KBT v The Queen M17/1997 [1997] HCATrans 200 (25 June 1997)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B17 of 1997

B e t w e e n -

KBT

Appellant

and

THE QUEEN

Respondent

BRENNAN CJ

TOOHEY J

GAUDRON J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 1997, AT 12.24 PM

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 appellant. (instructed by Boe & Callaghan)

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

BRENNAN CJ: Mr Byrne, there has been no order made thus far for the suppression of any names in this case?

MR BYRNE: They are automatically suppressed unless there is an order by a court allowing publication in Queensland.

TOOHEY J: When you say that, the judgment of the Court of Appeal carries a heading which has the full name of the present appellant, as I remember.

MR BYRNE: I believe the reason - - -

TOOHEY J: I think, also, on the special leave application there was no suppression of the name.

MR BYRNE: That is so. The only reason I can give for that is that the complainant, when she gave evidence, was under a different name than the appellant - that family.

TOOHEY J: Yes, but she also came from a relatively small community and from a family.

MR BYRNE: That is accepted, your Honour, yes.

BRENNAN CJ: Whatever the statutory provision may be, and the question arise on the proper construction that statute whether it applies to proceedings in this Court, is there any desirability of the making of a suppression order here?

MR BYRNE: In our submission, yes.

BRENNAN CJ: What do you say, Mr Walker?

MR WALKER: Nothing, your Honour.

BRENNAN CJ: Very well, the names of the appellant and of the witnesses who gave evidence in the proceedings, including the complainant, should not be published and it will be appropriate to refer to them by initials. Yes, Mr Walker.

MR WALKER: Your Honours, the issue which arises is in relation to the application of the proviso in the familiar form, in this case contained in section 668E(1A) of the Criminal Code. It arises in a particular situation of, in our submission, considerable importance for the satisfactory nature of the trial process in this case and cases of a similar kind. That particular characteristic arises from the nature of the substantive offence which attracted special comment from the Court of Appeal. Section 229B, having described in subsection (1) the offence as one of maintaining as an adult:

an unlawful relationship of a sexual nature with a child under the age of 16 years -

provides in subsection (1A) a number of matters, some which might be described as facilitative of proof, and others which may be described as protective of fairness in the proof. Subsection (1A) starts by requiring that certain things be shown "during the period" covered by the allegation. Thus, in this case there are dates of about one and a half years in duration. What must be shown is that the offender maintained the relationship in issue during that period by having:

done an act defined to constitute an offence of a sexual nature in relation to the child -

other than certain other defined offences. Then comes the important part:

on 3 or more occasions -

That is the small phrase which was at the heart of my client's success in the Court of Appeal because it was held, and is not in issue in this Court, that his Honour the trial judge erred in directing the jury by failing to instruct them that the unanimous verdict must be unanimous as to the same three or more occasions. It can be readily seen why, particularly with the words to which I am about to come in subsection (1A), that is an important provision protective of the trial process and its fairness because the rest of subsection (1A) might be considered to be an important statutory encroachment on what might otherwise have been common law requirements as to particularity.

evidence of the doing of any such act shall be admissible and probative of the maintenance of the relationship notwithstanding that the evidence does not disclose the dates or the exact circumstances of those occasions.

So, colloquially, one may say the nature of this offence and the way in which it must be proved as a minimum, and may be proved in terms of specificity and particularity of evidence, raises clearly the risk that unless a jury is properly instructed there may be reasoning, or non-reasoning in the jury room, along the lines of, for example, where there is smoke there is fire. We need not concentrate on particular pieces of evidence about particular kinds of episodes and, of course, the danger arises of precisely the kind which this Court addressed in the different procedural context of particularity in S v The Queen.

We adopt, or more properly, seek to adapt to the somewhat different circumstances of this case, which is not a particularity case, but is a verdict case, what was said by your Honour Justice Gaudron in your joint judgment with Justice McHugh in S[1989] HCA 66; , 168 CLR 266, and the particular passage commences at the foot of page 287 and continues to the top of page 288. I stress again, S is not directly applicable to this case, but the principles upon which the majority reasoned to the result in that case to resolve the issue of insufficient particularity at trial, which was the vice identified in that case, are principles which, in our submission, without any adaptation at all, underlie the question before the Court in this case.

Your Honours at the foot of page 287 proceeded in the conclusion to the reasoning in that judgment by referring to the fundamental problem which was posed by the basis upon which the evidence was left to the jury in that case. The evidence was left to the jury in that case, which was a carnal knowledge incest case, in such a way as to leave open the possibility of what might be called a general propensity inference, rather than concentration on particular charges. Your Honours continued:

Even leaving aside the problem referable to the overlapping of the second and third periods specified in the indictment, the basis upon which the evidence was left to the jury allowed for the real possibility that different jurors might have different acts in mind when they came to consider each of the verdicts. Indeed, in view of the way the matter was left to the jury, it might even be possible that, in relation to one or all of the counts, individual jurors had no specific act in mind, but simply reasoned from the evidence as to frequency that the applicant committed one such act within each of the specified periods. In these circumstances, it is impossible to say, in relation to any one count in the indictment, that the jury as a whole was satisfied as to the applicant's guilt of an individual act answering to the description of the offence charged. Assuming the verdicts returned by the jury to constitute verdicts in the accepted sense, it is impossible to say that, had the jury been directed to consider the guilt of the accused of specific acts identified as the offences charged, the verdicts of guilty :"would plainly have been the same".....That being so, it cannot be said that there was no substantial miscarriage of justice.

The question in this case is whether the same familiar expression "no substantial miscarriage of justice" could possibly, on facts presented as in this case and in cases like this case, ever be made out when the jury has delivered its verdicts without an appropriate direction in circumstances where, logically or psychologically, if there is a relevant difference, it is impossible to say that they did not have any possibility of having different three or more acts in mind.

The problem compounds arithmetically when there is an increasing number of acts or episodes or kinds of conduct which may be presented with the lack of specificity permitted by the last lines of section 229B(1A), because the more categories or kinds or episodes which are led in evidence - one assumes properly particularised - the more of them that there are, the more chance, obviously, that in the jury there may be disagreement as to any particular one and, of course, therefore disagreement as to the requisite minimum set of three.

TOOHEY J: Mr Walker, in terms of the evidence - I am not asking you to go to the evidence - but are you content with the schedule prepared by the respondent identifying in respect of counts one, two and three in the respondent's submissions, the evidence as going to the offences?

MR WALKER: Your Honour, the short answer is yes, but I am afraid there is a qualification. We do not seek to rebut or contradict the fairness in that tabular form of the paraphrases which are set out. However, they do not pretend to be anything other than paraphrases and, very fairly, references are given to the evidence upon which they are based. It would be futile for us to propose simply a different paraphrase. We do not say that there is any unfairness or any inaccuracy in those paraphrases.

TOOHEY J: I take it then you would not seek to add to any of the references, at least in terms of the reference to transcript of evidence?

MR WALKER: No. Combined with the references which we have given in our written outline, the Court is directed to the kind of evidence upon which we rely for the proposition we seek to advance in writing, and again today, that the Court of Appeal erred in saying there was no rational basis for the jury being able to differentiate between different kinds of acts.

BRENNAN CJ: Is that what it comes down to? Is that the issue?

MR WALKER: Your Honour, in our submission, yes, if one looks at paragraph 10 of the written outline on behalf of the respondent, subject to one very small word indeed. In our submission, that, in its second paragraph - that is, the third and fourth lines of that paragraph - puts in a nutshell how, as things have fallen out, the issue may be determined.

BRENNAN CJ: Yes, that is all we need to worry about.

MR WALKER: Yes. It is not a question of if the summing up was deficient, so that is my only cavilling with that line. The summing up being deficient - that is the basis upon which we address - it is said there was no scope for the operation of the proviso unless there was no rational basis for distinguishing portions of the complainant's testimony. In answer to your Honour the Chief Justice's question, principally that is the whole issue and principally, therefore, there is no need to go anywhere else and we do not seek to address anything else.

However, there is an important ancillary proposition we put. This sentence appears to make it unnecessary for me to labour the point that the important procedural and substantive provisions in section 229B(1A) if left by a misdirection not sufficiently clearly before the jury are, in our submission, without any elaboration necessary, errors which lead to a substantial miscarriage of justice. It would appear from the way this sentence is expressed in paragraph 10 that it is conceded that unless there is no rational basis for distinguishing then there is a substantial miscarriage. On that basis it is not necessary for me to go past or to go beyond the question of whether there is a rational basis or not or, more accurately, whether the appellate court could reach only the conclusion that there was no rational basis.

BRENNAN CJ: If there was no rational basis for distinguishing between portions of the complainant's testimony, was the summing up deficient?

MR WALKER: Yes, the summing up was deficient.

BRENNAN CJ: Why?

MR WALKER: It was deficient because of the need for procedural fairness to be served by explicit guidance as to the law, particularly when it comes to matters relating to the jury's actual consideration of the evidence and their verdicts, and that is the unanimity on the same three or more acts point. The need for that to be explicit, in our submission, would mean that even if circumstances can later be seen in a proviso argument to mean there is no rational basis, for example, for supposing the jury could have been other than unanimous on the same three or more does not make the summing up less than deficient.

It means, in words of the proviso, that no substantial miscarriage of justice has occurred, but, in our submission, it would be most unfortunate to describe that as therefore leaving the summing up complete, proper, appropriate or the kind of summing up which this Court would approve. In our submission, it remains deficient but the law provides for a fail-safe mechanism but not all deficient summings up are such as to require appellate interference.

BRENNAN CJ: We need not debate it, I suppose, so we can deal with it on the basis that it is put in that paragraph in paragraph 10.

MR WALKER: Yes, your Honour. Your Honours, the passage at which the Court of Appeal made what is, in our respectful submission, an apposite comment about the substantive offence is at 224 commencing at about line 36. Their Honours said:

Although s 229B of the Code was undoubtedly intended to avoid the degree of specificity which might otherwise have been required, necessitating a number of separate, fully detailed allegations, it stops short of authorising trials conducted as a contest between generalised assertions which can only be met by generalised denials.

That was said, of course, on a quite distinct issue from the one now before this Court. That was said as one of the comments by their Honours reaching or justifying their conclusion that there had been a misdirection but, in my submission, what it says about the nature of the trial process in this case is that to use, as their Honours did, just one page further at the foot at 225 starting at about line 55 where the reasoning for the issue which brings us here is set out, the phrase which is used there is "an `all-or-nothing' contest" and, in our submission, there is real difficulty in ascertaining what is meant by "an `all-or-nothing' contest" when one comes to consider the way in which this jury, like all juries, was left to consider and told to consider the evidence about different episodes at different times and of different kinds.

"All-or-nothing" is a familiar phrase. It comes very close, with respect, to the dangers which were identified in S of transforming unparticularised evidence by confusion as to whether it goes to propensity or as to whether it constitutes an offence. It runs the risk of seeing the whole contest as indeed one of generalised assertions which can be met only by generalised denials. In our submission, when their Honours talk of it being "an `all-or-nothing' contest", on a proper analysis they are simply describing by a colloquialism the fact that each and every one of the allegations was denied and denied utterly by my client and was the subject of evidence led on his behalf from witnesses, including his wife, which was plainly calculated, if accepted, to minimise, if not eliminate, in all cases opportunity and thus likelihood of the events having taken place. Is that a convenient time, your Honour?

BRENNAN CJ: Yes, Mr Walker. The Court will adjourn until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

BRENNAN CJ: Yes, Mr Walker.

MR WALKER: Your Honours, in answering the question of whether the Court of Appeal should have reached the conclusion that there was no rational basis for distinguishing between portions of the complainant's testimony as their approach to ruling whether there was a substantial miscarriage or not, in our submission, there are some useful and necessary general approaches which can be gathered from other judgments in S v The Queen.

First, may I take your Honours to some comments by your Honour Justice Toohey at pages 282 and 283 of 168 CLR. Halfway down page 282 your Honour turned to the question of the proviso and immediately noted an argument for the Crown which, allowing for the changes necessary between that particularity case and this case, could be applied here. Your Honour noted:

It may be argued, indeed was argued by the Crown, that had one particular act of carnal knowledge been identified by the Crown prosecutor in respect of each count -

in other words, had the particularity vice been cured -

the applicant would have been no better off than he was at the trial. He would still have been faced with evidence of continuing acts of intercourse over a period of some years and his denial would still have been of a general nature as it was at trial. There is some force in this submission but it is not enough to justify a conclusion that no miscarriage of justice actually occurred.

Then on the next page, 283, your Honour used the expression "fundamentally flawed" to describe the trial for the following reasons:

in that the jury were invited to convict the applicant so long as they were satisfied that within any of the periods specified in the indictment the applicant "carnally knew" the complainant. Put that way, the acts of intercourse described in the generalized evidence were available, not merely as going to prove any of the offences charged against the applicant but as the offences themselves.

Then a passage upon which we rely in the next two sentences particularly:

In respect of each count, the jury were not required to direct their attention to any particular occasion and to satisfy themselves, beyond reasonable doubt, that there was such an occasion and that it occurred within the period specified in the count.

Now, of course, those were comments special to the issues in that case. The equivalent in this case is that the jury were not directed that they must be unanimous about the same three or more acts to make the statutory offence. Then an important sentence upon which we particularly rely:

There was a real likelihood -

and that is an expression that certainly answers the test, no rational basis.

There was a real likelihood that they would convict the applicant on the basis that since acts of canal knowledge were frequent, an act must have occurred during each of the periods mentioned in the indictment.

So that in that case, with its somewhat different issues, the lack of focus that came about by reason of the lack of particularity, gave rise to a real likelihood which, in our submission, can be transferred in this case to the lack of focus that the jury were denied by the misdirection gave rise to the real likelihood that they would not be agreeing on the same three or more acts.

TOOHEY J: S had a particular feature about it, Mr Walker, because the indictment I think contained two or more counts, each count framed in terms of the 12 month period, and there were acts of intercourse referred to in the evidence of the complainant but in such a way that it was not possible to say whether which of those periods the act fell into.

MR WALKER: That is right.

TOOHEY J: So in that sense the indictment had not been satisfied if there was no evidence which really placed any particular act within one of the periods of 12 months relied upon by the prosecution. It does not detract from the generality of the statements made but it did have particular features about it.

MR WALKER: Your Honour, may I say immediately that we rely on S, I hope having volunteered it under cover of comments that make it clear. We recognise that the nature of the complaint that brought the proviso before this Court in S is quite conceptually different from the nature of the complaint that brings the proviso before the Court of Appeal in this case. However, it so happens that the difficulty for the appellate court - and we would say the impossibility for the appellate court - of being able to be satisfied in S that there was the requisite jury consideration of the requisite matter is analogous, obviously not the same, to the same impossibility which should have struck the Court of Appeal in this case. It comes about from a different reason but it produces exactly the same result.

To similar import are the comments of Justice Dawson in S at 168 CLR 276. In the first full paragraph his Honour uses the expression "theoretically possible" to describe an hypothesis about what the jury or jurors may have done and it may be thought at first reading, with respect, that something which is theoretically possible is not the stuff of the practical requirement that the proviso imposes. However, in my submission, it is clear from the next sentence in his Honour's paragraph that he is referring to a state of affairs which would render the proviso inappropriate. He goes on:

That, of course -

that is, theoretically possible that the individual jurors identified different occasions as constituting the relevant offences, et cetera, et cetera -

would be unacceptable, but it is more likely that the jury reached their verdict without identifying any particular occasions. Indeed, that is virtually inevitable because no means were afforded the jury whereby they could identify specific occasions.

Your Honours, those of course were comments addressed again to the particularity matter. In this case, as I hope to show your Honours, the way in which the supposed acts were categorised, which categorisation itself is an artificial matter, raises the possibility - entirely rational, in our submission - that different jurors would have a different approach to different parts of the different categories.

May I take your Honours first in our outline to page 7 where, on pages 7 and 8 and following, we attempt to set out the categories of the acts and incidents from which, as it were, the three or more required by the statute and unanimously were to be selected. Of course, there is the more than theoretical possibility in any such case that all of the jury found beyond reasonable doubt that all of the incidents occurred, but the whole point is of course that one cannot know that. First of all, there is the motorbike set of incidents, (a) at the foot of page 7; second, what might be called the bean bag incidents, (b) on page 8; then the fruit picking incidents, (c) - and if I have said "incident" in the singular, I am wrong, with respect, your Honours. These are said to be genera; they are categories, they are not individual episodes. At (d) there is the "morning break" incidents. (e), they are the bedroom incidents, and (f) the television incidents.

Now, in our submission, simply to give them those, no doubt brief, but nonetheless relevant labels, is to highlight how different they are as a matter of circumstance. This was not a case when, as it were, formulaic, or standard, or routine kinds of conduct in the same kind of place, presented by the same kind of social, familial, or household opportunity, were alleged in numbers that could not be remembered, on dates which could not be remembered, over a period. This was a case where there were different kinds - and we stress the word "kinds" - of incident alleged and, in our submission, there is an obvious difference between two people on a motorbike - category (a) - and three people watching television - category (f) - and, of course, it attracted different kind of defence evidence.

Now, all of them attracted one constant kind of defence evidence; that is, a denial by my client. But, in our submission, it could never tell unfavourably against a defendant as to the application of the proviso that the defendant had pleaded not guilty and, giving evidence, had given evidence which amounted to a denial of the facts. That does not make the trial, in any relevant sense, an "all or nothing" matter, which either obliges or permits the appellate court considering the proviso to regard the evidence of the complainant as either all accepted or all rejected. We will come back to the difficulties with that false reasoning in a moment.

If your Honours then, for ease of comparison, were to revert to my learned friend's outline and, in particular, the tabular presentation on pages 2, 3 and 4 to which your Honour Justice Toohey adverted before the adjournment, in a perhaps more graphic way, and with some more detail than is set out on our pages 9 and 10, in particular. Your Honours will see that these different kinds of incidents received, as you would expect because they were talking about different places on the farm, different places in the house, different kinds of approach, different likelihoods of opportunity, they attracted different responses, and they attracted specific answers.

So, in our submission, it is without foundation to regard this as a case where one could simply regard the defendant as having put an overall general denial and, therefore, the jury's verdict plainly imparting, as it does, the information that they preferred her to him in a generalised sense, should therefore be taken as imparting that all of the jurors - all of the jurors - agreed as to a particular kind of incident or, as the statute insists, a particular set of three or more acts.

The statute talks about acts, albeit with the closing words of subsection (1A) which permit a lack of specificity, but they still talk about acts; they do not talk about kinds of incidents, they do not talk about genera of conduct. In our submission, notwithstanding the encroachment on the usual need for particularity which is created or permitted by the closing words of subsection (1A), it remains of cardinal importance, for the fairness of the trial and for the integrity of the verdict, that there be satisfaction at the appellate level when considering application of the proviso, that the jury could not have picked and chosen differently from among that different evidence.

If we can then move to the way in which this jury, as we submit entirely properly and in an ordinary fashion, were directed to go about their approach to the evidence. Your Honours, would not be surprised by the admonition of the trial judge, which starts at page 133 of the book, that the three counts - and I am now talking about count 1, not before this Court; count 2, which is before this Court, and count 3, not before this Court - were to be considered separately; entirely standard and routine, notwithstanding that the area of conduct might be regarded as being similar. Page 133, around line 35 or so:

You have before you the three counts or charges. You and I constitute the Court to try the accused man upon those three counts or charges. They are separate counts or charges and you must consider each one separately in reaching a verdict.

Then, when one comes to page 136, at about line 30 or thereabouts, again an admonition to the jury of an entirely proper and routine kind, which raised for their consideration the difference between disbelieving a witness in the sense of regarding the evidence as mendacious, and not regarding the evidence as sufficient to discharge the onus of proof beyond reasonable doubt, that is, reliability. That paragraph commencing "Your responsibility" is in that country. In our submission, the jury was properly being focused on the differences between counts 1, 2 and 3, the need to consider them separately, and the approach that might be taken to evidence with it not being an "all or nothing", "she is a liar" or "she is not a liar", "he is a liar" or "he is not a liar" as the false dichotomy.

Then, on page 137 - again a perfectly proper and routine reminder to the jury, which is really only reminding them of a matter of ordinary life outside court - about line 20 and following:

Now, you are entitled to accept everything a particular witness says, if you consider you should You are entitled to reject the lot of it, if you consider you should. You are also entitled to accept some parts of it, reject other parts of it. It is entirely a matter for you -

et cetera, et cetera. In our submission, there is no reason to believe that this jury did not regard itself, therefore, as concentrating on the three counts separately as distinguishing between calling a witness a liar - finding a witness a liar - and simply finding parts of the evidence less than reliable, at least to the required amount, from which it follows that when one observes that there were differentiated and specific answers corroborative by reference to the likelihood of opportunity of the denials by my client for each of the six different kinds of category for incident in count 2, then, in our submission, there must be a rational basis for the jury possibly to - - -

GAUDRON J: How were they to relate it to occasions, in view of the evidence? I mean, some of the incidents are related to a specific occasion, but a lot of it seems not to be capable of being related to a specific occasion.

MR WALKER: Your Honours are all aware from the reasons of the Court of Appeal that there was a particularisation argument upon which we did not seek special upon which we failed in the Court of Appeal. The question your Honour has asked highlights, in our submission, a tension in subsection (1A) which does not tell against or does not hurt our present argument.

I have already drawn the Court's attention to the fact that the occasions which the statute requires to be the subject of a minimum of three and which the law requires the jury to be unanimous on may be sought to be proved by evidence of an act of a specific kind which may be probative, notwithstanding it does not disclose the dates or the exact circumstances. The difficulties of that word "exact" do not really arise for addressing in this case but, in our submission, as soon as the legislature has permitted evidence to be probative of acts on occasions, notwithstanding dates are not disclosed, then there is an inherent tension from the very beginning. That is not a tension which would be resolved in favour of an appellate bench, as it were, deciding that there must have been three or more unanimously chosen by the jury when there is a misdirection of the present kind. Rather, in our submission, it would indicate the high importance for the fairness of the trial process when there is already this statutory encroachment on particularity that the jury be told that they must find three or more occasions.

So that the answer to your Honour's question may well be that if the evidence comes out in a particular way, that not disclosing dates, not disclosing exact circumstances, it also does not enable the jury to distinguish sufficiently occasions so as to be able to count them, then, in my submission, the prosecution will fail.

TOOHEY J: Could I just ask you this, and it is apropos your answer to Justice Gaudron: the indictment identifies three counts which follow a rough chronological sequence.

MR WALKER: Yes.

TOOHEY J: Count 2 identifies a period between 3 July 1989 and 30 January 1991. Now, as to count 2, do the particular incidents - perhaps I should not use the term "particular", but the incidents described in your outline and also as they appear in the respondent's outline - follow a rough chronological order or could there be one incident of the type described that had occurred perhaps earlier in that period and then - - -

MR WALKER: The latter is the case as we read the evidence. There was not, as it were, a bout of motorbike incidents concluding and then moving on to television incidents.

TOOHEY J: Yes, that is a sufficient answer, thank you.

MR WALKER: At least, I should tell your Honour that the evidence which is contained in the book does not permit of any such inference.

TOOHEY J: Again, it is not a question of incident building upon incident, as it were, gaining in seriousness?

MR WALKER: No, one cannot, from the way in which the evidence was given and the way in which it had been categorised and remains categorised, talk about a crescendo of seriousness or frequency, for example. I should, of course, note that the very intention of Parliament in subsection (1A) is not to require the prosecution to disclose dates for fear that there will not otherwise be a conviction, et cetera, et cetera. That intention is crystal clear and we accept that.

GAUDRON J: Yes, but it does require you to be able to fix something that answers the description of an occasion, surely, as for example, "The time we went to Maroochydore" or what have you.

MR WALKER: Yes, that is right. There is count 3, for example, the wedding excursion. As your Honour says, although in fact, ironically, a date would be easy there but that is a way in which an occasion could be identified. We do not submit, of course, that Parliament has committed absurdities or impossibilities in these provisions. It has not required an impossible thing. It is not an oxymoron to talk of an occasion without a date. We accept that. That is ordinary life, with respect. But what they have done is require a count and as soon as you require a count - it is not two or more, it is not one or more, it is three or more - you require sufficient discreteness and as soon as you require sufficient discreteness then you do require - whether one calls it particularly or identification does not matter for present purposes - you do require, in our submission, a direction which will permit the jury to focus their attention on the need to satisfy the minimum count, all of them together, the same occasions.

BRENNAN CJ: Why is that that you say "all together". I have just been looking at this section. The charge is that which is specified in subsection (1) of maintaining a relationship, but prohibition against conviction of that offence is that it is not to be done unless there are three or more occasions as referred to in subsection (1A).

MR WALKER: Yes, your Honour.

BRENNAN CJ: Let it be assumed that there is evidence of 12 occasions, all discrete, and the question is: did he maintain an unlawful relationship of a sexual nature in that period? Some jurors pick one three, some jurors pick another three. Why is it that that is not in conformity with the section sufficient to establish liability of conviction under subsection (1)?

MR WALKER: The question your Honour has asked is not one which, until your Honour just asked it, was before the Court.

BRENNAN CJ: But it has to be before the Court.

MR WALKER: The Court of Appeal found that there was a misdirection and the argument at special leave and upon which the parties have exchanged outlines is about the application of the proviso - - -

BRENNAN CJ: I appreciate that.

MR WALKER: - - - which calls to be considered only if there was an error. It has not been - we had no complaint about the finding of the Court of Appeal that there was a misdirection. The Crown has not put on an argument that there was not a misdirection. So, the answer to your Honour's question is an answer which assumes a debate that is not before this Court, with great respect, because - - -

BRENNAN CJ: Has not been argued before this Court, but the question for us to determine is whether there has been some misdirection which is not amenable to remedy by the proviso.

MR WALKER: Your Honour, with great respect, the question before this Court was whether the application of the proviso was wrong or not and that is a question which assumes that its application is a matter which is properly before the Court of Appeal and that, in turn, means that there has been an error found, an error which has not been challenged by the Crown.

BRENNAN CJ: And the question of whether or not that proviso is to be applied depends upon the question of whether there was a rational basis for distinguishing between portions of the complainant's testimony.

MR WALKER: Yes.

BRENNAN CJ: And the argument, as I understand it, that you are putting is that that proposal by the respondent cannot succeed because there is a prospect of distinguishing between the several categories of acts which are set out in the respective notes of argument.

MR WALKER: Yes.

BRENNAN CJ: But that method of distinguishing is only relevant on the hypothesis that one must look at subsection (1A) as requiring discrete acts to be found concurrently by the jury.

MR WALKER: Yes.

BRENNAN CJ: So, the question that I first put to you is a live one.

MR WALKER: No, your Honour. It is not live because it was found in our favour by the Court of Appeal; it has not been challenged by the Crown. There is not argument against it by the Crown. We are not ready to argue the correctness of the Court of Appeal on that point. Indeed, as your Honour put to me before the adjournment, the question came down to the second sentence in paragraph 10 of their outline which assumes as a condition of that issue that there was a misdirection.

BRENNAN CJ: I understand that but I must say I have not understood that the jurisdiction of this Court in considering issues of this kind is limited by the argument that is put by counsel when the jurisdiction is to make the order which the court below ought to have made.

MR WALKER: Your Honour, I cannot, with respect, say anything against the principle that your Honour puts there but in terms of the way in which the occasion today is constituted, in our submission, there is not only the history and the plain state of the argument in writing as it presently appears; there is also what fell between your Honour and my learned friend at the special leave application. I am quoting from page 14 of that transcript. Your Honour said at line 4:

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?

My friend said:

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

And your Honour asked again:

And that is accepted by the Crown as an error?

And my friend answered:

Yes, it is.

BRENNAN CJ: You do not need to push at an open door as to what has been debated thus far in the proceedings. That is understood, Mr Walker.

MR WALKER: I am sorry, your Honour, yes.

BRENNAN CJ: My question put to you is on the footing that, albeit there has been the basis on which the proceeding has thus far proceeded, is it right that this Court should base its judgment on that hypothesis?

MR WALKER: Yes, for the following reasons: the first is that in the way in which issues come, and the issues in this case came before this Court with due deliberation, the conclusion of the Court of Appeal was accepted as correct by the Crown. That is the first reason. That is not hypothesis so much as a conclusion duly pronounced by the Court of Appeal. Second, that the hypothesis that it is correct that the Court of Appeal are correct in that conclusion is one which does not come before this Court except in an appropriate vehicle. In our submission, that appropriate vehicle is by the Crown putting that argument. Third, while this Court would never knowingly decide an issue which is false in the sense that it is dependent upon a state of affairs which the Court believes to be wrong, in our submission, there is no reason why this Court today should proceed as if that were the case.

Finally, as a matter of principle the Court of Appeal were right because, unless there is unanimity, that is, concurrence among the jurors on the same three or more occasions, then it cannot be said that beyond reasonable doubt there has been satisfied by the body of evidence the maintenance of the relationship according to the statutory definition. That is so because, if jurors disagree among themselves as to the sheer occurrence of an alleged incident, then one will have perhaps a mixture of majority and minority views so that one cannot say, depending upon how many candidates there are for the three or more, that there has been unanimity, which is one aspect of the "beyond reasonable doubt" safeguard, in our submission, on any of the incidents upon which the maintenance of the relationship is said to be based by the statute.

If the relationship said to be based on acts on occasions cannot be said to have been found by the whole jury then, in our submission, section 229B and, in particular, subsection (1A) will be even more different from the expectation of fairness in criminal process and in relation to particularity and particular than it already is. For those reasons, in our submission, we should not be put to the argument, which we have not prepared, that the Court of Appeal was right on the question of misdirection. In our submission, in any event, we respectfully adopt the reasoning of the Court of Appeal which, as your Honours know, occupies the vast bulk of the judgment, to tend to the conclusion that I have just tried to summarise that it does not satisfy the fundamental requirement of the criminal law where there is a unanimous jury requirement, it does not satisfy the requirements of criminal law where one knows of a rational possibility that there are disparate views of the facts which are necessary to constitute the offence.

Now, in our submission, it was precisely that principle which, without any need to adapt it, informed this Court's decision in S and the principle which was vindicated - surely not found for the first time in S - is one which can be transferred exactly to this area. If this new statutory offence might be seen as a legislative response to the difficulties of particularity where nefarious conduct is committed in a mundane fashion over a long time in circumstances which make them most invidious to be recalled and recounted, then, in our submission, it cannot be seen as a mandate for, as the Court of Appeal put it at page 224:

a contest between generalised assertions which can only be met by generalised denials.

The fact that Parliament did not wish evidence which, on the one hand, might be a kind of propensity evidence, evidence on the other hand might be smoke in order to point some nebulous existence of a fire, the fact they did not wish that is highlighted by their requirement, as tension-creating as it is, that there be three or more occasions. For those reasons, in our submission, the Court of Appeal, first of all, was correct in finding a misdirection and, second, this case before this Court ought to be argued and determined on the basis that they were correct.

Your Honours, if I could then move to the next way in which we seek to answer the question, "Should the Court of Appeal have reached the conclusion that there is no rational basis", et cetera. One way of testing the matter is hinted at by an argument contained in the respondent's outline. That argument says, "Look at count 1; look at count 3". As your Honour Justice Toohey points out, they straddle or bracket in terms of time count 2. Count 1, they convicted; count 3 they convicted. It was, it is said - and I perhaps travesty my friend's argument - clearly all or nothing.

In our submission, that is to be most unfair to the way in which the trial judge admonished the jury and the way in which one might suppose the jury went about their task. One way to test the incorrectness of the approach of say if they convicted on 1 and 3, then there is no rational basis for them not convicting on count 2, is to ask, for example, had they acquitted on count 3? Your Honours will recall that is the one where the use of a vacuum cleaner was a source of contest with the corroborative witnesses. If they had acquitted on count 3 but convicted on counts 1 and 2, count 2 having been correctly directed, what prospect really would there have been for an argument on my client's behalf that the verdicts were inconsistent? None at all, with great respect.

The proper answer would have been the jury were not bound to believe her or the jury were not bound to regard her evidence, even if they regarded her as generally truthful, as reliable sufficient to discharge the onus of proof beyond reasonable doubt on all the different occasions which were before them under counts 1, 2 and 3, and it is therefore a hopeless argument that it was an inconsistent verdict had there been an acquittal on 3 so as to cast a pall over convictions on counts 1 and 2.

If it can be said, as we submit it must be said, that there could be no inconsistent verdict argument then in that situation, it must follow, in our submission, that within count 2, within the six genera of a numbered occasions constituting acts within the meaning of subsection (1A), why would it be said then that there is no rational basis for a distinction when one knows that there are different kinds of occasions, different levels of opportunity and different levels of corroborative evidence for and against? In our submission, when one applies the same kind of logic as one would to an inconsistent verdict argument, the notion that there could be no rational basis is one which says of a jury, "You may not pick and choose among the evidence of a witness, you may not regard evidence as falling short of the onus unless you regard somebody as a liar" and, in my submission, that cannot be right.

So, in summary, we answer the question which is posed as to the existence of a rational basis by the following list of features: first, the jury in this case, as in most cases, was told they could pick and choose among the evidence; second, it is clear from the nature of this kind of trial with this kind of offence with a count of occasions required, that it is the jury's duty not to adopt some kind of sampling approach: "If I believe her on this issue I will treat that without consideration as belief of her or trust in her evidence on all other issues". That would be contrary to their duty.

Next, as a matter of human experience, a mixture of different kinds of conduct over a span of one and a half years with conduct of the kind which is in question in this case, there are clearly rational bases, that is explanations, as to why one might find one and not another and one need only consider the differences between occasions when the mother was physically close and when the mother was physically remote from the alleged site of the offence to contemplate a clear explanation for why one might accept one and not another.

Finally, as one can see from the tabular paraphrase of the various answers to the different categories set out in my learned friend's submissions, there are different levels of specificity, different levels of detail in the evidence to and fro about the circumstances which might corroborate or tend to be inconsistent with the complainant's allegations, and whenever there are different levels of specificity about different kinds of occasions, in our submission, there emerges a rational basis, that is a sensible explanation for different conclusions about different kinds of incidents.

Your Honours, for those reasons and for the reasons which are contained as well, which I have not elaborated, in writing in our outline, in our submission, this appeal ought to be allowed.

GUMMOW J: Wait a minute, Mr Walker. You have a limited grant of leave which is set out at page 231. Your appetite seems to grow on page 12 of your outline.

MR WALKER: Your Honour, we are, of course, bound by the terms of the grant. I should raise the matter in light of what is recorded on page 17 of the special leave transcript. The Chief Justice asked me:

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?

And my answer is, "Yes" and it remains yes. That alternative, of course, is clear in our written submission. I then went on to add:

I am simply reminded, of course, that with a three-year head sentence -

and this is perhaps only a matter of prosecutorial discretion and therefore not for this Court but I do draw it to the Court's attention -

the 12 months head sentences for the two other counts having now expired, my learned junior raises the question of a retrial -

that is whether there should be a retrial -

That is no doubt a matter which could be debated at the appeal.

The Chief Justice then said:

That would be another matter.

I agreed: "That will be another matter". Your Honours, I cannot take it any further than that. That is the only circumstance which I draw to the Court's attention in relation to the difference between an order for retrial and an acquittal.

KIRBY J: How long has your client served now? What is the total lapse time?

MR WALKER: It is 16 months, I think, your Honour.

KIRBY J: I think there is something said at the end of The Queen v S by Justice McHugh about considering the ordeal that the complainants are put through with another trial.

MR WALKER: Yes. I am conscious of the fact that prosecutorial discretions are exercised on bases including what your Honour has just raised. With respect, I doubt whether it would be appropriate from my mouth to this Court to put the argument your Honour has just put to me.

GAUDRON J: You do also ask for costs, a most unusual course in criminal appeals.

MR WALKER: Yes, and I have nothing to add.

BRENNAN CJ: Have you got anything to support?

MR WALKER Costs follow the event, in our submission. That is contrary to what this Court has described a longstanding practice, hence my answer to Justice Gaudron. But there is nothing special about this case.

MR BYRNE: If the Court pleases, may we approach the matter firstly by adopting the tack by our learned friends of referring to the statements of reasons of the various members of the Court in S v The Queen? Our general submission would be, of course, as has been accepted, that the particularity required in S makes it a different case, but the statements of reasoning of the members of the Court, we say, have application when one comes to consider the circumstances here.

Firstly, your Honour the Chief Justice at page 271 - and we accept that your Honour was in dissent - but may we adopt your Honour's statement in the final paragraph on 271. If it were to be made out on the factual basis in the present circumstances, your Honour, about halfway down the last paragraph on 271, said this:

The real choice for the jury was to be satisfied or not to be satisfied that the series of incestuous acts occurred. The jury could not have found that a particular act in the series occurred but another did not.

Certainly your Honour, as it turns out, was in dissent on that point but we would say, as a matter of principle, and indeed of common sense, if that were to be the circumstances to be established, as the Court of Appeal found here, then certainly there would be no miscarriage of justice.

BRENNAN CJ: That was obviously said with reference to the facts in X. What is put against you here is that this is not a case of one category sundry acts alleged to have occurred within it but of several categories, the availability of choice being there.

MR BYRNE: We accept all of that. Does your Honour wish us to proceed directly to answer that point?

BRENNAN CJ: As you wish.

MR BYRNE: May we just briefly take the Court to the other statements we rely upon, and some have been referred to by our learned friends in S v The Queen. Justice Dawson, at page 276 - and this is a passage referred to - the first complete paragraph on that page:

The case having proceeded as it did, it is theoretically possible that individual jurors identified different occasions as constituting the relevant offences -

Again, we accept, of course, that if that were the case here, then we fail. May we also draw the point of attention to the Court to the statement by his Honour at the bottom of page 277 where his Honour found that there was real ambiguity where the point was taken, failure to correct it means that there has been a substantial miscarriage of justice. We will seek to answer that point in relation to the facts of this case shortly.

Your Honour Justice Toohey relevantly spoke at the top of page 283 of the judgment, where your Honour said:

The trial was fundamentally flawed in that the jury were invited to convict the applicant so long as they were satisfied that within any of the periods specified in the indictment the applicant "carnally knew" the complainant.

And, one sentence down:

In respect of each count, the jury were not required to direct their attention to any particular occasion and to satisfy themselves, beyond reasonable doubt, that there was such an occasion -

May we simply say in respect to the offence here that the terms of section 229B are quite relevant to your Honour's exposition of principle in relation to the facts there.

Finally, if we may take the Court to the joint judgment of your Honour Justice Gaudron and Justice McHugh at page 288 at about point 3 on that page where it is said:

Assuming the verdicts returned by the jury to constitute verdicts in the accepted sense, it is impossible to say that, had the jury been directed to consider the guilt of the accused of specific acts identified as the offences charged, the verdicts of guilty "would plainly have been the same".

We submit, again, seeking to extend that, that here, were the directions given in accordance with what the Court of Appeal found to be the law, then we would say that, plainly, the verdict must have been the same.

We seek to answer the points made against us, as your Honour the Chief Justice points out, and we approach it in this way: firstly, the general directions given by the learned trial judge to the jury in relation to credit and the jury's ability to distinguish. We submit that they are, as we have stated, general directions; they are required in every criminal trial. The mere giving of such directions does not preclude this Court or the Court of Appeal from coming to the conclusion that, in the facts, and the circumstances of a trial, despite such a general direction, the only conclusion to be reached was that the jury was satisfied in respect to the relevant occasions here. Having said that, may we commence to address the issue in this way: the learned trial judge directed the jury in accordance with the wording of section 229B. He then gave them a direction that they must be satisfied beyond reasonable doubt that on at least three occasions within the time frame charge the accused man has, for instance, unlawfully and indecently dealt with the child.

The error there found by the Court of Appeal was that the trial judge should have gone on and said that they had to be satisfied not just of that, but they had to be satisfied beyond reasonable doubt of the same three occasions. If that verdict - - -

KIRBY J: You accept that, for the purpose of this case, you are bound to accept that that is the correct interpretation.

MR BYRNE: We do, for the purpose of this case, and that is what we did at the special leave application.

KIRBY J: It is really not just for the purpose of the case. The Court has held it and you have not challenged it.

MR BYRNE: Yes, our learned friend is quite right. We have not sought to challenge that in this Court. The additional direction would have required the jury to be satisfied of the same three occasions. Assuming that direction to have been given, the jury could have been - no further direction, as we understand the law, would have been required. It would then have been a matter for the jury to select three - any three occasions within the categories of which they were unanimously satisfied beyond reasonable doubt, an offence of the type prescribed had occurred. Assuming such a direction would be given, in the facts of this case, a guilty verdict returned, there could be no challenge to the verdict on the basis that there was a possibility that different jurors picked different categories, but the court would not go on to say, "Which three did you pick?". That would be a matter solely for the jury and within their province.

What we say here is that on the way the evidence fell and the verdicts fell, there was no rational possibility of distinction. We can make those points very shortly, we hope, and very plainly. We accept - - -

GAUDRON J: On that basis, are you putting that the jury must have accepted the whole of her evidence about the motorbike, of fruit picking, the lunchtime rest, et cetera, et cetera, that there is no rational possibility of the jury rejecting any of her evidence?

MR BYRNE: We put forward that the jury either accepted her beyond reasonable doubt as a witness of credit, or they did not. There was no middle ground.

GAUDRON J: In respect of all matters?

MR BYRNE: In respect of all matters of sexual abuse, yes.

KIRBY J: But how will we know? We cannot interrogate the jury; there are no special verdicts. The possibilities are there, that there were different permutations and combinations. That is just something that cannot be banished as a possibility.

MR BYRNE: All we can say to that is this: the analysis which we have attempted to do in the written outline we cannot advance that much further than we have done there. What the jury had, and the verdicts they returned were these: counts 1 and 3, which were before and subsequent to the conduct making out count 2, relied solely upon the uncorroborated testimony of the complainant. In one of those, count 3, there was not just a specific denial, there was evidence going to lack of opportunity. Despite that, the jury was satisfied beyond reasonable doubt of her account. Her account in respect of both counts 1 and 3 gave minimum details and was, in the overall picture, of minor sexual abuse. We contrast that with the repetitious sexual behaviour which made up the six categories in count 2. What we go on to say is that if the jury was satisfied - - -

GUMMOW J: The jury did not have them in six categories. They just had a.....of material.

MR BYRNE: It was put to them, really - - -

GUMMOW J: It looks very nice and neat when it is all set out here in the submissions.

MR BYRNE: Yes, but that was the way it was litigated, as we understand the trial.

TOOHEY J: What you are really saying, or driven to say, I think, is that if the Crown had selected one incident from each of these categories and made it the subject of a separate charge, such as the charge of indecent dealing. On the evidence, it is inevitable that the jury would have convicted the appellant on each of those charges. I think the experience of this Court has been that where there is a number of incidents of a sexual nature it is not at all uncommon for a jury to acquit on one such charge and convict on another.

MR BYRNE: Of course, that is accepted. That is general experience.

TOOHEY J: It just makes it difficult then to say that inevitably, while accepting the complainant as a witness of truth, the jury must have accepted, beyond reasonable doubt, her account of evidence of which she described.

MR BYRNE: We say that comes about - and we will not labour the point - we say it comes about this way: if we can use, for the purpose of argument, the categorisation in the tabular form which is part of our outline, if we look at the categories of offences, in some there was just her evidence and the appellant's evidence; in others there was evidence of the wife of the appellant, as well. We say that, for example, in categories, as we have called them, (e) and (f) in the outline - that is the morning wake-up and the evening television - it was not a case of any mistake, any problems with recollection of the complainant, there was simply a direct contrast in evidence between the appellant, the complainant and the appellant being supported by his wife.

KIRBY J: Some might have accepted the wife, and some might have thought the wife was hopeless and unbelievable; some might have accepted the complainant on particular matters; some might have accepted the respondent. There is a permutation and combination mathematically possible.

MR BYRNE: Again, we do not seek to say that, but we say - - -

KIRBY J: This is just "a not knowable".

MR BYRNE: We say it would be impossible; we put it that highly. We say it would be impossible for the jury to be satisfied, for example, of the motor bike incidents where there is solely the uncorroborated testimony of the complainant, if they had any doubt about the complainant's testimony in respect to the other incidents where there was direct contradictory evidence. If they had such a doubt, they could not rely upon her as a witness of truth.

GAUDRON J: But this ignores the fact that they could accept her on some and reject her on others in a context in which the prosecution bore the onus of proof, and bore the onus of proof beyond reasonable doubt. There are at least three possibilities opened up by that statement of how matters have to be dealt with in a trial.

MR BYRNE: We accept that if there were possibilities where there could have been discrimination, then we fail.

GAUDRON J: There could have been discrimination just starting from these two points: (1) that they did not have to accept her on everything; (2) if they did accept her on everything, they did not have to accept her beyond reasonable doubt on everything.

MR BYRNE: We cannot advance it further.

GAUDRON J: That must be so in a context, though, in which the Crown bears the onus of proof - - -

MR BYRNE: We accept that.

GAUDRON J: - - - and the proof beyond reasonable doubt. You may be able to say it is unlikely - I do not know that you can. One just cannot know these things, can one?

MR BYRNE: We cannot advance it further than what we have said, in answer to your Honour's point. Those are our submissions on the substantive point. May I say to your Honours that my instructions are that if the Court was in favour of the appellant, any question of a retrial should be left for the Director of Public Prosecutions; and, secondly, our submission as to costs is contained in paragraph 21 of the outline.

BRENNAN CJ: Mr Walker.

MR WALKER: Nothing in reply.

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

AT 3.17 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.24 PM

BRENNAN CJ: The Court is in the position to make its order instanter and the reasons for this decision will follow in due course. The order of the Court is that the appeal be allowed; that the orders of the Court of Appeal be set aside so far as they relate to count 2, and that in lieu thereof the appeal to that Court be allowed; that the conviction on count 2 be quashed, and that there be an order for a retrial. The question of whether a retrial shall ensue is, of course, a matter for the Director of Public Prosecutions.

AT 3.24 PM THE MATTER WAS CONCLUDED