference to what members of this Court said in Longman's Case and at the top of page 20, after reference to Longman's Case their Honours said:

The abolition of the former rule of practice was not, however, intended to convert complainants in sexual cases into a category of specially trustworthy witnesses. As their Honours point out at 86:

"Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case."

Their Honours went on to say:

If the circumstances of the particular case, other than the sexual character of the complaint, call for a warning, then the provisions of subsection (2) of the section enable such a warning to be given. The reference to "the interests of justice", the context and the legislative history show that "comment" in that subsection includes a binding direction and is not confined to a comment on a par with counsel's addresses that the jury may accept or reject. Stevens..... . Whether a warning is called for, and in what form, depends upon what the interests of justice require in the particular case.

Mr Weinberg submitted that the prejudice to the applicant occasioned by the absence of a warning was compounded in this case, because the learned trial judge instructed the jury in accordance with section 61(1)(b) concerning the delay in making complaint, but failed to tell them that such delay was a fact that they could take into account in evaluating the complainant's testimony and in determining whether to believe her.

DAWSON J: Now, the next bit is the important - - -

MR GRACE: Yes. See, Kilby v The Queen and Freeman:

By giving the statutory direction on its own his Honour was, in essence, putting only one side of the picture. For, just as the making of a complaint at the earliest opportunity is supportive of a complainant's credibility, so the failure to make one can be a considerable factor in reducing that credibility.

DAWSON J: You do not need to read beyond that, do you?

TOOHEY J: Well, perhaps you do, because what you have been reading to us is simply the argument that was put to the Court.

DAWSON J: Yes.

TOOHEY J: It is really the next bit in which the Court reaches its own conclusion, does it not? I do not know that we need to have it read to us because, in a sense, it adopts the argument.

MR GRACE: Yes, it does adopt the argument.

TOOHEY J: We have already read - - -

MR GRACE: It refers at length to the passages I read in Davies. Also to extracts from Longman.

DAWSON J: I think we have already read it, actually, Mr Grace.

MR GRACE: If I could just conclude by saying at page 24 that the Court came to the conclusion, after referring at length to Longman's Case, at about point 2 on page 24:

It will be noticed too that their Honours spoke of the need to balance a comment on the complainant's failure to complain with a direction along the lines of section 61(1)(b) of the Crimes Act. That reinforces our conclusion that there was imbalance, of the converse kind, in this case.

Now, the Court of Appeal did not refer to Crofts in the course of this judgment. I cannot say whether Crofts was referred to by counsel in its argument in the matter of Miletic, but it appears that the judgment in Miletic runs counter to what the Court said in Crofts and, in our submission, Miletic should be preferred, and in so far as it follows Kilby and Davies, that is the preferred approach for a trial judge to follow in cases of this nature.

Could I indicate just by way of contrast - I have already indicated that the delay in this case was considerable, stretching from one and a half years to possibly as long as six years, but if I could just contrast what the delays in complaint were in some of these other cases that had been referred to, both by the Crown and by the appellant. In Davies it was the case that it was found to be unable to determine when the report was made to police and one cannot glean anything from the judgment as to the length of time. In Preval, which is a 1984 decision in New South Wales, the complaint was made hours later, and in that case the decision of the trial judge not to give the balance-type direction was upheld as being appropriate in that case.

TOOHEY J: I just wonder how helpful this is, Mr Grace? It must turn upon the age of the complainant and the circumstances, for instance, whether the complainant was living under the same roof as the accused, and so many different considerations. I mean, your point here is that the delay, on any view, was substantial.

MR GRACE: Yes. I just wanted to contrast the fact that in cases such as Preval, where a trial judge's decision has been upheld where the balance direction was not given, the complain was only hours old. Whereas, cases like Omarjee it was three years. In cases such as Crofts between one and a half and six years, in Longman, of course, it was 20 years, and in Murray, another New South Wales decision relied upon by the Crown, it was two days. Even in M v The Queen it was only a period of one or two days.

TOOHEY J: It might be relevant to consider here whether the complainant was cross-examined with a view to showing some particular motive for making up these complaints at such a late stage. I mean, if she were not cross-examined on that footing, your argument might lose some of its strength, might it not?

MR GRACE: There was a great deal said about motive.

TOOHEY J: You mean said in cross-examination?

MR GRACE: It was plainly put to the complainant that she had lied. There is no question about that, that she had made it all up, but there was not, as I read the material, a direct attack on her that she had a particular motive to tell lies other than the fact that she had had some altercations with her family, with her father particularly. There had been a lot of disruption, dysfunction in the home, and that the inference was that she was unstable. At page 282 - - -

DAWSON J: In this case you say that whatever the circumstances, what had been said on page 269 had to be corrected.

MR GRACE: Yes, it had to be.

DAWSON J: That the jury was not entitled to draw, as a matter of law, an inference that the complainant was not telling the truth.

MR GRACE: Yes, quite, and that the failure to do that has caused a substantial miscarriage of justice.

DAWSON J: There may be cases in which a balancing direction, as you put it, is not required.

MR GRACE: Yes.

DAWSON J: Be that as it may, you say this is not one of them, because of that?

MR GRACE: Because of that, and, generally, because of the facts of this case. I do not know if I can advance the argument any further.

DAWSON J: You have made the point.

MR GRACE: I have made the point. I do not know whether your Honour Justice Toohey wants me to answer that issue of motive. I can refer your Honour to pages in his Honour's charge where it refers to possible motives, at pages 282 and 283.

TOOHEY J: Really, my question, or my comment to you really arose from your giving us instances of delay and it just seemed to me that if we were going to get into that area, then you might need to consider questions of motive and so on, but, if your submission to us is put really on a pure question of law, that might be over-stating it a bit, but that there was an error law, then these considerations may not arise.

MR GRACE: Yes. They may only arise when possible consideration is being given to application of the provisor, and we submit that in the circumstances of this case that it could not be said, using the Maric test and the Glennon [No 2] test that, if not for the error of law on page 269, conviction was inevitable.

GUMMOW J: You quarrel then with the Court of Criminal Appeal at 339 and 340, starting at line 15 on 339?

MR GRACE: Yes.

GUMMOW J: And going over to line 8 on 340.

MR GRACE: Could I just emphasise one point on page 340, at line 5, where the Court says:

We are of opinion that these observations are not inconsistent with what this court said in the unreported case of R v Omarjee.

The Court was clearly in error. What the observations their Honours were referring to were clearly inconsistent with what the court said in Omarjee, and I think I have already highlighted that in argument. I do not believe that there is anything more I can say in relation to this particular ground.

KIRBY J: Just focussing again on that question that Justice Toohey asked at the beginning, that is to say, not undermining the first subsection by a too ample interpretation of the second subsection, the first subsection is obviously the business, the work that Parliament has been trying to do. When you actually look at what that direction on 269 was that you complain about, that you say is the positive misdirection, the trial judge said:

It is because the complainant did not complain about the offences immediately after they happened, that they did not happen or that she was not bothered by them or that she consented.

And then he says, "Well, take `consent' out." So, we are left with:

that they did not happen or that she was not bothered by them.

Now, it is not directly addressed to the issue of the credit. Was there any doubt that the events had occurred as distinct from that they were unconsensual?

MR GRACE: No, consent was not in issue.

KIRBY J: The issue is whether anything happened at all, and your client denied it?

MR GRACE: Yes, well, this did not happen.

KIRBY J: So, in an direct way his Honour is raising the issue of credit there?

MR GRACE: Yes. If I could move on to the ground 2b. At the commencement of the trial, counsel for the appellant argued that evidence of past similar acts be excluded in the exercise of the trial judge's discretion. After lengthy argument on the issue his Honour acceded to that submission. The trial went on with no uneventful utterances by the complainant, perhaps except for one or two, which were glossed over in her evidence in-chief and cross-examination in terms of references to past acts. What happened was that in re-examination, in direct response to an apparently deliberate question from the very experienced prosecutor in that jurisdiction, the prosecutrix gave evidence of past similar acts and, we submit, that such evidence was given contrary to the ruling of the trial judge.

TOOHEY J: I must say, and I am not seeking to excuse the re-examination, but it would be very difficult to run a trial of this sort without reference to similar acts when the allegations are said to have taken place over a number of years.

MR GRACE: Yes, but this was not a mere inadvertence, we say.

TOOHEY J: No, no, I said, putting to one side for a moment the circumstances in which the questions were asked, but it would give the trial a somewhat artificial flavour.

MR GRACE: Yes.

TOOHEY J: I mean, in these cases generally evidence is introduced of other acts which are not the subject of particular charges.

MR GRACE: Yes. Could I just give your Honour a very short example of that. At page 97 of the appeal book, when referring to the incident that was the subject of count 5, I think it was, at line 3, on page 97, in cross-examination the complainant is asked:

What did he do on the first?---The first time he was half sort of leaning, half kneeling on the bed and he started playing around with me as usual.

So that was an example of a non-responsive type answer. It was glossed over. There was no application for a discharge as a result of that particular answer, and that is to be contrasted with what happened at pages 105 and 106, and this is in re-examination of the complainant. At line 21 Mr Doherty asked:

Over the years that he was doing these sexual things to you, did you see any way open to you to get him to stop him doing these things to you?---Yes, I did.

What was that?---Are you meaning something I could've done to stop him?

Yes?---What I was going to do is the next time that he ejaculated in my mouth, I was going to keep it, put it in a jar and take it with me and that was my proof that he definitely did it because I knew he'd be able to lie through his teeth. I knew that he'd make it look as if it was all bullshit. That was the only thing I thought that I could do to have definite proof against him.

And the crucial question:

Did that happen again?---It happened many times but I never had the opportunity to do anything about it.

Now, we say that that was a deliberate question, and it could only have elicited one answer, as the learned prosecutor well knew, and that immediately founded an application for discharge of the jury, which commenced on page 106. And there is discussion about it on pages 106 and 107, which I will not read to your Honours, but at line 10 counsel for the appellant makes the point:

The answer was going to be yes and that is the answer he got, in fact, many times and so the learned prosecutor has led, perhaps inadvertently, but he has led from her that there has been an ejaculation, an insertion of the penis in the mouth and ejaculation by Mr Crofts of this girl, many times. It is the very last thing in her evidence. It is a stunning way to end the Crown case.

Well, one could use other descriptions, an emphatic way, a stunning way -certainly the impact upon the jury may well have been marked. Then his Honour said:

I forecast that things like this would happen and I don't propose to discharge the jury. I propose to give them a warning that any reference - there have been, in fact, a couple of other occasions where, I think, the word "usual" did come out once this afternoon.

And then there is further discussion about it. So, what happened in the event was that counsel for the appellant was in a state of indecision. He did not know what to do when the learned trial judge said, "I'm not going to accede to the application to discharge the jury, but I'll give them a warning." Counsel said, "Well, if you give them a warning it is going to highlight the evidence." So, his Honour and counsel discussed a possible formula that could be used, and the formula that was used was a watered down formula that would not highlight the evidence, would merely be a general warning to the jury that they would not take into account anything that was not relevant to the counts before them. That was the warning that was given. We submit that warning was unsatisfactory. We do not criticise his Honour for that.

GAUDRON J: But you say no warning could have cured what happened.

MR GRACE: Exactly, your Honour. No warning could have cured the damage that had been done by this. When one considers that this was count 5 on the presentment. The appellant was convicted of counts 3, 4, 5, 6 and 7, all events that occurred in the bedroom within the space of a few minutes on the one night in Melton, some three years before the complaint. Uncorroborated. The only counts that the applicant, or the appellant, rather, had no evidence to lead or to put to the complainant or to the jury that would in any way impinge upon the accuracy of her recollections. For instance, in count 1, there was conflicting evidence from the complainant's father as to whether the complainant was even in the presence of the appellant at the time that the offence was alleged to have occurred. Count 2, it was alleged that the offence occurred in a caravan at Melton on a particular date. The father gave evidence that by that date the caravan had already been moved from Melton. Count 8 was an event that occurred at the Oktoberfest at the Melbourne showgrounds. The complainant gave evidence that the offence occurred some 18 months prior to her complaint, yet she gave evidence pursuant to her statement that she gave to the police, that she had not been to the showgrounds or to the Oktoberfest for at least two years before the complaint. So, there was a conflict there.

Counts 9 and 10 were the subject of alibi evidence as a defence. So, counts 3, 4, 5, 6 and 7 were counts that had attached to it no evidence that could directly conflict with what the complainant said, and there were no other allegations of sexual penetration other than count 9 which alleged sexual penetration, which was the subject of an alibi defence, which was accepted, it would seem. So, the balance was tilted when that question was asked and the answer was given, we submit, and if we cannot be that assertive, we could at least say, and submit, that there is a substantial risk that that question and answer tilted the balance in favour of conviction rather than acquittal.

TOOHEY J: Could I just ask you, Mr Grace, what was the complainant's age at the time of the events that were the subject of the convictions?

MR GRACE: The complainant was born on 16 May 1976. The counts that were the subject of convictions, counts 3, 4, 5, 6 and 7, date from 12 September 1991, so at an age when she was 15, stretching to the 16 May 1992, so between 15 and 16 years of age the events occurred. She could not be precise as to when they actually occurred.

TOOHEY J: They all occurred on the same day whenever they occurred?

MR GRACE: On the same night, yes. The evidence was, I think, around September/October/November of the year 1991.

KIRBY J: What is your answer to Justice Toohey's earlier question about how, in practicality, one could run the very practical business of a trial where a ruling had been made and a question comes up which leads to this answer, which, from the point of view of the witness is something which would seem quite natural to her. It is almost bound, it is hard enough for lawyers to dissect their minds, but for ordinary witnesses and lay people, it seems a ridiculous notion. She just gave her evidence.

MR GRACE: Yes.

KIRBY J: Now, how can one have a practical rule that has regard to that virtual inevitability and is not unduly nice?

MR GRACE: There are a number of answers to that question. Firstly, it is a common occurrence that there are other acts within the knowledge of a complainant in a sexual case which the complainant is instructed not to elicit in a non-responsive fashion in answer to any question. The complainant in this case adopted the directions given by the prosecutor to restrict her evidence to the counts that were the subject of the presentment. Indeed, the learned trial judge instructed the prosecutor to instruct the complainant. Now, this appears at page 8 of the appeal book at line 5, where his Honour says, after excluding the evidence of the other similar events, he says:

Obviously that will require the Crown to firmly instruct the prosecutrix to that effect.

Then his Honour goes on to say:

Neither party should form any view as to what my reaction or ruling might be, if it becomes necessary to make such a ruling, about a discharge of a jury. I will treat any situation that inadvertently arises on the merits.

TOOHEY J: Your complaint, really, goes to the question that is asked at the top of page 106, does it not?

MR GRACE: Yes.

TOOHEY J: I mean, if that question had not been asked, there would be an answer, the answer that appears at the foot of page 105, which might have been prejudicial but was pretty vague, because it does not even say of itself that anything did happen again.

MR GRACE: No, it did not.

TOOHEY J: So, it really all focuses on the one question that was asked.

MR GRACE: Yes, that is exactly our case.

KIRBY J: But the questioner might have meant it to be asked in the context of the warning and instruction that had been given and then the answer comes out which, from the lay witness' point of view, she has been instructed and she has, no doubt, been instructed firmly but it is very difficult to divide the mind. It is difficult for us, for trained lawyers to do it, and for a lay witness it is virtually impossible.

MR GRACE: No complaint could be made of the complainant in giving that answer, and we do not seek to make any complaint about the behaviour of the complainant in giving that answer.

GAUDRON J: It is the Crown Prosecutor you are concerned with, who asked the question.

MR GRACE: Yes.

DAWSON J: You say it is not inadvertence in this case?

MR GRACE: It is not inadvertence. It is deliberate, and the complainant cannot be blamed for the answer. It is the prosecutor's fault, we submit, and the result - - -

DAWSON J: I think we have grasped the point, Mr Grace.

MR GRACE: Yes. We submit that that error, that mistake, or that deliberate action, could not be saved by application of the proviso because it could not be said that if not for that evidence, the convictions would have been secured inevitably. Those are the submissions for the appellant.

DAWSON J: Thank you, Mr Grace. Mr McArdle?

MR McARDLE: May it please the Court. I will, if I may, approach the matters in the order that my learned friends have. There is an outline of argument filed and some co-operation occurred between the parties so that, with the exception of one authority, the Court should be supplied with a comprehensive collection of the authorities.

Moving to the ground relating to the Kilby warning and section 61 of the Crimes Act - I will move straight to that, and, indeed, what I will do is to move straight to page 269 of the appeal book. The observations made at page 269, if to be seen in their context, were part of directions given by the learned trial judge in relation to drawing inferences. Such directions, I venture to submit, would apply in just about all directions to a jury in a criminal trial. It is one of the things that is always mentioned. That is the general rule in relation to inferences. Now, what his Honour has said there at about line 25 is that:

one inference you should not draw, as a matter of law, in this case, for the reasons I will mention later, is that because the complainant did not complain about the offences immediately after they happened, that they did not happen or that she was not bothered by them or that she consented -

Now, Kilby's Case, it is submitted, makes it clear that the lack of complaint is not proof that the event occurred. That was the point of Kilby, in my submission. It is an issue as to credit, not as to the facts in issue. So, to return to the - - -

GAUDRON J: I mean, in sexual cases that is largely a distinction without any relevant difference. Where the evidence is oath against oath it really amounts to the same thing, or even when it is oath against unsworn statement it amounts to the same thing.

MR McARDLE: It may in some cases, your Honour, but, on the other hand, there is really, in my submission, a clear distinction between a matter in issue and a credit matter.

GAUDRON J: Well, yes, there is.

TOOHEY J: I must say that where evidence of recent complaint is relied upon, I often wonder how juries do cope with the distinction which some of the decisions draw between evidence of the event and credibility of the complainant. We have got the converse to that situation here.

MR McARDLE: Yes.

TOOHEY J: Can you tell us at the outset, Mr McArdle, what you say about the submission by Mr Grace, which is a submission of law, namely, that there was a misconstruction, in effect, by the judge of the relevant provision. Perhaps, more accurately, a misapplication in so far as he failed to deal with the significance that the absence of a complaint might have.

MR McARDLE: Your Honour, I say this, that the cases make it clear that the Kilby warning or direction, if I can describe it as that, is discretionary. It depends upon the circumstances of the case. For example, we would adopt what was said in Miletic at page 22, which, I think, has been drawn to - - -

KIRBY J: I do not think that is really in issue. The question is when you go to the point of saying that as a matter of law they may not draw certain inferences, that that is the positive misdirection. It is one thing not to give - to enter the territory of subsection (2), but to enter it and then give it lawful direction or direction of law, that seems wrong.

MR McARDLE: Your Honour has in mind page 269?

KIRBY J: Yes, 269, line 23.

MR McARDLE: Yes. That, it is submitted, is correct, because it is directed towards whether they can draw an inference that the event occurred or did not occur by reason of complaint or lack of complaint.

DAWSON J: But as Justice Gaudron points out, it is the same thing here.

MR McARDLE: There is always the distinction, in my submission. It might in many cases - - -

DAWSON J: It is a question of what distinction the jury would draw, and they would not draw that distinction, I am certain.

MR McARDLE: Yes, they were told, your Honour, or at least the direction is directed towards the inference concerning the event, not the credit.

DAWSON J: Any inference concerning the event depended entirely on the credit of the complainant.

MR McARDLE: Yes, and the jury was told that they should examine carefully the witness' evidence, of course, as one would expect in a charge.

DAWSON J: But they were not entitled to do so in the light of the lack of complaint.

MR McARDLE: Your Honour, this matter of - or at least the inferences or the direction and the inferences in which this particular criticised passage is to be seen in context relates, of course, to drawing inferences beyond reasonable doubt and such. This is not such an occasion. For example, at 267 it is pointed out to me, at line 20, there is reference there to:

because the law says that in a criminal trial you can only draw an inference against the accused man if, on the facts otherwise established, it is the only inference reasonably open. If there are other inferences reasonably open on the facts, you would have a doubt about the guilty inference - you would have to.

It continues on. His Honour then, I think, offers various examples over the next page or two of drawing inferences. These two are the sorts of inferences that are offered to juries, or, at least, sorts of examples, I should say, that are offered to juries about seeing people in Sydney and then seeing them in Melbourne a short time later.

TOOHEY J: How does the question of inference arise here? I mean, there is no question of drawing inferences as to the accused's guilt or otherwise. There was direct evidence which the jury could accept or they could reject.

MR McARDLE: Yes.

TOOHEY J: I just do not understand how one gets into the realm of inference, unless you are talking about an inference that can be drawn from the failure to complain. If that is what you are talking about, then the section itself directs how that is to be handled.

MR McARDLE: Yes.

TOOHEY J: At least directs to a point and then subsection (2) comes in and does not preclude the judge from giving the balancing direction.

MR McARDLE: Some of the defence evidence - there was defence evidence of an alibi, if I can describe it as that, which was to the effect that he was at work on a particular day and that was established, I think, or attempts were made to establish that through pay records or attendance records and things of that nature.

TOOHEY J: That is not in relation - I am sorry, I should not say it is not. Is that in relation to the particular day on which the events occurred that were subject of the conviction?

MR McARDLE: Subject of an acquittal, as it turned out.

TOOHEY J: That is what I thought, so we are not in that realm either.

MR McARDLE: No, but that would be, I expect, why his Honour told the jury about inferences.

TOOHEY J: I can understand why his Honour may have told them. I am not sure why you are telling us, that we should be concerned with inferences.

MR McARDLE: I am sorry if I did not make myself plain. I was attempting to make the point that part of his charge which is subject to criticism at page 269 was part of general directions as to drawing inferences.

TOOHEY J: I understand, yes.

MR McARDLE: That is how it came in there, and then later on he gave, at, I think, page 280, a direction which incorporated the provisions of section 61 of the Act.

I now move to the outline of argument. It was never contended, in fact, it was a matter of concession, that the section 61(1)(b) direction was inapplicable in this case. The issue is whether or not the trial has miscarried as a result of his Honour declining to give a direction in accordance with that in Kilby. There is no defined direction in relation to lateness of complaint. Clearly, whether such a direction is to be given is a matter of discretion depending upon a number of circumstances in the case.

Now, in relation to Omarjee and Miletic, which were two cases that my learned friends relied upon, the victim in Omarjee was an adult woman who had gone to Dr Omarjee for medical treatment. In the course of that she said that she had been raped, that rape was assisted by the administration of some drug. There the court described the rule as one of general application that such a warning should be given. In Miletic, again, it was an adult woman. There was a long history of co-habitation between the victim and the accused in that case. This case, it is submitted, is different. The child was born, as you were told, or, at least, these events occurred between approximately the age of 10 and the age of 16 or thereabouts. There was a relationship.

TOOHEY J: That is not quite right, is it? Between 15 and 16, we were told, that is the events that led to the conviction?

MR McARDLE: Yes. I was taking it a little wider than that because the last matters were, of course, when she was aged 16. In any event, there was a relationship between the families. There was a remote relationship through marriage, and that in the events in which the appellant was convicted, they occurred at the appellant's house where the father was boarding in order that he could pursue employment in the Melbourne area. Those incidents occurred in Melton. The family home, as I understand it, was in Swan Hill or thereabouts.

Now, in Kilby's Case it was said that it was a general rule that such a direction might be given, but, of course, in Kilby's Case it was not given. It is not a general rule of universal application by any means. It is not based on a presumption of law. It is based on what her Honour Justice Gaudron described in M's Case as an assumption of fact.

KIRBY J: But Kilby was about consent.

MR McARDLE: Yes.

KIRBY J: What the accused said was that the direction should have been given that it was evidence of consent. That was not in issue in this case?

MR McARDLE: No, no, it was not.

KIRBY J: Kilby is not right on the point, really, and your argument would be stronger but for the very resolute attempt by counsel for the appellant to get the judge to correct what he certainly saw as the mistaken direction at 269.

MR McARDLE: Yes. On the other hand, the matter was properly put at 280 where his Honour - - -

KIRBY J: 280 is in the realm of subsection (1).

MR McARDLE: Yes.

KIRBY J: The complaint was, and it was made in a timely way, very forcefully be counsel, that what was on 269 was about subsection (2), and it was a misdirection.

MR McARDLE: Subsection (2) provides a discretion, in my submission, to make other comments.

KIRBY J: It does not provide a discretion to misdirect as a matter of law that you cannot take the inferences from the delay.

MR McARDLE: No, no, your Honour. Subsection (2) gives a judge a general discretion to make whatever comments he thinks appropriate in the case and one of those comments would be one in accordance with Kilby's Case. In New South Wales there appears not to be the equivalent of subsection (2) but, notwithstanding that, the authorities are to the effect that it is a discretionary matter.

KIRBY J: But is not that a point against you because here the Parliament of Victoria has taken the trouble to say that notwithstanding this shift that judges are to do what is just in a particular case.

MR McARDLE: Yes.

KIRBY J: Common sense suggests it, and particularly one might say where, on one view, a misdirection has been given, the need to correct it is all the more plain in the Victorian situation.

MR McARDLE: If there was to be some difficulty in relation to what appears on 269 that would not necessarily be corrected by the obverse of the coin as, I think, it is sometimes described, that is to say the Kilby warning or direction. If that was to be repaired then it may well involve the trial judge going back to what he said there and putting it right as best he could.

TOOHEY J: What are you saying here, Mr McArdle? You are saying that a judge is not obliged to give a Kilby direction under subsection (2)?

MR McARDLE: Yes.

TOOHEY J: And was not obliged to do so here, and that is the end of it?

MR McARDLE: Yes.

TOOHEY J: Yes, very well.

MR McARDLE: That is the situation. Now, that is supported by two things. Firstly, the direction that he gave in accordance with section 61 is about delay in complaint. Now, the significance of that would, notwithstanding the fact that it appears not to have been something dwelt upon in addresses or addressed by the counsel for the appellant, is something that the jury would, themselves, it might be thought, be concerned with.

TOOHEY J: They were told they could not be.

MR McARDLE: They were told, your Honour, in relation to the event itself, not on the credit issue.

TOOHEY J: We have that. I mean, we do not have to go over that ground again.

MR McARDLE: Yes. Now, a distinction, it is submitted, is to be made between circumstances which are within the ability of a jury to understand the significance of, and matters which would require a direction by the trial judge. An example is in Longman's Case where the warning referred to there is the warning where, because of the passage of time, it is difficult to defend such a case. Now, that might not be apparent to a juror, but the question of delay may well be, and, in fact, it is brought to their attention when given the warning under section 61, that when there is a suggestion in address or cross-examination about the delay, that the view to be taken of that is that it does not necessarily mean that the allegation is false, and that there might be reasons for such a delay.

DAWSON J: That is a little unrealistic, is it not, to say that because delay was mentioned the jury might draw their own conclusions about it in the light of the directions which they are actually given. One has to assume that the jury obeys the directions of the judge and, indeed, experience suggests that they do, and make their best efforts to do so.

MR McARDLE: Your Honours, the last matter that I wanted to raise in relation to this is obvious, I suppose, and that is that the trial judge was in a very good position, it is submitted, to make an assessment of the situation, and as to whether or not - - -

DAWSON J: It not such an odd situation that he was making an assessment of. He made an assessment of whether his directions were adequate.

MR McARDLE: Yes. Your Honours, can I move on to the other point, the discharge point? It is submitted that in this case it was, if I can adopt what his Honour Justice Kirby says, an artificial situation - in fact, there would have been good reasons for the admission of the evidence of uncharged acts. However, the judge's direction was to the contrary, and that created a difficulty as the case went on.

TOOHEY J: It did not, I mean, not in any relevant sense. There is only one complaint made by the appellant in this respect and that is as to what appears at the foot of page 105 and, critically, what appears at the top of 106. Now, there is nothing inadvertent, nothing slips out in regard to the question that is asked at the top of page 106. What precedes it may have slipped out, and left well alone at that point, there perhaps could have been no complaint, but re-examination continues with the specific question, "Did that happen again?" Now, that is the complaint that is made that you have to deal with.

MR McARDLE: Yes. I contend it is inadvertent in so far as it is not, as was suggested, I think, at the trial, it was done on the basis of doing some damage to the running of the case by intentionally creating a prejudice.

TOOHEY J: Well, I do not know that we need to get into the area of motive, but, it is just on the material that is available to us. How could that be said to be inadvertent, that is, the particular question at the top of page 106?

MR McARDLE: I contend that it was inadvertent on the basis that it was not done with the motive of acting unfairly.

TOOHEY J: That is not my idea of inadvertence.

MR McARDLE: I appreciate that now, your Honour, but it was in that sense that I contended because, at the time when this occurred, there was a strong complaint to the effect that it had been done on purpose, presumably to damage the proper running of the case.

TOOHEY J: Well, one can put that to one side, but the problem still remains for this Court.

MR McARDLE: Yes. Now, I have in page 2 of the outline made reference to the authorities in relation to the matter. They were drawn to the Court's attention and what I propose to do now is to go to 2.4 and make some submissions based upon that in relation to this matter. Now, what was said - - -

DAWSON J: This is the proviso point you are making now?

MR McARDLE: Yes, your Honour. It, it is submitted, relates only to the last words said by the witness in re-examination:

It happened many times but I never had the opportunity to do anything about it.

KIRBY J: It is suggested that the fact that they are the last words made them all the more compelling.

MR McARDLE: Except in these circumstances that the Court adjourned then, it was a Friday afternoon.

KIRBY J: There was a whole weekend to think about the last words.

MR McARDLE: Yes, the other side of the coin, if I can say that, is that court did not start again until the following Monday afternoon - - -

KIRBY J: That is a weekend and a half a day. It is getting worse.

MR McARDLE: I would contend otherwise, your Honour, because it was at that stage that a warning was given by his Honour. The circumstances required some delicate handling, in my submission, because both counsel and his Honour, I suppose, were concerned with the prospect of making a lot of it. In our submission, the warnings given at pages 125 and 126, which was later on the Monday afternoon when the jury came back into court, were adequate and they were repeated later on at pages 280 and 281.

The appellant was acquitted, of course, of some counts. That meant, in my submission, that the jury considered the matters carefully; that they looked at the applicant's evidence critically; and in the presence, as it would appear on analysis of other material, were not content to act on her evidence to the required satisfaction.

As it turns out, the jury was exposed to evidence of two other counts of sexual misconduct. They were counts 11 and 12, which required, or at least resulted in a directed verdict of not guilty. As well, there appears to have been no evidence of count 13 ever adduced. There is no record of the opening. Presumably, there was some opening in relation to that.

GUMMOW J: Count 13 related to the same day, did it not, as 12?

MR McARDLE: Yes, but a separate episode.

GUMMOW J: Yes.

MR McARDLE: The jury were directed, for reasons which related to the relationship between the victim and the appellant, that they should return a verdict of not guilty in relation to 11 and 12. Thirteen, as I have said, there was no evidence of that, apparently.

No application was made to discharge the jury after that, notwithstanding the fact that evidence of sexual misconduct was given, and of course, challenged in relation to those counts.

TOOHEY J: I am sorry, I do not follow that point.

MR McARDLE: The jury would have heard evidence in relation to 11 and 12. They were incidents that occurred when he was giving her driving lessons.

TOOHEY J: Yes.

MR McARDLE: Of what would otherwise, I think, be indecent assaults. The jury were told by the judge to acquit him of those counts at the conclusion at the Crown case.

TOOHEY J: But by reason of what fact? I am sorry, I do not want to take you into a lot of detail, but I just wanted to understand the relevance of this part of the submission.

MR McARDLE: Yes. The jury heard about, and saw her give evidence of other sexual offences.

TOOHEY J: Yes. With which the appellant was charged?

MR McARDLE: Yes.

MR McARDLE: Well, I mean, that was inevitable.

MR McARDLE: Yes, counts 11 and 12.

TOOHEY J: Yes.

MR McARDLE: But it was after that that there was no application to discharge the jury on the basis that the jury had heard of other sexual behaviour, or misbehaviour, that was not part of the counts that they were to consider. In my submission, there is no significant difference between that and the admission of other uncharged sexual behaviour.

DAWSON J: It seems to me there is, Mr McArdle, if you have a direction of acquittal in relation to something, you say that is good, but if they are left up in the air, that is not.

MR McARDLE: The acquittal was on technical grounds, because it was on the basis of the relationship between them.

DAWSON J: Well, maybe, but - - -

MR McARDLE: It was not on the basis that she should not be believed, or there was no evidence of a sexual assault or misbehaviour.

DAWSON J: Maybe, but taking a broad view of it, it assists the defence case when there is a direction to acquit on certain counts.

MR McARDLE: It is something that a defendant is not going to object to, of course.

DAWSON J: No.

MR McARDLE: But on the other hand it is not as if - - -

DAWSON J: I see what your argument is, but it may be impractical.

MR McARDLE: It was a necessary element of truth that the victim was under his care, supervision and authority at the time. His Honour was not persuaded that was the case and directed the jury that they should acquit in relation to those.

TOOHEY J: The judge had made it fairly clear on the application that was made that he was not going to discharge the jury, and proceeded to deal with that by way of a direction.

MR McARDLE: Yes.

TOOHEY J: And it may well be that in the circumstances that was the best direction that could be given, but it does not really meet the anterior problem of whether the jury should have been discharged at that point, or whether now, for this Court, it can be said that the proviso can, in any event, be applied so as to be a basis for rejecting the appeal.

MR McARDLE: Your Honour, the point I am endeavouring to make is that the jury were exposed to evidence of sexual misbehaviour which was not relevant to their ultimate deliberations aside from that which is complained of as a result of this unfortunate bit of re-examination.

DAWSON J: The direction to acquit was on grounds which had nothing to do with the complainant's credit and, yes, we take the point.

MR McARDLE: Thank you. The trial judge gave, I think, no indication of applying the correct tests in relation to discharge without verdict. However, the matter was examined in the Court of Appeal, and it is submitted that the tests were appropriately applied there.

DAWSON J: Is it the Court of Appeal or the Court of Criminal Appeal now, Mr McArdle?

MR McARDLE: The Court of Criminal Appeal in this case.

DAWSON J: So-called.

MR McARDLE: Yes; this case was determined before the Court of Appeal was established.

DAWSON J: I see, and now that the Court of Appeal has been established, is there a Court of Criminal Appeal?

MR McARDLE: I do not think there is, your Honour. I think it is called the Court of Appeal Criminal Division.

KIRBY J: I think they call it the Appeal Division do they not, here?

MR McARDLE: Yes, I think that is how it is described.

DAWSON J: Thank you. It is a matter of no significance, really.

MR McARDLE: This was in the days before the Court of Appeal.

KIRBY J: In Crofts it was the Appeal Division, Court of Criminal Appeal, but in the latest case it is the Court of Appeal. In the case from last Friday it is the Court of Appeal, but this case was one of the intermediate positions between the Full Court. I notice on the cover sheet on 326 they say Appeal Division Court of Criminal Appeal in Crofts.

MR McARDLE: Yes. That is what it was called. The Court of Appeal did not, I think, come into operation until the middle of 1995 or thereabouts, from memory.

The final matter that I wanted to put was this: that although this is not an occasion to review the ruling of the learned trial judge, the exclusion of the evidence of the uncharged acts, the early ruling there, was one expressed by him as a matter of discretion, as a result of weighing the probative and the prejudicial aspects of the evidence. It was, on examination of the application to discharge what I suppose, although these are not his words, I think he used the expression, "a line ball close run thing". It is material which, in my submission, is often put before juries in cases such as this without causing the prejudice or the - - -

GAUDRON J: The question is, how was this prejudice to be overcome without drawing attention, without exacerbating the prejudice? What you say is all very well - there are, in a situation in which a direction may overcome the prejudice, but here a direction is going to emphasise it and so you have this rather inconclusive statement about things, and it rather does indicate, does it not, that in this case you were in a qualitatively different area.

MR McARDLE: Your Honour, it is, of course, not at all unusual for inadmissible evidence to slip out in a court case. The matters are - - -

GAUDRON J: Yes, and in many cases a direction is adequate to deal with it. But, here you have a situation in which a direction was likely to emphasise the material.

KIRBY J: And that seems to have been accepted by both the prosecution and the accused at the trial by the formula that was then adopted which, as Justice Gaudron has said, was rather vague, and deliberately so.

MR McARDLE: Yes; that was a judgment, in my submission, that was to be made on the occasion.

GAUDRON J: That is the question, is it not? Whether it was a judgment to be made on the occasion or whether you were in an area where the prejudice could not be rectified.

MR McARDLE: Your Honour, I submit that it is an occasion in which the prejudice could have been rectified and was rectified. I think, having made that submission, I will now conclude the submissions I make, except to say in relation to the unsafe and unsatisfactory, which I think is one of the grounds - - -

TOOHEY J: But it is not a ground which stands independent of either of the arguments that have been presented to us, Mr McArdle.

MR McARDLE: That is what I wanted to say and I conclude the submissions at that. If the Court pleases.

KIRBY J: In the orders that are sought in the appeal book, no reference is made to a retrial. Is it your submission that the Court would order a retrial given that, in the event that the appeal were allowed, the first trial miscarried by misdirection?

MR McARDLE: If that be the judgment of this Court, yes.

DAWSON J: Thank you, Mr McArdle. Mr Grace, what do you say as to the last point? If we were to accept your submissions, what should we do?

MR GRACE: About the orders?

DAWSON J: Yes.

MR GRACE: I would submit that there ought to be no order for retrial because the, as I stand here now, the appellant has served over one and a half years of a non-parole period of two and a half years. I do not know how long your Honours would have the judgment reserved, and that would impact upon the exercise of discretion, but given that the appellant has served a considerable period of the non-parole period, in my submission, there ought not to be any order for retrial.

KIRBY J: He is still in custody at the moment?

MR GRACE: He is still in custody, yes. Could I just very briefly reply, your Honours. Firstly, in relation to counts 11, 12 and 13, which were the subject of directed acquittal, it is important to note two factors: firstly, that none of the allegations of sexual behaviour that related to those counts were in the nature of sexual penetration. Of the counts upon which the appellant was convicted, four of the five counts were sexual penetration counts. The evidence at the top of page 106 relates to sexual penetration.

Secondly, in relation to counts 11, 12 and 13, there was no evidence of the complainant being under the care, supervision and authority of the appellant, which was an element that the Crown had to prove. Because the Crown could lead no evidence of that, there was directed acquittal.

Finally, in relation to the proviso point, could I refer your Honours to Maric v The Queen (1978) 52 ALJR 631. At page 635 in column 1, paragraph D, his Honour Acting Chief Justice Gibbs, as he then was, said, quoting Archbold's Pleading, Evidence and Practice in Criminal Cases, 39th ed. said this:

"Where it is established that evidence has been wrongfully admitted, the court will quash the conviction unless it holds that the evidence so admitted cannot reasonably be said to have affected the minds of the jury in arriving at their verdict, and that they would or must inevitably have arrived at the same verdict if the evidence had not been admitted. In considering this question, the nature of the evidence so admitted and the direction with regard to it in the summing-up are the most material matters."

His Honour adopted that as a correct statement of principle. In our submission, this Court could not be satisfied that the irregularity in the admission of this evidence has not so affected the minds of the jury that inevitably the same verdict would have been reached.

In relation to the misdirection point, if I could refer your Honours very briefly to two recent decisions of this Court as to the application of the proviso in relation to cases of misdirection. The first in point of time is the decision in Prasad [1994] HCA 2; (1994) 119 ALR 399. It is only a very short one and a half page judgment. At page 400, line 20 this Court says:

The error was in truth a positive misdirection. Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded. It is impossible to be satisfied that the accused did not lose a reasonable opportunity of acquittal: Mraz v R

KIRBY J: This is a long line of territory. Another case was Domican.

MR GRACE: Yes, Domican is one.

KIRBY J: Never forget Domican.

MR GRACE: The last case is the matter of Glennon [2] (1994) 179 CLR 1. At page 13, point 5 midway through that paragraph in the middle of the page:

The only evidence of the assault was the uncorroborated evidence of the complainant and, thus, in practical terms, the central issue in the case depended entirely on whether the applicant or the complainant was to be believed.

You can immediately see parallels to this case:

In these circumstances, a direction which wrongly detracted from the applicant's credibility and that of his witness must be viewed as having deprived him of a chance of acquittal that was fairly open. Or to put the matter another way, it is impossible to say that the jury would inevitably have convicted if there had been no misdirection affecting credibility.

Those are the authorities I rely upon in relation to the proviso point. If I could just conclude by saying that we join issue with the respondent in relation to the submissions made. We also rely upon any of the written submissions which have not been elucidated in oral argument. If the Court pleases.

DAWSON J: Mr McArdle, the submission is that if the submissions made by Mr Grace are accepted, there should be no retrial. You submitted to the contrary, but perhaps you should have an opportunity to reply to the submission that Mr Grace made.

MR McARDLE: Yes, certainly. My learned friend reminded the Court that the appellant is still in custody - - -

DAWSON J: Yes. You do not dispute what he says about that?

MR McARDLE: No, that is in accord with my understanding of the situation.

DAWSON J: That he has served one and a half years of a two and a half year minimum term.

MR McARDLE: Yes, certainly. In the event that he succeeds in his appeal, then I would expect that he would apply for bail and if he was on bail before the trial, then I would imagine he would be released upon bail again.

Whether the trial is to proceed as a retrial would involve a number of considerations which would be attended to by the Director of Public Prosecutions and I am not in a position, at this stage, to say what is likely to happen in relation to that.

DAWSON J: But you submit it is not a matter for this Court?

MR McARDLE: With the greatest of respect, yes.

GAUDRON J: There have, of course, been cases in which this Court has declined to order a retrial precisely on the ground that the sentence or a substantial part of it has been served, are there not?

TOOHEY J: Yes, there are. And there have been cases where the Court has declined to order a retrial when the trial has been so fundamentally flawed. It might be, for instance, that no offence in law exists - that there is no point in ordering a retrial.

MR McARDLE: Yes, I accept that.

TOOHEY J: But you would put this in a different category?

MR McARDLE: Yes.

DAWSON J: I think M was one in which a retrial was not ordered. There was another one, and I cannot remember the name, where it was a case of dangerous driving where the man was said to have fallen asleep at the wheel. A retrial was not ordered in that one.

MR McARDLE: Yes, that was Jiminez, I think.

DAWSON J: Yes.

GAUDRON J: In both those cases, though, there was a question of the sufficiency of the evidence to sustain a verdict that would not be subject to criticism as unsafe and unsatisfactory, I think.

MR McARDLE: Yes, I think M's Case is the leading case on the unsafe and unsatisfactory, as things go.

GAUDRON J: But I am thinking of cases in which the only relevant consideration has been that a substantial portion of the sentence has been served.

MR McARDLE: I am embarrassed to say I cannot bring any of those to mind.

DAWSON J: Very well. The Court will adjourn shortly to consider what course it will take.

AT 11.41 PM SHORT ADJOURNMENT

UPON RESUMING AT 11.46 PM:

DAWSON J: In this matter the Court will allow the appeal and deliver its reasons later. It is appropriate, however, to order now that the convictions be quashed and to order that there be a retrial. The Court adds that it is a matter for the Director of Public Prosecutions whether a retrial should then take place.

MR GRACE: If the Court pleases.

MR McARDLE: If the Court pleases

AT 11.47 AM THE MATTER WAS CONCLUDED