Robinson v The Queen B8/1998 [1998] HCATrans 477 (11 December 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B8 of 1998

B e t w e e n -

PETER JAMES ROBINSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 1998, AT 10.35 AM

Copyright in the High Court of Australia

MR A.J. RAFTER: May it please the Court, I appear for the applicant. (instructed by the Legal Aid Queensland).

MS L.J. CLARE: I appear for the respondent, may the Court please. (instructed by the Director of the Public Prosecutions (Queensland)).

McHUGH J: Yes, thank you Mr Rafter.

MR RAFTER: Yes, your Honours. This case raises for consideration the construction of section 632 of the Queensland Criminal Code, a provision introduced into the Code in July 1997. The trial was held only three weeks after that provision commenced and it was accepted at the trial that that provision governed the trial itself.

McHUGH J: Yes, it seems even more drastic, so far as the accused persons are concerned, than comparable legislation in other States because of subsection (3).

MR RAFTER: It would be the most drastic piece of legislation if the majority construction is correct. The summing up which is at the application book from pages 3 to 10 and 13 contained very little other than the essential aspects of a summing up on the elements of the offence and the onus and standard of proof. Apart from those matters the only other matter mentioned were counsel's submissions in relation to the aspect of the evidence of absence of complaint, or the lack of evidence of complaint. That is at page 10 of the application book.

Section 632, which is set out in Justice Lee's judgment at page 32 of the application book, but should also be with the papers that were supplied, provides this, in subsection (1), that:

A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly proves to the contrary.

(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.

But it is subsection (3) that is critical. It provides that the previous two subsections:

does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses.

Now, prior to 1 July 1997 the judge would have been required to direct the jury as to the dangers of conviction in relation to the nature of the offences, and also the fact that the complainant was a child. He was eight years old at the time of the offences.

McHUGH J: These offences are not offences which the Code expressly provides to the contrary, are they?

MR RAFTER: Well, they did. At the time the offence under which he was charged did provide a warning was required, but the construction adopted by the court, and not argued against this at the trial, was that the effect of 632 was to abolish that statutory requirement. And, consequently, the arguments for the applicant in the court below, although not at the trial, were that there were two aspects to the directions that should have been given. One was that subsection (3) did not abolish the recognised directions that should be given regarding children's evidence; and, secondly, the judge ought to have exercised his discretion to make some appropriate comments on the evidence in the interests of justice.

McHUGH J: The first point is hard to make, is it not, having regard to the express terms of subsection (3) and the second reading speech of the Attorney, when he said that "women and children were not to be regarded as unreliable witnesses".

MR RAFTER: The applicant's submission in relation to that aspect is simply this, that all that subsection (3) prohibits is a judge warning or suggesting in any way that the law regards children as unreliable witnesses. That does not prevent the judge from alerting the jury to the fact that there are some aspects of children's evidence that can require close scrutiny.

McHUGH J: But that is common ground in the case, is it not, in the judgments?

MR RAFTER: Yes, that is right.

KIRBY J: But the fact is that some of the evidence of the complainant in this case was very uncertain. I am thinking of the passage on page 60 of the application book where he says: "I could have misunderstood", "I really do not think that it happened", "I can't remember". It seems to have been rather vague evidence on the part of the complainant.

MR RAFTER: Yes. It is beyond doubt that he gave a clear account - - -

KIRBY J: And it may be that that factor would enliven, in the particular evidence of this case, a warning of an appropriate kind concerning the uncertainties of evidence of the young person.

MR RAFTER: Yes, that is right. That is the applicant's submission.

KIRBY J: The evidence of this particular young person on this passage was particularly uncertain. There is some other evidence where it was firmed up, but that was very unclear evidence on which to convict.

MR RAFTER: He gave a reasonably clear account in Exhibit 1 which is not in the application book, that was the police interview that was admitted under the Evidence Act.

KIRBY J: How would you summarise the point of difference between Justice Lee and the majority?

MR RAFTER: The majority said that, although there were matters that could have been drawn to the attention of the jury, the issues in the case were relatively clear cut, namely, the credibility of the complainant and therefore, although the judge could have made comments, there was no miscarriage of justice as a result of his failure to do so.

HAYNE J: So, what comment do you say the trial judge should have made?

MR RAFTER: The judge should have drawn attention to the nine features in the evidence.

McHUGH J: To the what features?

MR RAFTER: The nine features in the evidence that are set out in Justice Lee's judgment and said that they required particular scrutiny. At pages 71 to 75 Justice Lee sets out the matters that were identified in the court below.

KIRBY J: This is 71 to 75 of the Court of Appeal?

MR RAFTER: I am following the numbering of the application book which is at the bottom of the page. It is page 50 of Justice Lee's judgment if one is looking at the numbering at the top of the pages.

KIRBY J: No complaint at all was made in this case until three years after the event, and then in circumstances where somebody else was alleged to have had a sexual activity that set the mother into a state of concern, is that correct?

MR RAFTER: That is matter No. 4 in the matters - - -

KIRBY J: Talking about prostitute parades and that the appellant was a "poofter".

MR RAFTER: That is right. The other matters included the fact that he was a boy. There was a delay in prosecution. That the boy was asleep at the relevant time and woke to find this happening.

McHUGH J: But what was the warning? Was it a Longman type warning that it would be dangerous to convict by reason of these nine features?

MR RAFTER: Yes. The applicant contends that is the sort of direction that ought to have been given. So far as that third aspect is concerned, that the boy was asleep at the relevant time and woke to find these things happening, Justice Lee cites, and the court had been referred to, passages from the judgments of the Court in Longman and in particular on that aspect in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at page 101, Justice Deane, having drawn attention to the fact that the complainant there had been asleep before the offences had allegedly occurred, said that:

The possibility of child fantasy -

this is about seven lines from the top of the page:

about sexual matters, particularly in relation to occurrences when the child is half-asleep or between periods of sleep, cannot be ignored.

KIRBY J: Now, would you just make clear that fourth point. Apparently there was a neighbour, Mark Dainer, and they started talking about girls and stuff, it is said. It talked about poofters and I said, "This guy stuck his willy in my bum, and stuff.". And he said, "Oh, what a poofter like that". And this is how, for the first time, the allegation surfaced.

MR RAFTER: That is right.

KIRBY J: And then it came to the attention of the mother. This is in the context of a young boy talking with a boy of 18 about poofters.

MR RAFTER: An 18 year old neighbour. Now, that conversation that your Honour referred to was in 1994, the offences having allegedly occurred in October 1993. But there was no complaint to the mother until November 1996.

KIRBY J: There was no evidence whatever until three years later.

MR RAFTER: That is right. The police interview did not take place till November 1996.

McHUGH J: Was the evidence about those statements put in as complaint evidence? I know it was not objected to for tactical reasons, but how was it led in the first place, as evidence of complaint?

MR RAFTER: It was never explained exactly how or why it was there. It was in the 93A video tape which was just simply tendered. The judge then left the jury uninstructed on those matters of complaint, and that is one of the other points that the - - -

KIRBY J: I assume it went in as the evidence of how the complaint was made and how it came to be made three years later, and it was just left in. Justice Lee said, quoting Alice in Wonderland, "You do not make things better by repeating them"; that they do not become more powerful because you keep saying them.

MR RAFTER: That is right, and on that aspect the applicant below relied on this Court's decision in Jones where the failure to give a fresh complaint direction, where the evidence was in the nature of fresh complaint evidence which does bolster the credibility of a complainant witness, the jury, in that case, was left uninstructed, whereas in this case, there was - - -

KIRBY J: Was Jones decided before the Court of Appeal's decision in this case, or not?

MR RAFTER: I am sorry, your Honour.

KIRBY J: Was Jones available to the Court of Appeal in this case, or not?

MR RAFTER: Jones was referred to, yes, your Honour. There are two Jones decisions. That was the earlier of the two decisions[1997] HCA 12; , 143 ALR 52. In that case this Court quashed the convictions and ordered a retrial where the jury had been left uninstructed on fresh complaint evidence. The applicant's submission on this point was that this non-fresh complaint evidence should have received a direction as well.

KIRBY J: Given that this is a substantial part of the criminal docket, and given that it is just not possible for the High Court to deal with every case in which it is suggested that a Court of Appeal, by majority, has decided a matter on the wrong side of the line, what is it that lifts this case up into something special that requires this Court to intervene in it?

MR RAFTER: The section 632 point is the principal point relied upon in this case. It is a new provision in Queensland.

McHUGH J: I am not quite sure I understand what the distinction is that you contend arises between the majority and the minority in this case. Is there any distinction except that Justice Lee said, in his view, a warning was required. The others said, "In the circumstances of this case it was not".

KIRBY J: I thought the majority said, "It would have been desirable that it had been given. But we do not think it led to a miscarriage.".

MR RAFTER: Yes. Justice Williams pointed out that the summing up was briefer than desirable and - - -

McHUGH J: It certainly was.

MR RAFTER: Justice Callinane said that it would not have been inappropriate to draw attention to various matters.

KIRBY J: How long was this trial all over in? What was the time?

MR RAFTER: In one day, in effect.

KIRBY J: One day.

MR RAFTER: It went into a second day but the summing had been completed by the first day.

McHUGH J: Concluded on the first day.

KIRBY J: Did your client have any prior convictions of any kind?

MR RAFTER: No, your Honour. There was a sentence appeal as well as far as I can recall. But, no. In fact, he did not have any at all that I recall.

KIRBY J: What was the sentence?

MR RAFTER: Six years. On the two aspects of the 632 point, I am conscious of the fact your Honour Justice McHugh mentioned earlier that I am not on strong ground on the child aspect, but there was a difference between the members of the court on that, Justice Lee saying that 632 did not abolish the traditional time honoured warning required in respect of children's evidence. After all the abolition in section 632(3) is simply that the judge cannot warn that a "class of complainant" is an unreliable witness. But cases in this Court, and these are being followed in Queensland, for example, in Wilson, but in B v The Queen, some of the reasons usually given for warning juries in relation to the evidence of children relate to the imaginations of children and so forth. The reasons are set out in B v The Queen [1992] HCA 68; 175 CLR 599 at 616. So the applicant's submission is it is possible to comply with the prohibition in 632(3) but, at the same time, give an appropriate direction regarding the evidence of the child.

The second aspect relates to the failure by the learned trial judge to draw attention to those important matters that were listed in Mr Justice Lee's judgment. It is almost beyond doubt - - -

McHUGH J: The difficulty I have about the case is that there is no principle that we could lay down which would be of general application. Can you say anything more about this case than in the circumstances, on one view, the judge should have given a warning, and on the other view, it would have been desirable for the judge to give a warning by reason of nine features of the evidence.

MR RAFTER: I have probably said all I can. Other than to say that in a case where one member of the court said the summing up was fatally flawed by reason of the absence of such directions, and the other members of the - - -

KIRBY J: Are you relying on the principle that the court does not only deal with matters of legal principle, but is still concerned about the question of injustice?

MR RAFTER: And the interests of justice in the individual case, at least, require the attention of the Court, and in doing so, if the Court was prepared to grant special leave, then the Court of Appeal and the State courts in Queensland will at least derive some assistance from pronouncements upon a new provision in the Criminal Code in Queensland.

The other important point relates to the inadmissible, if it was objected to, late complaint evidence that was in without objection and which attracted no warning or direction from the trial judge. The other point relates to the - - -

HAYNE J: And which it was sought to use for some forensic advantage to the accused?

MR RAFTER: One assumes it was in for some forensic tactical reason.

KIRBY J: What would that be? Not to drag out the evidence of the complainant, I suppose?

McHUGH J: It would explain how it would come about that he would make these allegations.

MR RAFTER: That he had had discussions; the idea had occurred to him in 1994. One imagines that it would have been submitted to the jury, hopefully, or it could have been at least, that having had the idea in 1994 and complained to a neighbour, he did not go and tell his mother or any other person in authority, and then suddenly the allegations come up in 1996.

KIRBY J: And that arose because there was some allegation of abuse of another boy in the scouts not involving the applicant. But that set the mother investigating this particular case.

MR RAFTER: That is right. There is no challenge here to the admissibility of that evidence. It was not objected to. There can be tactical reasons for that. It is the failure to direct in relation to it that is relied upon.

HAYNE J: But to direct what? If the forensic decision was that the jury should conclude this was just two adolescents talking dirty and one of them got himself committed to a story of fantasy, which I assume was the A tack open, what should the judge say?

MR RAFTER: Mr Justice Lee pointed out at page 81 of the application book that it was:

well known that lay people often wrongly conclude that because a person has repeatedly said that something has occurred, therefore it must for that reason be true. They are often inclined to the view that mere assertion, particularly if repeated, necessarily means that what is asserted is true. Lewis Carroll's statement in `Hunting of the Snark' that "What I tell you 3 times is true", is quite incorrect.

And it is a direction along those lines that, because he had told the neighbour, because he had told other people prior to giving evidence in the trial that it occurred, those matters did not bolster his credit.

McHUGH J: And by the time he got into the witness box, he genuinely believed it himself.

MR RAFTER: Exactly. Those are my submissions.

McHUGH J: Thank you, Mr Rafter. Yes, Ms Clare.

MS CLARE: If it pleases. The Court asked the question as to the point of distinction between the majority view and that of the dissenting judge, Mr Justice Lee. On my understanding of the judgments, it really comes down to a different construction in relation to section 632(3), and that is in relation to the phrase "any class of complainant".

KIRBY J: But does that not help to make it a special leave matter?

MS CLARE: In my submission, if the interpretation of the majority is correct, then there is no point of general principle.

KIRBY J: Yes, but given that we all know that this is a substantial part of a criminal docket, and given that there are many such cases where people's trials are over in a day, and people with no prior conviction are sent to jail for long periods of time on the basis that the jury prefers the accuser to the accused, is it not desirable that the question of how we accommodate the old principles to the new statute be sorted out for the State for the Queensland? There are hundreds of these cases.

MS CLARE: That is true. I take your Honour's point. But in our submission, if this Court considers that it can conclude on this application that there is no merit in the construction advocated by the applicant and Mr Justice Lee in subsection (3), then there remains no point that is worthy of leave.

KIRBY J: Perhaps I have not read the reasons of the Full Court carefully enough, but it did seem to me to be an arguable construction and it certainly is a construction that is more in harmony with the judge's ultimate duty to ensure that the jury receives the best possible assistance to reach a judgment or a decision, a verdict, which is both lawful and just.

MS CLARE: Yes. Mr Justice Lee's conclusion into construction in effect, and he said after much hesitation he came to this conclusion, was that subsection (3) should be sanitised or sterilised to limit the phrase "any class of complainant" to cases involving sexual complainants, and only in their capacity as a complainant.

That conclusion, in our submission, puts a gloss on the plain meaning and the breadth of the language that is used in subsection (3) itself.

KIRBY J: That might be so, but one judge in the Court of Appeal Queensland has taken a different view. There are hundreds of trials affected by this decision and it is therefore, at least arguably, a matter of some significance for citizens.

MS CLARE: That is an arguable, it is an important matter, that our submission is, and I know I am just simply repeating myself, that unless this honourable Court can see some substantial merit in the view taken by his Honour - - -

McHUGH J: My problem on this special leave application is this: if I was the trial judge I have no doubt whatever I would have made some comments along the lines that Justice Lee suggested, not necessarily identical, and not necessarily in respect of all matters, but I certainly would have. The question is, sitting here in the High of Court of Australia on a special leave application, is it a case calling for the grant of special leave? I find it a little - well, not a little, I find it a slightly disturbing case that you do have this very brief summing up in a case where there is word against word, where there is no complaint three years later.

HAYNE J: And whether or not counsel sufficiently argued the point, should the judge have said, "Look, three years elapsed". You have to take that to account. Leave aside whether children, as a group, are inherently reliable which may raise squarely this point of construction. Should the judge have said, "Three years have elapsed"?

MS CLARE: His Honour referred to the fact that there was a delay in the complaint.

HAYNE J: Did he tell the jury what followed from the fact of delay?

MS CLARE: He told the jury that that reflected on credibility. The relevant part is at page 10 of the record book, perhaps earlier, at the bottom of page 9 when he says that:

the absence of an early complaint in this case may show inconsistency of conduct on the part of the complainant. It is clearly relevant to his credibility in that respect.

McHUGH J: Yes, and it is very - - -

MS CLARE: It is not the strongest.

McHUGH J: No. It does not really deal with the question of unreliability, this - - -

HAYNE J: I have seen better Longman directions.

MS CLARE: It is not a Longman direction.

KIRBY J: Is the issue whether a Longman direction is required in the light of the Queensland statute, because that is certainly an important issue?

McHUGH J: Not required, but open.

MS CLARE: That, in my reading of the majority judgments, was not disputed. That where there are perceptible risks of miscarriage, for reasons other than a special class of witness, then that would be an appropriate case for warnings to be given, and required in certain circumstances. But - - -

KIRBY J: I mean, in fairness to the complainant, he was only a very young boy and he said he knew nothing about sexual matters and that could have been drawn by the judge to the attention of the jury as an explanation for the delay. But it is more the circumstances in which it came up, that there was a teenager speaking to him, that nothing had ever been said for three years and then suddenly, and the mother is worried about a complaint about some other person, and then all of this becomes a matter that leads on to the trial and the loss of liberty of the applicant for six years.

MS CLARE: Yes. The majority recognised, whilst those matters were proper matters for comment, in this case there was no miscarriage in the failure to warn because they were matters in the light of this trial which would have been evident to the jury, that - - -

McHUGH J: No, have you finished your answer?

MS CLARE: Yes.

McHUGH J: Was there any cross-examination, or any detail as to the circumstances in which he and Mark Dainer were talking about sexual matters? It may have been quite important. They are in a tent, are they not? Were they in a tent, were they away camping?

MS CLARE: Yes, they were camping.

McHUGH J: They were away camping. And then you have the 18-year-old neighbour talking about girls and stuff, and talking about poofters, and then the young complainant says, "This guy stuck his willy up my bum". And he said, "Oh, just a poofter". One wonders what was the context that gave rise to these remarks.

MS CLARE: I cannot answer your Honour's question directly in light of the evidence because I have not read it. I have only read the Court of Appeal's judgment. But at page 105 of Justice Cullinane's judgment from about line 30 where he refers to the convincing conclusion that the reason for the inclusion of the stale complaint, or the failure to object to the admission of the stale complaint in the 93A statement, it was a tactical one. That seems to be a conclusion that is based on the conduct of the trial. So one could infer from that, I think, that it was a clear direction of the defence in its conduct of its case.

KIRBY J: It would be no great burden to reproduce, if a special leave were granted, the evidence at the trial, because it was only one day.

MS CLARE: That is so, yes.

HAYNE J: Apropos of that, are counsel's addresses transcribed in that jurisdiction?

MS CLARE: That is - not consistently. It really depends upon the attitude of the judge at the time and, in this case, it seems that addresses were not transcribed. So there is no record of what was said.

HAYNE J: But this issue of tactical choice might become a little more apparent if one knew quite how counsel had approached the matter.

MS CLARE: Yes. I really cannot say anything more than that, beyond that, except that for the Court of Appeal to conclude, or the majority to conclude, that it was a tactical decision.

McHUGH J: Your opponent seems to concede it in his submission.

MS CLARE: Yes, someone would think that that was the approach of defence counsel.

KIRBY J: The point of significance would seem to be the construction of the Queensland statute applicable to hundreds of cases, many of which are like this case. We have seen enough of them where the whole matter is over in a day, as to the duties and responsibilities of the judge in respect of whatever warnings can be given to the jury in the face of the provisions of the statute. That is not a matter confined only to this applicant. If the view taken by the majority represents the law, as it will be applied by trial judges in Queensland, then the view that Justice Lee propounds will not be applied by the judges of Queensland.

MS CLARE: Yes. There is then the question of whether this is a suitable vehicle to clearly raise that question if, on the facts of this case, it only comes down to a factual assessment of the trial.

HAYNE J: Then that brings you hard up against the "interests of justice" point, does it not?

MS CLARE: Yes.

McHUGH J: But in addition, you really cannot come down to the circumstances of the trial until you work out what the ground rules are and that requires you to construe the statute.

MS CLARE: Yes. I cannot avoid the conclusion, I think it is fair to say, that subsection (3) and, in particular, the second part of that subsection in respect of any class of witness, it was critical to the determination in this case.

McHUGH J: On the surface it seems fairly clear, but - - -

MS CLARE: Yes. Beyond that, in assessing whether or not a warning was required in this case, the majority concluded that, as I said, no miscarriage of justice had occurred because there was no perceptible risk that the jury made its decision ignorant of the relevant risks and dangers involved. If that be the case, in our submission, this is not such a case which frames itself as a suitable vehicle. Those are my submissions.

McHUGH J: Yes, Mr Rafter.

MR RAFTER: Your Honours, the Court of Appeal has been urging the trial courts to produce transcripts of counsel's addresses for precisely the reasons your Honour Justice Hayne mentioned, and that happens in some cases and not in others. And, in fact, Justice Lee points out in his judgment at application book page 25 that the addresses were not transcribed here, but defence counsel's address to the jury occupied only three minutes. So, it seems unlikely that much could have been said in that three minute period. So, even though we do not have a transcript, it cannot be imagined - - -

McHUGH J: On the individual miscarriage of justice point of view, what do you say about Dr Gavranich's evidence? That seemed to have been very powerful circumstantial evidence supporting the complainant's case, was it not, that he continually soiled himself, at eight years of age, after this?

MR RAFTER: That is right. He went to the doctor in October and November 1995, so two years after the relevant alleged events, for the medical examination. His mother had given evidence that he had had that problem. There may be a variety of reasons why he would have had that particular problem. In the applicant's submission, it is not powerful evidence. It was evidence that was before the jury for them to make of it what they would. But it was not powerful corroboration.

KIRBY J: We do not have the doctor's evidence. Depending on what he said, it could be that it was one of the reasons that set the mother looking for an explanation of this unusual behaviour. Then there was the talk about the scout colleague, not the applicant, and then there was the talk between the two teenage boys. That led on, three years later, to the complaint.

MR RAFTER: Yes. The doctor's evidence was that there was a correlation in his experience between soiling problems in children and traumatic events, and the traumatic event might be being sodomised by an adult or it could be something else. In this case the boy's father had been hospitalised at the relevant time. There was no great detail as to exactly why, but that might be a traumatic event that would qualify to produce some problem. It is difficult to know.

The only other point concerns the necessity for a Longman direction according to the length of the delay, and Justice Williams, particularly, seemed to be of the view at page 20 of the application book, page 2 of Justice Williams' reasons, about line 30, where his Honour said after referring to Longman:

If there is a long delay between the commission of the alleged offence and the trial (as was the case in Longman) or if there are inconsistencies in the evidence affecting the credibility of the complainant, there should be specific reference in the summing up to such matters.

In this case, there was what the applicant submits to be a reasonably lengthy delay. It does not have to be of the magnitude as in Longman for the directions to be given, and this Court recognised that in Jones, the second Jones Case to which I referred, 149 ALR 598 where the delay in complaining against a scout master was in the order of two and a half to four years, and Chief Justice Brennan said, at 602, that after citing the often quoted passage from Longman, that, "After more than 20 years that opportunity was gone for testing the evidence" and so forth. In that lengthy passage, Chief Justice Brennan said:

The same observation is applicable to the present case, although the lapse of time was shorter than in Longman. The jury was not directed about the danger of discounting the evidence of -

one of the witnesses, and there was a similar comment made by the other members of the Court. That was Justice Gaudron, and your Honour Justice McHugh and Justice Gummow, where your Honours said, at 609:

The unexplained absence of a complaint for four years is a matter that made it essential for a reasonable jury to scrutinise the complainant's evidence with great care.

Furthermore, in some cases - and we thought that this was one - the delay in making a complaint may be so long that it hampers an accused person's right to defend him or herself.

The same remarks apply here. Justice Williams seemed to consider that the necessity for a warning was really dependent on there being a very lengthy delay of the magnitude of long, say, 20 years. That was another important factor in Justice Cullinane's reasons as well. Those are my submissions in reply.

McHUGH J: Yes, there will be a grant of leave in this case, Mr Rafter. In so far as is possible we would like any transcript to be put on, in all the - - -

MR RAFTER: Yes.

HAYNE J: And if, therefore, they are tapes, if they can be transcribed. I know some jurisdictions are taped but do not transcribe.

MR RAFTER: Yes, there is a transcript that was provided to the Court of Appeal, and to the jury, in fact, at the trial. So that will be included in the appeal book.

McHUGH J: Yes. The Court will now adjourn to reconstitute.

AT 11.15 AM THE MATTER WAS CONCLUDED