VRJ v The Queen S20/1997 [1997] HCATrans 192 (6 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S20 of 1997

B e t w e e n -

VRJ

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 JUNE 1997, AT 12.19 PM

Copyright in the High Court of Australia

MR M.A. GREEN, QC: May it please the Court, together with my learned friend, MR S.J. ODGERS, I appear for the applicant. (instructed by T.A. Murphy, Legal Services, Legal Aid Commission of New South Wales)

MR R. KELEMAN, SC: If it pleases the Court, I appear for the respondent. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions)

GAUDRON J: The Court thinks it might be assisted if it hears first from Mr Keleman.

MR KELEMAN: In respect of the first ground of appeal in relation to the assertion that the Court of Criminal Appeal erred in determining that the warning given to the jury by the trial judge in respect of the complainant's evidence was inadequate, it is the respondent's position that the warning, in all the circumstances, was in fact inadequate. The trial judge, in directions which are conveniently set out at page 81 in the application book, refer to the aspect of "late complaint". Do your Honours have that page reference at page 81, at line 10:

"Now...(counsel for the appellant at trial) ... made mention of - well perhaps I could describe it as late complaint. It is common ground in the trial that there was no complaint made until February 1995, whereas the events charged go back to February `91, winter `91 and then June `92. ...(counsel)... submits in effect that if these events happened reality dictates that there would have been prompt complaint. You will no doubt give careful thought to that submission. I am required by a section of the Crimes Act to warn you that the absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed was false, the Crimes Act requires me to tell you that there may be good reason why a victim of sexual assault may hesitate in making or may refrain from making a complaint about the assault.

An example I sometimes give runs this way, that if the charge related to perhaps a social worker, a lady social worker aged thirty five and the alleged perpetrator was readily identifiable that you would expect immediate complaint. Whereas if the victim was perhaps a Grade One primary school girl you might think there may well be no complaint or very, very late complaint because of the bewilderment of the child in not perhaps knowing what way to turn or what had happened or who to tell. As to where on the scale of things the present case slots in is a matter for you, members of the jury, to think about using your ordinary common sense.

GAUDRON J: It does not, in terms, however, say that it can be taken into account in determining whether she was telling the truth.

MR KELEMAN: With respect, counsel for the applicant at the trial clearly made extensive submissions about the significance of the question of complaint and we would respectfully submit in the example that the trial judge gave, he reflects those sentiments, and that appears between lines 25 and 35. So, it was not as if, for example, nothing was said in relation to complaint. The jury clearly had the benefit of, no doubt, the urgings of the applicant's trial counsel as to the significance of complaint, and the judge asked the jury to give careful considerations to those submissions.

So, we would submit that his Honour did adequately direct the jury in respect of late complaint in the circumstances of this case and, significantly, the applicant's trial counsel sought no further directions which we submit is significant. We say in the circumstances of this case the applicant's trial counsel, who is experienced - and that is referred to in the application book at page 78 of Mr Justice Sully's judgment at line 41:

It should be said at once that neither of these points -

that is the question of adequacy of directions in relations in relation to complaint and in relation to the question of corroboration -

was raised at trial by counsel, being experienced criminal trial counsel, then appearing for the appellant.

Further, in relation to the need to scrutinise the complainant's evidence with care, the learned trial judge - and this is again set out at page 81 of the application book - said at line 36:

Another direction I should give you is this and you might think it is as much a counsel of common sense as it is of law. That is where, in a serious criminal matter, the Crown case depends entirely on the evidence of one witness that you would need to scrutinise that witness' evidence very, very carefully. Now that is not to say that you would necessarily throw it aside as "C" grade evidence, simply that the principle is that since so much depends on it you would need to look at it very, very carefully.

And there is no question that his Honour was specifically referring to the evidence of the complainant. Again, the applicant's trial counsel sought no further directions in that regard at all, which, again, we would submit, confirms that in the circumstances of this trial the warning given in relation to the complainant's evidence was adequate.

Now, in respect of the ground in respect of "unsafe and unsatisfactory", Mr Justice Sully's judgment dealing with this aspect commences at page 87 of the application book.

GAUDRON J: It is in this area that a test seems to have been adopted that is almost impossible to achieve, is it not, and seems to be at odds with the usual formulation of the function of a Court of Criminal Appeal in this regard.

MR KELEMAN: We would submit that the reasoning of Mr Justice Sully and the other members of the court, including Mr Justice Mahoney, were consistent with the principles enunciated in M.

GAUDRON J: Look at page 94, for example.

MR KELEMAN: Yes, your Honour.

GUMMOW J: Line 40.

MR KELEMAN: Your Honour, that is in the context of the inconsistency ground. It is not being raised on this application. The inconsistency question was raised in the context of the third ground of appeal but, as I said, it is not the subject of this application to this Court.

McHUGH J: It is really line 29 that is the problem. His Honour said, "I do not see, in the complainant's evidence - - -"

GAUDRON J: "- - - so clear a taint or fundamental flaw", and it seems also a similar test seems to have been adopted at, I think it is page 54.

MR KELEMAN: That was in the context of the inconsistency ground and it is not suggested - - -

GAUDRON J: No, line 30 it is not.

MR KELEMAN: Your Honours, perhaps I can assist. That inconsistency ground was raised in the judgment of Mr Justice Sully at page 90 of the application book, having dealt with the "unsafe and unsatisfactory" ground that appears between pages 87 to 90. At page 90, line 20, the ground in respect of inconsistency of verdicts arises, and we are talking here about, in a sense, a practical inconsistency involving different principles; principles quite different from those involved in determining whether a verdict is unsafe or unsatisfactory. The relevant principles are set out at the bottom of page 90 and they are conveniently quoted from a decision of the Court of Criminal Appeal in Watson. His Honour deals with then the question of inconsistency in accordance with those principles. His Honour, with respect, is not getting into the realm here of "unsafe and unsatisfactory" because his Honour has already dealt with that previously.

GAUDRON J: I do not read it quite that way. That seems to be an aspect of the "unsafe and unsatisfactory" ground. It is a second aspect of that same ground of appeal.

McHUGH J: Yes, he says he does not think it would justify the court in saying the jury must have had a reasonable doubt about the acceptability. It has nothing to do with inconsistency.

MR KELEMAN: One has to relook at the way his Honour looked at the question of inconsistency from the very beginning. His Honour looked at count 1 and indicated how, in his view, it was open to the jury to come to the view that they did because the applicant was asserting that because there was a "not guilty" verdict in respect of count 2, the other two verdicts were inconsistent. So, his Honour set out his reasoning as to why he took the view that the verdict in respect of count 1 was open to the jury. His Honour then, on the next page, at page 93 of the application book, at line 8, then dealt with why the "not guilty" verdict in respect of count 2 was in fact open to the jury, having regard to the evidence of a number of witnesses, and then his Honour, in a somewhat briefer way, then dealt with count 3, as to why it was - - -

GAUDRON J: Yes, and that is where he deals with the jury having to entertain a reasonable doubt and that feeds back on count 1, and the test his Honour there states is surely not in line with the general approach in this area. It is the same approach that Justice Priestley uses at page 58, "so weak or flawed as to make it wrong for the jury to accept it."

McHUGH J: Not only that, you have Justice Mahoney saying he is concerned about it and, with great respect to Justice Sully, his discussion of ground 3 at 87 to 90,does not really seem to come to grips with the problems. He makes this statement and then just sort of goes off.

MR KELEMAN: In relation to the unsafe and unsatisfactory ground, his Honour, in fact, spent considerable time summarising the evidence in the case. In relation to the unsafe and unsatisfactory ground, which commences in his judgment at 87, he makes it clear that he has made an "independent assessment.....of the whole of the evidence", and that appears at lines 35 and 36.

His Honour then refers to M v The Queen and the relevant pages in M v The Queen where the relevant principles are set out, and that appears at page 88, at the top of the page:

The relevant principles, stated in bare conceptual terms, are, in my respectful opinion, clear enough; see at 181 CLR 493, 494, 495.

Now, they are the relevant pages in the majority judgment of M where the principles - - -

GAUDRON J: Do you say if the test is as his Honour stated at 94, that it is in line with those principles?

MR KELEMAN: It is my submission that if one looks at the relevant portion of his judgment that his Honour has, in fact, applied those principles.

GAUDRON J: So, what he said at page 94 was totally extraneous to his decision?

MR KELEMAN: It related to a separate aspect of the ground dealing with the question of inconsistency of verdicts and not the issue of "unsafe or unsatisfactory", and we submit that that is crucial.

GAUDRON J: It does not seem to have anything to do with inconsistency though. "The second aspect of the ground of appeal" he says at page 90, and if you go back, the ground of appeal, the first aspect of this grounds of appeal propounds that the two "verdicts are unsafe and unsatisfactory".

GUMMOW J: In the conventional sense. Ground 3 was just "unsafe and unsatisfactory", was it not? That appears from page 60.

MR KELEMAN: Essentially, in broad terms, yes. But the reasoning that his Honour applies in relation to the inconsistency aspect really evolves from principles a little bit different from those enunciated in M v The Queen. M v The Queen was concerned ultimately with the cumulative cogency of the evidence and whether it was sufficient.

GAUDRON J: That is an aspect that does not seem, really, to have been addressed.

MR KELEMAN: His Honour, we would say, addressed that in the early part of the judgment dealing with that ground when his Honour, in fact, indicated that he had assessed the whole of the evidence, and then he goes - - -

GAUDRON J: When he comes to page 94, with respect, Mr Keleman, it is simply impossible to relate that to any question of inconsistency. It is just wholly impossible to relate that paragraph to the issue you say his Honour was addressing. His Honour says:

As to Count 3, I am unable to see why the jury, confronted by a head- on conflict.....must have had a reasonable doubt about the acceptability, in the requisite legal sense -

that is not to do with inconsistency. That is to do with "unsafe and unsatisfactory".

McHUGH J: Justice Priestley seems to have read it the same way at 58. I mean, he uses the term, "so weak or flawed".

MR KELEMAN: There is no question that Justice Priestley does not indicate his view in terms that are entirely consistent with the words used in M v The Queen. There is no question about that. But we would say the import of what he says is, in effect, consistent with M v The Queen.

Perhaps if I can just take your Honours to M v The Queen. I really only want to take your Honours conveniently to one passage which is referred to in Mr Justice Mahoney's judgment, if that is more convenient, at page 49 of the application book, line 45. This is from the majority judgment in M.

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only when a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance - - -

GAUDRON J: In this case it was acknowledged by the Court of Appeal that there were discrepancies and inadequacies.

MR KELEMAN: Yes.

GAUDRON J: But then there seems to have been this test which does not seem to have a foundation in the decided cases.

MR KELEMAN: With respect, the word "ought" can be, we would respectfully submit, replaced with the word "must", and that if one looks at what Mr Justice Priestley and Mr Justice Sully said in their judgments, if one substitutes "must" for "ought", their conclusions are, indeed, consistent with what this Court said in M. We say there is no practical difference between "ought" and "must" in these circumstances.

Now, there is no doubt that Mr Justice Mahoney indicated, as he himself readily acknowledged, some unease and he indicated that on a number of occasions but, importantly, at page 49 of the application book his Honour stressed this, and this is at line 13:

It is not right - at least it is not lawful - to treat the unease which I feel as, or as requiring, a reasonable doubt as to guilt.

GAUDRON J: Again, that may not be a wholly precise statement of the task with which his Honour was confronted.

MR KELEMAN: We would submit that all his Honour is doing is indicating in this particular case he found it difficult but on proper application of the principles enunciated in M, which his Honour properly felt bound by, his Honour at the end of the day had no reasonable doubt in the legal sense as to the guilt of the applicant, we would submit. All his Honour's judgment reflects his own difficulty or unease in applying the principles to cases such as these. Cases such as these are quite common. They are not uncommon and courts of criminal appeal have to consider these situations with great care. That was acknowledged by M, a decision of this Court, in which it clearly indicated that a jury's advantage in seeing and hearing the evidence may well resolve such a doubt. We would say, in effect, that that is precisely what Justices Sully and Mahoney have in fact done. They have said at the end of the day, "Look, we are satisfied that the jury's advantage in seeing the witnesses - - -"

GAUDRON J: They do not put it in those terms.

MR KELEMAN: With respect, we would submit that they do. If I can take your Honour to page 55 of Mr Justice Mahoney's judgment, and perhaps I will start reading from line 24:

In these circumstances, am I justified in concluding that the verdicts against the appellant were unsafe and unsatisfactory?

I have concluded that I am not. Each of these three matters - the lateness of the complaint, the appellant's good character, and the age of the complainant - is a matter of which the jury was aware when it came to consider her word against his. The effect of each of them, insofar as it may have tended to suggest that the complainant's evidence should not be accepted, may well have been offset and overborne by what the jury saw of the complainant and the effect of that upon their assessment of her credibility. I do not think I should conclude that the jury, in that assessment could not have given such weight to what they saw of her as to outweigh the effect of those matters. That being so, I should not conclude that her evidence lacked probative force to the extent that the jury must have had or that this Court must have a doubt as to the appellant's guilt.

Similarly, we say, in Mr Justice Sully's judgment. He says, at page 90, in dealing with the "unsafe and unsatisfactory" ground or at least the first aspect of it:

All the foregoing considerations have to be balanced, as the decision in M makes clear, in a way which recognises in a proper way the undoubted constitutional standing of the jury at trial as the tribunal of fact.

That is a reference, we would say, to what the High Court says in M at page 493. The Court says at about point 8:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence -

So we say that is what his Honour Mr Justice Sully is acknowledging in that paragraph. Then he goes on to conclude, at page 90, line 10:

Having done the best I can to apply the principles established by the decisions in M and in McKnoulty, I am not persuaded that the present case is one in which the Court would be justified in setting aside the verdicts of the jury -

So we say that is what their Honours are in fact having regard to, and that is the advantage of the jury to resolve any doubt, or in the case of Mr Justice Mahoney, unease in the view that they took.

I notice the lights are red and I am out of time unless your Honours give me further leave. Do your Honours wish to hear from me in respect of the question of character and whether or not counsel erred in not seeking - - -

GUMMOW J: That is ground 2(c).

MR KELEMAN: Yes. I have dealt with it in the outline of argument; at page 110 of the application book, paragraph 3, line 51, one of the grounds is the applicant submits that the failure of the applicant's trial counsel to call evidence of good character resulted in a miscarriage of justice is misconceived, in our submission. Does your Honours wish to hear from me in relation to that? I am happy to deal with that?

GAUDRON J: No, we do not need to hear you.

MR KELEMAN: I do not think I can assist your Honours any further.

GAUDRON J: Thank you. Yes, Mr Green, the Court would be assisted by hearing from you on all issues.

MR GREEN: Your Honours, this application, in our submission, raises three questions of general importance. The first question of general importance raised by the application is whether, in cases where a complainant's evidence is uncorroborated, and there has been a substantial delay in the making of the complaint, it can ever be sufficient warning to direct the jury that they should scrutinise the complainant's evidence very carefully or, in this case, his Honour said, "very, very carefully" on two different occasions in the same section of his address to the jury. That was the direction given in this case. In our submission, it is inadequate.

GAUDRON J: What direction should have been made?

MR GREEN: The direction ought to have drawn attention to the particular problem that was raised in this case by the delay in making the complaint. Your Honours, we are talking here about incidents which were alleged to have occurred in - well, the first one, in particular this one, in February 1991. The complaint was not made until February 1995, so we have four years of delay in relation to the first one; two and a half in relation to the last incident or the last count. This obviously caused problems for the defence in the way it had to run its case. It had to rely, in relation to the first count, and that is the nub of the argument, in our submission, on a witness whose evidence was undoubtedly affected and, indeed, the Acting Chief Justice accepted that her evidence was accepted by the delay in the making of the complaint and the unavailability of her evidence until just before the trial, the December before the trial. That was the evidence that was elicited from her.

So that the real point is that the particular concern arises here where dangers exist which the jury may not take into account at all such as the delay in making of a complaint, making it difficult for the defence to obtain evidence, and this was recognised in Longman and the other cases. Indeed, in our submission, the focus of cases, in Longman and other cases, relates precisely to dangers arising from considerations which may not be apparent to the jury. It was a particular problem in this case. The judge ought to have warned about it. There is no doubt that as the trial unfolded that, not only in the verdicts but on the questions that the jury asked in relation to having the evidence of this witness, Lucy Darvall, played back to them, they were immensely concerned about it. In other words, what happened was the applicant had obtained evidence from his family, corroborative of his innocence in relation to count 2, but in 1 he had this problem that Lucy Darvall, the witness in question, allowed a possibility in her evidence, after being initially quite firm about it, the possibility no doubt arising from a defect or a difficulty she had in recollection that she may not have been present on this particular occasion and therefore the opportunity existed. It appears that this is the only difference or could have been, in our submission, in the jury's perception of the evidence in relation to counts 1 and 2.

So, it assumed great importance in the trial. No reference was made at all to this particular problem by the trial judge. He gave, shall I say, the statutory direction, "delay in complaint" without the Croft's balancing direction. He gave the direction, of course, that we are specifically complaining about here, the very, very carefully scrutinised direction but this was completely, in our submission, inadequate. In general terms it is inadequate because, one, it is something, no doubt, the jury will do anyway; two, it does not tell the jury how to approach their problem; and, three, it does not isolate any particular problem. But most important, particularly in this case, why such a direction can never be sufficient in a case such as this is that the particular problem of delay does not relate at all to an assessment of the complainant's evidence to which, of course, the direction is directed. Rather, it relates to the presence or absence of the defence evidence concerning the surrounding circumstances of each alleged offence.

So, your Honours, to tell the jury in this case that they had to "scrutinise the evidence of the complainant very, very carefully", does not matter how many times he repeated it, that was of no assistance at all. In this case they ought to have been directed, concerning the failure of the defence, to obtain unequivocal evidence showing that the complainant's account of the circumstances surrounding count 1 was wrong or unreliable. They ought to have been directed by his Honour the trial judge that it is likely to be difficult for the defence and, indeed, would not be surprising if they did not find it difficult to obtain accurate and persuasive evidence relating to the circumstances of an offence some five years after the alleged offence.

They ought to have been directed that, for this reason, they should be careful in accepting the complainant's account, given that it was uncorroborated and given the contrast, also - this was another problem - between her somewhat implausible account of what had happened and the clear and consistent denials of the applicant. When I say her "implausible account", that was one of the matters that concerned their Honours in the Court of Criminal Appeal and that related to the fact that she did not see the particular parts of his anatomy that went into her and she could give no better account of what happened to her. Indeed, perhaps more critical, that at that stage, not until after the third and last offence, did she realise it was wrong. Yet, the matter, of course, which concerned in particular Justice Sully was the clear and consistent denials right from the beginning, his rejection to the police when they questioned him in the record of interview and also in evidence, of course, his rejection of having anything to do with these matters.

In practical terms too, in our submission, your Honours, they ought to have been directed not to read too much into the fact that this witness, Lucy Darvall, conceded the possibility that I have mentioned. In our submission, in this case, in the light of the fact particularly that there was no difference in quality, from a perusal at least of the transcript, or manner in which the complainant gave her evidence on all counts and, indeed, in relation to the second count it can be submitted, it could be argued, that if any of the incidents bore some detail, it was that, and he was acquitted of that. But in the light of that, it seems, in our submission, that the applicant was acquitted on the second count because he had reliable corroboration of his innocence and convicted on the first count because he did not. It is our submission that the miscarriage of justice is well illustrated in those very verdicts.

It lies in the situation that without an appropriate warning, without the proper warning directed to the danger in this case, that the jury have convicted the applicant, having applied an erroneous test to the evidence. We say in relation to this ground that special leave should be granted because the Court of Criminal Appeal was wrong to consider that it was sufficient and we say that it is a matter of general importance because there have been a number of decisions in similar cases, both at trial level and matters that come on appeal, that where that bland or that very economic direction, we might submit, has been considered as sufficient.

It could have been, your Honours, that defence counsel did not seek a different direction because of a line of authority or those other cases and, indeed, we would submit there are some passages in Longman itself, in particular Justice Deane's words at 93 point 9, might be construed as simply concentrating on the content of the warning rather than the reasons for which it should be given or the problems to which it should be directed. There is no question that in the majority judgment, particularly on 91, that the necessity to the warning to avoid a perceptible risk of miscarriage of justice in the circumstances of the case is directed very much towards those matters which would not appear readily to a jury's consideration. The fact that a complainant's evidence is uncorroborated, in our submission, would be possibly very clear to them but a matter such as the problems caused by the defence in delay might well be not.

In relation to the unsafe ground, your Honours, the second question of general importance involves the test for determining whether a conviction is unsafe. In our submission, this Court has established the test very clearly with precise language in M v The Queen setting, in our submission, a precise general rule and allowing that one exception. But the Court of Criminal Appeal in New South Wales, in our submission, on our perception, is consistently misapplying, in this case and in others, the test and leave should be granted to clarify the principles.

There were a number of factors in this case which raised the question of the guilt of the applicant and we have set those matters out, your Honours, on pages 104 and 105 of the application book, starting from line 42. There was the uncorroborated nature of the allegations; the confusion of the complainant regarding the circumstances of the first two counts; the evidence from the applicant's wife and daughter and Ms Darvall which we have already referred to. On page 105, the implausibility that I have referred to of the complainant's assertion; the failure of the complainant to complain for more than, we have said, two and a half years after the last incident and, in addition to that, four years after the first incident and, of course, the emphatic denials of the applicant to which we have already referred.

Each member of the Court of Criminal Appeal approached the question of whether the conviction was unsafe in different ways. Very briefly, his Honour Justice Mahoney, the Acting Chief Justice, was uneasy about the result and used words that allowed him to overcome the considerations in favour of the applicant's innocence by the jury's advantage "may well have offset it" and that is not the test. It displays, in our submission, erroneous reasoning. He certainly had doubt as, indeed, did Justice Sully, who, in one part of his judgment, said the principles in M were clear enough but he said they were not easy at all to apply them with practical confidence in a case such as the present case. We say, of course, that the way he approached it was quite erroneous and quite contrary to the decision of the majority in M.

Critical to each of their Honours' considerations was the jury's opportunity and the appellate court's lack of opportunity to observe the complainant and the applicant when they testified. It is submitted that each of the members of the court misunderstood and misapplied the principles in M. In our submission, the essence of the approach of the judges of the Court of Criminal Appeal, in particular that of the Acting Chief Justice and Justice Sully, is to reason that even if an appeal court has a doubt as to guilt based on an examination of the transcript of the evidence, doubt will not render the conviction unsafe. It might have been displaced by actually observing the evidence being given as the jury did. Such an approach, in our submission, is a complete misreading of M.

In that case, in particular in the majority judgment at page 494, a doubt held by an appeal court can only be displaced in a case such as the present where the doubt arises from a perception that the evidence of the complainant lacks credibility for reasons which may be explained by the manner in which the evidence was given, so the Court, as we have submitted, has set out a general rule. The first question to be asked is whether the appellate court has a reasonable doubt. Next, the reasoning goes, that the doubt then is a doubt that the jury ought to have had unless and only if it is displaced by the jury's advantage and only in relation to evidence which contains problems by reason of the manner in which it was given. Now, we have given an example of that in the application book, page 106 at line 16, where the problems in the complainant's evidence might be seen to be caused by hesitation but the jury's advantage, of course, might see that as a real effort on the part of the complainant to tell the truth, to give a reasonable account, an accurate account.

Another example, of course, might be, in this case, the confusion which the complainant had as to the days of the week when the offences occurred. The jury might have perceived that as a normal and humanly explained confusion. Your Honours, in our submission, most of the factors which created a doubt in the minds of, in particular, Justice Mahoney and Justice Sully were not of this type. Indeed, they concern matters quite extrinsic or outside the content of the complainant's evidence. For instance, there was the lack of corroboration. There was the age of the complainant. There was the delay in the complaint. There was evidence of subsequent contact after the alleged offences between the complainant and the applicant. There was the question, of course, of the immediate and consistent denials of the applicant. There was the evidence of his family and Ms Darvall. So, your Honours, these were matters, of course, which were in no way covered by the exception in the rule proclaimed by this Court in M, that is, evidence which contained problems by reason of the manner in which it was given. Not at all.

The importance that their Honours in the Court of Criminal Appeal gave to the jury's opportunity to observe the witnesses in these circumstances means that they have so expanded the narrow exception in M as to swallow the rule.

McHUGH J: I am not sure that there is such a rule. That is one possible reading of what appears at 494 but it is not the way I would read it. I do not know how the Court of Criminal Appeal can start off just simply by reading the transcript and say they have a reasonable doubt about the matter. They cannot possibly come to any conclusion without having in the forefront of their consideration the fact that the jury saw and heard the witnesses which the court did not see.

MR GREEN: Certainly, your Honour, but all that appellate courts and appellate lawyers have is the transcript of evidence. One must always take into account the matter that your Honour has raised, of course, but our submission is that it can be seen, the difficulties in evidence, the discrepancies or whatever, can be perceived by an examination of the transcript whilst still bearing in mind the - - -

McHUGH J: But every experienced trial lawyer has had experience of cases where, when you see the transcript on appeal, it really tells you nothing about the effect of the evidence at the trial. There is body language; there is hesitations; there is an atmosphere. I mean appellate courts often deal with matters in a way which does not reflect what went on at the trial because the appellate court can never recapture it. That is why appellate courts have to be very slow to interfere, even in criminal trials, with juries' verdicts.

MR GREEN: With respect, our submission is that that is not the way the majority judgment in M proclaimed it.

McHUGH J: I know, and I dissented in M so it may be - I would have upheld the jury's verdict in M, it may be I do not fully appreciate or understand the majority judgment.

GAUDRON J: You wish an opportunity to make it clearer to his Honour?

MR GREEN: I do not seek to instruct his Honour.

McHUGH J: Justice Gaudron dissented as well in M.

MR GREEN: Yes, I understand that, but not to the same extent perhaps. But I think your Honours have our submissions in relation to that matter. Just briefly, on the final ground of appeal which we say raises the matter of general importance, your Honours, and that is the failure of counsel for the applicant in the trial to call evidence of good character resulted in a miscarriage of justice. The particular conviction which concerned defence counsel was a conviction for indecent exposure and that dated back, we have on page - - -

GAUDRON J: How can we entertain this? I mean, it was obviously a deliberate decision.

MR GREEN: Yes, it was and, indeed, Justice Sully said it was a tactical decision which did not amount to incompetence. Our argument is that it was not a tactical decision, it was an outright mistake. This was a 20-year-old conviction. Counsel did not seek to clarify this with the Crown nor, had it become known before his Honour and so, we would say, the real problem in it is that it deprived the applicant in facing very serious charges in this criminal trial of the benefit and the undoubted benefit of this impressive array of character witnesses which his Honour later saw at sentence and commented on in his letter, his report to the Court of Criminal Appeal, indicating that had that and something else been there he would have anticipated an acquittal. Indeed, I am reminded by my learned junior, that counsel did not seek a ruling in relation to the undoubted discretion given to a judge to allow evidence or some cross-examination in relation to such a matter. But they are our submissions in relation to that matter.

GAUDRON J: Mr Keleman, you need not concern yourself with ground 2(c) in reply.

MR KELEMAN: Your Honours are giving me an opportunity to reply?

GAUDRON J: Yes.

MR KELEMAN: Thank you. Your Honours, the key is the jury's assessment of the witnesses and there is, in fact, some indication in the application book as to how, in fact, the complainant presented. Now, that appears in the affidavit of the applicant's trial counsel at page 45 of the application book. It is in the section of the application book where the applicant's affidavit is appended. At line 52:

The complainant's evidence in relation to each of the incidents was given with identical demeanour, sureness and conviction (apart from the initial confusion about the order of the first two incidents).

And that simply related to her confusion as to whether or not the first incident occurred on a Saturday as opposed to a Tuesday or a Thursday. That was the only confusion.

The way the trial unfolded one expected that the jury would either accept or reject -

But we have here from the appellant's trial counsel confirmation of the way in which the complainant, in fact, presented and we say that was a legitimate matter for the Court of Criminal Appeal to take into account and we say that that is what they did take into account in dealing with this question of the jury's advantage in assessing the witnesses' evidence, especially that of the complainant and, of course, everyone else's.

So we say that although the judgments do indicate a degree of unease in the sense that the court was faced with examining a bland transcript, although they were faced with that difficulty and that created, no doubt, the unease, the judges, all of them, in fact, unanimously took the view that any doubt they may have, having perused the transcript, was resolved by this very important advantage that the jury had. That was something that M makes quite clear. There is no question that they, we say, misapplied the principles in M. The two key judgments, that of Mr Justice Mahoney and Mr Justice Sully, specifically referred to the relevant passages in M. Each of them went through the evidence and assessed it as is required by M and they ultimately came to the view, applying those principles, that at the end of the day there was no question of any doubt because it was the jury's advantage which they accepted as being determinative that resolved such a doubt.

McHUGH J: My worry; my concern is that this is a case where an acquittal might well have been expected. The trial judge would have, I think, acquitted, certainly with character evidence, and then you get the Court of Criminal Appeal making statements which make me a little uncomfortable. I find it difficult to believe that judges as experienced as these judges would not have applied the test properly, but they are reserve judgments and there are some looseness of expression in it. It may be that this Court should have a look at the matter for itself.

MR KELEMAN: We would submit that the principles in relation to this matter are clear; they have been made clear in M; this Court applied it and there is in fact no error of principle. All the judges simply disclosed was, I suppose, the difficulty they had in ultimately coming to that conclusion but it was a conclusion reached through the application of relevant principle.

In relation to the first ground of appeal on the special leave application, again we say it is significant that trial counsel did not seek any further elaboration of the directions and we say in those circumstances there can be no suggestion of miscarriage of justice. Clearly experienced trial counsel regarded those directions as adequate and, in those circumstances, it is not as if, for example, as in Longman, there was no warning given at all. Not only that, in Longman, the delay in complaint if I recall was something in the order of 20 years, and there were other features which differentiated this case.

So, we do have reference to late complaint. We do have a warning to the jury to scrutinise the evidence of the complainant very, very carefully. So, we would submit in respect of the first ground, there was adequate warning in the circumstances. I do not believe I can assist your Honours any further.

GAUDRON J: There will be a grant of leave in this case but confined to grounds 2(a) and (b) in the draft notice of appeal.

I should say it is to be noted that there is need for a grant of an extension of time within which to bring the application. I presume that is not opposed.

MR KELEMAN: Of course not. There is no objection.

GAUDRON J: And there is a necessity also to consider your application to use the pseudonym "VRJ". Is that opposed, Mr Keleman?

MR KELEMAN: Not at all, your Honour.

GAUDRON J: There will be a further order that the applicant continue to be referred to by the pseudonym "VRJ".

MR GREEN: May it please the Court.

AT 1.10 PM THE MATTER WAS CONCLUDED