Robinson v The Queen B59/1998 [1999] HCATrans 203 (22 June 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B59 of 1998

B e t w e e n -

PETER JAMES ROBINSON

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 22 JUNE 1999, AT 11.46 AM

Copyright in the High Court of Australia

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

MR M.J. BYRNE, QC: If the Court pleases, I appear with my learned colleague, MR C.W. HEATON, for the Crown. (instructed by the Director of Public Prosecutions (Queensland))

GLEESON CJ: Yes, Mr Rafter.

MR RAFTER: The appellant's trial began in the District Court of Ipswich on 21 July 1997. The indictment charged two counts of unlawful anal intercourse and, in the alternative, two counts of indecently dealing with a child under 12. The reasoning for the charging in the alternative was in the event that the jury entertained a reasonable doubt on the issue of penetration but were otherwise satisfied as to the complainant boy's evidence that they return guilty verdicts on the indecent dealing charges.

At the commencement of the trial there was a short discussion which appears at page 7 of the appeal book concerning the effect upon the trial of a relatively new provision in the Criminal Code, section 632, which has been inserted by amendment to the Code by the Criminal Law Amendment Act 1997 . It is a provision that commenced on 1 July 1997, only some three weeks before the trial actually commenced. But it was accepted in the argument that ensued that the effect of this Court's decision in Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 was that section 632 governed the appellant's trial.

At page 7 the prosecutor made submissions on the effect of section 632. At the bottom of page 7, line 60, the learned trial judge observed:

I am not obliged to give the warning?

The Crown Prosecutor answered that query at the top of page 8. In what follows the learned trial judge said:

In other words, they can't say it is dangerous to convict. It would be dangerous to convict on the uncorroborated evidence. I am not allowed to say that?

The Crown Prosecutor indicated that that was so. It emerged further down the page at about line 50 that defence counsel had not seen the new legislation, although he had discussed it on the preceding Friday with colleagues. In the end, at the top of page 9, the view that the learned trial judge took was that:

If it emerges during the trial that there is some reason to be concerned about the evidence given by a complainant, then I can give a warning.

There was no reference to authorities decided in this Court on comparable legislation: Longman v The Queen, Crofts v The Queen and decisions on similar provisions by State appellate courts.

HAYNE J: Did trial counsel for the accused accept at line 59 the proposition that the trial judge put, or are we to understand that differently?

MR RAFTER: No, it would appear that the defence counsel accepted the proposition that the trial judge put, your Honour. The course that the trial took then was that there were four witnesses called by the prosecution: the complainant boy, both parents and a specialist paediatrician, Dr Gavranich. The complainant boy's evidence, in-chief anyway, was admitted by way of an audio tape recording which was admissible under the provisions of section 93A of the Evidence Act 1997 . A transcript of that interview is contained in the appeal book at pages 62 to 79. It appears from page 15 when the tape recording was actually tendered that the jury was supplied with what was said to be an accurate transcript of the tape recording.

It also emerges from a redirection given by the learned trial judge at the top of page 57 that the tape recording itself was with the jury during their deliberations in the jury room. At the top of page 57 after the jury had requested a redirection the judge, having referred to the relevant passages in the evidence, said:

That's the transcript. You have with you, of course, the tape in the juryroom, ladies and gentlemen. If you want to play that, play that as much as you like.

There was no application by defence counsel at the trial pursuant to section 99 of the Evidence Act for the audio tape to be withheld from the jury room on the grounds that the jury might give the audio tape undue weight. In a decision of the Court of Appeal after this trial, and indeed after the appeal itself, Reg v H, QLR, 3 April 1999, the Court of Appeal held that, at least as a general rule, in the absence of the consent of both sides, videotaped interviews with children, which are often admitted in these circumstances, should not be permitted to go into the jury room. Reg v H is with the bundle of cases that have been provided to the Court this morning, but I will not at this stage go to that particular decision.

The appellant gave evidence in his own defence. He was the only defence witness. Then followed the addresses to the jury which are not actually transcribed, but one sees from the transcript - - -

KIRBY J: How long did the total trial last?

MR RAFTER: The trial in effect concluded in the space of one day. The trial judge's summing up had been concluded by late on the first day but the judge held over the balance of the summing up until - - -

CALLINAN J: 3.40, I think, or 3.45.

MR RAFTER: The defence counsel addressed the jury first and, as I said, the addresses are not recorded in the transcript but one sees at page 44 that the defence counsel address occupied only three minutes from 2.58 pm until 3.01 and the Crown Prosecutor addressed the jury for some 24 minutes. The learned trial judge then summed up to the jury. Apart from the usual matters relating to the onus and standard of proof and unanimous verdicts and the elements of the offence, there was very little reference made to matters which in the appellant's submission...[inaudible]...some comment apart from an observation the judge made at page 52 commencing at line 1 relating to the competing submissions that counsel on both sides then made relating to the significance of the absence of a fresh complaint in the case. The particular direction is at page 52, lines 1 to 25. The appellant's appeal to the Court of Appeal was dismissed by the majority with Mr Justice Lee dissenting.

GLEESON CJ: What was the point of departure between the majority and minority in the Court of Appeal?

MR RAFTER: On the point concerning a construction of section 632, Mr Justice Lee considered that the provision had not abolished the traditional requirement to direct a jury carefully with respect to a child witness's evidence, notwithstanding that the child witness was a complainant. Further, his Honour considered that in all of the circumstances of the case, even if his Honour was wrong about that, then section 632(3) clearly demanded that, because of various speeches which were identified by his Honour, a careful direction was required in the circumstances of the case.

The point of distinction, to answer your Honour's question, is this, that Mr Justice Williams said that, although the summing up was perhaps briefer than was desirable in the circumstances of the case, there was no deficiency in the summing up. Mr Justice Cullinane who wrote the main judgment for the majority said that, although it would not have been inappropriate for the judge to make various comments on the matters that were relied upon by the appellant, again the summing up was not deficient by reason of the absence of such comments.

The decision of the Court of Appeal is Reg v Robinson (1998) 102 A Crim R 89. The first ground of appeal has two aspects, as I indicated. The first is whether or not section 632 has abolished the traditional requirement for the jury to be warned in relation to the evidence of the child witness who is the complainant in the matter. As I indicated, the court was divided on this question. One finds Mr Justice Cullinane's reasoning in relation to this point at page 146 whereby his Honour at the top of the page in the first complete paragraph said:

In my view the general warning which the Court of Appeal said in Wilson should be given in respect of the evidence of a child (and which reflects a longstanding rule of practice) is now prohibited by s 632(3) where the child is a complainant. It would be an anomalous situation if such a warning was prohibited by statute in the case of a child complainant yet required where a child is a witness but not a complainant.

GLEESON CJ: I suppose that view was based on the concluding words of subsection (3).

MR RAFTER: Yes. The submission on this point for the appellant is that all that is absolutely prohibited by subsection (3) is for the trial judge to suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses. That does not necessarily abolish a requirement that a jury be directed that because of various speeches including the fact the witness is a child, that the evidence should be scrutinised carefully. The longstanding rule of practice was discussed by this Court in B v The Queen [1992] HCA 68; (1992) 175 CLR 599, and particularly in the judgment of Justices Dawson and Gaudron, the rationale for the rule is discussed by their Honours at pages 616 to 617. Their Honours said:

The second rule of practice to which the trial judge may have intended to refer is that which requires a similar warning to be given where the witness is a young child who gives sworn evidence.

Their Honours go on to discuss another category of witnesses, namely, accomplices. A little further down the page their Honours say:

In the case of young children, the reason does not lie in the nature of the offence, but in other considerations. The fact that young children may be under the influence of others and are apt to allow their imaginations to run away with them and to invent untrue stories is one justification which has been advanced. Again, it has been said that the warning is required in relation to "children who, though old enough to understand the nature of an oath and so competent to give sworn evidence, are yet so young that their.....powers of expression may be imperfect".

Those observations have been adopted in Queensland and in Reg v Wilson, an unreported decision of the Queensland Court of Appeal, Court of Appeal No 355 of 1994, judgment delivered 14 November 1994, the court was concerned with the situation where the learned trial judge had not given an adequate warning to the jury in respect of the evidence of a supporting Crown witness, not being...[inaudible]...as being a child. The summing up in that particular case was held to be deficient by reason of the failure to give....direction regard the eyewitness testimony of the sister of the complainant in that particular case.

As the Court of Appeal observed in this case, if the same facts arose for the decision after the passage of section 632, the same decision would result, as the prohibition in section 632 concerns a suggesting in any way to the jury that the law regards complainants or any class of complainants as unreliable witnesses. The appellant's submission is that to direct a jury that they should scrutinise a child complainant's evidence carefully does not necessarily carry the implication that the child complainant is an unreliable witness or is so regarded by the law.

Mr Justice Lee was in dissent in the court below on this point. His Honour gives his reasons for decision on this point at pages 121 to 125. In the first complete paragraph on page 123 - - -

KIRBY J: Could you just help me. We have been handed Wilson and Wilson seems to take a different line to the decision in this case. Is that a correct understanding?

MR RAFTER: Wilson was decided before this provision came into effect and was principally concerned with the situation of a child complainant and a child...[inaudible]...witness in effect who was giving supporting evidence. The point for the appellant is that even if that decision arose after the passage of section 632 - - -

KIRBY J: So Wilson states the law in Queensland before the amendment?

MR RAFTER: Before 632 amendment.

KIRBY J: The question is whether, in the terms in which the section was enacted, in particular subsection (3), that altered the principle stated in Wilson.

MR RAFTER: Yes.

KIRBY J: Altered it to some extent, but whether it relieved completely the obligation - - -

MR RAFTER: That is right, your Honour, yes.

KIRBY J: The judge seems to have inferred it because the section relieved of the obligation which existed...[inaudible]...but removed the question of considering in a particular case where the interests of justice required it. He does not seem to have had very much assistance from counsel.

MR RAFTER: The point concerned with the position of the child witness who is the complainant, in my submission, is assisted somewhat by the observations of the New South Wales Court of Criminal Appeal in Reg v Murray (1987) 11 NSWLR 12. At page 19 just above point E on the page, Mr Justice Lee says:

In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness' evidence is unreliable.

That passage is relevant, really, to both parts of the argument concerning ground 1 because, in my respectful submission, it is open to a judge to direct the jury on the concerns that may exist with respect to a child witness's ability to recall events from some years ago, a child's perception of events and so forth, without infringing the absolute prohibition in section 632(3).

As the Court of Appeal noted in its judgment in this case, the dilemma which arose was also encountered in South Australia and was discussed in Reg v Pahuja (1988) 49 SASR 191. In that case the Court of Criminal Appeal were considering a provision in the Evidence Act which was similar to section 632(2) of the Criminal Code. In that case it was section 34(5).

KIRBY J: What page are you going to? Where is the section?

MR RAFTER: The section, your Honour, is at page 213 of the judgment of Mr Justice Cox at the top of the page, the third paragraph down. The provision was, in this event, subsection (5):

"In proceedings in which a person is charged with a sexual offence, the 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 evidence of the alleged victim of the offence."

KIRBY J: Is there a provision equivalent to subsection (3)?

MR RAFTER: No, there is not.

KIRBY J: That rather strengthens this present case, does it not?

MR RAFTER: Yes.

KIRBY J: It makes it clear that that is not the intention of Parliament.

MR RAFTER: In that case the court was divided on the question of whether or not the traditional warning with respect to the evidence of a child complainant was abolished or not. The majority, Mr Justice Cox and Mr Justice Johnston, at pages 216 and 223 to 224 respectively, give their reasons for the conclusion that they had reached. The Chief Justice was in dissent on that point. In the end Justice Cox said at page 216, about two-thirds of the way down the page:

It would require, in my view, very clear and unambiguous language to abolish, especially in such a selective fashion, an important safeguard against error. I do not think that the words of subs (5) are so unyielding that we are obliged to adopt their literal meaning.....In my opinion, sub (5) has as its subject-matter any rule of law or practice about warning a jury that it is unsafe to convict the accused in a sexual offence on the uncorroborated evidence of the alleged victim, for the reason simply that he is the alleged victim, and that is the key to the subsection's interpretation. It has nothing to say about the quite separate rule relating to the uncorroborated evidence of a witness who is a child of tender years, whether the child happens to be the alleged victim of the offence charged or not. I would hold, therefore, that a trial judge in this State is still obliged to give the usual warning to the jury against acting upon the uncorroborated evidence of a child, whether or not the evidence is given in a sexual case.

As I said, Mr Justice Johnston agreed with those remarks.

A number of other South Australian decisions are set out in my written outline of submissions under the heading "Comparable provisions in the other States and Territories". I will not take the Court to all of those, but the point continued to arise in South Australia and ultimately some further amendments were made to the Evidence Act.

GLEESON CJ: I notice that the language of section 632(3) is directed towards the proposition that the law regards a class of complainants as unreliable witnesses. There would be nothing in that section, would there, that would prevent a trial judge telling a jury why the jury might as a matter of fact regard a particular complainant as an unreliable witness?

MR RAFTER: That is right, your Honour.

GLEESON CJ: For example, a mentally-impaired complainant might be an unreliable witness. The prohibition is simply against suggesting that the law takes a particular view about a class of persons.

MR RAFTER: Yes, that is right, your Honour, because the traditional directions that had been given before this remedial legislation started to be introduced into the various States was that the law viewed with suspicion the evidence of rape complainants or child complainants in sexual cases and so forth and the - - -

KIRBY J: Was the way in which that instruction was given to the jury by the judge, "that I am bound to tell you that as a matter of law the law regards the evidence of a child as unreliable"?

MR RAFTER: That is the usual way the direction would be given, although the particular directions would vary from case to case. In Queensland, for instance, some statutory provisions carry with them a requirement that the judge direct the jury that it is dangerous to convict on uncorroborated evidence but, even in those cases where there was no statutory requirement, the longstanding rule of practice which has been followed is that the judge would give a very similar direction.

KIRBY J: And tell the jury that on matters of law they are bound to act on what he tells them on matters of fact but it is a matter for them.

MR RAFTER: Yes.

GLEESON CJ: There would be nothing contrary to section 632(3), would there, in a trial judge, if the facts of a particular case were to warrant it, taking a jury through each of the considerations referred to in B v The Queen on pages 616 and 617 and simply pointing out that those considerations applied in this particular case?

MR RAFTER: That is right, your Honour. That is the submission for the appellant, that that would not infringe the prohibition in subsection (3).

KIRBY J: Were there facts in - this is the case where the boys were talking and it was alleged that they were talking about poofters and - are there circumstances in the facts that are relevant to the considerations with B?

MR RAFTER: Yes, in Mr Justice Lee's judgment at pages 125 to 127, Mr Justice Lee sets out nine features which the appellant relied upon in the court below as necessitating a direction. They are all numbered on those pages, the first being that the boy was just eight at the time; second, that there was a long delay in prosecution; third, that the boy was asleep, and some passages from this Court's decision in Longman v The Queen were relied upon in that respect. The delay in complaining was relied upon as item 4. Item 5 related to the absence of any complaint to the appellant and the absence of any violence or force and the continued relationship between the complainant and the appellant. The sixth point related to conflicts in the complainant's evidence relating to the issue of penetration. The seventh point related to the absence of any corroboration.

The eighth point in part related to the point that your Honour Justice Kirby was making relating to the circumstances under which the complaint was...[inaudible]...made. The appellant had heard an allegation of abuse by another boy at scouts, an allegation that was not the appellant which was relayed by his mother, and soon after an allegation of abuse of his sister who apparently was required to go to court. It was then that he revealed these matters to his parents because they were talking about someone else that this had happened to but not the same person; there was another person.

The ninth point related to the father's hospitalisation at the relevant time and the significance it was said in relation to that aspect was that there was evidence from a medical practitioner, a specialist paediatrician, Dr Gavranich, who had seen the complainant relating to soiling his pants. This problem had been in existence for some time apparently from about the time of these alleged incidents and the boy was taken to the doctor quite some time later. The doctor said there was a correlation between events of that kind and trauma in a child's life. The point then sought to be made at point 9 in Mr Justice Lee's judgment was that the hospitalisation of the father itself might have been such a traumatic event. There was very little cross-examination of the doctor on that aspect of the matter.

GLEESON CJ: One of the difficulties is that expositions of the view that the law takes as to the unreliability of certain kinds of evidence are often related to what is called "the experience of the courts". Once you put to one side the accumulated experience of the courts, what would form the basis for a proposition to a jury, for example, that children sometimes fantasise?

MR RAFTER: Your Honour, the ordinary human experience of the members of the jury, some of whom might be assumed to be parents, would be relied upon in that respect and the judge could draw to the attention of the jury that that is a possibility and the jury can use their own experience on those matters. Some children fantasise about some matters, others do not, and the jury must evaluate the evidence as they see it in the particular case. For the appellant the point is that to fail to draw to the attention of the jury some essential matters relating to the evaluation of the complainant's evidence was to risk a miscarriage of justice.

KIRBY J: And apparently on the assumption of the meaning of the section which is not borne out by its text or consistent with authority in other States, or I think of this Court.

MR RAFTER: Yes.

KIRBY J: But these matters were not reserved at the trial. Trial counsel seems to have taken a very abbreviated view of his duties - a three minute address. How could one address a jury in this case for three minutes? How could it be done? How could it be done fairly to this accused who stands at risk of his liberty for so many years?

MR RAFTER: Without having the transcript, one does not know but I suppose it is possible for a short convincing address to be given.

KIRBY J: Three minutes?

MR RAFTER: One notices that the jury took three minutes to deliver their verdicts in the case. One assumes from the time they came in, they had their names read out and then delivered their verdicts. So, to address the jury for that short space of time would be generally regarded as inadequate. To address the jury for such a lesser time than the Crown Prosecutor was a difficulty for the appellant as well, in my respectful submission.

GLEESON CJ: Mr Rafter, is there anything wrong, so far as it goes, in the view of the law expressed by the trial judge on pages 8 and 9?

MR RAFTER: Well, maybe your Honour is right in saying that they automatically give warnings because it is a sex case. That proposition is accepted and it is fair to accept that there may be matters emerging during a trial about which the jury may require a warning, and so it may be an evaluation of a particular child complainant in the individual case.

GLEESON CJ: There is not any warrant, is there, for concluding that the trial judge misunderstood section 632? He certainly did not say anything about it that was erroneous.

MR RAFTER: Well, the judge may have reached a different view about section 632 had the judge been referred to, for instance, Longman v The Queen, and that was the next case I was going to.

GLEESON CJ: But the judge was not invited to give any directions or warnings of the kind that you say are permissible.

MR RAFTER: That is right.

KIRBY J: This is by the three minute counsel.

MR RAFTER: I do not think my learned friend, at this stage anyway, in his written outline of submission does not contend that this would be a suitable case for the proviso to be applied in the event that the appellant's point are made good. So, the principal question, in my submission, is: are the two arguments that the appellant puts relating to section 632 correct or not? If the summing up was deficient then, in my respectful submission, the appeal should be allowed and it is nothing to the point that the points were not taken in the trial.

HAYNE J: As to that order, I notice that the notice of appeal seeks not only "appeal allowed" but "convictions quashed". Is that the order you seek?

MR RAFTER: I have addressed the specific orders that I seek in my written outline of submissions as well, your Honour...[inaudible]...my submission on what, if any, points succeed. The second point raised by the appellant is as to the sufficiency and the adequacy of the evidence of the complainant relating to the issue of penetration. It is respectfully submitted that it was not open to the jury to conclude that penetration had taken place. If the appellant made good that point the convictions on counts 1 and 3 would be quashed and verdicts of acquittal entered and then the Court would need to give consideration to whether or not a new trial was ordered in relation to the alternative charge of indecently dealing.

If the appellant failed on the second point but succeeded on the first point and/or the third point, then the Court would give serious consideration to ordering a new trial and leaving it to the discretion of the Director of Public Prosecutions as to whether or not there is in fact a new trial. But I have pointed out in my written outline of argument that the appellant has now served almost two years of a six-year sentence. The non-parole period, by virtue of the Corrective Services Act, is three years.

GLEESON CJ: If we ordered a new trial, it would be a matter for the prosecuting authorities to decide whether there should be a new trial.

MR RAFTER: Yes.

GLEESON CJ: But I take it that the Court of Appeal was unanimously against you on the second point.

MR RAFTER: That is right, your Honour.

KIRBY J: Do you want to take us to the evidence on that point to - - -

MR RAFTER: I will, your Honour.

KIRBY J: Because if you get up on that point and the offence involving penetration is removed, then he would have served by two years what would likely be the sentence that would be imposed on the other counts.

MR RAFTER: Yes, that is exactly right.

KIRBY J: That is, as I understood your written submission, why you suggested this Court would have the authority to substitute the order of acquittal or - - -

MR RAFTER: I would submit that if the appellant makes good ground 2 because for indecent dealing - - -

KIRBY J: It would not be an order of acquittal, would it? It would simply be that you would set aside the order in respect of the penetration and in respect of the others you would say that he has already served long enough?

MR RAFTER: Yes. The maximum penalty for the offences that he was convicted of was life imprisonment. The maximum for indecent dealing, in these circumstances, was 10 years, by reference to some comparable sentencing - - -

GLEESON CJ: He has never been convicted of indecent dealing.

MR RAFTER: No, he has never been convicted of that.

GLEESON CJ: Or sentenced.

MR RAFTER: Or sentenced, no. But by reference to comparable decisions to which I have referred in the Court of Appeal, my submission is, and I do not understand this to be challenged by my learned friends, if there was conviction for indecent dealing, the sentence would be unlikely to exceed two years. Now, he has already served almost two years which, in non-parole terms, is equivalent to a four-year sentence, really.

GLEESON CJ: Well now, you have given us half your argument on the first point. You have another aspect on the first point yet to address.

MR RAFTER: I do. I will go briefly to that. The first case to which reference should be made is Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79. The Court was there concerned with a provision in the Western Australian Evidence Act which is set out at page 83 in the joint judgment of Justices Brennan, Dawson and Toohey at the bottom of the page. In the context of that particular piece of legislation which has obvious differences with this one but, by the same token, there are some - - -

GLEESON CJ: Well, I think we are familiar with Longman. But how did the majority in the Court of Appeal answer your Longman argument?

MR RAFTER: Mr Justice Cullinane said no doubt it would have been not inappropriate to make some comments on...[inaudible]...but, since the trial was brief and the issues confined - with respect, his Honour said that this case was a far cry from Longman, and the submission for the appellant is that it may be seen as a far cry from Longman in the sense that the delay in that case was in excess of 20 years, whereas the delay here was considerably shorter. That is not necessarily decisive on the requirement for a Longman direction, in my submission. That is illustrated in this Court's decision in Jones v The Queen, (1997) 191 CLR 439 in the judgment of Chief Justice Brennan. His Honour at page 445 cites the often-quoted passage from the joint judgment in Longman and then related the need for careful directions, and at page 446, in the first complete paragraph, his Honour says:

The same observation is applicable to the present case, although the lapse of time was shorter than in Longman.

The lapse of time in Jones was in the order of four years. There was no complaint for a period of something in the order of four years after the first act that was also complained about, so the distinction, that is the distinction that Mr Justice Cullinane was making that careful directions may well be required where there is a very lengthy delay in the order of 20 years but where it is only four years and his Honour was in error, in my respectful submission.

GLEESON CJ: Did Mr Justice Lee formulate the warning he said should have been given?

MR RAFTER: In setting out those nine matters that I have already referred to at pages 125 to 127, his Honour really is indicating matters that should have been the subject of a specific direction on it. His Honour said at 131, 12 lines from the top of the page:

In my opinion, notwithstanding that a warning is well within the discretion of the trial judge the present case is one which required a strong warning to the jury of the particulars of error in the complainant's testimony.

This is reinforced by repeated statements made throughout his evidence that he either could not remember or was not sure whether penetration had, in fact, occurred or whether it hurt him or not and in other respects.

HAYNE J: Speaking only for myself, the absolute period, no doubt, is important but it must be understood also in the context of the age, must it not? The lapse of time between being eight years old and 12 years old may be different in quality from the four years that elapse, say, between the age of 16 and 20.

MR RAFTER: Yes, it might. I accept that proposition, your Honour.

KIRBY J: Does that not get back to the purpose of the...[inaudible]...type direction which is to warn of the dangers in the particular case, that it is not just a matter of mathematics; it is a matter of the dangers.

MR RAFTER: Yes, and notwithstanding that this case, unlike some others, involved a specific occasion that was fairly easily identified and in which the appellant, in his own evidence, agreed he had stayed over at that particular stage, that did not obviate the need for careful directions. Indeed, if there had been a prompt complaint then, for example, medical evidence may have shed some light on the matter. As it turns out, the medical evidence that did take place was done so long afterwards that it was inconclusive. It did not help one way or the other.

CALLINAN J: Mr Rafter, do you get any assistance out of Fleming's Case 158 ALR 379. It was decided in relation to it that it is a quite different statutory context because the trial was before a judge alone. There is a discussion, I think, in paragraph 37 of Fleming which re-emphasises the importance of Longman's Case and a Longman direction.

MR RAFTER: The appellant, I submit, does derive assistance from that case which involved trial for sexual offences by judge alone and the judge failed to adequately direct himself in relation to essential features.

CALLINAN J: As he was bound to do under the statute.

MR RAFTER: Quite.

CALLINAN J: Some factors of exactly the same kind as you refer to were regarded by this Court unanimously, I think, as relevant and important.

MR RAFTER: Obviously, each case depends upon its own facts and upon the particular statutory scheme that is in place in the particular State but some general guidance can be obtained from cases like Fleming. I was going to briefly go through some of the other statutory schemes and some of the cases that related to them but, before doing that, can I briefly mention Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. In Crofts the Court emphasised at page 451 the purpose of legislation similar to section 632 and the Court discussed Longman. It was in the joint judgment of Justices Toohey, Gaudron, Gummow and your Honour Justice Kirby, and your Honour said that Longman:

makes it clear that the purpose of such legislation, properly understood, was to reform the balance of jury instruction not to remove the balance. The purpose was not to convert complainants in sexual misconduct cases into an especially trustworthy class of witnesses. It was simply to correct what had previously been standard practice by which, based on supposed "human experience" and the "experience of courts", judges were required to instruct juries that complainants of sexual misconduct were specially suspect, those complained against specially vulnerable and delay in complaining invariably critical. In restoring the balance, the intention of the legislature was not to "sterilise" complainants from critical comment where the particular facts of the case, and the justice of the circumstances, suggested that the judge should put such comments before the jury for their consideration. The overriding duty of the trial judge remains to ensure that the accused secures a fair trial.

I have attempted to summarise the various statutory schemes in part 3 of my written outline of submissions and I will not go right through that, but to briefly refer to some decisions of the appellate courts in other States that, in my submission, illustrate that the summing up in this case was seriously deficient, can I first refer to the New South Wales - - -

KIRBY J: Can I just say that both in Longman and Crofts the Court finished with reference to the fact that retrial might not in the circumstances be appropriate but that that was a matter for the Crown to decide.

MR RAFTER: Yes. I would accept that if the appellant failed on ground 2. The position is slightly different if there is success on that particular point. In respect of the New South Wales provisions, the first of two cases I intend to refer to is the Reg v V (1998) 100 A Crim R 488 and your Honour the Chief Justice was a member of the New South Wales Court of Criminal Appeal in that particular case and your Honour agreed with the judgment of Mr Justice Smart. If I can briefly go to page 497 where the point which was somewhat similar to the point involved here was considered. The particular provision is section 164 of the Evidence Act and at the top of the page in the first complete paragraph his Honour says that:

Section 164 of the Evidence Act does not dispense with the need for a Murray direction, where that direction is appropriate. Section 164 provides that it is not necessary for the judge to warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect.

Now, at the bottom of the page in the last paragraph his Honour says:

While the judge in his supplementary directions gave a direction that the jury was entitled to take into account the fact of the delay in assessing or evaluating the complainant and her evidence, I doubt that the economical direction given would have meant much to a jury. The judge did not explain to the jury that where there was delay in making a complaint they were entitled to take into account her failure to make a complaint at the earliest reasonable opportunity as reducing her credibility.

At page 498 in the second complete paragraph his Honour said:

In the present case both the delay in complaint and the circumstances in which the complaint had been made necessitated special caution and consideration as the delay and the circumstances could correctly be regarded as reducing the credibility of the complainant. It was important that the jury be expressly so told.

I appreciate in this case there were directions to the jury relating to the significance of the parties who made the complaint but they did little more, in my submission, than repeat what the submissions had been of the Crown Prosecutor and the defence counsel.

In the next case, Reg v Johnston (1998) 45 NSWLR 362 where the delay in making a complaint was of the order of five years, Chief Justice Spigelman at page 375, having reviewed a number of authorities in relation to this area, set out a number of what his Honour described as propositions relevant to determining that particular case, but my submission is that a number of the matters set out by his Honour at 375 have relevance to this case and many other similar cases.

In the end his Honour says at point F, which is item number (vii) in the list his Honour gives:

In some cases a warning which uses terminology such as "dangerous" or "unsafe" to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v).

The first point his Honour made is that:

Whenever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair.

I will not read out all the points his Honour makes but I rely upon them.

GLEESON CJ: I notice that at page 368 in the judgment of Chief Justice Spigelman, there is a quotation, I think, from the person who drafted the New South Wales provision to the effect that the warning that was traditionally given was based on a presumption that certain types of people are prone to tell lies, complainants in sex cases being included in that category.

MR RAFTER: Well, the same reasoning would underlie section 632.

GLEESON CJ: The plain purpose of the legislation is just to get rid of that notion, is it not?

MR RAFTER: Yes, I submit so, and provided that the prohibition in subsection (3) is not infringed, then the judge is free to make appropriate comments on the evidence including the fact that the particular complainant happens to be a child.

KIRBY J: Not only free to, but obliged to if that is required in order to ensure the fairness of the trial.

MR RAFTER: Yes, that is right, indeed, your Honour. In Victoria the subject is governed by the Crimes Act and there has been a number of decisions in Victoria on the point. Two of the cases received favourable comment from this Court in Crofts, that is, R v Omarjee (1995) 79 A Crim R 355. Firstly, in the joint judgment of the Court at page 368, about halfway down the page where the Court is discussing grounds 5(i) and 5(ii), their Honours say that those two grounds which apply to both the counts involve a submission that the:

trial judge erred in that he failed to direct the jury that the absence of a complaint over a period of some three years, or the delay in making one, ought to (or might) be taken into account -

in evaluating the complainant's evidence. Now, it appears, from the bottom of that page going over to 369, that it was accepted for the Crown that section 61 of the Crimes Act in Victoria:

did not preclude the giving, and indeed did not preclude the existence in an appropriate case of an obligation to give a warning as to the danger of convicting a person accused of a sexual offence upon the uncorroborated testimony of the complainant.

GLEESON CJ: Mr Rafter, we are concentrating here on section 632. Is there a specific statutory provision in Queensland which deals with the matter of delay in complaint?

MR RAFTER: No.

GLEESON CJ: There is in some other jurisdictions.

MR RAFTER: Well, for instance, in Victoria - - -

GLEESON CJ: Yes, in New South Wales and apparently Victoria, jurors may have to be warned that there may be good reasons why a person would delay in complaining about a matter of this nature.

MR RAFTER: There is no equivalent statutory provision in Queensland.

GLEESON CJ: Thank you.

MR RAFTER: That would leave in place the traditional requirement to give an appropriate warning in accordance with Kilby v The Queen, for example, although it may not necessarily be inappropriate to point out the sorts of things that are in the statutory schemes in the other States. In Omarjee, at the bottom of page 370 the Court discusses the particular grounds of appeal and their Honours say that although it appeared that:

in the course of his whole charge the trial judge drew attention to almost all, if not all, the specific "dangers" asserted in the applicant's argument on grounds 5(ii) and 8, in the critical part of the charge, set out -

earlier in the judgment -

in which he gave the jury directions about the evidence of -

the complainant -

the trial judge dealt only with the delay in the making of a complaint. Moreover, although he discussed at some length the factor which might "not have been apparent to the jury" -

and it cited Longman -

namely, the effect of the delay upon the availability of evidence to the applicant, he did not deal with the effect of the delay upon the credit of -

the complainant -

at least expressly.

Their Honours go on to say that:

Finally, on the question of delay, his Honour, largely at least, simply repeated the arguments put to the jury by the applicant's counsel. We say "largely", because it is not clear to us whether the second part of the paragraph -

and it is set out there -

is in direct speech.

The point here is that all the judge seems to have done on this aspect of delayed complaint is to repeat the submissions that counsel had made to the jury and then leave it for the jury's consideration. The direction ought to have been stronger, in the appellant's submission. As I say, Omarjee was discussed by this Court in Crofts and was apparently approved, as was the other Victorian decision, R v Miletic) 1 VR 582. The statutory provision there is set out at page 602 and the court considered that the evidence in that case required careful scrutiny and the jury should have been directed accordingly.

The other Victorian decision is R v Young (1998) 1 VR 402. The summing up given by the trial judge is set out at page 407 and at about line 17 on the delay aspect, the summing up is set out in full. It is a more complete direction than was given in this particular case, in my respectful submission. Then one sees, at the bottom of page 408, line 45, that the court considered that:

a Longman direction was required in all the circumstances of this case.

Their Honours saying:

The delay of more than five years without a complaint was by itself a matter which might well have justified the giving of a Longman direction. When there is added the facts that the complainants were not only young but friends, and that the charges had arisen because the police had gone to the complainants seeking evidence, rather than in response to any complaint.....the conclusion is in our view inescapable that the jury should have been properly warned, with the full weight of judicial authority, that it would be dangerous to convict the applicant on the evidence of the complainants unless the jury scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning were satisfied of its truth and accuracy.

GLEESON CJ: How old was the alleged victim in the present case?

MR RAFTER: At the time of the trial he was nearly 12, your Honour; he was 11 years and nine months.

GLEESON CJ: At the time of the offence?

MR RAFTER: At the time of the offence he was eight years old.

GLEESON CJ: What knowledge or experience would enable a jury, in the absence of evidence, to conclude that a child of that age dealt with in this way would be either likely to complain or unlikely to complain? Who would know?

MR RAFTER: One would expect the jury would utilise their own common sense and experience. As I said earlier, some of them might be expected to be parents of children or perhaps at some time had been parents of eight-year-old children - - -

GLEESON CJ: What would the common sense and experience of a parent tell the parent about whether, if these events had happened, the child would be more likely to complain or more likely to say nothing?

MR RAFTER: Well, experience might dictate that some children will complain and some will not.

GLEESON CJ: Exactly.

KIRBY J: It would depend a bit on the nature of the family arrangement, would it not?

MR RAFTER: There is obviously less likelihood of complaint whether the - - -

GLEESON CJ: It might depend upon the nature of the child too.

MR RAFTER: Well, that is right and where the offender is, say, a parent or someone who stands in a position of authority in relation to the child, there might be different considerations applicable, but those observations, in my respectful submission, do not reduce the force of the appellant's argument that some directions were required in this case.

HAYNE J: Directions as to accuracy of recall, for example.

MR RAFTER: Yes. Now, the final case relating to schemes in other States is Petty v The Queen (1994) 13 WAR 372, dealing with the Western Australian provision. The directions given to the jury in that case are set out under the heading "Grounds 4 and 6" on page 376 and the point...[inaudible]...continues on page 377. At the bottom of page 377 Justice Franklyn said that:

in particular, his Honour did not give any direction or warning that because of the delay in complaint and prosecution the appellant had lost "those means of testing the complainant's allegations which would have been open to him had there been no delay" The appellant was consequently unable "to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt on the complainant's story". Further, his Honour gave no direction which drew clearly to the jury's attention that the delay in prosecution had direct bearing on the reliability of the six year old complainant's recollection of events which had occurred six years earlier as well as upon its honesty. Nor did he direct that the young age of the child itself was an important factor in considering those issues. Nor did he remind the jury of specific matters of concern which arose out of her cross-examination and reflected directly on the reliability of her evidence.

Then a little further down the page the judge says that one of these particular matters was the complainant's admission that she had discussed "the matter" with a number of other people also and the same appears to have occurred in this particular case.

GLEESON CJ: In this particular case, which may explain why it was conducted with such apparent...[inaudible]...the accused was not saying, "This is all a misunderstanding, the child is exaggerating what happened, there was an innocent attempt at affection that was misunderstood", or something like that; the defence case simply was nothing even remotely resembling this happened.

MR RAFTER: It was common ground that there was an overnight stay in the garage and the defence case was, as your Honour indicated, that nothing similar to this occurred.

GLEESON CJ: Does that mean there were really only two possibilities consistent with the innocence of the accused? One was that the child was dishonestly making up a false accusation; and the other was that the child fantasised or imagined something that did not actually occur.

MR RAFTER: Yes.

HAYNE J: How can that be? Was not a live issue about penetration or no? Was not that fundamental to conviction on the counts for which this accused was convicted?

MR RAFTER: Yes, your Honour, that was a live issue.

HAYNE J: So an incident of the general character described by the child may have occurred, but that would leave as a real and lively question what offence had been committed.

MR RAFTER: Although, of course, the defence case fundamentally was that nothing happened. It was a very live issue, as to whether or not there had been penetration and that had significant consequences for - - -

GLEESON CJ: The defence case was, "I didn't touch him or go anywhere near him. I was sleeping on a mattress located a foot away from where the child was".

MR RAFTER: Quite, but, as I will come to in discussing ground 2, it was not necessarily clear-cut that there had been actual penetration.

GLEESON CJ: I understand that.

MR RAFTER: The medical evidence was, in effect, neutral and there were conflicting statements by the complainant. It is accepted for the appellant that there were clear statements that there had been penetration, but, on the other hand, there were statements in cross-examination and re-examination that may have cast doubt upon that. The jury was not given any assistance at all by the learned trial judge on that particular aspect of the matter. Notwithstanding the brevity of the trial, the narrowness of the issues that were involved, neither of those matters mean that the decisions of this Court in Longman and Crofts are to be not applied in these particular circumstances, in my submission.

GLEESON CJ: Is that a convenient time to adjourn?

MR RAFTER: Yes, your Honour.

GLEESON CJ: Right, we will adjourn until 2.15 pm.

LUNCHEON ADJOURNMENT 12.49 PM

UPON RESUMING AT 2.20 PM:

GLEESON CJ: Yes, Mr Rafter.

MR RAFTER: Yes, your Honours, in relation to the section 632 point, the final point that I seek to make is that in addition to those features identified by Mr Justice Lee, there is the additional factor that the jury had in the jury room during the deliberations the tape recorded interview, exhibit No 1, with an invitation from the judge after a request for redirection "to play that as much as you like", at the top of page 57 of the appeal book,. As I indicated earlier, that sort of matter is the subject of a decision of the Court of Appeal in Queensland - - -

KIRBY J: We would not interfere on that basis at all, would we? This is a decision that has come down since. No application was made at the trial. The issue has not been properly ventilated before the judge and, really, the rule is now established in Queensland by the later decision.

MR RAFTER: Precisely.

KIRBY J: It may be a sort of a makeweight point, but it is hardly the sort of thing on which the High Court is going to - - -

MR RAFTER: I would not expect the Court to interfere on that basis alone, but it is just one of a number of substantial features about the case that really caused the original trial to miscarry.

The point that is sought to be made is not only the point I made earlier concerning this decision which is Reg v H, QLR of 3 April 1999, that ordinarily, unless both sides agree, the tape-recorded or video-recorded interview ought not go into the jury room, but if the tape recording is replayed, there should be a direction to the jury not to give that additional weight because the evidence in-chief, in effect, is being heard a second time. The President of the Court of Appeal, Justice McMurdo, at page 12 made that observation, and so too did Mr Justice Shepherdson at paragraph 28(d), which is at page 7 of his Honour's reasons. But I accept your Honour Justice Kirby's point on that score alone, the Court would be disinclined to interfere. That really completes my submissions in respect of the first ground of appeal.

If I could move, then, to the second ground concerning the sufficiency of the evidence relating to the penetration aspect. I have really set out in my written outline of submissions the passages in the evidence and the passages in the judgments below that were relied upon. On this point the Court of Appeal was unanimous in dismissing the appeal. For the appellant, the submission is that the evidence of the complainant was attenuated with sufficient doubt on this aspect as to cause an appellate court to consider that it was not really open to the jury to conclude that there had been actual penetration, which would be required for a conviction on counts 1 and 3.

GLEESON CJ: In this respect something might turn, might it not, on the jury's assessment or appreciation of the way some of this evidence was given?

MR RAFTER: Quite possibly, and decisions like M v The Queen recognise the superior position that the jury is in, as opposed to an appellate court.

GLEESON CJ: Where a witness has given a positive answer on one occasion, then in other circumstances has perhaps given a weaker answer or watered down some earlier evidence, it really is a matter for the jury or the trial judge, if sitting without a jury, is it not, to assess the significance to be attached to the responses of the witness? It is very difficult for an appellate court on the papers to deal with that issue.

MR RAFTER: It is difficult for an appellate court to do that, but it is a task often undertaken under the unsafe and unsatisfactory ground that now is relied upon as a ground that the verdict is unreasonable or cannot be supported "having regard to all of the evidence", to use the phrase in section 668A.

GLEESON CJ: But here there was undoubtedly evidence to support the verdict, was there not?

MR RAFTER: Most certainly, but the clear evidence was attenuated by sufficient doubt, in my respectful submission, having regard to the passages to which I have drawn attention, including a final attempt by the Crown Prosecutor to clear the matter up, which resulted in an "I do not remember" answer in re-examination and, remembering, the medical evidence was inconclusive. The passage of the re-examination to which I refer is at page 31 of the appeal book. I will not read all of that out, but the final answer is, at line 25:

Was it inside that hole?-- I can't remember

It was after similar statements in the cross-examination, although admittedly - - -

KIRBY J: What page are you reading?

MR RAFTER: In the cross-examination, I am reading from page 20, at about line 5:

Can you describe more fully what you mean by he put his willy in your backside? Was it just on the outside?-- No - I can't quite remember.

You can't quite remember? -- No.

Then at line 15:

GLEESON CJ: Yes, we have read that.

MR RAFTER: Yes, all right. There are passages at page 25 again in the cross-examination, where the complainant said at line 55:

Really, really, really I do think it did. I'm quite sure that it did.

That is another piece of evidence. I accept it was a matter for the jury to resolve these issues, but the task of the appellate court is to examine for itself the evidence to see whether it was open to the jury to return the verdicts that it did.

KIRBY J: Did it ever get higher than that.

MR RAFTER: There were clear statements in exhibit 1, the audio tape recorded - - -

KIRBY J: No, but in the sworn testimony in the trial before the jury.

GLEESON CJ: It got higher than that at line 42 on page 25, just for a starter, did it not?

MR RAFTER: That is probably the passage that would be principally relied upon by the prosecution. The evidence in-chief was quite brief, commencing at page 13 of the appeal book.

KIRBY J: The evidence on 25 to which the Chief Justice has drawn is really evidence that a jury could accept, is it not?

MR RAFTER: Quite.

KIRBY J: If that is so, and if the question is whether or not weighing up the uncertainty of 20 and, shall we say, the long journey that ultimately took the Crown to getting the evidence, it really would be a matter for the jury to assess, would it not?

MR RAFTER: Yes, ordinarily, I accept that, your Honour.

KIRBY J: I mean, is what you are saying that having regard to all of the evidence, that the fact that it took such a long haul to actually get to the point on page 25 renders it so unsafe that no jury ought reasonably to have accepted that?

MR RAFTER: Yes. The submission for the appellant is if the jury found the complainant to be a credible witness, the jury ought really to have returned verdicts on the alternative counts, counts 2 and 4, because the very issue of penetration was attenuated with such doubt. I have drawn attention to the evidence and that is the submission that is made on that point.

KIRBY J: That is the sort of matter, if you were to succeed and retrial was ordered, that would have to be carefully considered by the Crown, having regard to the many opportunities that were given earlier to give the evidence and then the fact that it was ultimately brought out at page 25.

MR RAFTER: Yes, your Honour. In respect of ground 3, the point relates to the absence of directions given in respect of statements made by the complainant to other people, including the neighbour, one Mark Dainer, and members of his family that he had been interfered with. I have set out the evidence in my written outline of submissions. Most of those statements were contained in the tape recorded interview, exhibit 1, and I have summarised them in paragraph 7.1 of the written outline of submissions.

Justice Cullinane, in the Court of Appeal, considered that it was impossible to avoid the conclusion that the failure to object to the admission of that evidence, which was not fresh complaint evidence and could have been objected to, was undoubtedly for tactical reasons, in his Honour's view. Now, that finding by his Honour is not challenged, but the submission is that in all of the circumstances there ought to have been a direction to the jury that they should not regard the complaints that had been made as bolstering the credibility of the complainant boy.

In Mr Justice Cullinane's judgment at pages 149 to 150 his Honour deals with the point and says that the direction was unnecessary, but Mr Justice Lee reached the opposite conclusion at pages 131 to 132, and at page 132 his Honour said in the first complete paragraph on that page that:

It is 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.

And then his Honour goes on. The point is that the judge should have given a direction. The point is similar to that in Jones v The Queen (1997) 143 ALR at page 52, where the Court held that a summing up was deficient for failure to give a fresh complaint direction where there was admitted in the case evidence of fresh complaint.

In this particular case the complaint evidence did not qualify as fresh complaint evidence, and it being before the jury, there was a serious risk of that being misused, in my respectful submission. One sees in the judgment of the Court in Jones at page 54, the Court in a joint judgment said:

Unless the trial judge made clear to the jury the limited use they might make of the evidence of the complainant of her complaints and the evidence of those to whom she complained, there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged. The distinction may not be an easy one for a jury to grasp but this does not detract from the need for the distinction to be carefully explained.

GLEESON CJ: Mr Rafter, there was no complaint about this aspect of the directions or lack of directions at the trial.

MR RAFTER: No, your Honour.

GLEESON CJ: Does that not tend to suggest that it was not really a practical possibility that the jury might treat the evidence of complaint in this case as some kind of corroboration or independent confirmation of the evidence?

MR RAFTER: In my respect submission, it would be difficult to infer too much from the conduct of the trial below, and it is also open to the conclusion that it was oversight by counsel. That was certainly the view that Mr Justice Lee seemed to adopt.

KIRBY J: Counsel at the trial was not one to spin things out?

MR RAFTER: That is right. The complaint evidence - and in my respectful submission, there is no valid distinction to be made between a case where there is fresh complaint evidence admitted which involves the calling of Crown witnesses who are the recipients of the complaint, as opposed to a case where the complainant is the only witness giving the evidence, as occurred here where the complainant is saying, "I told so and so, and I told someone else". The need for a direction is still there and, indeed, it may be suggested that there is a greater need for a direction where the evidence before the jury is late complaint evidence that cannot possibly bolster credibility and the need for a direction is - - -

GLEESON CJ: Could I just ask you, where did the evidence of complaint emerge?

MR RAFTER: In exhibit No 1, the tape recorded interview, your Honour.

GLEESON CJ: Right.

MR RAFTER: If one goes to page 24 of my written outline of argument, paragraph 7.1, there is a summary of the various aspects that are relied upon. The point really involves an extension of the statements the Court made in Jones. Can I point to some comments in the Court of Appeal in Reg v Schneider, (1998) Court of Appeal 128, unreported judgment delivered 2 October 1998, in the judgment of Mr Justice Thomas. Now this was a case that followed Jones where there was no fresh complaint direction given, and his Honour at page 5, just above paragraph 11, says:

When evidence is properly receivable on one basis, and there is a clear risk that it may be illegitimately used on another basis, there is a need for appropriate directions as to how it may and how it may not be used.

And his Honour cites this Court's decision in BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, and this is an example, in my respectful submission, of evidence of that type where it is in without objection, undoubtedly as Mr Justice Cullinane found, for tactical reasons, probably so the whole history of the complaint could be before the whole jury, but there is a real risk of it being improperly used as a bolster to credit. As Mr Justice Thomas said, at page 8 of Schneider, paragraph 17:

in the absence of appropriate directions there is no way of telling how it may have been used.

That particular evidence. Those are my submissions in respect of the third point, your Honours. I have already made my submissions in respect of the orders that are being sought which somewhat depend upon the fate of each o the grounds of appeal. I rely on my written submissions in that respect. Thank you, your Honours.

GLEESON CJ: Thank you, Mr Rafter. Mr Byrne, the issue on which we need your assistance is that relating to the warning, not the other issues.

MR BYRNE: Thank you, your Honour.

GLEESON CJ: That has two aspects of it, though, as you will recollect.

MR BYRNE: It does, yes, it does. In fact, the question your Honour the Chief Justice asked of our learned friend this morning was what was the point of disagreement between the majority and the minority. In respect to that ground, ground 1 before this Court, there are in fact two points of disagreement and one of agreement.

The point of agreement was that all members of the Court of Appeal were of the view that it was not only open but required of trial judges, both before and post the enactment of section 632, for judges to ensure a fair trial by making appropriate comment to the jury on the evidence in the trial. So, on that point - and I do not understand our learned friend to argue to the contrary - the Court of Appeal were in agreement that that remains the law in Queensland. There is no dissent in that sense from statements of principle in Longman or Crofts or the other cases.

There were, however, two points of disagreement, one of principle and one relating to the facts of the particular case. The distinction in point of principle between the majority and minority was the effect that section 632(3) had in relation to the giving of general warnings, specifically so far as the present case is concerned general warnings as to children where there is a cross-over between a class of complainant, namely a child complainant as was the case here, and that person also being in a separate class of children, as distinct from child complainants.

The majority took the view that there was prohibition in the subsection on giving general warnings which would, in effect, render of no effect the object of the reforming legislation, that is, of saying that the evidence of particular classes of complainants were regarded by law as unreliable witnesses. There the majority took that view. His Honour Mr Justice Lee took the view that there was still open the ability and indeed the requirement of trial judges to give child general warnings, despite the enactment of section 632.

GLEESON CJ: Does that mean that the majority's view was that it would contravene section 632 if a trial judge were to give a warning related to a particular witness, and to particular facts and circumstances which in its terms was capable of reflecting generally upon complainants of a particular class?

MR BYRNE: I am not certain that it goes that far, but certainly it probably does, your Honour, because what the majority saw as prohibited was to give what was the standard direction that the experience of courts, human experience, was such that children were unreliable witnesses for the various reasons which have been explored this morning.

What the majority of the Court of Appeal were clear on, however, was that it was open to a trial judge to make comments upon the evidence of the particular child and the particular witness, and that, we submit, is the proper course to be followed where one has legislation of this type. It does not detract from a fair trial. It does away, we say, with stereotyping, the stereotyping specifically in the section with respect to classes of complainants. But the other obvious stereotype is to give general warnings in respect to children, where there would be a direct clash between the two.

The point of factual distinction between the majority and the minority - and I will come back to that point in more detail, but the point of factual disagreement was whether on the circumstances in the present case a warning in terms of Longman was required. Dealing, if I may, with the first of those two points of disagreement - what we say is a disagreement in point or principle - this Court has often spoken of perceptions that have grown up in the law in respect to complainants, particularly in sexual cases. His Honour Justice Deane in his judgement in Longman gave a brief history of how females were regarded as being suspects in making complaints and acknowledged that such an attitude could not survive in current times. The legislation being considered in Longman was quite different. It did not go as far as the legislation goes here, we say, but in point of principle - - -

GLEESON CJ: There may be a difference, may there not, between a female and a child? If you were to say, in instructing a jury, "The first thing I want to bring to your attention by way of warning is that the complainant in this case is a female", you would be visited with retribution of various kinds, but you would be rightly accused of stereotyping. But if you said, "I want to draw your attention to the fact that the complainant in this case was a very young child", it might be rather different, might it not? The fact that somebody is a very young child might be a legitimate matter to take into account in evaluating the weight of that person's evidence, whereas the fact that somebody is a female would not be legitimate matter to take into account in evaluating that person's evidence.

MR BYRNE: We do not, with respect, quibble with that at all. What we say, however, is that the proper focus is upon the evidence given by the witness. To use the example, one could not say that because the witness was a female one should look carefully at it. But if the evidence disclosed that the particular female had psychological problems, or had made up stories in the past, then certainly they are matters which would properly be commented upon.

GLEESON CJ: Let me take another example closer to my personal situation.

MR BYRNE: Yes, your Honour.

GLEESON CJ: Suppose you said, "That complainant is an elderly man and people of that age suffer from frailties of mental capacity of recollection", would that be a legitimate comment to make, assuming there was some evidentiary basis for the proposition that the person in this particular case was so afflicted?

MR BYRNE: That is precisely, with respect, our point, provided there is an evidentiary basis for it. If, for example, the witness, be he or she old or young, exhibits some sort of difficulty, some sort of memory recall, some sort of failure of memory in giving their evidence, then yes, we say that that requires comments to ensure a fair trial. What we say, however, is just because the witness is elderly or young, one should not start with the proposition that there are stereotypes and the jury should be directed to look at those stereotypes.

HAYNE J: Does that mean, then, that if a young person gives evidence confidently and without suggesting incapacity to remember anything, that no warning of any kind should then be given or could then be given about accepting that young person's evidence?

MR BYRNE: If the evidence, having been given and fully tested in cross-examination, no specific or particular chinks could be found in the make-up of that particular witness, we would say, yes, your Honour.

CALLINAN J: So it is to be assumed that the memory of a person 90 years of age is as good as the memory of the person of 40 years of age?

MR BYRNE: Without stereotyping, it is possible. There are persons of 40 years of age with rather bad memories, if I can use my own, not personal but - - -

CALLINAN J: There are not too many people of 90 years of age with good recent recall, I do not think.

MR BYRNE: That has to be accepted, but one would expect a competent cross-examiner to be able to expose weaknesses in recall in a witness, be they 90 or be they 10.

HAYNE J: But what do you do, then, say that the complainant who is 7, 8, 9 years of age whose understanding of the world and events is that of the 7, 8, 9 year old, it is not that of the adult? Does the judge simply point to whatever the cross-examiner may have brought out or does the judge say no more?

MR BYRNE: The directions, of course, must be focused upon what ensures a fair trial. To use, if we may, the example of the current facts: there were a number of features of the evidence of the complainant which could properly, we must concede, have been the focus of comment or directions to the jury. For example, there were the inconsistencies between "I cannot recall" to the details given of the penetration. There were statements made by the child such as, when asked to explain why he did not complain, saying "I did not know what sexual harassment was", and that is the type thing which brings in that understanding of the world which I think your Honour Justice Hayne is saying. But they are all matters which come, we submit, from the evidence, not from simply saying this is a now 11 year 9 month old child.

McHUGH J: But why not? Prohibition if it succeeds here is only against the law regarding a class of complainant as an unreliable witness, and no doubt the policy behind the subsection is for judges to say, as many used to say, that the law regards such and such a class of witness as unsatisfactory made it difficult for juries to accept the evidence of that witness. But why can a judge not say, "You may think from your experience that children of this age are unreliable, that they tend to fantasise, exaggerate, and so on"? It is a comment and it is a matter for the jury but why can a judge not make a such a comment consistently with section 632(3)?

MR BYRNE: Can we answer you in this way, your Honour. Comments are distinct, we say, from warnings. What we understand the majority to be saying here is one cannot say to a jury that experience of courts, experience of human behaviour, is such that this 8 year old, this 10 year old, will have the difficulties which your Honour alluded to. It is not - - -

HAYNE J: But Longman has a number of elements. There is the comment element that this all occurred a long time ago. There is the warning element that says, "Well, look, bear in mind that evidence that might have been gathered close at the time, cannot be - that you have placed the accused in a particularly disadvantageous position simply because time has elapsed. Now, do we get anywhere by carving things up into comments, warnings, directions?

MR BYRNE: I have used the word "comments" because that is the terminology used in 632.

HAYNE J: I understand that.

MR BYRNE: We must accept that there will be a line where that comment is converted to a warning depending on the evidence and the way it falls. If it is such that a warning is required, then the authorities seem clear that trial judges must give a warning.

But to come back to your Honour Justice McHugh's question, there is a difference, we say, in focusing a jury's attentions on matters which are evident to them, namely the age of the child, his recall as demonstrated and those type of things, than giving the general stereotypical warning because on the one hand you would have the prohibition in 632 saying a judge cannot intimate in any way that a child complainant is unreliable as a matter of law, and then you would have the trial judge saying that that may be so but the child witness, in effect, as a matter of law, is unreliable because you the jurors will follow my directions and accept that that is a matter you must take into account.

McHUGH J: But the section directs itself to what the law regarded as a class which was unreliable. But take what in Pollitt's Case were called prison informants - - -

MR BYRNE: Yes, your Honour.

McHUGH J: - - - surely a trial judge would be entitled to say to a jury, "This evidence comes from a prison informant who has a lot to gain by giving this evidence against the accused, and I tell you it would be dangerous to convict on the evidence of such a person. The experience has been that such people are unreliable." Now, he is not saying that the law says it, but does such a comment go over the line? I suppose you say it would?

MR BYRNE: No, we say it does not. We say 632 does not touch upon that area. Prison informants are not complainants for present purposes, and there is nothing restricting any comment that would be required by a judge in those circumstances.

GLEESON CJ: We are all now well and truly conditioned to believe that any form of stereotyping is a wicked thing, but when St Paul observed that when he was a child he spoke as a child and understood as a child, he was not engaging in stereotyping, he was just making an observation about human nature, was he not?

MR BYRNE: Indeed.

GLEESON CJ: What is wrong with a judge pointing out to a jury, and perhaps in an appropriate case, pointing out strongly to a jury, that the evidence they are concerned with is the evidence of a very young child, with all that goes with that, not as a matter of law, but just as a matter of human experience?

MR BYRNE: Nothing. I hope we are not at cross-purposes with the Court on that point. We accept that there are cases which will require that. What we say, simply, is that one does not start with the predisposition to saying this is a child, therefore certain directions must be given.

HAYNE J: Could I then try to make it concrete. If we went to Longman 168 CLR 90, you will see at about point 7 of the page there was several significant circumstances in the case, the delay in prosecution et cetera, do you say it would have been open to the trial judge to direct the jury in accordance with that list of factors in this case?

MR BYRNE: Yes, we must say that, and we do.

HAYNE J: Do you say it was required of the trial judge in this case?

MR BYRNE: That is the second aspect of ground 1, the difference between the majority and the minority was whether, in the facts of this particular case, warnings were required. Does your Honour wish me to answer that question directly?

HAYNE J: At some point, no doubt you will; and at some point also you might answer whether there is any explanation consistent with reasonable advocacy why counsel for an accused in this person would not ask for such a direction.

MR BYRNE: I have a great deal of difficulty answering that question, your Honour.

McHUGH J: I can only put it down to the fact that counsel was inexperienced. I do not know experienced the counsel was, but there are questions asked and a reasonably favourable answer got - - -

MR BYRNE: Quite favourable answers given, yes.

McHUGH J: - - - and then he is back into it again and then he gets the adverse answer.

CALLINAN J: Mr Byrne, it is a little bit anomalous, is it not, if you have an eye witness of the same age as the complainant? On a construction of the section, there would be nothing to prevent a judge from saying that the law regards children of the age of the eye witness as unreliable. The section only refers to complainants.

McHUGH J: Yes, and the problems seem to me to be immense in the fairly common case where propensity evidence is led and the evidence of one child is used to corroborate the evidence of another. So, in so far as the "complainant" is a witness in respect of the other matter, you could make the comment, apparently, but you cannot make it in respect of his or her own complaint.

MR BYRNE: We have two answers to that proposition as it is put to us. One is more bold than the other, and that is that where that situation arises, one should, again, avoid stereotypes. One can make comment upon the age of the child, the position of the child, and all those things, without stereotyping by way of children directions.

HAYNE J: How? As soon as you say to a jury, "This child was eight years old", pause, nudge, nudge, wink, wink; what are you telling them? It is significant that the child is eight. Why is it significant? Because eight year olds bring to events and recollections - - -

MR BYRNE: But one is not going on to direct that because the child is eight years old, that person is especially suspect. So, a way around your Honour Justice Callinan's problem, and it is a bold suggestion, is that one focuses or formulates the direction, so as to not leave that strict dichotomy between the complainant child and the witness child.

KIRBY J: Why would one not just construe section 632 according to its terms? It does not abolish the right, and in certain circumstances, a duty of the judge to give a direction, including one relating generally to children or old people, or another group, it merely says:

a judge is not required by any rule of law or practice -

so you have just got to focus on what Parliament has done. Its focus in on removing a requirement, and a requirement that rested on a rule of law or practice.

MR BYRNE: That is certainly so for subsection (2), your Honour. Subsection (3), we say, goes further because it states that:

the judge must not warn or suggest in any way to the jury that the law regards any class of complainants as unreliable witnesses.

It is that prohibition which has the potential of leading to the anomalous situation which your Honour Justice Callinan referred to.

KIRBY J: In the context of relieving subsection (2) of what would otherwise be a broader operation.

MR BYRNE: I am sorry, your Honour?

KIRBY J: That is in the context of relieving subsection (2) of what might be read as a broader operation. Subsection (3) starts:

Subsection (1) and (2) does not prevent a judge from making a comment -

so it is related to the operation of subsection (2) in this case.

MR BYRNE: Quite so, but there is that further prohibition in the second half of subsection (3).

GLEESON CJ: Which you say is at large and has nothing to do with corroboration.

MR BYRNE: That is so.

GLEESON CJ: If it is at large, why is it limited to sex cases?

MR BYRNE: It is not limited - - -

GLEESON CJ: Then why does it not cover prison informers?

MR BYRNE: Prison informers, as I understand the position, would be witnesses rather than complainants.

GLEESON CJ: Suppose they were complaining that they were bashed by a police officer.

MR BYRNE: Just so that I am sure about your Honour's question - - -

GLEESON CJ: Would not a judge be entitled to say, as has been observed in many cases, that you have to be very careful evaluating testimony that emerges from the inside of a prison, because all sorts of things go on in there that might be outside the experience of ordinary people, and evidence of that kind might be difficult to test or evaluate.

MR BYRNE: We accept that. Again, those type of things, directions can be given upon.

GLEESON CJ: Then, in its application to the facts and circumstances of the present case, what do you understand to be the point of issue between you and your opponent on this argument?

MR BYRNE: On this argument we understand the point of distinction to be whether general warnings are still open in respect of child complainants.

GLEESON CJ: Could you give an example of the general warning that you say is impermissible, and then could you give an example of a warning that you say is permissible.

MR BYRNE: What we would say on the facts of this case is that it would be impermissible for a judge simply to warn a jury to the effect that human experience and experience of court were that the evidence of children is especially suspect because of the experience of courts and human experience. We say that is prohibited. We say it would be permissible to say to a jury that they can have regard to, and should have regard to, the age of the child, the length of delay between complaint and trial, any inconsistencies in the evidence, any other matters which may have arisen during the course of the trial affecting that particular witness.

GLEESON CJ: Where do we find Mr Justice Lee saying that a warning of the kind that you say is impermissible should have been given?

MR BYRNE: I have set out the passage in my written outline. I would use the appeal book references. The reference to the appeal book is at page 132, lines 34 to 44.

CALLINAN J: What Justice Lee says on page 133, line 10, would you disagree with that:

To suggest otherwise would be tantamount to prohibiting any warning ever on any complainant's evidence. That is because all complainants will fall into some class or other.

MR BYRNE: We respectfully disagree with that, because it is clearly open on the authorities for a trial judge to make comment, and that comment may amount to a warning, depending on the circumstances of the case. So, our point of distinction is, perhaps, not a large one, but it is, we say, a point of principle, an important one.

I will move to the second part of ground 1 unless the Court wishes me further to address first, and this is where I must confront your Honour Justice Hayne's question. The majority took the view, and it would seem, in our respectful submission, based upon that passage which your Honour referred me to earlier in Longman's Case 168 CLR 90, that is the joint judgment of Justice Brennan, as he then was, Justices Dawson and Toohey - the matters there said, and I am reading from about point 6 or 7:

The question which arose, and which arose under the latter part of par (b), was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts.....the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother.

A number of those are the very factors which are part of the nine set out by Mr Justice Lee in his dissenting judgment. What was said by the majority is that the next sentence which follows in the joint judgment was of crucial importance because it reads:

It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence.

What the majority, or the joint judgment, at least, in Longman is saying, is that those factors would not be surprising if comment was called for. But, the turning point, at least, in Longman, seems to have been the factor which is set out on page 91 of the joint judgment, and that is the long delay which may not have been apparent to the jury, and the applicant's loss of the means of testing the complainants allegations.

What the majority said here was, yes, we recognise all of those factors; those factors are present here. It was open to the trial judge, and indeed, his Honour could have made comments to the jury in respect to those matters, but the mere fact that he did not was not such as would necessarily result in a miscarriage of justice.

The context of the case is of some importance in assessing those factors because there was not a lengthy delay, albeit it was one of almost four years. It was not a case where there was complete deprivation of being able to test the complainant's story. That was so factually because there was no dispute on the evidence that there was one night on which this had occurred. There was no dispute that the child had associated with the appellant subsequent to that. There was no dispute, and indeed, the father of the child was called and said, in effect, he was in hospital at the relevant time and that therefore the appellant was, in fact, babysitting and taking care of the child. So all of those matters could be tested, and in fact, evidence was led of them.

CALLINAN J: But the effluxion of time has an effect on memory. It allows imagination to operate. Leaving aside any question of the medical evidence, or the opportunity to test the matter medically, which Mr Rafter referred to, the effluxion of time, itself, can erode, I think, opportunities of obtaining - well, a contemporaneous account, it is going to be much more vivid, much more accurate - - -

MR BYRNE: But there is no doubt that the appellant lost in this case the opportunity of having a contemporaneous complaint and being able to answer that straight away. Equally, there is no doubt that he had lost the opportunity of having a medical examination of the complainant child. Both of those things were recognised by the majority of the Court of Appeal, but they said in effect that those matters must have been apparent to the jury given the limited scope of the evidence, and it was not therefore incumbent upon the trial judge to draw the matters to the jury's attention. That is probably the best I can do answering your Honour Justice Hayne's question.

HAYNE J: Can that sit with the proposition that reasonable representation would have led to the request for the direction?

MR BYRNE: Certainly it is said in the judgment of Mr Justice Lee that if such a request for a direction was made, the trial judge may have given it, and for that reason there was a miscarriage of justice. Our response is that whilst that may be true, it does involve a degree of speculation because the trial judge here did not. There was, as we now know, no request for redirection, but in fact two justices of the appeal court, in assessing all the circumstances, were of the view that, no, they were not of the view that it was fatal for such directions not to be given.

KIRBY J: But is there not, arguably, a difference in quality between a jury knowing, because of the recency of the evidence, all of the factors Justice Lee has referred to, and the jury playing its mind upon those factors with the assistance of the judge who lists them for the jury, and requires from the authority of his office that they give particular attention to those matters, and in combination with - - -?

MR BYRNE: Yes, there is, your Honour.

CALLINAN J: Particularly when, Mr Byrne, it seems rather unlikely that the jury would have got much assistance from the defence counsel's address.

MR BYRNE: I cannot have that as a fall-back position, that those points would have been hammered at length in defence submissions to the jury.

KIRBY J: Hammered at length in three minutes.

MR BYRNE: That is three minute, your Honour. So, I cannot fall back on that. I must fall back on the way the trial was conducted, for all its faults, and the fact that the evidence fell out in less than one day.

HAYNE J: Can I raise an equally difficult subject, Mr Byrne, which you may answer or not as you choose. Is there any reason why counsel for the Crown ought not to have raised these matters with the trial judge to prevent error being made? The prosecution, it seems to me, bear a considerable responsibility for preventing errors of this kind.

MR BYRNE: We accept that, of course, your Honour. All I can point to is what was mentioned in discussion this morning, that Crown counsel did, at least, say to his Honour at the outset - I will just try and turn up the passage quickly. At the top of page 8 - and I make a submission that it is apparent that there is an error in the transcript in line 1 or about line 4 - in response to the question by his Honour at the bottom of page 7:

I am not obliged to give the warning?

Crown counsel is recorded as saying:

No. It does, of course, restrict Your Honour's power to make a comment about the evidence.

In my submission, to make sense of that, a "not" must be read in after "does", so "It does not, of course, restrict your Honour's power to make a comment about the evidence". That, we say, is a correct statement of the law.

KIRBY J: It may be that that "not" should be there, but it may be that it was not, it may be the Crown counsel led the judge into some sort of view about the scope of the section which is wider than its terms.

MR BYRNE: But if one reads the next section:

That is of course acknowledged within the legislation, but what is proscribed as I interpret the legislation and my submission is this: Your Honour can't, in effect, suggest to the jury" - and I will not go on, but counsel is obviously referring to the start of section 632(3) which says:

Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make - - -

KIRBY J: Yes, but if you read on, the judge did not even have the section in front of him. Did not even have the Criminal Code in front of him, conducting a criminal trial.

CALLINAN J: Counsel for the defendant said he had not even seen the legislation.

KIRBY J: Not a word is mentioned of the long line of authority that we have had to go through today.

MR BYRNE: That is so.

KIRBY J: I agree, with respect, with what Justice Hayne said. Representation of accused is variable but the standards of the Crown ought to be reasonably uniform and in these cases a lot of trouble could be saved, including of this Court, if trial judges get assistance from the Crown counsel. It would save them from mistakes.

MR BYRNE: Of course. We must take on board your Honour's comment. If I can, just before leaving that, refer to line 25 on that same page, where Crown counsel is recorded as saying:

Sub-section 3 of the relevant section acknowledges the inherent power of the trial Judge to make comments about a particular complainant.

So again, we would say a correct statement of the position. The fault, if any, was after the summing up Crown counsel not to point out particular matters. But, certainly, it could not be said that the counsel who appeared for the Crown misled the judge as to the law. Those are our submissions on ground 1.

GLEESON CJ: Yes, thank you, Mr Byrne. Yes, Mr Rafter.

MR RAFTER: Your Honours, the errors in the trial, in my respectful submission, were contributed to by the fact that it is apparent that not only was the legislation not in court, but no one had looked at the authorities from this Court, particularly Longman. Had that been done, the error might have been avoided.

My learned friend makes the submission that, in effect, the provision abolishes the requirement to give directions in respect of child complainant witnesses. My submission is, as I said earlier, that that is not the case so long as the judge does not infringe the prohibition in subsection (3). But, even if one is looking, as my learned friend suggested one would have to, for particular features in the evidence of the case, in this matter we have evidence from the complainant as to false in his recollection on vital matters, and that factor alone would justify a direction to the jury to scrutinise carefully the evidence of the child, because of problems with memory.

As to the general matters: the appellant was placed at a considerable disadvantage in the matter by reason of the absence of any medical examination of the complainant soon after the alleged offence, because what he was faced with rather than a medical examination that may have proved things one way or the other, was a neutral examination conducted in October 1995, but with the real sting in the tail relating to the continued toileting problems that he had had since about 1993, and the evidence from Dr Gavranich that there was a correlation between trauma in a child and these sorts of difficulties, at page 36 of the appeal book about line 18. So, there was considerable disadvantage for the appellant in the failure to make a prompt complaint which could have resulted in an early medical examination. Those are my submissions in reply, your Honour.

GLEESON CJ: We will adjourn for a short time to consider the course that we will take in this matter.

AT 3.14 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.22 PM:

GLEESON CJ: In this matter the Court makes the following orders for which we will publish our reasons in due course:

(a) appeal allowed;

(b) set aside the orders of the Court of Appeal made on 20 March 1998 and in lieu thereof order that the appeal against convictions be allowed;

(c) that the convictions and sentences be quashed; and

(d) that there be a new trial of the appellant.

The order that there should be a new trial of the appellant is not to be interpreted as an instruction to the prosecuting authorities that such a trial should take place. That will be a matter in their discretion, having regard to the facts and circumstances of the case. We will adjourn.

AT 3.23 PM THE MATTER WAS CONCLUDED