RPS v The Queen S116/1998 [1999] HCATrans 306 (8 September 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S116 of 1998

B e t w e e n -

RPS

Appellant

and

THE QUEEN

Respondent

GAUDRON ACJ

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 8 SEPTEMBER 1999, AT 10.18 AM

Copyright in the High Court of Australia

MR A.J. BELLANTO, QC: If the Court pleases, I appear with MS B.J. RIGG for the appellant. (instructed by Uther Webster & Evans)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent. (instructed by the Office of the Director of Public Prosecutions (NSW).

GAUDRON ACJ: Yes, Mr Bellanto.

MR BELLANTO: May I first of all invite the Court to note some corrections in the submissions advanced. I think I gave the Court these on the last occasion, but I should go through them again. On page 17, paragraph 81, would your Honours delete the end of the second line, "30 and 35-6" and insert "462 and 464".

McHUGH J: I am sorry, Mr Bellanto. What paragraph is it?

MR BELLANTO: Paragraph 81.

McHUGH J: Is it page 17?

MR BELLANTO: The second line in that sentence, at the end of the line there is a reference to "see pages 30 and 35-6". Would your Honours insert instead there "462 and 464". On page 19, paragraph 90, second-last line, there are some page references. Would your Honours insert after the page reference 165.18, "166.15-167" and delete in the last line in paragraph 90 "p38" and replace that with "page 465". On page 20, paragraph 95, second-last line, the sentence commencing "See transcript references", would your Honours delete that and delete the last line.

May I at the outset indicate the form of the argument the appellant will present to the Court. There are five grounds of appeal, four numbered 2 to 5 in the notice of appeal, which was subject to special leave granted on 7 August 1998, and the remaining ground, the right to silence ground, numbered 6, was the subject of leave granted by the Court on 4 March 1999.

KIRBY J: Was that how it arose out of a question that Justice McHugh asked you at the outset of a previous hearing?

MR BELLANTO: Yes, your Honour.

KIRBY J: And that was not a matter that was argued in the Court of Criminal Appeal?

MR BELLANTO: No, your Honour.

KIRBY J: And it is not contended that there is any factual, or other basis, on which there could be a reason why the Court of Criminal Appeal might have refused you leave to argue that case, or had you brought it belatedly to them?

MR BELLANTO: No, was not. It just did not arise at the time. The thinking was, I think, at the time that the direction was a direction that was commonly used by trial judges in New South Wales and for that reason it was felt that it was not a matter that cried out for intervention, at least - - -

KIRBY J: I only raise the question because of the issue as to whether - if a matter is not argued in the Court of Criminal Appeal, then it is within an appeal to this Court to bring it to us if it has not been contested and wrongly decided in the Court of Criminal Appeal.

MR BELLANTO: Yes. Well, as your Honour has put it is the position.

KIRBY J: I think we should just press on and hear the argument.

MR BELLANTO: Yes, your Honour. The partial admission ground, ground No 2, and the inconsistent verdict, ground No 5, are linked, because the admission, or the so-called admission was capable of explaining the convictions on counts 6, 7 and 8 but not 4. The bias, or judicial interference ground, ground No 3, and the motive to lie ground, ground No 4, are also linked because one of the manifestations of judicial bias and interference is the disproportionate attention the trial judge gave to the reason for maintaining the application for victims' compensation. Further, the trial judge would not have interfered in the cross-examination as early as he did had it not been for his view, formed prior to the trial, that the counsel at the trial deliberately misquotes evidence. That was accepted by the court below.

Therefore, it is proposed to argue these grounds in the order of the written submissions, which will then provide a sound working backdrop for the final ground, ground 6, the inappropriate directions by the trial judge on the failure of the appellant to give evidence.

May we make the following six observations on the trial generally. This is the first point we make. The evidence for the prosecution fell into two categories: direct evidence by the complainant of sexual interference between 1983 and 1993 between the ages of four and 14; and alleged partial admission to counts 6, 7 and 8 relating to digital penetration.

Second, the appellant did not give evidence at the trial and relied upon the presumption of innocence. However, he provided on arrest on 5 August 1984 a written denial to Detective Donaldson in these terms:

I RPS have never at any time or in any way vaginally penetrated my daughter I.

Thirdly, the case against the appellant was not circumstantial.

McHUGH J: When he made that statement, had other allegations been put to him, had allegations been put to him?

MR BELLANTO: Yes, the broad allegations the subject of the charges were put to him seriatim and he declined, I think with the exception of one charge, to say anything on the advice of his lawyer, and on one charge he said, "What do you want to say? I think he said "No". But, essentially, his response was he did not wish to answer questions on the advice of his lawyer.

McHUGH J: I appreciate that, but then having made that statement, is it not a Woon-type situation, where the fact that he just refers to that one area could be taken as an admission, a consciousness of guilt on his part in relation to the other allegations against him?

MR BELLANTO: It was not a case of answering some questions and not others. It was a case of electing, on the advice of his solicitor, not to answer questions and then, after the allegations were put to him, it was suggested to the officer that he might make a written statement and, on the advice of his solicitor, he then made that statement.

McHUGH J: But it is confined to vaginal intercourse, is it not?

MR BELLANTO: No. Well, yes. Vaginally penetrated, yes. Yes, it is.

McHUGH J: Why would it not be open to a jury to conclude from the fact that he makes such a selective statement, having regard to the generality of the allegations made against him in the various charges, to conclude that he was admitting the other matters alleged against him which accords with the evidence that Mrs T gave where he said, "I've never had intercourse with her but everything else she said is true". Does not that confirm that admission, or would it not be open to the jury to take that view?

MR BELLANTO: With respect, no, your Honour, because that response depended upon what he was told and what he understood the question to mean. The case against him was a case of vaginal penetration, penile and digital, and when he made that statement he was denying the allegations contained in the Crown case. He was making a general denial of what the Crown case against him was.

KIRBY J: By the way, Mr Bellanto, was an order for anonymity made in this case and does it extend to this Court? I would have assumed it does.

MR BELLANTO: Yes, your Honour.

KIRBY J: So, what is the appropriate way to refer to the complainant?

MR BELLANTO: We will just say "the complainant" and I think the same view should be taken with respect to the girl to whom the complainant complained who has been described as MM, so we propose to take the same course.

KIRBY J: Yes.

MR BELLANTO: I am just reminded by Ms Rigg that the statement that he made to Detective Donaldson would cover all charges and all allegations, if your Honour pleases. As I was saying to your Honours, the third point we make about the case is that the case against the appellant was not circumstantial. There were no unexplained facts. There were no facts peculiarly within his knowledge that called or cried out for an explanation. To use the words of the minority in Noble, there was no strong or cogent network of inculpatory facts.

GAUDRON ACJ: What is Noble? Can you give us a reference to it?

MR BELLANTO: Yes, your Honour. Noble is the Canadian case referred to in the submissions on page 5 on the right to silence point. The reference is (1997) 146 DLR (4^th) 385. We will be taking the Court to Noble in due course.

The case hinged primarily on the credibility of the complainant and the defence case was one of complete denial. The fourth point we make about the case relates to the sequence of events following the last allegation on 31 July 1993, the Saturday afternoon. These events were as follows: the day following, that is Sunday 1 August 1993, the complainant complained to her mother, Mrs T. The appellant was - - -

GAUDRON ACJ: We think we might just refer to the mother as "the mother".

MR BELLANTO: The mother, very well.

GAUDRON ACJ: Consistently with what has been done in relation to other people involved in the case.

MR BELLANTO: The mother, very well.

GAUDRON ACJ: Consistently with what has been done in relation to other people involved in the case.

MR BELLANTO: Very well, your Honour. The complainant complained to her mother on the Sunday and then the appellant was confronted on the Tuesday, 3 August 1993, by the complainant and her mother - by the mother and her mother. That is at appeal book page 206. The appellant was asked by the mother of the complainant's mother:

"Are you saying that you've never touched her with your hands or fondled her or put your penis inside her?"

The appellant replied:

"That's right".

The following week there was a phone conversation between the complainant's mother and the appellant wherein it is alleged the partial admission was made to this effect:

I have never had intercourse with her and everything else she said is true.

And on Monday, 9 August 1993, the complainant went to the Lismore Sexual Assault Clinic and it is alleged she spoke with a Ms Frereichs, the social worker, and the complainant made her statement to the police on 3 February 1994, some five months later, and then the appellant was charged on 5 August 1994, some six months after that.

The fifth point we make is that the complaint was non-specific as to time or event and that was made to the young school friend MM, and that was in 1988 or 1989, when the complainant was nine or 10, not eight as found by the court below. This is important because the court below found this complaint to MM was shortly after the events in count 4. However, this cannot be, because the complainant turned nine on 6 February 1988, so that this complaint was referable to counts 5 or 6.

The sixth point we make is that the Court may be assisted by a brief summary of the locations where the offences were said to have occurred. Count 1 covered a ten month period and was said to have occurred in a bath that was outside the caravan where the appellant was residing at the time and the complainant was staying on this particular property, known as "Close to the Edge", which was owned by a friend of the appellant and his former wife, their name being the Raphaels.

At this stage the complainant was aged four. Count 2 was on the same property, but in the Raphael's house, where the complainant had been staying for about a week in a young boy's bedroom and the appellant was staying in the Raphael's double bed. This was after Christmas in 1985, when the complainant was aged six or seven. The third count was on the same property, in the same house, that is the Raphael's house. I should say here, your Honours, that the house on the property was about 500 metres from the caravan, the subject of the first count. The caravan was down on a river-flat area about 500 metres from the house.

Count 3 relates to the house, and the complainant was said to be in Alistair's room - that is the young boy - and the appellant was staying in the barn next to the house in the loft, and this is said to have occurred in mid-year holidays when the complainant was aged seven.

Count 4 is alleged to have occurred at a place called Sphinx Rock which is about 25 kilometres from Uki, which in turn is south of Murwillumbah and east of Kyogle. Sphinx Rock was a communal property owned by the mother and step-father of the complainant. They bought 164 acres and sold off 12 acres to the appellant, who moved there in 1987. When he moved onto his 12 acres he initially built a garden shed for temporary accommodation, where he stayed. It is alleged, in respect of count 4, that the incident, the subject of that count, occurred in that garden shed. The period covered by that count is a four-month period around about the June holidays.

Count 5, which was the subject of a directed verdict, is alleged to have occurred between September and October 1988. The complainant's evidence put it in the May school holidays at the bails, a building built by the appellant, and she was sleeping in the kitchen, and she was aged nine. That count resulted in a directed verdict because the evidence of the complainant was inconsistent with the period referred to in the indictment.

Count 6 is alleged to have occurred in the new house built by the appellant on his acreage after he moved out from the garden shed. It is said to have occurred in the period July-August 1989 when the complainant was 10, and it is said to have occurred in the bedroom where the complainant was sleeping downstairs. The complainant said this incident took place one week after she had finished menstruating, at the age of 10.

In terms of sequence, the next incident, although it is not the subject of a charge, has been referred to as the catamaran incident, and that was an attempt at penile intercourse at the Whitsundays, where the complainant had been holidaying with some friends and the appellant.

Count 7 is also alleged to have occurred in the new house built by the appellant, when the complainant was aged 13.

Count 8, again, was in the new house, when the complainant was aged 14, and this was the last day in July, the Saturday. The following day the complainant and the appellant went to the Byron Bay markets. That was the Sunday, 1 August 1993.

The seventh point we make is this, that the trial did not flow, due in the main to the many interventions or interruptions by the trial judge, culminating at the close of the Crown case when defence counsel announced, and I quote, your Honour, "The defence calls Sandra Frereichs". That was the social worker that I referred to earlier. His Honour intervened and said, "You must call your client before you can call any other witness".

McHUGH J: Where did that rule arise? I have never heard of that before.

MR BELLANTO: That the accused must be called first?

McHUGH J: Yes. I mean, if you do not call the accused first you might be subject to some comment but I have never heard of that rule before.

MR BELLANTO: No, I think that is right, your Honour. I do not think it is a mandate but the consequences of not following it, of course, is that the client is in court when other witnesses are called and you would be subject to that type of comment, of course, but - - -

KIRBY J: His Honour's point is on the verb "must".

MR BELLANTO: Yes. Well, I do not think you must.

CALLINAN J: It is a misstatement of something in the presence of the jury, too.

MR BELLANTO: Yes.

CALLINAN J: It is very strongly impliedly critical of the conduct of the defence.

MR BELLANTO: Yes, your Honour, it is.

KIRBY J: But perhaps the judge - I mean, given the range of skills of counsel who appear in trials, perhaps the judge was trying to assist counsel if he did not know that this was the rule that had to be observed to avoid serious criticism.

CALLINAN J: Well, then, he should have said it, in my view, in the absence of the jury.

MR BELLANTO: Yes. Whether his Honour was stating what he understood to be the general rule or whether he was anxious that the appellant be called, it is difficult to know but I think the problem is, and it is picked up later on in the submissions, in the "Right to silence" submissions, that he certainly conveyed to the jury, and this was argued in the court below, that there was some deficiency in the way the defence case was being conducted by defence counsel not calling his client and not calling him first, but he certainly, we would say, conveyed to the jury the impression that the way the defence was about to present its case was open to criticism and, of course, it is compounded because his Honour then went on to say:

"That's what the law says. It is customary, and the accused must be called first."

GAUDRON ACJ: What page are you reading from?

KIRBY J: That was extracted - - -

MR BELLANTO: I am reading from the extract that has been provided, your Honour. It is annexed to the further submissions on the "Right to silence" ground.

KIRBY J: Is your point that on its own this would not perhaps be fatal to the conduct of the trial but, taken with other matters, it is one further ingredient of the prejudice that the judge exhibited to your client?

MR BELLANTO: Your Honour, in the court below it was argued as a specific point of prejudice and sufficient to ground a mistrial, and we do make that submission that it is of itself serious, particularly when one takes it into account on the argument on the right to silence because - - -

KIRBY J: We have to be careful that we do not get to a point that no conviction can ever be sustained. A person is called forward, the judge makes a spontaneous reaction and it is true that on reflection it could have been said differently and should have been said in the absence of the jury, but it has to be seen in the context of the whole trial?

MR BELLANTO: Yes, your Honour, we accept that and sometimes an appropriate direction can ameliorate a problem such as this and every case has to be considered in the context of the flavour and climate of the case. But in this case, the way the case was unfolding, the many interruptions, the attitude of the trial judge was becoming quite dominant throughout the hearing in many ways that have been referred to in the submissions, and this outburst or this comment by the judge at this time, at a crucial time, because it cannot be overlooked that the prosecution case had finished, the jury would be focused more than perhaps at any other time on the defence wanting to know what the defence was going to do about these allegations; and then at that critical time when all eyes and ears are on the defence, the judge makes the comment. We would say that it could not have occurred at a more inappropriate time.

The written submissions we have advanced and placed before the Court are quite detailed and we have endeavoured to provide the Court with the authoritative references in the submissions, and we are content in the main to rely on those submissions with some amplification. The first ground, ground 2, the partial admission ground, if we can address that at the moment. The so-called admission to the complainant's mother in paragraph 11 of the written submissions, "I never had intercourse with her but everything else she said is true", is important evidence for two reasons. Firstly, the jury were directed not only that it is capable of being an admission to counts 6, 7 and 8, but that as Crown evidence undenied, it could more readily be accepted as the truth and the appeal book reference is 340 point 7, and 348. The second reason why this so-called admission is important is this evidence and the direct evidence of the complainant was the only evidence indicative of guilt, particularly with respect to counts 6, 7 and 8.

I should interrupt myself just to indicate to the Court that the - - -

GAUDRON ACJ: What do you mean "indicative of guilt"? What do you mean by that statement? Do you mean it was the only evidence other than from the complainant, the only corroborative evidence?

MR BELLANTO: Yes.

MR BELLANTO: Yes.

GAUDRON ACJ: Well, which of those two, both?

MR BELLANTO: Both. There was the complainant's evidence which was the central core of the prosecution case. The evidence relating to the so-called partial admission was relevant to counts 6, 7 and 8 as being some additional evidence, apart from the complainant's evidence, to substantiate the allegations on those counts, but only on those counts.

The verdicts returned by the jury were as follows: verdicts of not guilty in respect of the first three counts and verdicts of guilty in respect of counts 4, 6, 7 and 8. The trial judge's view of the - - -

KIRBY J: Remind me about 5.

MR BELLANTO: That was a directed verdict.

KIRBY J: Yes, that is right.

MR BELLANTO: The trial judge's view of this evidence of the admission in the transcript before the summing up at appeal book reference 209 line 25. Can I ask your Honour the presiding Judge, Justice Gaudron, does your Honour have the extract that was provided with the papers that I referred to earlier?

GUMMOW J: Extract of what?

MR BELLANTO: The extract of the trial proceedings that was not taken out and does not appear in the appeal book.

GUMMOW J: In what form is it provided to us?

MR BELLANTO: It was provided with the appellant's further submissions in regards to the right to silence ground.

GUMMOW J: Ground 6?

MR BELLANTO: Yes, your Honour.

GAUDRON ACJ: Well, I do not appear to have anything that answers that description.

McHUGH J: No, neither do I.

GUMMOW J: Nor do I.

MR BELLANTO: It was sent with the amended notice of appeal.

McHUGH J: I have the amended notice of appeal, but that is all I have.

GUMMOW J: There is one sheet at the back of the amended notice of appeal.

MR BELLANTO: That is it, your Honour, yes.

McHUGH J: Yes.

GAUDRON ACJ: We all have that.

MR BELLANTO: I do not propose to go through it again. Normally it would not be taken out in the course of a transcription of a court proceedings in New South Wales where the discussion is, according to the transcript, discussion as to order of witnesses, that is what appears in the transcript. So to amplify what happened on that occasion, one has to ask specifically for the discussion to be taken out.

HAYNE J: The accused on a trial is not required to state formally the course that the accused will take at the close of the prosecution case?

MR BELLANTO: No.

HAYNE J: Simply in Victoria the accused is formally called on to state the course that will be taken, whether the accused will call evidence or not call evidence, and there is no such equivalent here.

CALLINAN J: And the same happens in Queensland but I had noticed the New South Wales practice often is when defence counsel opens the case, he or she does not tell you anything about the witnesses who are going to be called. It just seems to be more like a closing speech.

MR BELLANTO: Yes.

CALLINAN J: I was innocent enough to protest about it once.

MR BELLANTO: It is often done now where defence make an opening address at the beginning of the case after the Crown Prosecutor opens. That is permissible now. Of course, if you are calling evidence, you have the right to outline the course you are going to take but there is no compulsion.

CALLINAN J: In fact I think there is. I think there is some Victorian authority, but it seems to be a New South Wales practice.

McHUGH J: In New South Wales, at least in my experience in criminal cases, there was nothing formal said but ordinarily at the close of the Crown case counsel would say, "I don't propose to call any evidence" or "the accused will make a statement" or "I'll open", but - - -

MR BELLANTO: Yes, that is usually what is done. For technical reasons it is probably the best course to take, to explain to the jury or the judge what you are going to do. As I was saying, the trial judge's view of the evidence is at page 209 line 25. Do your Honours wish me to go to these pages as I go through the submissions or can I simply leave it to the Court to note them?

GAUDRON ACJ: It may be advisable to see them in context.

MR BELLANTO: Very well, your Honour. At page 209 line 25 his Honour there said:

I don't really quite understand that. He had admitted at least some of what -

the complainant -

had said had happened?

GAUDRON ACJ: And the answer there comes from the mother. That was a question from his Honour to the mother and she answered, "Yes".

MR BELLANTO: Yes.

KIRBY J: There was no objection to his Honour's statement to that effect at that point?

MR BELLANTO: No, your Honour. At page 216 line 55 his Honour was giving the jury a direction in relation to the complaint and at the foot of page 216, the last few lines, his Honour referred to admissions and said:

That of course does not apply to the alleged admission made by the accused of which the witness has given evidence, that is direct evidence which if you accept it is capable of establishing an admission by him that he had molested the girl after she was 10 years of age.

KIRBY J: Again, no protest or objection to the effect that he made no such admission.

MR BELLANTO: Not at that stage, no, your Honour.

KIRBY J: I mean this is a not unlike, is it, President Clinton statement: "I did not have sex with that woman." He, in his mind, meant, I did not have intercourse, so we understand that was his purpose, whereas, analysed, he was saying, I did not have intercourse, but I am not denying that I did not have oral sex or oral connection, and that is obviously how the judge here took the statement, that he was denying penetration, but not denying fondling and touching, which amounted to molesting, and that the concentration and focus on intercourse and penetration were to be taken by juxtaposition with sexual conduct in its totality and a denial of the one, but not a denial of the other.

MR BELLANTO: Well, perhaps, but the real issue became whether he was admitting to the allegations, the subject of the digital penetration counts, 6, 7 and 8. That became the real issue, and it was left to the jury on the basis that he had made those admissions, and that is why these alleged admissions are so important, because it was left to the jury that his response was an admission in respect of those counts, to digital penetration.

KIRBY J: Is there a significant difference in law between a non denial and an affirmative admission, in your submission. In other words, assume that it was open to the jury to dissect what he said and to take the view that what he was saying was, "I did not have intercourse, but everything else she said about the touching and fondling and improper molestation, I am not denying that, and everything she said about that is right." Now, would that not amount then, or would it not be capable in the jury's mind of amounting to an admission of those things, other than penetration and other than intercourse, as a lay person would understand those words?

MR BELLANTO: By his failure to specifically - - -

KIRBY J: Yes, in the context.

HAYNE J: But it is not just a failure to specifically deny. What was meant by the words, "everything else she said is true"? That is the evidence that you have to confront, is it not, at page 208 line 24 and 25:

"I never had intercourse with her but everything else she said is true".

Now that is the evidence that is before the jury. What are they to make of that last clause, if they accept it was said?

MR BELLANTO: Well, they can only make of it what they understand was put to the appellant when he said it. I mean, he may, say for argument's sake, have thought that the girl was talking about cuddling and playing and playing in the attic or playing in the loft or playing in the shed, cuddling - - -

KIRBY J: But that comes back to Justice McHugh's question at the outset: was he aware of all of the allegations? That certainly went beyond cuddling. And if he was aware of that then at least it is open to a jury to say, "Well, why would he differentiate in denials? Why would he not deny it all, and does not his denial of part only amount to an admission of the other part?"

MR BELLANTO: Because the allegations, the formal allegations of the charges - the charges did not spell out that he was fondling, or cuddling, the charges - - -

GAUDRON ACJ: The charges had not been laid at this stage, had they?

MR BELLANTO: No.

GAUDRON ACJ: What had been put to the appellant, so far as we know, is what was put by the complainant's grandmother on an earlier meeting. Is that not right?

MR BELLANTO: Correct.

GAUDRON ACJ: There is no suggestion in this conversation that anything else was put to him?

MR BELLANTO: No.

GAUDRON ACJ: So, if it has any context, any relevant context, it is the context of the confrontation with the grandmother?

MR BELLANTO: Correct.

HAYNE J: And that includes allegations:

you've never touched her with your hands or fondled her or put your penis inside her?"

I read from 207, line 34.

MR BELLANTO: Yes. He said, "That's right".

HAYNE J: Yes, and then there is a later part of the same conversation, or a different conversation, in which he says:

I never had intercourse with her but everything else she said is true.

Is that the same conversation, or a different one?

MR BELLANTO: That is a different conversation, because that is a response to a telephone call the mother made the following week. There is a time difference as well as a contextual difference.

GAUDRON ACJ: The particular charges to which it is said this is relevant of charges 6, 7 and 8, is it?

MR BELLANTO: Yes.

GAUDRON ACJ: And the charges are sexual intercourse?

MR BELLANTO: Yes, but 6, 7 and 8 are the digital penetration charges. They are all laid under section 66C of the Crimes Act, and they are all alleged to have occurred at Sphinx Rock and in the new house built by the appellant.

GAUDRON ACJ: Thank you.

MR BELLANTO: The key to the evidence, as your Honour Justice Hayne has just observed, is what the appellant understood by the question, and what he meant by the words, "I never had intercourse with her but everything else she said is true". The trial judge seems to have taken the view that this called for some explanation, and this appears at 364, point 15.

CALLINAN J: But you have to look at page 208 at line 30, too, do you not, which lends a little additional colour to the words, "everything else she said is true", because he said at line 30, "Since she was about 10."?

MR BELLANTO: Yes.

CALLINAN J: One would not ordinarily think that he would say that unless he was speaking about some - I will put it reasonably neutrally - culpable conduct. In other words, you cannot just look at the sentence at line 23. What was he talking about when he said, "Since she was about 10"? What do you say that that was capable of referring to? Of which conduct?

MR BELLANTO: It is difficult to know whether he is contextualising that in terms of location or what they were doing, whether - - -

CALLINAN J: No, because the earlier question is, "How long has it been going on?".

MR BELLANTO: Yes.

CALLINAN J: Now what is "it" capable of referring to?

MR BELLANTO: If one makes the concession that it may relate to some inappropriate behaviour, it does not advance the argument, we would say, because there is nothing specific. There is nothing that has been spelt out for him to acknowledge, and it is difficult to know what he was referring to.

CALLINAN J: He must have been referring to something. He obviously knew what the question related to.

MR BELLANTO: Yes, but one does not know.

CALLINAN J: What was the evidence of other behaviour? Was there evidence of behaviour other than behaviour involving penetration of some kind?

MR BELLANTO: Yes, there was.

CALLINAN J: Where do I find that?

MR BELLANTO: The girl gave some evidence of fondling of breasts and, I think, kissing on the mouth. I will take your Honour to the passage in a moment when I find it.

GAUDRON ACJ: But there is no evidence that she had said anything to the appellant, is there, at this stage?

MR BELLANTO: No.

GAUDRON ACJ: The evidence is only that the mother and the grandmother had relayed her complaints to the appellant. Now, is not the critical thing what they said?

MR BELLANTO: That is our point, yes.

GAUDRON ACJ: Well, where is that?

MR BELLANTO: That is in the passage that your Honours have just - - -

GAUDRON ACJ: That is at 207. Is that the only evidence that we can use?

MR BELLANTO: Yes.

HAYNE J: It is page 206 as well, is it not, 206 line 55, we had a generalised statement. The complainant:

has told me that you've been abusing her for the last 10 years.

Page 207:

might have said "sexually abusing", in fact I probably did.

Denied:

"Oh come off it."

Further discussion, and so on. Do you say it was not open to a jury to take this sequence of evidence and to conclude from that sequence of evidence that the accused man acknowledged improper dealing with the complainant short of intercourse?

MR BELLANTO: The difficulty is, your Honour, that we are talking about an alleged admission to 6, 7 and 8, and to go into the question - - -

GAUDRON ACJ: Are we? We are talking about evidence, are we not, capable of corroborating part of the complainant's evidence.

MR BELLANTO: Yes.

GAUDRON ACJ: And, at the very least, if the evidence is accepted and it is accepted that that is an admission of some improper conduct, it at least is evidence of a relationship, is it, that is all relevant to the matters charged?

MR BELLANTO: Yes, and that is why the catamaran incident was admitted into evidence as part of that unhealthy relationship.

GAUDRON ACJ: Yes.

MR BELLANTO: But the problem with the admission point is that the judge left it to the jury that he had made admissions of digital penetration, when he did not.

GAUDRON ACJ: Where is that?

MR BELLANTO: I have referred your Honour to the first two page references where that is contained at 209, line 25 and 21 - - -

GAUDRON ACJ: What we have there is at least some of what the complainant had said had happened. Well?

MR BELLANTO: Well, at 209 - can I take your Honour to the written submissions at paragraph 14. Perhaps I should just follow the written submissions because they pick up the relevant pages. In paragraph 14 there is a reference to his Honour directing at 216.55 - - -

GAUDRON ACJ: Yes, and that direction is strictly correct, is it not?

MR BELLANTO: At 216.55 his Honour is referring to, in essence, the digital penetration, we would say.

GAUDRON ACJ: That is not what it says.

CALLINAN J: "Molested".

MR BELLANTO: That is picked up again in the summing up at page 309 line 19.

GAUDRON ACJ: Yes. There is nothing specifically wrong with that, is there?

MR BELLANTO: He is referring to other evidence that is supporting the girl.

GAUDRON ACJ: Well:

some evidence which you may think does support the evidence of -

the complainant.

MR BELLANTO: Yes. Then if your Honour would go to page 315 line 50 and then page 316 line 21 - - -

CALLINAN J: If you go back to page 315 though, it is the evidence of Mrs T that the accused on one occasion on the telephone admitted to her that he had conducted himself in a particular way but denied having sexual intercourse. That is quite correct, is it not? There is nothing wrong with that.

MR BELLANTO: No, it is not, but this leads into what we say are more direct comments to the jury about the digital penetration. At page 337 line 40 he refers to the conversation. What his Honour said was:

"are you saying that you've never touched her with your hand or fondled her or put your fingers inside her" -

His Honour should have used the word "penis" there but instead he used the word "fingers". That was left to the jury as the admission.

GAUDRON ACJ: No, that was not. It was not there left to the jury as the admission. What was there being dealt with was the grandmother's evidence.

MR BELLANTO: Yes, but the grandmother's evidence was misinterpreted by his Honour because the grandmother did not use the word "fingers"; she used the word "penis". Then on page 338 line 25 his Honour refers to what the appellant said and then at line 40 his Honour says:

that is evidence independent.....in the sense that this does not come from -

the complainant -

this comes from Mrs T, who says that the accused used those words -

and then his Honour went on to say to the jury:

Well, a few things, I would say to you about that.

His Honour made an error on page 339, which is not particularly relevant, and it is picked up again on page 339, line 49, where his Honour directs the jury about this conversation - lines 45 to 55 - and then at page 340, line 8, he refers to the conversation not being contradicted by any other evidence.

GAUDRON ACJ: That is strictly correct too, is it not?

MR BELLANTO: Yes, your Honour, it is, and then on page 340, line 54, over to page 341, his Honour, from line 5 onwards, tells the jury that:

it would be capable of amounting to an admission, which could cover the last three charges - - -

GAUDRON ACJ: Wait a minute. His Honour there drew a distinction as to what they understood by it to be and he does not say what it means. First of all he directs them to consider what distinction was being drawn.

MR BELLANTO: Yes.

GAUDRON ACJ: Yes, and it is only in that context. He says:

it would be capable of amounting to an admission, which could cover the last three charges - - -

MR BELLANTO: Yes. Well we say that it could not.

GAUDRON ACJ: Well, why not?

MR BELLANTO: Because the appellant, at no stage, said he digitally penetrated the complainant. In fact, his Honour told the jury that when the appellant said, "I did not have intercourse with her, but everything else she said is true", if he meant, as one would probably assume, intercourse meaning penile intercourse, he denied penile intercourse, but then said, "everything else she said is true". Now, before he said that, it is suggested that it was put to him that he had put his fingers inside her. That is what his Honour left with the jury. In other words, "Are is saying, you have not fondled her or cuddled her - - -"

GAUDRON ACJ: Well, but - - -

CALLINAN J: Well, at line 29, on page 349, his Honour said, there is this evidence from a source, apart from the complainant, that the accused admitted that he had done to her everything else she had said, apart from sexual intercourse. Now what is wrong with that? That is the fact, is it not?

MR BELLANTO: Well, it depends on what he meant by sexual intercourse.

CALLINAN J: That was left to the jury.

GAUDRON ACJ: Exactly, and that is what the trial judge was directing the jury to determine what he meant by it.

MR BELLANTO: Yes, but if his Honour gave the jury a false picture of what the evidence was, that is, "Are you saying you did not put your fingers inside her?", now, if he then says, "I didn't have intercourse with her - - -

GAUDRON ACJ: I should have thought that was favourable to your client, misquoted in that way, because if the jury was left with the impression that that was the only allegation put to him they would inevitably conclude that the so-called admission was one which was denying digital penetration. I do not see that it advances your case one bit.

MR BELLANTO: But the denial was sexual intercourse.

GAUDRON ACJ: Yes, but what I am suggesting to you is you do not advance your case by referring to an obvious mistake made by the trial judge because the consequence of that mistake is in your favour.

CALLINAN J: And, the judge had earlier said at page 340, line 54:

It is a matter for you, whether you think that a person in his situation would be aware that, in respect of what was alleged to have been done, in law, although not in common parlance, it amounted to sexual intercourse.

So, the judge was very properly leaving, I would have thought, those issues to the jury and no doubt the trial judge would have been criticised if he tried in any way to direct the jury what the persons who used these expressions actually meant by them. These were jury matters par excellence, I would have thought. You cannot just read parts of the paragraph. I think you have to read it all, beginning on page 340, line 40 down to line 35 on page 341.

GUMMOW J: Now, Mr Bellanto, you have got six grounds. I have been listening to ground 1 for over an hour, now. It does not strike me as your strongest ground, or if it is your strongest ground you are in trouble, to my mind.

MR BELLANTO: Yes, thank you, your Honour. Before we leave that ground can I make the point that there was a request by defence counsel for his Honour to tell the jury that there was no admission of digital penetration - that there was no allegation of digital penetration and that is referred to in the written submissions and I do not think I need to trouble the Court with that. I am conscious of what your Honour Justice Gummow has just said. I will move on, if I may, to the second ground? This is ground - in our written submissions it is on page 6. It is the fourth ground, numbered 5 in the notice of appeal, "Inconsistent verdict ground". There are really two complaints made.

The court below placed too much reliance upon the concept of the innate fairness of the jury and the so-called supervisory function in circumstances where this principle was inappropriate, and, secondly, to the extent to which the court did look for a reasonable explanation from the evidence itself, the court misconceived the effect of the evidence. The submission we make is that there is no reasonable explanation for the verdict of not guilty on ground 3 and guilty on ground 4.

This was not a case of misinterpretation of events, but of a total denial, and relevant to this ground is the time constraints the jury may have felt and the pressure, perhaps, to compromise, given that they returned their verdicts - - -

GAUDRON ACJ: Now, am I correct in thinking that your complaint is now between grounds 3 and 4, is limited to that?

MR BELLANTO: Yes.

GAUDRON ACJ: Yes, thank you.

MR BELLANTO: The verdicts were returned. There was a question asked by the jury, what happens if they were undecided, and if some had had agreed on some counts and not others. His Honour redirected them on that and then they returned a verdict not long before six hours had elapsed.

The factual differences between grounds 3 and 4 were dealt with by the court below and the court referred to two aspects. The first one was the location where it said the offences were said to have occurred, and your Honours will recall that count 3 was said to have occurred at Uki on the property known as "The Edge", and count 4 at Sphinx Rock in the garden shed. We refer your Honours to paragraphs 35 and 36 of the written submissions relevant to that. The second basis referred to by the court below for the different verdicts was the complaint evidence, and that is picked up in paragraphs 37 to 45 of our written submissions.

GAUDRON ACJ: That is the relevance of the evidence of MM, is it, to your submissions?

MR BELLANTO: The relevance of, I am sorry, your Honour?

GAUDRON ACJ: The witness MM?

MR BELLANTO: Yes.

GAUDRON ACJ: Yes.

MR BELLANTO: Yes. The Crown has referred to other differences such as the age, there being a 12 months difference, and the fact that the complainant was described as hypersensitive between the ages of 7 and 8. We would make the submission that none of these so-called differences explain the different verdicts between 3 and 4, and this leaves the fair play or merciful verdict argument which, in this case, is inappropriate. We make the point that in Kirkman, which involved child sex charges, the inconsistent verdicts involved one count where the jury needed to have regard to the intent of the accused. A finding of not guilty did not necessarily mean that the evidence of the complainant was not accepted beyond reasonable doubt. So that the Kirkman argument does not apply in this case and the submissions make the point in some detail why this case is not a merciful verdict case.

It should also be noted that the evidence of MM was non-specific as to time and the errors, we say, in relation to the complaint evidence were quite serious by the court below because the court below took the view that the complainant at the time of the complaint was eight years of age when she spoke with MM, whereas, in fact, she was nine or 10, because the complainant's evidence was that she complained to MM in 1988 or 1989. MM gave similar evidence.

HAYNE J: Other than dating it as 1988 or 1989, is there any more specific identification of the point in the sequence of events than that given at page 36 in which the complainant dates her complaint to a school friend after the third incident?

MR BELLANTO: The evidence at page 36 has to be seen in the context of what happened after that sequence, because the Crown Prosecutor asked the question:

You've given evidence of these incidents taking place, did you tell anybody at that stage -

et cetera, and then:

Q. Just stop you there for the moment, up until the last incident you've just given evidence about, when you were seven. Did you tell anybody about those three?

A. No.

The course - - -

HAYNE J: That is, was it open to the jury to conclude from the evidence of the complainant that she had made no complaint to anyone about the first three incidents, but did complain to MM about the fourth, or the fourth and subsequent incidents?

MR BELLANTO: It was not open, because it was just non-specific. The question happened to be asked in the course of her evidence outlining these various events. She was interrupted and stopped after the third and asked, "Did you complain up until that stage?", and she said, "No". And then after that she continued her narrative, so that there is no significance, we would say, in her being asked at that stage that particular question, because the narrative thereafter continues.

Now, the court below, in effect, underestimated the length of time between count 4 and the complaint to MM, and gave, what we would say, was an unsustainable narrow meaning to the question at page 36 that your Honour Justice Hayne has just referred to.

So, in effect, what we are saying is that the explanation determined by the court below as justifying the separate verdicts is unsustainable because the court misunderstood the age of the complainant, and if it misunderstood the age of the complainant, then the complaint could not have been just after the events in count 4.

HAYNE J: Why does proximity matter? Was it open to the jury to reason that they would convict on those counts where there was some supportive evidence out of the partial admission or complaint? There was no complaint about the first three counts. There was complaint about subsequent counts. Therefore, guilty of subsequent accounts, not guilty of earlier counts. That is the case against you, is it not?

MR BELLANTO: Yes, but which ones? I mean, it could be count 5, for example, it could be count 6. That is the problem. It cannot be - - -

HAYNE J: Count 5 was directed verdict. It is only 3 and 4 we are concerned about, and that is why I fasten on 3. But that is the case against you and it is either good or bad, is it not, Mr Bellanto?

MR BELLANTO: That is true, your Honour, yes. We do not propose to take the Court to the written submissions in detail on this ground and would invite your Honours to accept what is contained therein as our arguments.

The second ground, or the third ground in the sequence of argument, is contained on page 11 of the submissions, and it is numbered 3 in the notice of appeal, and it is the reasonable apprehension of bias ground. The complaint here is that if the court below approached the topic from the perspective of undue judicial interference, the trial judge's report was irrelevant and the court should have examined the problem on the face of the transcript.

Secondly, if the court below was applying the reasonable apprehension of bias test, the report was not relevant in the sense that the court made it relevant, that is, being part of what the reasonable lay person would know. Also, the report itself raised a reasonable apprehension of bias.

GAUDRON ACJ: Those matters you speak of have different bases in legal theory, do they not?

MR BELLANTO: Yes.

GAUDRON ACJ: What complaint do you make here?

MR BELLANTO: In relation to the reasonable apprehension of bias test, the court accepted the validity of the judge's complaint about counsel. In other words, the court accepted that counsel deliberately misquoted evidence without going into that issue for itself, so that is the first point we make. The court should have assessed that on the face of the transcript.

GUMMOW J: On reading the transcript one might come to the view that counsel was unaware of a number of basic procedural rules and matters and it is in that setting that the whole thing has to be looked at. How are we to investigate the question of what at the end was the competence of counsel?

MR BELLANTO: Your Honour, it is not so much - - -

GUMMOW J: Indeed, that incompetence may be further underlined by the failure to object to this bias if there was any.

MR BELLANTO: Yes, we accept that.

GUMMOW J: You are meant to get on your feet with a bias complaint.

MR BELLANTO: Yes. It is not always fatal but it is a factor, we acknowledge.

GUMMOW J: A very strong factor in my view.

MR BELLANTO: Yes, but the point we make here is that the court accepted - - -

GAUDRON ACJ: But what sort of bias are you talking about? That is why I asked you. They have different underlying principles. It might be one thing to say that there was a head-to-head between counsel and the trial judge. That may result in the defence case not being able to be properly put, which seems to be the foundation of the rules that have developed about undue interruption by the trial judge, but the bias here has to be bias surely against the party, is that not right?

MR BELLANTO: Yes, and his Honour took the view that defence counsel - - -

GAUDRON ACJ: What does that have to do with defence counsel?

MR BELLANTO: Because the client was unaware of the judge's view about his barrister.

GAUDRON ACJ: What does the trial judge's view about the barrister have to do with anything in terms of bias with respect to the accused or the issues to be charged?

MR BELLANTO: Because the reasonable objective observer has to be said to know a number of the facts that have taken place in the particular hearing. The question is: should that observer be aware that the judge thinks defence counsel deliberately misquotes evidence?

HAYNE J: Assume for the moment, for the purposes of argument, that that reasonable observer does not know that or is not entitled to know it, what then follows from it? What is the real allegation being made, that the observer would conclude that the judge had prejudged some issue or what?

MR BELLANTO: Well, if the judge perhaps would need to step in and take a course in running the trial that he would not have otherwise taken.

HAYNE J: So what? What follows?

MR BELLANTO: Well the jury do not know this.

HAYNE J: Again, so what? The question is not simply to be troublesome to you, Mr Bellanto; what is the ultimate complaint? That the accused did not get a fair trial, because?

MR BELLANTO: Because the judge had a view of counsel that the jury was not privy to, which caused the judge to take a more interventionist role than he otherwise might have, which gave the jury the impression, we say, the judge was pro-Crown, anti-defence, independent of the issues, but the judge's role in intervening, for the reasons that he felt were necessary, gave the impression to the jury that, for these reasons which they did not know about, the judge was antagonistic to the defence, they may have thought that - - -

GAUDRON ACJ: To the defence counsel?

MR BELLANTO: To the defence counsel.

GAUDRON ACJ: Yes, so there was nothing to suggest he was antagonistic to the accused, the appellant?

MR BELLANTO: Well, no, but, of course, the difficulty is that through antagonism towards counsel, that can flow on to the defence case.

GUMMOW J: Antagonism is not the word either; exasperation is probably a better word.

MR BELLANTO: Well, yes, your Honour, perhaps it is.

KIRBY J: Your point is that judges have to control their exasperation. May it be useful for you to point to what you say are the most purple passages that, as it were, go across the line from a robust conduct of the trial - I mean, some judges are more robust in conducting trials, others are nice, quiet people, like the High Court is normally, but it may be helpful to us, from the point of view of advocacy, for you to say to us, well this is what he said, and this is what he said, and this is just beyond the pale. Can you do that?

MR BELLANTO: Your Honour, they are - - -

GUMMOW J: What is the pale though?

GAUDRON ACJ: And, what are we looking at? Are we looking at the inability of the defence counsel to properly put the case or are we looking at something for which it might be inferred that the trial judge had prejudged an issue in the case? Not whether he prejudged, surely, counsel's conduct, but it must be whether he had prejudged an issue in the case.

McHUGH J: Or even that it indicated he had strong views about the accused's guilt. After all, judges are required to tell the jury that if the jury thinks they have any opinions, they are to disregard it unless those opinions coincide with their own. But a judge is entitled to express his or her own view about the facts, even express them strongly.

MR BELLANTO: Yes, yes.

KIRBY J: But I suppose a point is reached in any trial that if a judge does it so strongly that he really gets down there into the well of the courts, then that is unacceptable, but he is denying the accused the right of a fair trial.

MR BELLANTO: One of the difficulties that arose initially was that the judge - and he said this in his report to the court below - "I have had experience with this particular council, I think, on two occasions. I believe he deliberately misquotes evidence. Therefore, in this case of RPS I took the view that I should step in early and stop it, stop what I thought was about to occur." Now, that is what he said he did, and that is why he said, in effect, "I would not have stepped in as early as I did had it not been for my view of this counsel".

KIRBY J: This was a view formed prior to the trial, this "misquotes as a matter of professional practice"?

MR BELLANTO: Yes, and his Honour - - -

GAUDRON ACJ: Where is the report?

MR BELLANTO: It is in the appeal book, towards the back, page 391.

KIRBY J: These reports, they used to be quite common. Then the Court of Criminal Appeal, I think in Sir Laurence Street's time, rather discouraged them, and in my 10 years on the Court of Criminal Appeal I can only remember one case where a report was sent and that was Judge O'Reilly. They are very rare nowadays and, I think, properly rare.

MR BELLANTO: Yes.

KIRBY J: Otherwise judges can sort of try to bolster their point of view when it really ought to be looked at from the point of view of what the jury saw and how the case was conducted.

MR BELLANTO: Yes. Your Honour, in this case we did not have any involvement with the trial and we came into it at the appellate stage, but it appears that the report was not called for and, in fact, the report is a response to the appellant's written submissions that were filed with the court below and it is unclear to us how the judge came into possession of those submissions, but it appears that he did and he elected to put in a report responding to the arguments and submissions advanced on behalf of the appellant.

CALLINAN J: I must say it does read like an adversarial document in parts, page 392 paragraph 11:

I repudiate in the strongest terms -

MR BELLANTO: Yes.

KIRBY J: What is going to happen if this becomes the general rule, that judges become advocates and explainers of their own conduct, and get into the well of the Court of Criminal Appeal. I think it is a very undesirable development.

HAYNE J: It is a development that has been going on in Victoria for the last 30 years, in which every trial judge is routinely asked for a report and reports.

GAUDRON ACJ: But in any event, the reason I ask you to take us to it is because I think you may be misquoting the evidence in relation to that report. I do not think there is anything in that report from which it can be taken that the trial judge interrupted, if you like, more than he otherwise would have done, because of his experience of the first trial. The trial judge asserts that there was constant misquotation of the evidence. Was that the case?

MR BELLANTO: I do not think so, your Honour.

GAUDRON ACJ: If it was not, then what - - -

MR BELLANTO: What he said was, I think, on a number of occasions, that he would not have interrupted and it was only because of the misquoting the evidence, that he had to be fair to the jury, had to be fair to see the trial was run properly, and that it was defence counsel's misquoting of the evidence - - -

GAUDRON ACJ: Perhaps nothing is gained by going to the report, in any event. Do you complain of anything specific to be found in the transcript?

MR BELLANTO: In the court below the court picked up a number of matters that were said to have arisen, and can I take the Court to appeal book 422.

KIRBY J: Mr Bellanto, let me just get it straight. Was this report called for by the Court of Criminal Appeal?

MR BELLANTO: I understand not.

KIRBY J: But his Honour is saying, "I apologise to the court for the late submission of this report".

McHUGH J: The criminal appeal rules used to have a provision in it, did it not?

MR BELLANTO: Yes.

CALLINAN J: There is no obligation to make the report. A trial judge may make it, I think, under the rules, is that right?

MR BELLANTO: I do not know precisely whether the court called for it, but it never emerged that the court below said, "We called for a report". It was never disclosed that they had called for a report.

CALLINAN J: I might say, Mr Bellanto, before you leave the report, paragraph 13 at page 392 might give rise to an implication that the judge was making that there was deliberate misconduct on the part of counsel with a view to his taking a bias point on appeal.

MR BELLANTO: Yes.

CALLINAN J: Because why otherwise would the judge have referred to an increasingly regular practice of many practitioners, to immediately assume an often alleged bias on the part of the trial judge? There seems to be no reason for the inclusion of that in the report unless the trial judge was trying to convey a fairly strong criticism, I would have thought, of a counsel in this case, otherwise it is irrelevant.

MR BELLANTO: Yes, that may well be, your Honour.

KIRBY J: He might have been trying to say that the appellate judges may not know of this development that is happening, that did not happen in the good old days, that they might not be aware of, but which is a feature of the Bar today which would not have been a feature of it in times gone by and when they were at the Bar, and that they ought to be aware of it. Maybe that is the sort of thing that needs a report at some time.

MR BELLANTO: That may be also correct, however, the difficulty is that this was never disclosed to counsel. He may have a different view, of course, as to whether he was behaving in this way or not. I think his Honour's experience with this particular counsel was somewhat limited to two appearances.

CALLINAN J: But Mr Bellanto, was the report available to counsel at the appeal?

MR BELLANTO: Yes.

HAYNE J: I take it, it was read at the opening of the appeal. Certainly that is the common Victorian practice.

MR BELLANTO: Yes.

GAUDRON ACJ: In any event, in relation to your present ground of appeal, is not the question what happened at the trial, not what was said in the report? If you want to make good your ground of appeal, you have to go to what happened in the trial.

HAYNE J: And the best purple passage you can give us, where the judge got down into the well, or was biased, or whatever.

CALLINAN J: I might say, Mr Bellanto, I have read 38 instances of the cross-examination and the judge's intervention and, reading in context, I have to say to you that none of them strike me as being unusual or apparently uncalled for. The worst, it seemed to me, to be at page 99 about line 55, which does not strike me as being very helpful to you, and another one at page 119 about line 20; perhaps another one at page 135 line 20, over to page 136; pages 145 and 150. They seem to me to be the worst I have read but I would not regard any of them as having been intrusive or as affording any instances of either apparent or actual bias, whether taken alone or in combination.

MR BELLANTO: The court below addressed a number of matters from pages 422 onwards.

GUMMOW J: Yes. The real question is, where did the Court of Criminal Appeal go wrong in its treatment of this ground? We are not starting from scratch. The question is, where was the Court of Criminal Appeal in error in its treatment of this bias ground? Which passage is a wrong statement of principle?

MR BELLANTO: The first point we make is that it accepted the trial judge's report and the judge's opinion without making an independent finding itself, and - - -

GUMMOW J: Where is that apparent?

MR BELLANTO: Can I take your Honour to the submissions?

GUMMOW J: All of the written submissions are written, it seems to me, as if they are addressed to the first Court of Appeal. It seems to be some practice at the New South Wales Bar, they think - they get special leave and they start again. Anyhow, do not delay now, Mr Bellanto.

CALLINAN J: Mr Bellanto, there is a question I do have to ask you and I am sorry to go back to the report but the Court of Appeal deals with that at pages 422 and 423, and at 423 the Court of Appeal says, in effect, as I read it, "Well, put the report aside, we are:

concerned with the issue as to whether.....what happened gave rise to a suspicion on the part of the fair minded and informed observer -

and so on, which is, I think, the sort of question that Justice Gummow, or the matter that Justice Gummow drew your attention to.

MR BELLANTO: Yes.

CALLINAN J: But, is it part of your case that if the report itself reflected, in fact, bias, either apparent or actual on the part of the trial judge, that that report, although it came into existence after the trial, would provide evidence that the judge was motivated by some sort of bias or displayed apparent bias? I mean, I am asking you this question and I will ask the same question - I will ask Mr Sexton to deal with it, but what I am concerned with is this that in the nature of things if there has been bias, either actual or apparent, the evidence of it or the indications of it might well only emerge or better indications of it might only emerge after the conduct has taken place.

MR BELLANTO: Yes.

CALLINAN J: In other words, it has a retrospective effect. If the judge says something after the case that shows he has been biased, then that may put a different complexion entirely upon the conduct of the proceedings themselves. Is that your submission?

MR BELLANTO: Yes, your Honour, and it goes in two stages. The first stage is from the transcript the judge took an extremely interventionist role, and we accept the limitations that your Honour has put on that and so forth.

CALLINAN J: I think there might be some problems about that, yes, for you.

MR BELLANTO: However, a suspicion that counsel had at the time that the judge was perhaps overly interventionist became a reality when it became known that the judge in fact held the views that he held. That seems to be the difficulty.

GUMMOW J: Which passages are there then in the report which manifest this?

MR BELLANTO: The judge said that he took the view that counsel deliberately misquoted evidence.

CALLINAN J: He said "he continued to transgress." He said that at page 391, line 39. After having said he had a "sharp and intelligent mind", he was told "to take care in this respect but he continued to transgress". You would be relying on that?

MR BELLANTO: Yes.

CALLINAN J: And you would be relying, I suppose, on paragraph 13 on page 392 to which I drew your attention before?

MR BELLANTO: Yes, thank you, your Honour, and also on page 319 line 33 his Honour refers to counsel's "serious misquotations of evidence". I do not think one could describe - - -

CALLINAN J: But he says that he was doing it deliberately really. He says:

I have found it hard to reach any other view concerning Mr Bryson's constant misquotations.

That is about as direct an accusation as you can make, I think.

MR BELLANTO: Yes, and very serious.

CALLINAN J: Mind you, there were misquotations of evidence, there is no doubt about that.

MR BELLANTO: Yes, but is it done deliberately?

GAUDRON ACJ: I am still having difficulty though in seeing how this goes to bias. It may be that the trial judge was biased against counsel. You have to go beyond that, have you not? There were days when many trial judges were biased against women counsel, for example.

MR BELLANTO: Not any more, I hope, your Honour.

GAUDRON ACJ: No, but I mean you have to go beyond bias against counsel, surely.

MR BELLANTO: Well it is a question of what do you impute into the reasonable objective observer? The court below accepted that - - -

GAUDRON ACJ: Well what do you say is to be imputed? What bias do you say is to be imputed, other than a bias against counsel?

MR BELLANTO: That is all that is necessary.

GAUDRON ACJ: Why?

McHUGH J: No, it has got to be more than that. You have either to show that the judge intervened to such an extent that the defence could not properly present its case or that the judge intervened to such an extent that the inference is open that he overpowered the jury so that they could not give a true verdict according to the evidence. But, as you know, judges frequently express opinions about facts and, at least in my time, strong views about the facts. If you read Guerin Case, you see what Justice Brereton put to the jury in that particular case. He told them, in effect, that if they accepted a piece of evidence they would find the accused guilty, and that was not uncommon in my day. But you have to show that it interfered with the trial to such an extent that the accused did not get a fair trial in one or other respect.

MR BELLANTO: Yes, we accept that, your Honour.

CALLINAN J: Well, I do not know, I would add a third thing myself, and speaking perhaps only for myself, or that the conduct of the judge was such that no fair-minded observer would think - and I may not be stating the test strictly correctly, but in these general terms - could conclude, other than that, the judge was biased against your client's case or your client, but I use those expressions advisedly and I omit from that against your client's barrister at the trial. That cannot be enough, I would not have thought. It would have to be a bias, manifestation of bias against the client or his case, for my part anyway.

McHUGH J: Yes. The difficulty that I have with what Justice Callinan has just put to you is that judges do not decide issues of fact in cases; they decide questions of law, they give directions, and, if you can form the view that by reason of the judge's conduct he has not properly dealt with a question he has to decide, that is one thing, but what we are interested in here is the effect on the jury, so it seems to me, anyway.

MR BELLANTO: The court below used the expression "no harm is done". In other words, it seemed to be applying the Goff test, rather than the Webb test.

CALLINAN J: But what Justice McHugh has put to you involves a different test, with respect, for a jury trial from a trial before a judge alone, and I know one justice in the New South Wales Court of Appeal who thought there was no distinction; Justice Kirby in the case of Ettingshausen, in a minority, but expressed the view that the interruptions in that case were excessive and justified a new trial on the ground of liability. The other two members of the Court of Appeal did not get to that point, because they did not think the interruptions were excessive.

KIRBY J: His Honour is not mentioning that he argued that case before me and I upheld his view in dissent.

CALLINAN J: But for myself, I would need a lot of persuasion that there is a different test for apparent bias because you have a jury from the test that applies when you do not have a jury, because the affront is not simply to the litigant, the affront is also to the system of justice and what fair minded observers think about the system of justice.

MR BELLANTO: Yes. I think, as your Honour Justice Callinan observed earlier, this is an aspect of retrospectivity, and to determine, in fact, what happened or why it - - -

CALLINAN J: It is totally artificial, is it not? Say the report is open to the interpretation that it is biased, the judge was biased at the point when he is reporting to Court of Appeal, but he was not biased at the time of the trial. I find that very difficult to accept.

MR BELLANTO: Yes.

CALLINAN J: Or to accept that the later report could not provide a fairly clear indication of his likely state of mind at the time of the trial.

McHUGH J: Let us test it this way, Mr Bellanto. Suppose the judge said I was actually biased against this accused and I was biased against this counsel, but there was nothing in the conduct of the case that interfered with a fair trial. You could not get a new trial on that basis, could you? The reasonable apprehension test is just the easier alternative. You can have verdicts set aside on the ground of bias, either actual or imputed, and imputed is because there is a reasonable apprehension. But the bias must have some effect, they must have an effect on the decision maker. If the judge is biased - supposing when the jury is out, he expresses the strongest view, says "This accused is definitely guilty, this jury would be crazy if they did not convict him", but nothing is said in the presence of the jury, how could you get a new trial on that basis?

MR BELLANTO: Obviously, it is a matter of looking at the transcript and what happened to make the determination whether, from that evidence, you can present arguments that the judge could have affected the jury's verdict. That is our argument here, of course, and we say it is borne out by what was learnt later about the judge's views, that is the way we put the argument.

CALLINAN J: But I suppose you really have to show - and, again, I am thinking aloud - but you would really have to show that there was an appearance of bias at the trial to the requisite degree.

MR BELLANTO: Yes, and that - - -

CALLINAN J: And I think you may have a problem about that.

MR BELLANTO: We rely on the submissions that we have advanced in that matter, if the Court pleases.

KIRBY J: I suppose you are entitled to say that we assert bias, we assert that there was too much intervention. This Court, the High Court, should not accept that kind of trial. People are entitled to have a fair trial. Judges should not intervene as much as that, but, even if you had doubt that that was excessive, that doubt can be cured when you have a look at what the judge, exceptionally in this case, gives as his report, because it shows that he had bias, and it demonstrates it that he continued the bias, not only at the trial, but into the Court of Criminal Appeal. Therefore, any doubts you have are cured, that is enough. The appellant may or may not be guilty, but he is entitled to have a fair trial, and only be found guilty after a fair trial.

McHUGH J: That is the whole point, is it not, whether he got a fair trial. The fact that the judge exhibits bias, and you cannot draw any other conclusion except that the judge was biased, means nothing.

MR BELLANTO: It is a fine line between - - -

CALLINAN J: The answer to that might be, and I am not suggesting it necessarily is, but the answer to that might be that that would have been all very well had not this document been provided to the Court of Appeal, become a public document, and had been a document that the Court of Appeal referred to in reasons. That is quite different from something that has never publicly appeared, so that the public never had an apprehension about it.

GAUDRON ACJ: But is the highest you put your case on this, in any event, at paragraph 60, that the:

conduct of the trial generally tended to undermine the defence case, and bolster that of the Crown.

MR BELLANTO: Yes.

GAUDRON ACJ: That is the effect you assert?

MR BELLANTO: Yes.

GAUDRON ACJ: But did it? You see, that is the question. You assert it, but - - -

MR BELLANTO: It is difficult to put it in the context of an argument before the Court in oral submission. We refer the Court to the transcript and the way the trial was conducted, the continual interruptions - - -

GUMMOW J: Paragraph 60 does not strike me as a bias point at all. It is an unfair trial. That is a different thing, is it not?

GAUDRON ACJ: Yes.

GUMMOW J: The judge is biased if he or she has, or is, properly to be seen to have some real prejudgment in the exercise of the functions of the judge at the trial; the relevant functions. If there is no jury it is obviously determination of liability. But, that is not what you are talking about in paragraph 60.

MR BELLANTO: But, the arguments also pick up the undue judicial interference point as well.

GUMMOW J: Yes. That is a fair trial point, too.

MR BELLANTO: That has to be read in conjunction with the bias point.

GUMMOW J: But what do you mean by "bias"? What sort of bias are you talking about? There is just this word that gets thrown around.

McHUGH J: Exactly. You have got to draw a distinction between conduct which is fit to be sent to the Judicial Commission and conduct which would enable you to get a new trial or have a verdict set aside. Now, a judge may, in my view, any way, display a terrible bias which might be worthyof a complaint to the Judicial Commission but if you cannot be confident that it has had any effect on the trial at all then I must say, speaking for myself, that you are entitled to a new trial on that basis.

KIRBY J: This is beginning to remind me of Justice Starke's comment about the argumentation in the Court being occasionally interrupted by counsel. I think we have the problem and I am included to be, myself, with Justice Callinan, that this Court sets standards and if judges intervene too much and if people thereby do not get the appearance of a fair trial then we have to say so.

MR BELLANTO: If your Honour pleases. Then, if I can move on to the fourth ground which is the ground numbered 4 in the notice of appeal, the "Motive for fabrication" or what is often referred to as "Why would the complainant lie?" The submissions we make are contained fully in the written submissions and the problem arose - I can indicate to your Honours that we do not propose to go into any length on this ground but the problem arose because of two matters in combination: the interjections throughout the course of the trial directed towards the issue of possible financial motive for fabrication and the way this issue was dealt with in the summing up, on the one hand, and his Honour's repeating the Crown Prosecutor's argument in the summing up which is quote in paragraph 78 of the written submissions.

KIRBY J: Could I - and I do not want to take you back to all of the debates, but Justice Callinan drew my attention to a passage in the judgment of Justice Hunt at 426, line 35 which indicates that their Honours in the Court of Criminal Appeal did:

accept the statement of the trial judge in the present case that he had previously had problems with counsel appearing for the appellant at the trial. This would explain why the judge unfortunately had to interrupt so soon in the cross-examination.

But, that was not put to counsel at the trial. We do not know what he says.

MR BELLANTO: No.

KIRBY J: He may have a different statement about this.

MR BELLANTO: That is the matter we raised a moment ago.

McHUGH J: But he was present in the Court of Criminal Appeal. He was your junior in the Court of Criminal Appeal.

MR BELLANTO: Yes.

KIRBY J: I suppose he could have - - -

GAUDRON ACJ: Ultimately, we are all concerned about the conviction, not counsel or the trial judge. You have to at least show unfair trial or apprehension of bias in respect of the accused or the accused's case. You accept that, do you not?

MR BELLANTO: We do, thank you, your Honour.

KIRBY J: I am sorry I interrupted you. You were on another point.

MR BELLANTO: In the court below the appellant complained of this passage referred to in paragraph 78.

HAYNE J: That is a record of counsel for the Crown's submission to the jury, is it?

MR BELLANTO: Yes.

HAYNE J: Is it more than that?

MR BELLANTO: No.

HAYNE J: Then what is the complaint that is made, that the judge should not have recorded that counsel for the Crown had submitted this, or what is the complaint?

MR BELLANTO: No, your Honour. It sets the backdrop for what follows and that is that the financial motive was never a major point. It was a part of the cross-examination put to the complainant that she was maintaining, or she may have been maintaining, the allegations for criminal injuries compensation and because there were eight charges she was potentially entitled to get eight times $50,000.

HAYNE J: Is this a complaint of non-direction or misdirection or neither?

MR BELLANTO: It is not really a case of misdirection. It is the way it was left - I suppose it is misdirection because it was left to the jury on the basis that, "Look, you've heard the cross-examination of this girl and her mother about compensation. Let me tell you that I'm a judge who's sat on these tribunals. There is no way that the complainant would get what it's been suggested that she would get", and there were some quite derisory remarks made about the way this argument was developed. His Honour's criticism of the way it was put was so strong, his Honour was really saying to the jury, "Look, you can more or less put that to one side".

GAUDRON ACJ: Well, this is now interruption in the trial rather than a direction or a misdirection or a failure to give a direction.

MR BELLANTO: No, it is a misdirection that developed.

GAUDRON ACJ: Can you take us to the precise misdirection that you complain of? You conclude at paragraph 94, "that the Appellant did not receive a fair trial on this point".

MR BELLANTO: Yes. Can I give your Honour first of all the transcript references. In the written submissions in paragraph 87 there are references to his Honour's interjections first of all during the cross-examination of the mother of the complainant at page 218 line 50 to page 221 line 50. There his Honour questioned the witness on the issue of victims' compensation.

McHUGH J: I am sorry, what page is this, Mr Bellanto?

MR BELLANTO: Page 218 line 50 to page 221 line 50.

GAUDRON ACJ: This matter first having been raised by way of cross-examination by defence counsel?

MR BELLANTO: Yes, of the complainant and then her mother. Can I just put to the Court just briefly the way we put this argument. The matter was raised in cross-examination on the question of credit. His Honour dealt with the issue at various stages throughout the trial in rather derisory terms and then, at the end, his Honour said to the jury in effect, "This matter's been raised. It has no substance. Therefore, why would the complainant lie?".

HAYNE J: Mr Bellanto, I do not understand this. You are going to have to explain it to me. I do not understand what you mean by ground 4 and I particularly do not understand whether your complaint is a complaint of non-direction, misdirection or wrongful reception of evidence or some fourth complaint.

MR BELLANTO: If I can start at the last point, your Honour, it is not wrongful reception of evidence and it is the way the matter was left to the jury.

HAYNE J: That means nothing to me, Mr Bellanto. It is like saying, "It's in the vibes". What is your complaint?

MR BELLANTO: Can I take your Honour to the written submissions. The cross-examination arose at page 218 line 50 to page 221 line 50. His Honour then questioned the witness on the question of victims' compensation. Then at 245 line 52 - - -

GAUDRON ACJ: Yes, but the question at page 218 was whether it was open to question the mother in circumstances in which it was not put to the complainant. That is right, is it not? That is what the discussion was there?

MR BELLANTO: Yes, that is correct, your Honour, and that is where it first gained prominence.

GAUDRON ACJ: Well now, can you complain? Can you make specific complaint about that discussion?

MR BELLANTO: No, not specifically, and then, on page 221, the following page, there is further reference to the evidence.

GAUDRON ACJ: I take it that - - -

MR BELLANTO: And then at line 35, on page 221, there is reference to the secondary victim's compensation claim by the mother.

GAUDRON ACJ: Yes. Now, this is cross-examination. This is not what his Honour is saying.

MR BELLANTO: Yes, your Honour.

GAUDRON ACJ: Yes.

MR BELLANTO: And then, at page 299, his Honour, after counsel addressed, was endeavouring to correct something counsel had said in his address on this question, and - - -

GAUDRON ACJ: Which travelled beyond the evidence, did it not?

MR BELLANTO: Well, yes. At page 298 it starts, where his Honour said:

I must correct something that was put to you in the address -

and his Honour said:

The mere asking of a question by counsel -

et cetera, and then on page 299, line 7, his Honour then referred to the "victim's compensation" question and I invite the Court to read page 299, line 7, down to line 50, on this question. His Honour was really telling the jury that what counsel said was not correct.

GAUDRON ACJ: Well, was there evidence?

MR BELLANTO: Yes, the evidence was that there was a claim ceiling of $50,000 for a victim of criminality and that was the evidence.

GAUDRON ACJ: Who gave that evidence?

MR BELLANTO: That was given by the complainant and the mother referred to it as well.

GAUDRON ACJ: Yes, and so then, what did counsel suggest, that they were claiming for eight such - - -

MR BELLANTO: Well, he put it on the basis that potentially you were entitled to $400,000; I mean - - -

GAUDRON ACJ: Did he put that in cross-examination?

MR BELLANTO: Yes, it was put, if not in those words, it was certainly to that effect.

GAUDRON ACJ: Well, it is of some importance whether it was put in cross-examination and denied and accepted or whether it just emerged in his address to the jury. I would have thought counsel must have been on very thin ice in this address if it was not the subject of evidence.

HAYNE J: Page 222, line 28, there is a suggestion put to the witness which is not accepted.

MR BELLANTO: Yes. Yes, thank you, Justice Hayne.

HAYNE J: Is there any other evidentiary base?

MR BELLANTO: Then line 44. Apparently there was some reference to a solicitor having advised her about this matter.

Then if I can take the Court back to 299, the effect of what his Honour said there really was to diminish, we would say, the cross-examination on this point.

GAUDRON ACJ: Realistically diminish, was it not?

MR BELLANTO: Yes.

GAUDRON ACJ: Yes. When I say realistically diminish - - -

MR BELLANTO: In quantum?

GAUDRON ACJ: Yes, I mean in accordance with the practice. I mean, it was -

MR BELLANTO: Obviously $400,000 - - -

GAUDRON ACJ: We do not have a transcript of what precisely was said in counsel's address, do we?

MR BELLANTO: No.

MR BELLANTO: No.

GAUDRON ACJ: But we can take it that he did say something along the lines that is there recorded?

MR BELLANTO: I would expect, yes, that could be taken. Can I take you to page 159 line 55, to complete the transcript references on this question. This is of the complainant. So, there is the evidence of the complainant, and I have given your Honour the reference to the cross-examination of the mother.

In answer to your Honour Justice Hayne a moment ago, your Honour raised the question - had clarification of this ground. The law, as we understand it, is that a judge or prosecutor, in the absence of a motive that is part of the defence case, for example, cannot say to a jury, "Why would the complainant lie?", because it affects the onus. The point we make here is that, in effect, that is what his Honour did by the manner in which he dealt with the question of compensation. Your Honours would no doubt ask me is that part of a misdirection or non-direction. It is a misdirection to the jury, we would say, in the context of how it unfolded.

GAUDRON ACJ: The precise matter of which you complain then is that which is set out at page 17, is it, the reporting of that part of the Crown Prosecutor's address? Is that the precise matter of which you complain?

MR BELLANTO: Yes, your Honour.

KIRBY J: What is the reference to that?

MR BELLANTO: Page 352, point 17.

GAUDRON ACJ: You do not complain of what the trial judge said at page 299?

MR BELLANTO: We do. We do, because that was - - -

GAUDRON ACJ: Was any complaint made about that, do you know?

MR BELLANTO: By counsel?

GAUDRON ACJ: Yes.

MR BELLANTO: No, your Honour, no.

GAUDRON ACJ: No objection was taken, no redirection sought, and no complaint made in the Court of Criminal Appeal, is that right?

MR BELLANTO: Yes, your Honour, that is right.

GAUDRON ACJ: But you refer to it as part of the context to complain about the repeating of the prosecutor's submissions?

MR BELLANTO: Yes.

GAUDRON ACJ: Well, that should take you to the final point of appeal, should it not?

MR BELLANTO: I am sorry, your Honour?

GAUDRON ACJ: I said, that should take you to the final ground of appeal, should it not?

MR BELLANTO: Yes. Since this Court's decision in Weissensteiner, there have been a number of developments in Australian jurisprudence. There is the abolition of the unsworn statement in New South Wales in 1994 and in other jurisdictions. There is the introduction of the Commonwealth Evidence Act and the Evidence Act in New South Wales, section 20. There has developed a division of judicial opinion whether the extended comment referred to in our written submissions, paragraph 6.2, should be confined to circumstantial cases. This division of opinion is reflected in Queensland in a number of cases: Kanaveilomani, Demeter - - -

GUMMOW J: Whereabouts are these in your outline?

MR BELLANTO: These are in the written submissions, your Honour.

GUMMOW J: Yes, whereabouts?

MR BELLANTO: Page 10, paragraph 6.29 and following.

GUMMOW J: Thank you.

MR BELLANTO: There was another case in Queensland, a more recent case which is not referred to in the submissions, a case of Peel unreported of 17 November 1998 and we refer the Court to the dissenting judgment of Justice Williams, paragraphs 32 and 33 on pages 19 and 20 of that unreported decision.

That was a case of a fingerprint being found on some pieces of glass that were said to comprise a Diet Coke bottle, and it was alleged that the accused threw a Molotov cocktail and the Crown could not indicate whether there were other prints left on the bottle by anybody else and 12 months had elapsed between the attempted arson and when the accused was first spoken to, and there was not very much evidence apart from the print on the pieces of glass. The question was whether a Weissensteiner direction was appropriate and Justice Williams dissented and said that such a direction would erode the right to silence.

In Western Australia there is the case of Boxer which is also in the written submissions. In South Australia there is the case of Bint & Graham & Butterworth which is an identification case, and that extended the Weissensteiner direction to identification evidence. It is 1996. There is also a more recent South Australian case which I can refer the Court to of Clune [1999] SASC 45; (1999) 72 SASR 420. In New South Wales there are the cases of Azzopardi and OGD, and in OGD Justice Sperling referred to the problem being that of an uneasy compromise.

In Victoria there is the case of Mora in 1996 in which Justice Smith referred to some very difficult questions arising over the Weissensteiner direction and indicated that he thought it required further discussion.

GAUDRON ACJ: But did you, in fact, have a Weissensteiner direction here?

MR BELLANTO: Well, we would say yes.

GAUDRON ACJ: The direction in question here did not relate really to something directly relating to the commission of the offence; it related to the so-called admission. Is that not the -

MR BELLANTO: Well, with respect - - -

GAUDRON ACJ: No, you say the direction goes further.

MR BELLANTO: Can we take your Honour to the written submissions, paragraph 6.2, and, first of all, in 6.1, after reminding the jury of the evidence of the conversation between the mother - - -

GAUDRON ACJ: That is really the kernel of your complaint, is it not, No 5?

MR BELLANTO: Yes.

GAUDRON ACJ: One, 2, 4 and 4 are matters of complaint, are they? They are the context in which you make - - -

MR BELLANTO: Yes, 1, 2, 3 and 4 are what is known, as we would say, the standard direction.

GAUDRON ACJ: Yes.

MR BELLANTO: And then 5 onwards, we would say, are the Weissensteiner directions, particularly 8 and 9 being the Jones v Dunkel aspect, so that the directions - - -

McHUGH J: The critical direction is at 349, at line 10, is it not, or line 9:

you are satisfied that the accused could have given evidence form his own knowledge of the events about which the mother and the complainant have given evidence to the Crown, if you are satisfied that it is reasonable, in the circumstances, to expect some denial or contradiction to be forthcoming from the accused if such a denial or contradiction is available, then you are entitled to conclude.....his evidence would not have assisted him.

So it goes to the whole case.

GAUDRON ACJ: Yes. Well that is not a Weissensteiner direction, is it?

McHUGH J: I am not sure, not as far as we were concerned.

MR BELLANTO: I think the problem that has developed, certainly in New South Wales, is that the direction that the trial judge gave in this case has been regarded as a type of proforma direction in all trials. Whether it is circumstantial or direct evidence, it does not really seem to matter, it is just given. Azzopardi is a good example of that as in this case, and OGD is another example. In fact, the trial judge in OGD and Azzopardi was the same judge, I think. The debate that has been developing, not only in Australia but overseas, is, is a Weissensteiner direction appropriate in a direct evidence case? We would say it certainly should not be.

It is exacerbated in this case because not only did the judge give the Weissensteiner direction, but he gave a Jones v Dunkel direction as well, which compounded the problem.

GUMMOW J: You say in paragraph 6.4 that the situation regarding failure to testify has been left by section 20 of the Evidence Act "to the continuing development of the common law". Is that all you say about section 20?

MR BELLANTO: No, we would like to add to that that there has really been a breach of section 20(2) here, which prohibits comment to the effect that the accused did not give evidence because the judge thought he or she was guilty.

CALLINAN J: The comment must not even suggest - - -

MR BELLANTO: That is right.

CALLINAN J: I do not know why any comment would be made unless the intention were to suggest something like that. It is very difficult to think of any case in which a comment would be made other than to make a suggestion of that kind.

MR BELLANTO: The way the judge left it to the jury in this case left, we would say, the jury in no doubt that the judge gave that suggestion because he did not give evidence.

HAYNE J: There may need to be some greater refinement, may there not, in this debate? Firstly, what is the judge doing? Is the judge directing the jury about what is a permissible chain of reasoning, or is the judge making a comment on factual issues which was to be understood in light of the general rubric comments, "Ladies and gentlemen of the jury......are matters that you are free to disregard as you choose. Anything I say does not bind you on that aspect". What is it that the judge did here, what is it that section 20 permits? They may, perhaps, have to be distinguished quite sharply.

GAUDRON ACJ: You may have to look to separate application in relation to the whole case and the so-called admissions.

MR BELLANTO: Yes.

HAYNE J: Just so.

GAUDRON ACJ: Yes. Would that be a convenient time?

MR BELLANTO: Yes, your Honour.

GAUDRON ACJ: We will resume at 2 o'clock.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.04 PM:

GAUDRON ACJ: Yes, Mr Bellanto.

MR BELLANTO: Your Honour, at the outset, before I address the remarks from Justice Callinan and Justice Hayne before lunch, can I give the Court what we say are the main problems with the direction that his Honour gave the jury. The first point is that his Honour at page 348 point 6 said, silence adds weight and value to the complainant's evidence and the evidence of Mrs T. Secondly, he presented the jury with a comparison of the detailed evidence of the complainant to the very brief - - -

GAUDRON ACJ: Sorry, I cannot find that at page 348 point 6 - at line 5, thank you.

MR BELLANTO: Sorry, your Honour. Secondly, he presented the jury with a comparison of the "detailed evidence" of the complainant to "very brief statement" of the appellant. This is at page 348 point 25. Thereby, we say, diminishing its value. Thirdly, as to the appellant's statement of denial, his Honour repeated twice that it was not evidence in court; again, we say, diminishing the value of that explanation or statement.

Four, his Honour gave an impression that he disapproved of the choice the appellant made and by electing not to give evidence the appellant was not prepared to challenge on oath the evidence of the complainant and her mother - that is, because he was guilty - and his Honour said at 349, line 30, the appellant has not put forward any denial. Next, his Honour assumes that the appellant is involved in an incident or incidents with the complainant and her mother. This is at 348, point 31. His Honour said the appellant is the best person "to give evidence of what happened". Next, using expressions such as "doubts" that "may be more readily discounted" at 348, line 40, are more appropriate, we submit, to circumstantial cases rather than direct evidence cases.

Seventh, his Honour elevated the credit of the complainant and her mother by directing the jury that it can "more readily be accepted as the truth" in the absence of contradiction, 348, line 41. That is, a plea of not guilty and the assumption that the accused is innocent are rendered nugatory, we submit, because silence gives direct Crown evidence more credibility.

Eighth: his Honour emphasised the failure to contradict on oath in circumstances where it was inappropriate and, ninth, his Honour gave what is commonly referred to as the Jones v Dunkel direction which was unnecessary, prejudicial and which compromised the appellant's right to silence.

Now, can I just, on that last point, refer your Honours to our written submissions which pick up that aspect of the direction and it is the written submissions at page 13, paragraph 6.41 to 6.44, and those submissions are referable to points 8 and 9 in our written submissions in paragraph 6.2. Unless the Court feels it necessary, we do not propose to take the Court to the authorities on those paragraphs. They are there for the assistance of the Court.

In relation to the question your Honour Justice Callinan raised with section 20(2) of the Evidence Act as to comment and the utility of comment, of course before the section and under the earlier regime of section 407 where comment was totally prohibited, I think a view began to develop that juries regarded silence as indicative of guilt. There emerged a need to perhaps strike a balance against that view being taken. As we understand it, the philosophy behind section 20 was to give the judge the opportunity to comment in a way that would perhaps deter the jury from taking an adverse view of silence. In other words, to assist the accused rather than to perhaps strike a balance against what was happening before the legislative changes took place. In that regard we say comments consistent with points 1 to 4, which is the standard direction, would be appropriate under section 20.

CALLINAN J: What did the Law Reform Commission responsible for the drafting of the Act say about section 20?

MR BELLANTO: The Law Reform Commission Report is annexed to the respondent's submissions, and there are various aspects to it. Does your Honour have the annexures to the respondent's submissions?

CALLINAN J: Yes.

MR BELLANTO: There are extracts there that refer to the reports.

GAUDRON ACJ: The critical part from your point of view is paragraph 557:

as to the inferences they may, and may not, draw from the accused person's silence.

Is that right?

MR BELLANTO: Yes, your Honour.

GAUDRON ACJ: You say if that is the purpose, then it just takes you back into traditional Weissensteiner territory?

MR BELLANTO: Yes. Your Honour Justice Hayne raised the question of whether the question raises a process of permissible chain of reasoning. We say it is an impermissible chain of reasoning for a jury to be directed in cases that are not circumstantial cases along the lines of Weissensteiner, or in the way the judge directed the jury in this case.

GAUDRON ACJ: Does that apply both to the so-called admission, as well as to the case generally?

MR BELLANTO: Yes. Your Honour Justice Gaudron, the answer to that question is in our submissions at - - -

GAUDRON ACJ: The reason why I ask this is it seems that, really, the appellant was the only one who could give any indication of what he meant by the expression "intercourse".

MR BELLANTO: That is true.

GAUDRON ACJ: So it might take you in that regard into the heartland of Weissensteiner.

MR BELLANTO: Theoretically, I suppose it may, but that involves - as we say in paragraph 6.45 of the submissions on page 15, it may well introduce confusion if that is done. I mean, the first point we would make is there was no allowance made for splitting between the direct evidence of the complainant and the admission in this case. So we say that the direction that was given was inappropriate and so, therefore, no attempt to distinguish between the complainant's evidence and the admission evidence was made by his Honour. But even if it was to be done, it can cause difficulties and confusion, we say, to a jury to split it in that way.

CALLINAN J: Mr Bellanto, if a Weissensteiner direction were given, might that not involve a suggestion that the defendant had failed to give evidence because the defendant believed that he or she might be guilty of the offence? What I am really asking you is: is there any room for Weissensteiner to operate in view of section 20 of the Act?

MR BELLANTO: Your Honour, that takes us back to a case such as Noble.

CALLINAN J: Is Noble before or after the Evidence Act?

MR BELLANTO: Before.

CALLINAN J: I do not see how that can assist.

MR BELLANTO: The discussion in Noble throws up these very interesting and important questions. The majority in Noble, the Canadian case referred to, held that there should be no direction such as in Weissensteiner at all. That is, I suppose, our primary position in this case.

CALLINAN J: Was the Canadian court construing a statute there?

GUMMOW J: It was the charter, was it not?

MR BELLANTO: The charter.

GUMMOW J: I do not know, but I thought so. No, it says section 4(6) of the Canada Evidence Act, amongst other things.

MR BELLANTO: That is set out in the judgment of Sopinka.

GUMMOW J: The Chief Justice's judgment at page 405.

MR BELLANTO: The Canada Evidence Act is set out in the judgment of Justice Sopinka who gave the majority judgment in Noble.

CALLINAN J: Yes, "shall not be made the subject of comment". Is it your submission that the Weissensteiner direction can be given without infringing section 20 of the Evidence Act?

MR BELLANTO: In certain circumstances it may be given in a typically circumstantial case, but the problem really is that in most of those cases where it has been applied there are peculiar facts within the knowledge of the accused that call for some explanation.

CALLINAN J: But is that not a suggestion that the defendant does not want to give the explanation because he or she believes that he or she might be guilty?

MR BELLANTO: Well, yes - - -

CALLINAN J: That infringes section 20 then, does it not?

MR BELLANTO: Yes.

GAUDRON ACJ: And is not the premise of Weissensteiner, as considered in this Court, that the silence is itself evidence?

MR BELLANTO: I know that your Honour and Justice McHugh held that mere silence was evidence, but I do not know that the majority decided that, that silence was in fact evidence and that, to some extent, has been the cause of some debate whether silence in fact is evidence, so I think that is one of the areas that has caused some discussion over the years since Weissensteiner. But for our purposes, in our submissions, we address the interesting arguments through the cases, and we do not need to go into that at this stage, but, for our purposes, the direction that was given by the trial judge in this case was inappropriate, whether you take the majority view in Noble or the minority view in Noble or you take the views of the minority or the majority in Weissensteiner. The direction that the trial judge gave in this case was outside all of those authorities and those judgments.

GAUDRON ACJ: And how precisely does it relate to Jones v Dunkel, which was a case of criminal libel, was it not?

HAYNE J: No, a motor accident.

MR BELLANTO: It was a motor accident case and the defendant driver was not called.

HAYNE J: And in a civil context where, first, your standard of proof is different and second, there is not that accusatorial content that you have in a criminal trial.

MR BELLANTO: Yes.

CALLINAN J: And there is a third factor too, because the explanation can only be given if some evidence is called by or on behalf of the accused to explain the failure to give evidence. So if you want to try to meet a Jones v Dunkel direction in a criminal case, you are probably going to have to be forced into calling evidence.

MR BELLANTO: Yes.

CALLINAN J: And of course, if you call some other evidence, that may expose the accused to, if not a comment, certainly make available an inference that, well, other people were called, why was he not called to give evidence?

MR BELLANTO: Yes.

HAYNE J: Which brings me back to this chain of reasoning point. Is it impermissible - and I would understand you to say it is impermissible - for a judge to instruct a jury, "You may reason from the fact that the accused did not give evidence in a case where the accused was one of only two people present at the alleged incident to the conclusion that had the accused given evidence, that evidence would not have assisted his or her case" Now, that is the chain of reasoning that, on one view of this charge, the judge is inviting the jury to adopt, and that, at least at first blush, seems to me to be contrary to the fundamental tenet that it is for the Crown to prove, and prove beyond reasonable doubt, and that unlike Jones v Dunkel where ordinarily an element before your Jones v Dunkel someone is to demonstrate that the witness was in their camp and was available to be called, here there is a sound explanation for the accused not giving evidence, namely, the accused does not have to, it is for the Crown to prove and demonstrate. Vastly different, then, from the criminal trial.

MR BELLANTO: Yes. Jones v Dunkel is most often used in the context of, as your Honour Justice Hayne said, a witness who is not available and not called. It is the witness aspect.

HAYNE J: Well, witness or party matters not, but somebody in the camp of the opposite party.

MR BELLANTO: Yes. What has happened is that the Jones v Dunkel direction has been transposed from that type of case, the witness not called - - -

GAUDRON ACJ: And pursuant to section 20, one presumes.

MR BELLANTO: Well, yes. So, that in a section 20 direction you have the standard direction with the additional Jones v Dunkel components, plus the other directions referred to in our submissions in our various points. So, you get an overwhelming direction to the jury on different fronts, all leading to the same problem: we have not heard from the accused and therefore because you have not heard from the accused you may think he is hiding or he does not want to give evidence because he is guilty, or - there is that overtone that creeps into it.

CALLINAN J: It only need be a suggestion.

MR BELLANTO: Correct, yes, your Honour.

CALLINAN J: I do not see, frankly, how you could give the Weissensteiner direction in the face of the Evidence Act if you look at what their Honours Chief Justice Mason and Justices Deane and Dawson say at the foot of page 230 and the top of page 231:

enabling the jury, in the absence of any explanation by him, to accept the inferences for which the prosecution contended as the only rational inferences from the evidence.

That is, guilt.

MR BELLANTO: Yes, and, of course, in a case such as this case, the consequence is that all the accused could do, if he was called for to give some explanation, was to perhaps proffer a reason why the complainant might have made the allegations, and that is exactly what he is not permitted to do, and is totally foreign to our system of justice. In this case there is nothing that the accused could have done.

HAYNE J: It is a fairly cold hard fact of life that persons accused of this kind of crime do not often get an acquittal unless they go into the box, Mr Bellanto. Jurors generally do not like - - -

MR BELLANTO: Your Honour, there is no doubt about that and it is a very emotional type of case for juries to try and grapple with.

HAYNE J: Yes, and there are real people involved.

MR BELLANTO: Yes, exactly. It is often difficult to extricate oneself from the human aspects of it and confine oneself to the legal aspect.

HAYNE J: That is what juries are for.

MR BELLANTO: But we would say that, in such a case, where there are those overtones, it is vitally important that the jury be guided properly and instructed properly, and in a case such as this there always is that temptation perhaps for a jury to reason improperly from silence without adequate guidance and direction from the trial judge, and unfortunately, from our point of view, that happened in this case.

So the submissions that we advance to the Court are set out and your Honours have the submissions. We invite the Court to read the interesting arguments in some of the cases, for example, in Noble, in Queensland v Victoria, referred to in our written submissions and the difficulty that can arise, perhaps, where a case does hinge on some other evidence, apart from the complainant's evidence, such as OGD and this case, there are potential problems there of confusing a jury if a judge is to try and split a direction.

GUMMOW J: Do you challenge OGD in its construction of section 20?

MR BELLANTO: Yes. We accept that in New South Wales the authority is against our proposition. As I - - -

GUMMOW J: I am just interested to find out what you submit about section 20 and the construction of section 20. You challenge the construction of section 20 in OGD, do you? I thought you did. You answered some of the questions - - -

MR BELLANTO: Yes, but we certainly challenge OGD.

GUMMOW J: Yes, all right, that is all I need to know.

MR BELLANTO: They are our submissions, if the Court pleases.

GAUDRON ACJ: Yes, thank you Mr Bellanto. Now, Mr Solicitor, the Court would like to hear you on the question of bias or apprehended bias and you understand what is comprehended in that argument; and the direction on the failure to give evidence; and also we would like to hear what you have to say about the trial judge's statement to counsel for the appellant, the accused at the trial, that he had to call his client first.

MR SEXTON: Only those matters, your Honours?

GAUDRON ACJ: Yes.

MR SEXTON: Yes. In that case, if I can start with the matter with which my friend just finished, that is, the directions in relation to the failure to give evidence. Your Honours, in our submission, it is useful to look at the words of section 20.

GUMMOW J: It is not useful, it is imperative.

MR SEXTON: Yes, your Honour. Just to confine them to this case:

The judge or any party.....may comment on a failure of the defendant to give evidence.

In our submission, "comment" there means to refer to that fact, and without any further material in the section, presumably to refer to it as he or she thinks fit.

GAUDRON ACJ: No, a trial judge cannot proceed as he or she thinks fit. If there is going to be a comment, surely it must be related to the evidence and to the inferences that might properly be drawn.

MR SEXTON: Yes, your Honour, within the context of the evidence, certainly.

GAUDRON ACJ: Yes. This seems to involve a general comment.

MR SEXTON: We would say not, your Honour, but I will go to the trial judge's particular directions.

GAUDRON ACJ: Yes, it is not as he or she thinks fit, anyway. It is appropriately having regard to the evidence and the issues in the trial.

MR SEXTON: We accept that, your Honour. The qualification that is added to that general statement in the section is, "however", not to suggest - not in such a way as to suggest that the defendant failed to give evidence because he was guilty, or because he believed that he was guilty of the offence. It is significant, in our submission, that the words used are "guilty of the offence concerned", to suggest that he was guilty, or thought he was guilty of the offence concerned.

It is our submission that the directions given by the trial judge in this case do not fall within the qualification that is set out in the section. Weissensteiner, of course, preceded this particular provision but, in our submission, there is really nothing in any of the judgments in Weissensteiner which would be inconsistent with the section, or with that proposition.

GAUDRON ACJ: But the Evidence Act did not repeal the right to silence, did it?

MR SEXTON: No, your Honour.

GAUDRON ACJ: Whatever you do has to be consistent with that. It did not alter the burden of proof.

MR SEXTON: No.

GAUDRON ACJ: And it did not alter the standard of proof. It did not, did it?

MR SEXTON: No, your Honour.

GAUDRON ACJ: So, the direction has to be at least consistent with those considerations.

MR SEXTON: Yes, your Honour. That is why I say that if one of the underlying premises of Weissensteiner in all the judgments was that there could not be, in effect, a reversal of the onus of proof in the trial judge's directions to the jury, or a suggestion from the judge as to the guilt of the accused, then we would say that, in that sense, the case is quite consistent with the legislation.

CALLINAN J: Do you say that what the Chief Justice and Justices Deane and Dawson said at the foot of page 230, and 231, would represent the law on the proper application of section 20 of the Evidence Act?

MR SEXTON: I would say two things, your Honour. The first is that it probably, in our submission, is not useful to construe Weissensteiner like a statute, in the sense that every line in the various judgments may reflect the current state of the law in the light of section 20 of the Evidence Act. But, if I can come to that particular passage and say that it is the difference between - to pick up one of the comments that was made by Justice Hayne , it is the difference between a chain of reasoning and the ultimate finding of guilt or innocence, and as to whether directions can be given that allow inferences about certain facts to be drawn more readily, as opposed to an inference of overall guilt.

CALLINAN J: But an articulated chain of reasoning might itself suggest guilt.

MR SEXTON: Your Honour, it might point finally in that direction followed to its conclusion, but the final step is one for the jury. We do not pretend that there is not perhaps a difficult drawing of the line in the directions that can be given because, as your Honour points out, if enough inferences of fact are drawn in a particular case, they may lead inexorably, rationally, to a finding of guilt. The jury of course does not have to be rational in one sense but they may lead of course rationally in that direction. It is finally a matter for the jury but it is a question of what directions the trial judge can give to deal with a situation where the accused has not given evidence. In our submission, something that was pointed out by the Law Reform Commission, that a jury may well draw a more adverse inference in some situations against an accused who does not give evidence if there are no directions at all on that question.

Your Honours, if I could go to the specific directions that were given by the trial judge in this case. I do not want to read them verbatim to your Honours but if I could draw your Honours' attention to the main points in them. They really start at page 346 in the appeal book at about line 40. The trial judge points out that the accused has not given evidence and notes that there is no obligation to do so. Towards the bottom of the next page, 347, his Honour notes that the silence is not to be viewed by the jury as an admission of guilt and says that:

There are many reasons why an accused person may not want to give evidence.

He gives some examples of that. Then he adds that there may no doubt be other valid reasons in addition to the examples that he gives. Then at the top of page 348 his Honour says that:

the Crown asks you when judging the value of, the weight of, the evidence which has been put forward by the Crown.....to take into account the accused's election not to deny or to contradict the matters about which he could have given direct evidence from his own personal knowledge.

GAUDRON ACJ: How did the weight of evidence come in here? It was the truth of the evidence that was in issue, was it not, not its weight?

MR SEXTON: Your Honour, I am not sure that his Honour the trial judge was distinguishing there between - - -

GAUDRON ACJ: I know he was not, but the issue in the trial was the truth beyond reasonable doubt of the evidence.

MR SEXTON: Well, we would say that that is how the jury would have taken it, your Honour, in the way your Honour puts it.

GAUDRON ACJ: Well then, different considerations apply, in that case, do they, from the weight?

MR SEXTON: Well it is really a question of whether one uses the term "weight" or "value" or something else.

GAUDRON ACJ: Well these are slippery words.

MR SEXTON: But the ultimate question is whether a particular piece of evidence is accepted on the standard of proof by the jury, as it - - -

GAUDRON ACJ: That could only mean, could it not, that in the circumstances you can give greater credibility to the account given by the complainant than would have been the case if the appellant had gone into the witness box and denied it on oath?

MR SEXTON: Well, your Honour, it is a question of the confidence, I suppose, with which the jury can accept or reject a piece of evidence.

GAUDRON ACJ: Yes.

HAYNE J: But that is running perilously close to that classic misdirection, "Who do you believe, the complainant or the accused?" That is clear misdirection because it is diverting the jury away from the real issue which is, "Has the Crown demonstrated beyond reasonable doubt that?" Now is not this direction verging on that?

MR SEXTON: Well we say not, your Honour, because the question that your Honour asked, quite properly, to the jury, "Has the Crown proved that the accused is guilty of the offence?", is really in a sense - it is not an abstract question, but it is a broad question, in comparison with some of the findings of fact that have to be made by the jury before they can decide yes or no.

HAYNE J: Well why is the complainant's version of events more to be believed because the accused stayed silent? Why is it better?

MR SEXTON: Well, your Honour, both rationally and in terms of the authorities, because the jury would be able to accept the version that has been given more confidently, if it has not been contradicted.

HAYNE J: Does that not deny the accusatorial nature of trial and deny the Crown bearing the burden beyond reasonable doubt?

MR SEXTON: Not, in our submission, your Honour, and we would say there is nothing in the statute that would give rise to that construction of it and there is nothing, we would say, in Weissensteiner that would.

GAUDRON ACJ: Well, previous to Weissensteiner, was that issue not dealt with by this Court in, I think, Petty v The Queen?

MR SEXTON: Your Honour, all of the authorities say that there cannot be a reversal of the onus or that there cannot be a suggestion of guilt, but the question is - I took Justice Hayne to be putting the question - whether that was involved in this direction here?

GAUDRON ACJ: But is it not? Is not that direction tantamount to saying, "That evidence is better because there was no evidence from the accused" or "That evidence is better than it would have been if there were evidence from the accused?

HAYNE J: And how does that stand with what his Honour has earlier told the jury, "Listen, there may be all sorts of reasons of which you are ignorant about why the accused did not want to go into the box". The two seem to me to be in stark contrast and tension.

MR SEXTON: There is a tension, your Honour, that is undeniable. But the question is, what kind of directions are appropriate in the circumstances where the accused has not given evidence, unless it is to be left simply in a vacuum for the jury to draw, as we say, what may be an extremely inference.

HAYNE J: Hence the comment to the jury, "There may be many reasons of which you are ignorant about why the accused chose not to give evidence. You may not conclude anything from it".

MR SEXTON: Well, your Honour, that, in a sense, we would say, does not take the matter very far for a jury. That it - - -

HAYNE J: But it warns them against the impermissible chain of reasoning and the present field for debate is whether it is a permissible chain of reasoning for a juror to say, "I heard the complaint. I am more readily able to accept her version of events because the accused stayed silent", and that is the field for our present debate, is it not?

MR SEXTON: It is, your Honour. It is not put quite in the stark terms as that by the trial judge in this, or in any other cases dealing with that direction. But the question is really, if there is going to be a direction in relation to the weight or value that can be attributed to uncontradicted evidence, then what would its terms be? We say that the terms here meet with the statute and, as it happens, meet with Weissensteiner as well. Now, if your Honour is saying to me that, nevertheless, even if that is right that there would be a problem about them, then of course we say that that is all that they need to do.

GAUDRON ACJ: Why do they meet with Weissensteiner?

MR SEXTON: Well, your Honour, because in Weissensteiner, we would say the very point of all of the judgments was that you - - -

GAUDRON ACJ: The very point of Weissensteiner was that there was evidence that needed explaining, that there were facts that needed explaining, otherwise the facts gave rise to a particular inference. This was never such a case. This was a case of straight out allegation, which was denied in the police interview by the plea of not guilty, and that was the beginning and end of it.

MR SEXTON: Except for this, your Honour, that there may be, and your Honour has already referred to it - - -

GAUDRON ACJ: And, indeed, once they are denied, once an allegation of this kind is denied, what more can be said than, "I did not do it" and why would you then go on to add, as the trial judge does, that he has been content to rely on that - I cannot quite understand what the trial judge is referring to but if it is the statement to the police statement, his Honour goes on at line 25 to point out that he has been content to rely upon that very brief statement in answer to the detailed allegations made by the complainant. That seems to me to take it into another dimension of error.

MR SEXTON: He is referring to a matter that he has already referred to, that is the statement in denial. Your Honour has already referred - - -

GAUDRON ACJ: Why is a denial any better if it involves detail than if it involves a detail, in the context - - -

MR SEXTON: The distinction his Honour has drawn there is perhaps between the unsworn statement and the evidence in court.

GAUDRON ACJ: Yes, he is talking about the brief statement to the police, it would seem, it being brief as opposed to the detailed nature of the allegations by the complainant. How does that add to the weight of anybody's evidence? How does it bear on the chain of reasoning and, how does that relate to section 20?

MR SEXTON: Well, because, your Honour, the allegations made by the complainant in her evidence are, in that sense, uncontradicted in the way that she made them in court.

HAYNE J: And that will be starkly obvious to the jury. The notion that we have got to hold the jurors by the hand and explain that the number two follows after the number one is something that is perhaps doing less than justice to the collective common sense of the jurors. Why does the judge need to get into all of this? The judge needs to warn them against impermissible chains of reasoning; that I can understand to ensure a fair trial, but otherwise the facts are for the jury and they bring to it a degree of collective good sense that is sometimes undervalued.

MR SEXTON: We do not undervalue it, your Honour, but we do say that the jury would - in our submission, the jury would think it odd if there was not some direction given on this subject.

McHUGH J: Yes, but surely it should be that what was regarded as the accepted form in England as stated by Lord Parker in Bathurst's Case that the accepted form of the comment is to inform the jury that the accused is not bound to give evidence, that he can sit back and see the prosecution have proved their case and that while the jury have been deprived of the opportunity of hearing his story tested in cross-examination the one thing they must not do is to assume that he is guilty because he has not gone into the witness box. Now, that is what the section is aimed at, surely? The Law Reform Commission said so.

MR SEXTON: Your Honour, what it says on its face is that you can comment, except in one way, a very important way; that is, not to suggest guilt. We say that this does not suggest guilt, that it does not lead to that point. It certainly suggests to the jury that they can more confidently draw some inferences of fact in relation to the evidence.

GAUDRON ACJ: No, it was not inferences of fact. We were not concerned with any inferences to be drawn in this case, except, perhaps, in relation to the admission.

McHUGH J: That is right. You would have no problem, to my mind, if the judge had said, "The accused has failed to give any explanation as to what he meant by the word "intercourse" in that admission, and from the fact that he failed to give any evidence about it, you may more confidently draw the inference that he meant intercourse in its ordinary sense, and not in the statutory sense". But the judge went much further than that. He spoke about "if you are satisfied that the accused could have given evidence from his own knowledge of the events about which the mother and the complainant have given evidence then you may conclude that his evidence would not have assisted him at his trial".

GAUDRON ACJ: And to suggest that he might be in the position to give evidence of his own knowledge of those events is almost to suggest guilt.

McHUGH J: It certainly suggested he should have - I am not sure it is section 20 so much that is involved in this particular case, but it is an attack on Petty and the right to silence point.

MR SEXTON: But section 20, in our submission, must govern what the trial judge can say on this question, your Honour.

GAUDRON ACJ: Yes, well, what does it mean?

McHUGH J: Subject to this, Mr Solicitor, that it is a fundamental principle of statutory construction these days, see Coco and like cases, that fundamental common law rights are not taken to be abrogated by statute, except by express words of plain intendment. So, nothing in section 20 should be read as indicating that a judge can make comments which would infringe the accused's right to silence.

MR SEXTON: Your Honour, we say that that is the way the section is designed, but it equates the right to silence, as it were, with the ability not to give evidence, but for there not to be a suggestion of guilt. That is what the section lays down, in our submission.

GAUDRON ACJ: But surely it does not say there could be any suggestion short of guilt. You accepted earlier it could only be a suggestion that is appropriate, having regard to the evidence and the issues in the case - you accepted that. And you accepted, did you not, that it does not overrule the right to silence, and it does not change the burden or standard of proof. They must limit, must they not, the sort of comment that can appropriately be made.

MR SEXTON: Except for this, your Honour, that we say the section encompasses all that when it says that you cannot make a suggestion of guilt by reason of the election not to give evidence.

GAUDRON ACJ: I do not understand that, I do not understand how you put that. You must be saying you could make any comment, other than one suggestive of guilt.

MR SEXTON: On the face of it, that is what the section says, your Honour.

KIRBY J: That is all it says, really.

MR SEXTON: Yes.

KIRBY J: But it is written against a background of some pretty fundamental deep principles of our trial system here.

MR SEXTON: But it does - - -

KIRBY J: Are there any standard directions in the judicial manual in New South Wales or has the Court of Criminal Appeal, as it were, sanctioned some standard direction, because this is absolutely a core and central issue in the accusatorial nature of the trial?

MR SEXTON: Mr Blackmore can probably answer that question better than I can, but as I understand it, your Honour, there are some standard directions - - -

GUMMOW J: This one has been sanctioned, has it not?

MR SEXTON: - - - and that this one is one of them.

KIRBY J: What, the one that Judge Ducker gave?

MR SEXTON: In certain circumstances, but it is certainly not applicable to every case.

KIRBY J: So talking of weight is in the standard direction, is it?

GAUDRON ACJ: And value?

MR SEXTON: We tried to get a copy apparently, your Honour, but in any event, as we understand it, yes, this direction is given at times in New South Wales and that is obvious from OGD and from other cases. Vaughan, I think, is another case.

GAUDRON ACJ: So, it is de facto sanctioned by decisions of the Court of Criminal Appeal?

MR SEXTON: Yes, your Honour.

GAUDRON ACJ: Even if it has not approved some model direction?

MR SEXTON: Yes, and given the wording that is used in this case and in OGD and Vaughan, one could draw the inference, if that is the right term, that there is a reasonably standard direction that is available.

McHUGH J: It seems to me that the New South Wales cases would sanction the direction in any case where there is direct evidence implicating the accused in the crime. If there is, you can give the direction that his or her failure to give evidence enables the jury to more readily accept the evidence that implicates the accused.

MR SEXTON: Yes, your Honour.

HAYNE J: I am not sure that it would confined only to cases where there is direct evidence. It is any case where there is a case fit to go to the jury. If the accused chooses to remain silent, you may the more readily accept the case against the accused.

MR SEXTON: Except for this, your Honour, that it is really premised on there being a situation where the accused has some knowledge and would be able to give an explanation.

KIRBY J: This is a matter, undoubtedly, on which the jury would be screaming out for guidance from the judge because an ordinary lay person would think, I am sure, that if you do not give an explanation, then you cannot give one which is helpful to you; and against that has to be pitted the very peculiar accusatorial system of trial we have which is really sometimes difficult for people, including some lawyers, to understand but which is absolutely fundamental to our system of criminal justice - - -

MR SEXTON: Your Honour, we certainly adopt what your Honour says about the necessity for a direction. The question is then what should be its terms?

KIRBY J: Yes, but the terms given talk of weight, and that is not really the issue, as it seems to me, at least as I am thinking at the moment.

MR SEXTON: Could I return to one matter that was raised earlier by Justice Gaudron that there may be two levels at which the directions can also be taken: one is, as it were, the question of the general evidence by the complainant and the failure to give evidence in a general sense in relation to that by the accused and, more specifically, the question of the partial admission and the failure to give evidence on that subject and to contradict it. The great bulk of his Honour's directions on this question, in our submission, really go to the second of those, the partial admission - - -

GAUDRON ACJ: Well, I am not too sure; look at page 348, line 35 onwards:

where a Crown witness and the accused are directly involved in a particular incident -

now, perhaps that is the alleged admission, but it is not limited in that way:

and where the evidence of the Crown witnesses is left undenied or uncontradicted by the accused any doubts which may otherwise have been cast upon the evidence of the Crown.....may be more readily discounted -

well how does that sit with the notion of a reasonable doubt?

and may more readily be accepted as the truth.

Then it says:

That is the approach which the Crown asks you to adopt in this case.

Generally, that is -

in particular with regard to the -

alleged submission.

MR SEXTON: I do not resile from the fact, your Honour, that there are some points in the directions which can be taken more generally, although, in our submission - and we are happy to defend those - but we would say, overall - - -

GAUDRON ACJ: Well, can you defend the notion that doubts can be discounted?

McHUGH J: And add to what the Acting Chief Justice has just said, at page 349 at line 44:

But he certainly was in a position, you might think, to contradict what it was that the complainant said happened between him and her and also what it is that her mother - - -

MR SEXTON: Yes, they are both in that paragraph, your Honour, that is quite right.

GAUDRON ACJ: Well, that must come perilously close to assuming guilt, must it not?

MR SEXTON: We say not, your Honour, and except for the so-called Jones v Dunkel sentence, which is at 349, about line 20, and then the next few lines - except for that, we would say that all of the trial judge's statements can fit comfortably within, at least, the majority judgments in Weissensteiner.

GAUDRON ACJ: Weissensteiner was about an inference to be drawn from primary facts.

McHUGH J: Yes, and I think that Justices Mason, Deane and Dawson were really dealing with inferences from circumstantial evidence. I appreciate there is a passage at page 229 where they talk about the probative value of evidence and you can read that, generally, to support what is here at 348 and 349, but if you read the judgment as a whole, I think that was the last thing they had in mind. After all, they refer to cases like Burdett to Morgan v Babcock, circumstantial evidence cases. That was the context they were dealing with.

MR SEXTON: Similarly, at 227 as well as 229, your Honour. But it is only by confining Weissensteiner in that way that one would take these directions, we would say.

GAUDRON ACJ: Are you suggesting that Weissensteiner applies in any case where an accused does not give evidence?

MR SEXTON: We do not say that Weissensteiner applies, your Honour, in the sense that we say that the statute allows this to occur. In the circumstances - - -

GAUDRON ACJ: Would you say Weissensteiner and the statute both permit a direction of this kind to be given in any case in which there is evidence implicating an accused, or only in any case in which there is direct evidence implicating the accused, or what, in any case?

MR SEXTON: Where he or she could give a version of it, but chooses not to do so.

GAUDRON ACJ: But that must assume that the accused is complicit in the acts in question. That is the very problem.

HAYNE J: That submission seems, to me, to amount to a submission that Jones v Dunkel is available in every criminal trial where the accused stands mute.

MR SEXTON: Well, not in every trial, your Honour.

HAYNE J: In what kind of trial then do you say it is not?

MR SEXTON: To take this one as an example, there are the two aspects here. First, the partial admission where it is conversation between the accused and some other person, obviously something about which he could give evidence; and in the other case, the question of the allegations made by the complainant in a situation involving the two of them. Again, the same.

HAYNE J: What, Jones v Dunkel would apply in that latter case, that is, it is open to the jury to infer from the accused's silence, or to conclude from the accused's silence, more readily that the complainant's version of events is right?

MR SEXTON: In a context where the trial judge has already said that there may be any number of reasons why the accused would not give evidence or would not want to give - - -

HAYNE J: It is merely, "The Lord giveth and the Lord taketh away, blessed be the name of the Lord", is it not?

MR SEXTON: That is inevitable with these directions though, we would say, your Honour.

CALLINAN J: Mr Sexton, I still cannot understand why we have to have regard to Weissensteiner anyway. Why do we not just look at the statute?

MR SEXTON: We agree with that, your Honour.

CALLINAN J: I do not know what support you really get out of OGD. I was looking at page 158, about point 7, which is the main case in the Court of Criminal Appeal about section 20(2), is it not?

MR SEXTON: Yes, your Honour.

GUMMOW J: I would have thought the top of page 159, that just might be wrong, that first sentence on 159.

CALLINAN J: But then I think lower down the court raises some questions about that first sentence, but even before you get to that the Court of Criminal Appeal - I think that is the judgment of the Chief Justice - seems to be abstaining from saying that Weissensteiner in any way expresses the law in relation to section 20(2). Chief Justice Gleeson seemed to have stopped short of saying that. In that last paragraph his Honour sets out the purposes of the section, and they are much closer, I think, to the appellant's submissions than to anything that was said in Weissensteiner.

MR SEXTON: The way that we would put it, your Honour, is that some of the statements by at least the majority in Weissensteiner really indicate the way in which section 20 would operate.

CALLINAN J: I do not think it does. I think it is in collision with section 20(2). That is what I think.

MR SEXTON: Our submission, as your Honour appreciates, is that the section allows comment except for the suggestion of guilt.

GUMMOW J: Yes, I know that is what you say. Going back to page 349 line 44, why does not that suggest guilt within the meaning of the section? What else is it there for?

MR SEXTON: Your Honour, it is the difference between a suggestion of guilt and the suggestion of whether one can confidently or more confidently accept a particular piece of evidence.

HAYNE J: A suggestion of not being not guilty is what you are putting, is it, Mr Solicitor?

MR SEXTON: Your Honour, we do not say that it is not a fine line but this is in the context where - we say that there ought to be a direction on this subject and the question is what its terms will be.

CALLINAN J: I do not know why the trial judge has to tread it at all when there is any risk, in the way in which the trial judge trod it here, as you say he was entitled to do.

KIRBY J: I think the trial judge surely has to give help to the jury on how they deal with this because it is not common experience that when you are accused, you remain silent. That is not common experience. It is just a feature of our system of criminal trial and of the rights of the accused that have to be explained, otherwise the jury just will not understand it and they will draw an inference of guilt.

MR SEXTON: As your Honour knows, we agree that there should be a direction.

GUMMOW J: Yes, but that is what Justice McHugh is putting to you, a direction in the terms advocated by Lord Justice Parker in 1968.

MR SEXTON: Yes.

GAUDRON ACJ: But this direction travels well beyond that, does it not?

MR SEXTON: The one that Justice McHugh quoted?

GAUDRON ACJ: No, the direction in issue in this appeal travels much beyond that.

MR SEXTON: Beyond what, your Honour, I am sorry?

GAUDRON ACJ: Beyond saying that an accused does not have to give evidence and there may be good reasons why he does not have to, and you cannot draw an inference of guilt from it.

MR SEXTON: Of course it does, your Honour, yes. We do not accept that there is an inference of guilt or "a suggestion of guilt", to use the words of the Act. Could I say one thing about - Justice Gummow raised the question of Jones v Dunkel and its applicability to criminal proceedings. In our submission, it may have been - - -

GUMMOW J: For one thing, it is all about the evidentiary burden of proof, the shifting onus of proof, is it not?

MR SEXTON: Yes.

GUMMOW J: What has that got to do with this?

MR SEXTON: Your Honour, it does not really advance the matter, in our submission, to call it, for example, a Jones v Dunkel direction. It is really a question of the reasoning processes that the jury is entitled to adopt and the way in which they are entitled to draw inferences and that is really what we would say the directions need to cover and did cover in this case, and it does not really help, in some ways, to put it in terms of different cases, whether it is Weissensteiner or Jones v Dunkel, particular now that there is a section which deals with the subject.

GUMMOW J: Do you accept or reject what is said in OGD at the top of page 159? I know it is thereafter developed, but that is the starting plank.

MR SEXTON: This is the proposition, your Honour, that Jones v Dunkel - - -

GUMMOW J:

are not confined to civil trials.

MR SEXTON: Your Honour, we do accept that, if it means - - -

GUMMOW J: Because, at the moment, that is the law of New South Wales.

MR SEXTON: Yes, but we also do accept that inasmuch as it is a basis, if it is a basis, for this particular direction, but we say one does not need, and this is perhaps where Weissensteiner was helpful in some of the judgements, that it deals with what is a rational approach to these matters, that it does not have to be put in terms of the authorities.

GUMMOW J: I still do not know what you say - the first sentence on 159 - whether that is the law in New South Wales.

MR SEXTON: It is the law. It certainly must be the law in New South Wales.

GUMMOW J: It should have been -should it be retained as the law of New South Wales?

MR SEXTON: I am sorry, your Honour?

GUMMOW J: Do you say it is correctly the law of New South Wales?

MR SEXTON: We do, but it is not essential. If it were not the - - -

GUMMOW J: I do not understand that.

GAUDRON ACJ: Yes. Mr Solicitor, we are dealing here with a direction which, it seems, is given regularly in the courts in New South Wales. You have come here as the Solicitor-General to argue in favour of it. We are just going to get dozens of cases unless this matter is analysed properly and explained and unless we know exactly where the prosecution service stands on the matter and what directions they are going to seek.

MR SEXTON: Your Honour, it is hard to look at the complete contemporary body of the criminal law, but it is clear from OGD and, I think, Vaughan is a case, (1997) 98 A Crim R 239, and there is, of course, this. But, it is clear that in some cases these directions are being given.

GAUDRON ACJ: And sought, presumably.

MR SEXTON: Yes, and sought.

GAUDRON ACJ: And will continue to be given as a general rule, it would seem, without specific reference to the evidence and issues of the case.

MR SEXTON: They may be sought. Whether they will be given depends upon the reading of OGD and some other decisions, because it was made clear in OGD that they are not universally applicable.

GAUDRON ACJ: As I understand your submission, it is that directions may properly be given regardless of the evidence and issues of the case, so long as the accused does not, himself or herself, give evidence.

MR SEXTON: Not with that generality, your Honour.

GAUDRON ACJ: Where do you draw the line?

MR SEXTON: There needs to be a situation where the accused has some knowledge and could therefore give a version of those events.

McHUGH J: That would mean it would apply in every sexual assault case.

MR SEXTON: It would apply to many sexual assault cases, your Honour.

GAUDRON ACJ: Why do you assume that the accused would have that knowledge, unless you make the further assumption that he is guilty of the acts, the offences.

MR SEXTON: It does not follow, in our submission, your Honour, that he is guilty because he does not - - -

GAUDRON ACJ: What more can you do if your case is, this was fabricated, than say, "I deny it". This is not a case where you might be raising justification, excuses, defences. This is a case where you are saying it did not happen.

McHUGH J: The plea of not guilty puts in issue the whole of the Crown case, and the proposition seems to be that because the accused does not take the further step of giving evidence on oath in denial, then you can more safely act on the Crown case. That does not seem to follow.

MR SEXTON: Not the whole of the Crown case, your Honour.

McHUGH J: Well, on all that evidence which he or she was in a position to contradict.

MR SEXTON: Yes.

HAYNE J: That is, it begins from the premise there is an expectation that the accused will give evidence. That seems to me to be fundamentally at odds with the nature of a criminal trial.

MR SEXTON: Well, your Honour, it has to be said against the speculation that the jury may engage in, if there are no directions on that subject.

HAYNE J: That warrants the warning of the kind Chief Justice Parker had in mind. That I understand.

MR SEXTON: In our submission, that does not take it very far for the jury.

McHUGH J: Well, it does this much: it preserves the accused's right to silence and it assists the jury as to how they are to deal with the fact that the accused has not given evidence.

MR SEXTON: In our submission, your Honour, that would not be their reaction to that particular direction; they would be puzzled, in our submission. Your Honours, unless there is something I can add on this particular ground, I propose now to move to the other two matters that your Honour Justice Gaudron raised.

GAUDRON ACJ: Yes, thank you.

MR SEXTON: The first of those was the question of bias or lack of a fair trial.

GUMMOW J: What would be the consequence if that ground was made good, in terms of relief?

MR SEXTON: The ground of the direction?

GUMMOW J: No, bias; there would have to be a new trial, would there not?

MR SEXTON: Yes, your Honour, we would say so.

GUMMOW J: And likewise with section 24?

MR SEXTON: We would say so, your Honour, yes.

McHUGH J: Mr Solicitor, before you come onto that, can I just raise a point: I seem to be a voice crying in the wilderness - - -

MR SEXTON: I cannot believe that, your Honour.

McHUGH J: - - -about points not being taken in the Court of Criminal Appeal and then being raised in this Court, but you do not raise any question in your submissions about it.

MR SEXTON: It was not a matter that was raised when it was before the court on the last occasion.

GAUDRON ACJ: Presumably because of the decision in OGD?

MR SEXTON: I do not know the answer to that, your Honour. But to raise it would, of course, require invitations to be issued to the States and Territories probably, so whether that is done in some other case - - -

McHUGH J: No, well there are two points: I have raised the question as to whether constitutionally this Court, in hearing an appeal under section 73, has the power to deal with issues that were not before the Court of Criminal Appeal, but assuming that that view was wrong, the question still arises as to whether or not the point not having been taken, it ought to be taken in this Court. You raise no question about that.

MR SEXTON: Well, except in this way - and it is in our submissions, your Honour - that there was no objection taken at the trial on this question, of course, and then it was a matter that was not canvassed in the - - -

KIRBY J: You take the standard point that it was not reserved at the trial but you do not take a constitutional point that it cannot be raised now in this Court?

MR SEXTON: Yes, that is right, your Honour. Realistically we appreciate that although objection was not taken at the trial, it is a matter that is before this Court now and it is a matter which the Court will no doubt address.

CALLINAN J: To the extent that it depends upon the report, it could not have been taken at the trial.

MR SEXTON: I am sorry, your Honour, this is the question of bias. I thought we - - -

McHUGH J: No, I was dealing with the earlier point.

MR SEXTON: Yes, I was assuming that. I will come to the report, your Honour, yes.

KIRBY J: Is this the sequence, that it could not have been taken earlier because of the earlier ruling? Was OGD decided when this ruling was given by Judge Ducker? Was he merely conforming to the law settled by the Court of Criminal Appeal of New South Wales?

MR SEXTON: Essentially, your Honour.

KIRBY J: So that really the point, if it was to be taken anywhere, was not a trial but in the Court of Criminal Appeal?

MR SEXTON: I hear Justice McHugh.

KIRBY J: I mean, the point should be reserved.

MR SEXTON: Yes.

KIRBY J: That is proper practice, but it is understandable that Judge Ducker would take the course he did, given the ruling of the Court of Criminal Appeal in OGD.

MR SEXTON: I suppose that is realistic, your Honour, yes. Your Honours, on the question of bias or lack of a fair trial, in our submission, it is a question of whether there was - I will come back to actual bias perhaps, which is a matter raised by Justice Callinan - but we would say the real question is whether in the eyes of the fair-minded observer that there was a reasonable apprehension of bias, and Webb's Case - - -

McHUGH J: To say that there is a reasonable apprehension of bias is really to state a proposition without a predicate. You have to give some definition of bias.

MR SEXTON: Yes.

McHUGH J: What does it mean? Does it mean anything more than prejudgment, there is a reasonable apprehension that the judge has prejudged the question that he or she has decided?

MR SEXTON: It is really two questions, your Honour, and Justice Gummow raised this earlier. There is the question of whether the fair-minded observer would consider that the trial judge was in some way hostile or prejudiced against the accused.

McHUGH J: But how does that affect the result? Let it be assumed that the fair-minded observer has that view but you were able to make a finding that it had no effect on the course of the trial.

MR SEXTON: Except that if one made that finding, your Honour, you would think it would then be a short step to saying that the jury would have had the same impression. I suppose, arguably, the jury could react against that in favour of the accused.

McHUGH J: It is not unknown to do it.

CALLINAN J: But if there were a conviction, then it would be a fairly obvious inference, would it not, that if the fair-minded observer might think that, then the jury could well have done.

MR SEXTON: Yes.

CALLINAN J: But it has to manifest itself in some way. To take what Justice McHugh was suggesting before lunch, bearing in mind that the judge does not make any decision on the facts, if the judge had, say, been guilty of actual - say the judge were actually biased but he made no error of law and no errors could be discerned in the way in which he conducted the trial or commented on the facts, then his bias would in fact be irrelevant, whereas perhaps somewhat anomalously, if he were guilty only of apparent bias, the inference might be available that the jury were influenced by that and there should be a new trial. You might have a different result.

MR SEXTON: Your Honour, there may be a question if a judge were to say - a rather unlikely circumstance - after a trial that he or she was hopelessly biased against the accused, thought that they were guilty and should be convicted, et cetera, and had had that view before the trial started.

KIRBY J: How many times has that happened in the 800 years of the common law?

MR SEXTON: I said in that unlikely circumstance, your Honour, there may be some question about the validity of the trial, but it is hardly this case. It seems to be put here on two - it seems that the submissions of the appellant are perhaps more on the basis that was raised by Justice Gummow of a denial of a fair trial because of interjections, for example, and some sort of hostility demonstrated towards the accused's counsel.

GAUDRON ACJ: Basically a denial of procedural fairness that prevented - - -

MR SEXTON: Yes.

KIRBY J: As the Acting Chief Justice pointed out earlier, it is all directed at our role, which is to review the conviction. Therefore, in some way it has to come and influence and affect the conviction of the accused, not - - -

MR SEXTON: Yes, but we would say this is not remotely within that concept of a denial of a fair trial.

KIRBY J: There is an awful lot of interruptions. It is almost like the High Court.

MR SEXTON: Not as bad as that, your Honour.

KIRBY J: I mean, a trial should - I will not say any more but some people cannot restrain themselves.

MR SEXTON: But the interruptions appear to have been reasonably equal on both sides, your Honour. Not only would it have to be directed to, we would say, the accused and not his counsel and to some sort of specific issue that was prejudged or affected, but we simply say that it does not come close to, if one examines the record here - and our submissions have gone through the specific matters that have been raised. We say it is not close to a denial of a fair trial. It just does not come within that region.

McHUGH J: It was not unknown at the New South Wales Bar in my time for counsel to actually set himself against the judge and get the judge angry and so on.

MR SEXTON: Yes, it has been known, your Honour.

KIRBY J: Yes, but that is not a good thing, is it? Judges should not be angerable so easily. They should be restrained. They should be temperate.

McHUGH J: Justice Kirby has led a very sheltered life.

CALLINAN J: Mr Sexton, can I ask you this question. Say if one were to take the view that the multiplicity of interruptions, and the nature of them, created perhaps a borderline sort of situation that one might be concerned that they displayed apprehended bias and that that could be translated to bias towards the accused, but assume those facts and it is a borderline case. What use, if any, can be made of the contents of the report?

MR SEXTON: We would say none, your Honour. I will come back to the general question. But on the report, we say that is really a false issue in these proceedings. It cannot go to either of those questions that, in the eyes of the observer, the denial of a fair trial, or some sort of bias. It was never disclosed.

CALLINAN J: Yes, not disclosed at the trial, but it became a public document on the appeal, and the Court of Appeal - it is a full appeal, is it not - they are reviewing the whole matter. Is that right? It is an appeal by way of re-hearing, is that correct?

MR SEXTON: No, not by way of re-hearing.

CALLINAN J: What is the nature of the appeal to the Court of Criminal Appeal in New South Wales?

MR SEXTON: It is essentially on questions of law, although I suppose in terms of grounds like unsafe and unsatisfactory, as it used to be called, that would, in a sense, encompass a review of the evidence.

CALLINAN J: Well, in any event - - -

MR SEXTON: But it is not a re-hearing, your Honour.

GAUDRON ACJ: The question before the Court of Appeal is whether there was a miscarriage of justice in the trial process. That is what is directed, whether there was a serious miscarriage of justice which requires the verdict to be set aside. That is the issue when it goes to the Court of Appeal. There may be grounds, particularised in the notice of appeal, but that is ultimately what you are looking for, is it not?

CALLINAN J: But apprehended bias may be a serious miscarriage of justice. Can you use the report to draw an inference of that?

MR SEXTON: Not of apprehended bias. Theoretically, it could be used to establish actual bias, if that is what it said, but that is not what it says, in our submission. It may indicate some unfavourable view of the appellant's counsel in the court at the trial.

CALLINAN J: Because the trial judge's role is completely finished by that stage. You have to look to what happened at the trial, that is your submission, is it not?

McHUGH J: In Webb's Case, I think it was, Justice Brennan and Justice Toohey - I think it was Webb's Case - they said that the only purpose that is served by the reasonable apprehension alternative is to avoid the necessity to make a finding which impugns the judges' behaviour. So, instead of making a finding of actual bias, it enables you to say that a reasonable bystander would have a reasonable apprehension of bias.

KIRBY J: This is the delicate way things are done in the law. Because why should a person accept a burden of proving actual bias; it is a virtually impossible thing to get into the mind of another human being and prove actual bias.

MR SEXTON: Short of a confession, as I said, your Honour. It is hard to imagine that there could be such a finding.

KIRBY J: But as Justice Callinan said earlier, in a sense, it is not just the accused's right, it is the public's right to have a manifestly fair conduct of such a serious thing as a criminal proceeding.

MR SEXTON: We would invite your Honours - I will not go through them one by one - to look at the way in which these matters have been dealt with in the written submissions, and, of course, there were a number of questions and interventions considered by the Court of Criminal Appeal, quite a number of them. It is important, in our submission, that they need to be considered by reference to things that cannot really be considered in this Court or in the Court of Criminal Appeal, that is tone and language, and so on. On the face of it, if one reads the transcript, the language is quite moderate. It is impossible, of course, to be sure about tone. But, while there is a lot of intervention, on both sides, we would say, it does not, in our submission, come even close, not remotely close, to what would, in effect, be a denial of a fair trial. It is not really a bias argument, in our submission.

CALLINAN J: There really were, as the trial judge said, a number of misquotations of evidence. There is one incident over a letter that was the subject of cross-examination, and counsel had disclosed the contents of it in the cross-examination, although it looked rather unlikely to be an admissible document. That led to an exchange between the trial judge and counsel, and the trial judge is perfectly entitled to say what he did say.

MR SEXTON: It is no doubt possible, your Honours, to find some interventions where one might say in retrospect that they were not called for, and on one or two occasions that was said in the Court of Criminal Appeal, but that could be done with any, probably almost any trial, in our submission. It really underlines the fact that this ground, we would say, does not have any real weight at all.

Your Honours, the final matter is the remarks at the commencement at the case for the accused and, as your Honours know, it is in an additional page of the transcript which was not included originally in the appeal books, and I think it was annexed to submissions.

GAUDRON ACJ: The amended notice of appeal, I think.

MR SEXTON: Well, your Honour, it is really a question, in our submission, of what the jury would have made of those remarks. Again, it can only really go to the question of whether it would mean that the accused did not get a fair trial. We would say it would be very difficult - - -

GAUDRON ACJ: If anything, it provides part of the context for the section 20(2) directions?

MR SEXTON: Well, your Honour, putting it in that context, again it is still - in a sense the question is: what would the jury have concluded?

KIRBY J: Is this a separate ground of appeal or not?

MR SEXTON: No.

KIRBY J: So it has to be brought in as relevant, as Justice Gaudron says, to the - - -

MR SEXTON: To some of the grounds, yes, your Honour.

KIRBY J: Yes, presumably the misdirection.

MR SEXTON: We do not suggest that his Honour the trial judge was right when saying the accused must be called first, although one would imagine that it is normal practice if the accused is going to be called. So that when he said before the jury or in front of the jury, "You must call your client before you can call any other witnesses", and then very shortly afterwards there was the morning tea break, I suppose what it would tell the jury is that the accused could be called and could give evidence. If they did not know that then, they would obviously know it during the course of the summing up.

As to the order and whether the accused should be called first, in a situation where he is not going to be called at all it is hard to know what the jury would take from that. We would say that on the face of it that this would not really have raised any suggestion of anything really in the jury's mind, let alone a suggestion of guilt on the part of the accused. They may have been puzzled, but it would not presumably be the only time in the course of exchanges between the judge and the Bar table when they were in court that there were things that they had not understood at that time.

So, it does not really, in our submission, seem to add to my learned friend's ground in relation to the election not to give evidence. We say it just does not take it any further. Unless there is anything else, your Honours, those are our submissions.

GAUDRON ACJ: Yes, thank you, Mr Solicitor. Anything in reply, Mr Bellanto?

MR BELLANTO: Your Honour, there is one matter, and it is a small matter, perhaps, but it is the dates that Justice Kirby raised with respect to OGD and the trial. The trial was in September 1996 and OGD was June 1997, so - - -

GAUDRON ACJ: That was the Court of Appeal's decision?

MR BELLANTO: In OGD, yes.

GAUDRON ACJ: Yes.

KIRBY J: So, Judge Ducker was not following the Court of Criminal Appeal, he was simply doing the best he could, in the circumstances, with the Act, and with such assistance as he got from counsel?

MR BELLANTO: Yes. I am loathe to agree with that proposition, but, yes, doing the best he could, I assume. But, the form that he adopted in the summing up seems to be fairly close to OGD.

GUMMOW J: And Vaughan.

MR BELLANTO: And Vaughan, yes, and Azzopardi which is, I think, before this Court as a special leave application. Thank you, your Honours.

GAUDRON ACJ: Yes, thank you. The Court will consider its decision in this matter.

AT 3.36 PM THE MATTER WAS ADJOURNED