Thompson v The Queen B62/1996 [1997] HCATrans 116 (4 April 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B62 of 1996

B e t w e e n -

KENNETH BARRY THOMPSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 APRIL 1997, AT 11.50 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please your Honours, I appear with my learned friend, MR A.J. RAFTER, for the applicant. (instructed by Boe & Callaghan)

MR M.J. BYRNE, QC: May it please your Honours, I appear with my learned friend, MRS L.J. CLARE, for the respondent. (instructed by the Director of Public Prosecutions (Queensland)).

BRENNAN CJ: Yes, Mr Walker.

MR WALKER: As your Honours have seen from the written outline, there are two questions. One might be called "procedural fairness"; the other might be called "the application of the proviso point". They are intertwined, however, in the manner I wish to explain.

We say the question which warrants the grant of special leave, transcending the mere assertion that there was a wrong result, is a combination of the fact that my client was not heard about the manner in which the proviso was applied because the proviso question was, in fact, not truly before the court - I will need to explain that from the record - and that it transcends simply the question now of whether it should have been decided differently as to the application of the proviso because the reasoning of the Court of Appeal by which the proviso was applied against my client is reasoning which contradicts the very terms of the error they had found and the importance of the error they had found which brought them to consider the proviso in the first place.

There is, of course, unavoidably, bearing in mind that our client is in prison and now for that part of the sentence which relates to count 2, the count in question, necessarily a consideration of 35A(b) of the Judiciary Act, there is, as well as the general questions we wish to ventilate, the question of our client's incarceration as well.

Your Honours, could I turn then to the proposition which, in our submission, makes this a special case about the proviso in that we were not given an opportunity below to answer the way in which the Court of Appeal has applied that against us.

BRENNAN CJ: If you are successful here, the order would be that the matter go back to the Court of Criminal Appeal in order to consider it?

MR WALKER: Your Honour, that is an alternative which we must concede is an available one but the preferred alternative, in our submission, which would be possible in this Court, were our arguments about the application of the proviso for errors of this kind accepted, would be to quash the conviction and order a retrial on count 2. I do not wish, that is, to argue against the possibility of a remitter to consider the application of the proviso. That is clearly an available alternative. In our submission, however, the narrow compass and important matter of principle about the application of the proviso for errors of this kind is one which could be dealt with, once and for all, in this Court rather than needing to go back to the Court of Appeal.

Your Honours, the essential background, of course, with any proviso case, when special leave is sought from this Court, is that, to adapt language of Justice Deane in Liberato, in a sense, its original jurisdiction of the intermediate appellate court to consider the proviso at all and, in that sense, although this cannot suffice, of course, to persuade for special leave. In that sense, there has never been an appeal on the point. We add this special consideration in this case: there has never been an argument on the point, as well.

There are five matters of the history to which I wish to take your Honours briefly in the application book to make good our proposition that the fact that there was not an argument about it is a defect in the process in the Court of Appeal rather than a shortcoming in the presentation of my client's case.

BRENNAN CJ: Would it disrupt your argument to identify, first of all, the nature of the error which enlivened the proviso?

MR WALKER: The nature of the error is, with respect, entirely adequately identified by the Court of Appeal and we would encapsulate it as follows: the nature of the error in applying the provisions of 229B(1A) was to fail in the summing up to ensure that the jury were properly directed that there must be at least three particularised identified incidents upon which they were unanimous in order that the charge in count 2 of maintaining a sexual relationship could be made out so as to avoid, in a case such as the present where there was one initial incident and then six classes of incidents on different social familial occasions or different locations which were the subject of evidence and where there was dispute about varying degrees of likelihood of opportunity and the like.

The Court of Appeal, in our respectful submission, correctly identified the error as being a failure in the summing up to ensure that the jury addressed their minds unanimously, if there is to be a result against the accused, to the requirement of the statute that there be at least three incidents, a matter which the Court of Appeal again correctly, with great respect, identified as an important matter in the regularity of the criminal trial precisely because the statute had already taken an important step against a requirement of particularity by the proviso in the same provision permitting there to be, in the nature of things, a permissible degree of latitude or vagueness about the times, places and individual specifications of the occasions relied upon. For all of those reasons, the Court of Appeal, having identified the error, having upheld my client's submissions about - - -

GUMMOW J: There was no complaint about this at the trial, was there?

MR WALKER: No, and that is, as your Honour, I apprehend, is raising, that was one of the circumstances which was held against us. In our submission, however, this is the kind of error which ought not to go, as it were, by waiver at the trial.

DAWSON J: The Court of Criminal Appeal held there was an error, did they not?

MR WALKER: They held there was an error. They held that it was a significant error, an important error.

DAWSON J: So, any questions not being raised disappeared then, do they not?

MR WALKER: Quite. The error we identify - if I may use the word in a second sense - the error in their application of the proviso, given they are completely correct - - -

DAWSON J: The error you complain about is in the Court of Appeal?

MR WALKER: Yes. It is an important error which, in our submission, is not touched in any way, as the respondent's written outline might suggest, by the fact that Wilde's Case settles many questions about the proviso. Wilde's Case has nothing to do with the specific error that we have identified. What I have tried to do in the outset, your Honours, is to add, as a special factor in this case, individual, no doubt, but therefore enlivening in particular the individual justice of our special leave application, the fact that we did not argue this proviso below was not our fault.

DAWSON J: Yes, but essentially what you say is once the statute has laid down this requirement in order to meet the difficulties which would otherwise arise in relation to specificity, if that requirement is disregarded, it cannot be said that there has been no substantial miscarriage of justice because the very requirements to the statute in relation to the offence may not have been met?

MR WALKER: Exactly so, and in the application book at 62, lines 55 or thereabouts, the error in the application of the proviso, something upon which we could have been heard had we been given the - - -

GUMMOW J: Is that the only treatment of the application of the proviso?

MR WALKER: Yes.

GUMMOW J: It is, is it not?

MR WALKER: Yes. This is not a case where there is some punctilious application of principle supposedly to be taken from Wilde's Case and therefore well settled and not needing this Court to look at it. Wilde's Case has nothing to do with this.

BRENNAN CJ: Wilde's Case is irrelevant to this - - -

MR WALKER: Absolutely irrelevant, and it has not settled anything which prevents this case from being an apt vehicle for this Court to consider how the proviso could apply where the error of the peculiar kind well and truly identified by the Court of Appeal has been found.

BRENNAN CJ: But this is where I am having the difficulty with the case and that is that the Court of Appeal said at the bottom of 62:

It is plain that the jury believed the complainant, and there is no rational basis upon which different members of the jury might have doubted some, different, portions of her account.

MR WALKER: A Court of Appeal, with great respect, your Honour, cannot say that without indulging in judicial guesswork of the kind which the proviso has no room for. In my submission, to say that there is all or nothing as a contest is merely a sloganised way of saying, "She made allegations, all of which he denied." Now, whether he denies them seriatim in itemised fashion or comprehensively by saying, "None of it is true", it is all or nothing if one needs to adopt a slogan. But then to take the step and say that the - - -

BRENNAN CJ: That is not quite an appropriate way in which one can pillory the judgment if the fact was that at the trial, the manner in which the trial was conducted was an "all or nothing" trial.

MR WALKER: But, your Honour, there is nothing in the application book to suggest that there was, as it were, no rational possibility for the jury, the tribunal of fact, to discriminate between different episodes. There are at least six categories which themselves contain multiple possibilities as well as the initial incident. There is nothing to suggest that the jury, as it were, had taken away from them the possibility of finding some of the incidents more credible than others and once that is identified then, in our submission, there is nothing in the point that the way the trial was run meant that there could be no discrimination rationally, to use the Court of Appeal's description because, in our submission, juries are not only entitled to, they are positively obliged to consider the possibility that some of the same witness's evidence is more credible or reliable than other parts of the same witness's evidence.

BRENNAN CJ: That is undoubtedly so but if, for example, the trial was conducted on the footing that the child has been induced to make these allegations against the accused for some identified and malicious motive, put up to it, perhaps, by a mother, and that on each of the occasions certainly there was opportunity that the allegation that had been made was false. Now, if that was the way in which the trial was run, I would have thought the "all or nothing" description was perfectly accurate.

MR WALKER: Your Honour, only if that amounts to an abandonment of another issue which clearly was run, namely, the lack of opportunity on some of the episodes. Now, in our submission, that introduces colour and shade into the proposition "all or nothing" which does not attract from the appropriateness of an accused saying, "It is all a pack of lies" or, "It has all been a terrible mistake", it does not attract from that at all. It adds to it as part of the factual investigation upon which the jury adjudicates. As soon as that is inserted as a possibility, the possibility or, indeed, the obligation of the jury to consider discriminating between different episodes and different incidents arises and, in turn, as soon as that arises it becomes impossible for the proviso to be applied by judicial assertion or guess, as we submit it must have been, that there was no rational basis upon which the jury could have picked and chosen among the various details of evidence.

BRENNAN CJ: We do not have the summing up in this book, do we?

MR WALKER: No. It is, in our submission, and we do not challenge the proposition that the error has been correctly identified by the Court of Appeal about the summing up.

BRENNAN CJ: I appreciate you do not but it seems to me that you are endeavouring to say, "Here is an error. Next is the proviso", and you attack the proviso. One other way of looking at it is that the only errors that are relevant are those to which the proviso does not apply. Then one needs to identify with some precision, according to the circumstances of the case, what the error was.

MR WALKER: Yes. I am trying to look in the application book. Your Honour may find there is paraphrase on page 42 of the application book but it is only paraphrase and I do not think it will enable your Honour to look further at the issues that your Honour has raised.

Could I take your Honours, however, back to page 62, I hope in response to what your Honour the Chief Justice has raised. At line 55 or thereabouts, apart from the failure to raise the complaint at trial with which I have dealt, the only other ground for the application of the proviso as it was in this case was that there had been no significant attempt by the appellant at his trial to differentiate between the various aspects of the complainant's testimony concerning the sexual misconduct she alleged against him. Now, in our submission, that is a topsy-turvy approach to the application of the proviso in the case of the specific error already identified by the Court of Appeal. The specific error was in failing to ensure the particularisation, identification and unanimity on at least three incidents. There appears to be a form of forensic burden being placed on the accused to do, as it were, the work required under those legal principles by others. In our submission, it is a completely invidious prospect when one ponders how practically an accused can "differentiate between the various aspects of the complainant's testimony".

If his position is that he denies them, one and all, differentiation, according to this approach by the Court of Appeal, will be impossible and thus the proviso will be applied because a person has a complete refutation, in their case, of all the allegations and, that, in our submission, does not fit within the ideals of the administration of justice which are found in the wording of this proviso because the proviso is talking about a substantial miscarriage of justice and, in our submission, almost by definition - and that is why this is a special leave point - when an error of this kind has been identified by the Court of Appeal it cannot be a fit candidate for the proviso. That brings me then to my last point which is about procedural - - -

BRENNAN CJ: Let me just put you to the test, as it were, on that proposition. Let us assume that there is no relevant differentiation between the respective acts of which the complainant made allegation but there was an argument as to whether or not the evidence that she had been given had been procured or tampered with or, for some improper motive, was being fabricated. It is correct to say that as a matter of law this offence can be identified only by reference to at least three specific acts. Therefore, one can say, a summing up ought to contain such a direction. But in some cases may it not be the fact that there being no discrimination as amongst the respective acts that are being alleged, that point is one which does not really arise on the facts of the case and although it is an error in the legal sense not to have given the direction, it is certainly not an error which is likely to occasion any miscarriage of justice.

MR WALKER: Your Honour, if that were so, then, by the application of the proviso, the importance for the fairness of the trial to the accused of the very principle of law vindicated by finding the error in the first place evaporates.

BRENNAN CJ: I agree.

MR WALKER: It becomes a circular process.

BRENNAN CJ: What I am putting to you is that in fact the function of the Court of Criminal Appeal is to ascertain whether there is an error occasioning substantial miscarriage of justice and that the bifurcation of the question into the error followed by the proviso is not always the appropriate way to approach it.

MR WALKER: Your Honour, we do not need to embrace universal statements in order to show that it is a fit case for special leave. In our submission, exploring whether there may be a universal, for errors of this kind, against the standard of substantial miscarriage of justice, is precisely why this Court should hear this appeal. However, we would say, in brief, that the very reasoning by which, as a matter of principle, the error of this kind has been identified says that a fair trial cannot be had unless, in all circumstances - not picking and choosing particular cases, but in all circumstances the at least three specific and identified occasions upon which there can be jury unanimity has been the subject of instruction because the principle which finds that error is a principle that says unless there has been an instruction to that effect there remains an ineradicable and fatal doubt about the propriety of the trial.

In our submission, that does come perilously close to a universal inapplicability of the proviso, but that is an important question that needs to be debated, in our submission.

DAWSON J: Would you go so far as to say that that requirement of the three specified incidents is almost part of the definition of the particular crime?

MR WALKER: Yes, your Honour, it is.

DAWSON J: So, the jury have not really been told what the offence is.

MR WALKER: Yes, exactly. The crime is a crime which has been obviously carefully crafted for relevant circumstances and against the pressure of perceptions of social policy in the criminal law. In our submission, it is a highly special offence of which that is an element.

May it please your Honours, I wish to very briefly say something about the question of procedural fairness and I can do so by simply touching upon the five or so passages in the application book upon which we rely for this proposition: the application of the proviso was, indeed, floated or perhaps we should say "tentatively suggested" in the course of a hearing which was announced by the President beforehand as not being a hearing at which the substance of the matter would be heard. Having been raised, it was - - -

GUMMOW J: I do not understand that.

MR WALKER: May I then take your Honour to the passages in order to spare repetition. At page 18, first, at an occasion - - -

GUMMOW J: What was happening on this occasion?

MR WALKER: What was happening on this occasion was that the matter was being fixed, as it is shown on page 19, for Thursday, 17 October at 9.30 before the ordinary business of the court for finally the last matters in the appeal to be attended to, if any needed to be attended to at all, and on page 18 - - -

GUMMOW J: Just a minute. You say "final matters". Had there already been some substantive hearing of the appeal?

MR WALKER: There had been some dealings with the notice of appeal whereby issues were being narrowed. There was a fresh evidence point that, I think, had gone away that was being investigated at that time.

GUMMOW J: I see.

MR WALKER: At the top of page 18, for example, line 9, your Honours see that my instructing solicitor there appearing for our client held out some prospect of an appeal being abandoned at that point. Things were in flux. One comes down to line 40. The President says:

We won't hear the substance of the matter on that occasion -

that is the fresh occasion -

unless it is within very narrow compass.

Et cetera, et cetera. My client's instructing solicitor was sent away to investigate what was left and to have some written submissions prepared on it. Written submissions were, in due course, prepared on the point which was successful. Page 19, it is adjourned until Thursday, 17 October. Can I take your Honours to page 28 which is the passage of transcript where Mr Ridgway, for the Crown, raises at lines 12 or so:

that one approaches, in my submission, a proviso situation anyway.

Justice Mackenzie, promptly pours some cold water on that rather tentative proposition:

It's - yes, I think if there is a difficulty about it, it is what there were various categories of occasions -

et cetera, et cetera. I do not want to labour the point. And then about line 19:

that's the difficulty as I see it. If you'd had simply a situation where it was alleged -

et cetera, et cetera, and then just above line 30:

then it's a bit different isn't it.

And what that, of course, all means is that this is not really approaching a proviso situation at all. This was the interplay between counsel and Bench. Counsel recognises the force of what the judge had said:

Yes, it is slightly different. The only - - -

GUMMOW J: I know I am being obtuse about this but is this hearing of the criminal appeal?

MR WALKER: Yes. The hearing proceeded in writing thereafter, and I can jump ahead. This is a page where, in our submission, one sees, very tentatively, gingerly, the proviso being put forward. Arguments which, in our submission, were plainly correct being put by Justice Mackenzie and the President about that matter and then the question being left for written submissions from the respondent on a difficulty that had been raised on a point on which we eventually succeeded, to be answered by written submissions from the appellant if necessary. At page 29, the President said, apropos the question of an appellant's response, about line 17 or so, "but it's probably not likely to be necessary". Now, it is unimaginable that the learned President would have said that if he considered the question of the application of the proviso to be a live one. Not only would it be likely to be necessary, it would be derelict for counsel not to address on the proviso.

So that the learned President clearly had in mind the extremely tentative suggestion of the proviso had been effectively squashed and, with respect, had been squashed for reason which were entirely correct. I am reminded that at about line 40 there is the height of the case against us about procedural fairness. The President, having also poured cold water on the proviso, said to the Crown:

you've raised the proviso for what it's worth.

Now, of course, it was raised to be squashed there and then. What happened was the Crown did put on written submissions and said nothing about the proviso. One finds that at 32 to 35 or, more to the point, one does not finds it at 32 to 35. That is the application book reference to their submissions.

Then at page 36 of the application book there is a careful response on behalf of the appellant saying there is nothing to reply to in those submissions and an invitation to the Court to be told if there was anything upon which the Court wished to hear the appellant. Then, of course, out of the blue, at the very end of a judgment otherwise favourable to my client, going to the propriety of his conviction, there is the application of the proviso in a way which, we submit, goes to the very principle of the error which had been identified. May it please your Honours.

BRENNAN CJ: Thank you, Mr Walker. Yes, Mr Byrne.

MR BYRNE: May the Court please, if we can approach the matters raised by our learned friends in reverse order. We say, firstly, that the application of the proviso is a live issue in any criminal appeal where error is shown. It is not a matter which the Court must specifically request submissions by counsel or legal representatives on behalf of an appellant. They are matters which are necessarily live because of the provisions of the Criminal Code.

Can we also say, as a preliminary point to that, that it is really a question of law or mixed fact and law as to whether there has been a substantial miscarriage of justice, and that is a matter which is determined usually by a Court of Criminal Appeal and would not usually attract the grant of special leave because that would be simply the substitution of a different opinion on that mixed question by this honourable Court for that of the Court of Appeal. In any event, we say that it was raised by the passage lastly referred to by our learned friends where the President specifically says that the proviso has been raised.

Moving back, if we may, to the application of the proviso, it is well established, we say, that to determine whether there has been a miscarriage regard must be had to the circumstances of the case. The crucial circumstance of the present case relates to the state of the evidence before the jury, initially, and then before the Court of Appeal.

If I may take your Honours briefly to page 1 of the application book which sets out the indictment under which the applicant was prosecuted. Your Honours will note that there were three counts. Count 1 was that of a specific offence which occurred on a date between 1 February 1988 and 3 April 1988. Count 3 was also a specific offence which occurred between 7 June 1991 and 2 July 1991, and between those two counts chronologically was the maintaining count, the subject of the appeal to the Court of Appeal and the application here for dates between 3 July 1989 and 30 January 1991.

When the matter came to be considered by the Court of Appeal, in particular when they came to consider the application of the proviso, it was open to them to find that the jury's verdicts on counts 1 and counts 3 showed plainly, as they put it, that there was an acceptance of the evidence of the complainant. In respect to count 2, the maintaining charge, they did identify the error, that is, that there were not three specific instances identified for the benefit of the jury by the trial judge. What occurred in respect to count 2 was that there were seven - - -

BRENNAN CJ: Three incidents do not have to be identified by a trial judge, do they?

MR BYRNE: They have to be identified by a jury, in effect, your Honour.

BRENNAN CJ: Any three?

MR BYRNE: Yes, any three. What was led, in the course of the trial, as your Honours would realise, was that there were seven groups or types of instances of indecent treatment capable of fulfilling the criteria required for 229B. The way in which it was approached therefore, by the Court of Appeal, we say, is that they had the benefit of being able to say, firstly, that the jury accepted the complainant child as being a witness of truth in respect of count 1 and count 3. In respect of the seven types of instance in count 2, there was a direct conflict between the complainant girl and the evidence given by the applicant. The jury, again, the court said, where it was an "all or nothing" case, not only, we add, to what their Honours have said, in respect to the maintaining charge but also in respect of the specific counts, counts 1 and 3, that it was an "all or nothing" case and it being a question of credibility, the court was entitled to say that no other result could rationally or reasonably have resulted even if the error had not occurred.

BRENNAN CJ: That proposition involves this, does it not, that irrespective of the absence of any direction about the three counts, all members of the jury must have been satisfied beyond reasonable doubt that there were at least three counts identifiable and identified by them on which they all agreed as having been committed by the accused?

MR BYRNE: Your Honour, we accept that with the possible exception that - it is not contested, we understand, that the jury were directed in accordance with the Act that there needed to be three matters identified. The error said to have been made by the Court of Appeal was that they were not directed that they had to be unanimous in respect to three specific matters.

BRENNAN CJ: Three matters which they identified.

MR BYRNE: That is so. What happened here was that there were seven areas and the jury were told, in effect, that the requirements were that a person shall not be convicted of an offence defined unless it is shown that the offender, during the period, has done an act, et cetera, on three or more occasions and evidence of doing such act to be admissible and probative of the maintenance.

BRENNAN CJ: As I understand it, the Crown accepts that there was a defect in the summing up in the absence of direction as to the jury's concurrence in respect of three of the acts of which the complainant had spoken?

MR BYRNE: That is the error identified by the Court of Appeal, your Honour, yes.

BRENNAN CJ: And that is accepted by the Crown as an error?

MR BYRNE: Yes, it is.

BRENNAN CJ: From that, what follows in terms of the jury's satisfaction when there are seven different categories, each with different opportunities for sexual interference?

MR BYRNE: What follows, we say, your Honour, as it was put by the Court of Appeal, is that of the - not just the seven but the two additional matters, there was no rational basis for the jury not finding one or more of those not proved. Rather, the only rational explanation was that the jury must have accepted all of them, and that is the passage which appears on the bottom of page 62:

It is plain that the jury believed the complainant, and there is no rational basis upon which different members of the jury might have doubted some, different, portions of her account.

BRENNAN CJ: Does that not depend on whether there were differences in terms of opportunity or likelihood in relation to the seven, for example, the occasions when there were said to be interference under the blanket in the presence of the accused's wife?

MR BYRNE: Certainly, the seven categories were different and your Honour gives that example but that is probably a good example of opportunity because the degree of interference at that time was certainly open, if I may simply leave it at that, for the type of interference complained of to have occurred in those circumstances. The evidence really was that these things happened; there were types; they occurred at different times and places and one had to accept either the complainant - there was no basis, we say, simply for accepting some of her evidence and rejecting others where it was a straight conflict of credit.

There is, we say, authority in the case of Holland (1993) 68 A Crim R 176 in this Court, that even where there is an error in a direction to a jury as to what is a substantial element of an offence, in that case, what constituted an attempt, there is still room, clearly, for the application of the proviso. Indeed, that also was a case, it appears, where this honourable Court accepted, at page 178, about point 2 on that page, it is said in the joint judgment of the majority:

It suffices to note that the jury's conviction of the appellant of those offences, notwithstanding his unambiguous denial of them, plainly discloses that the jury generally accepted the complainant's evidence and rejected the appellant as a witness of truth.

We, respectfully, would adopt that line of reasoning and say that was the reasoning adopted by the Court of Appeal in the present case and, on the way the trial was conducted and, again, that is a factor which authority in this Court says may be taken into account, the conduct of the trial below in the application of the proviso. But, again, the Court of Appeal was warranted in approaching or taking that factor into account in coming to consider whether the proviso should be applied.

Certainly, I am informed, there was simply, at appeal, no effort made to distinguish between opportunity in relation to the offences or the categories of conduct complained of. Unless there is something, those are our submissions.

BRENNAN CJ: Yes, Mr Byrne. Yes, Mr Walker.

MR WALKER: May it please your Honours, two points: on the very last one raised by my learned friend, page 28 of the application book, I have already taken your Honours to the comments of Justice Mackenzie arguendo. It is very clear from that passage, starting at line 14, that there was at the hearing of the appeal perceived to be, and I quote:

various categories of occasions upon which it was alleged that incidents happened and there was also some evidence that was led by the defence to suggest that it was improbable that some of them may have happened, and that's the difficulty as I see it.

And then further down, having referred to a case which was not the case, namely, if it had all happened in the fields, et cetera:

if the direction given, as it was, that the whole case rests on the evidence of the girl, and that the essential evidence is the evidence of the girl - you might be home -

meaning on the proviso -

but if you've got as is suggested -

that means a live issue in this case -

six different categories of incidents and some of them were the subject of evidence that suggested that there was a problem about the opportunity, then it's a bit different, isn't it.

Now, the significance we draw from that, both on our fairness point and on our substantive point, is that there is nothing in the judgment which explains away - and it must be an utterly away - the good sense, with respect, of what fell from Justice Mackenzie during the hearing on that point. There is nothing in the reasons of the Court of Appeal at all to show why that is not right. Accordingly, there is nothing in the proposition, we say, that there is "no rational basis" to assume that the different members of the jury may have been picking on a different set of three specified instances.

Secondly, as to Holland: Holland, of course, entirely lacks the very special circumstance which renders this case fit for this Court's attention on an appeal, namely, the requirement of the same three and unanimous verdict and there is nothing analogous to that in Holland at all. May it please the Court.

BRENNAN CJ: The Court will adjourn briefly in order to consider what course it will take.

AT 12.32 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.40 PM:

BRENNAN CJ: Mr Walker, the Court is minded to grant special leave in this case but on a basis of limitation and the limitation is this: there are two grounds, in effect, which you have argued for special leave. One of those might lead simply to an order that the matter be remitted to the Court of Criminal Appeal for reconsideration of the application of the proviso. That would seem to be an undesirable course for this Court to adopt. Are you content to have a grant of special leave on the footing that the only relief which you would seek would be the setting aside of the judgment of the Court of Criminal Appeal and in lieu thereof the substitution of an order that there be a retrial on count 2?

MR WALKER: Yes. I am simply reminded, of course, that with a three-year head sentence, the 12 months head sentences for the two other counts having now expired, my learned junior raises the question of a retrial. That is no doubt a matter which could be debated at the appeal.

BRENNAN CJ: That would be another matter.

MR WALKER: Yes, it is another matter.

BRENNAN CJ: Very well, there will be a grant of special leave upon the terms stated.

MR WALKER: May it please the Court.

BRENNAN CJ: The Court will adjourn to Monday next at 10.15.

AT 12.43 PM THE MATTER WAS CONCLUDED