Dyers v The Queen S255/2001 [2002] HCATrans 156 (12 April 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S255 of 2001

B e t w e e n -

KENNETH EMMANUEL DYERS

Appellant

and

THE QUEEN

Respondent

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 APRIL 2002, AT 10.20 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, in that matter I appear for the appellant with my learned friend, MS N. MIKHAIEL. (instructed by Henry Davis York)

MR R.D. ELLIS: If the Court pleases, I appear for the respondent with my learned friend, MR L.M.B. LAMPRATI. (instructed by S.E. O'Connor, Director of Public Prosecutions)

GAUDRON J: Now, you have an application to amend your grounds of appeal?

MR BYRNE: I do, your Honour.

GAUDRON J: Is that opposed?

MR ELLIS: I have just spoken to my friend, your Honour, and I do not oppose it.

GAUDRON J: You have that leave, Mr Byrne.

MR BYRNE: May it please your Honours.

KIRBY J: What is the position as far as bail for your client is concerned, or has he served the sentence, or is it still a live question?

MR BYRNE: Your Honour, his application for leave to appeal against the sentence in the Court of Criminal Appeal was upheld and the sentence of imprisonment to be served full time was altered so as to be - - -

KIRBY J: I see; I missed that.

MR BYRNE: - - -a sentence fully suspended. He did serve a period of some days.

KIRBY J: Just a few days before the application to the Court of Criminal Appeal.

MR BYRNE: Yes, he was - - -

KIRBY J: Then they granted bail.

MR BYRNE: That is right.

KIRBY J: Then by allowing the sentence appeal, they removed the threat of imprisonment.

MR BYRNE: That is right.

KIRBY J: So the issue is tendered to us really as a matter of principle, though it still affects a sentence that has been imposed on your client.

HAYNE J: That sentence has expired, has it not?

MR BYRNE: Yes, the suspended sentence indeed has expired. The appellant served only a matter of days in custody after the sentence proceedings before the District Court.

KIRBY J: But it is not a theoretical question because he has still suffered a conviction and he wants to have that conviction - - -

MR BYRNE: The conviction certainly stands against him, yes, and that is the challenge which is made in this Court, your Honour.

Your Honours, the first ground of appeal concerns what is described as the application of the principle in Jones v Dunkel to an accused person in a criminal trial. Might I take your Honours to the appeal book and identify the place where this issue first arose in the trial of the appellant.

In the address of the learned Crown Prosecutor, which is only, I gather, partly transcribed in your Honours' papers - it commences at page 422 of the appeal book and that is the continuation, as it were, of the Crown Prosecutor's closing address to the jury, the first part of that address having not been transcribed. If I can take your Honours from there to page 427 of the appeal book and refer to some specific matters raised by the learned Crown Prosecutor in his address. By way of background, the conduct of a meeting at the premises of the Kenja organisation on 29 July 1988 was an important matter in the proceedings. What the learned Crown Prosecutor said in relation to that meeting was this, just below line 25, the paragraph commencing:

Just in relation to the meeting that Diana Moore said took place commencing, I think, it was about 1 o'clock that afternoon, she said that -

a number of named persons:

Wendy Tinkler, Denise Louth, from Canberra were there, Bernard Price and John McCrea and the accused. And herself and Michelle -

Michelle being the mother of the complainant, and the complainant herself. He then said:

Well we've heard from three people; Michelle Walmsley -

the complainant and:

Diana Moore. My friends haven't called Wendy Tinkler, Denise Louth, Bernard Price or John McCrea. And I suggest to you the reason why those people haven't been called is because they would not -

as it would appears to read, be of -

assistance to the defence case.

He then went on at the following page, page 428 and alongside the paragraph next to line 35, the paragraph commencing:

Insofar as the earlier entries are concerned, particularly Wendy and Denise alongside 9.30 and `session Wendy' from 10 until 11.30, I suggest that's been put in there after the allegations were raised to give support to the defence case that there was no session with -

the complainant -

that morning that it was with somebody else.

Then he asked this question rhetorically:

`Wendy', who's Wendy? We have not heard from Wendy. You may think that whoever Wendy is, that person cannot assist the defence case.

Your Honours, there were also comments made by counsel for the appellant at his trial in the course of his closing address to the jury and those comments have been noted in the written submissions that have been filed on behalf of the appellant, but the relevant part of counsel's closing address is transcribed at page 453 of the appeal book. At the bottom of the page, just below line 50, it was said by counsel:

You see what the Crown says to you is that we didn't call all the witnesses that might have been called at that meeting and probably his Honour will say in the direction that you could infer from that that may be it wouldn't have assisted our case, but there are other inferences available to you.

Then he went on to talk about the length of time that the Crown Prosecutor had cross-examined those witnesses who had been called by the appellant.

HAYNE J: What I do not understand is what is the significance in this trial of what happened or did not happen at the meeting. Am I right in understanding the complainant's evidence to have been that the incident of which she complained occurred early in the morning of the day on which this meeting was said to have occurred at 1 o'clock?

MR BYRNE: Yes, that is right.

HAYNE J: What is the significance of the meeting then to the issues at trial?

MR BYRNE: The meeting is, we would submit with respect, of relatively peripheral significance. The events of earlier in the morning are more important and - - -

HAYNE J: Well, you say "relatively peripheral significance". There was a lot of examination and cross-examination about what happened at this meeting and what was said and who was there, but what did that matter? I do not for the moment understand that.

MR BYRNE: The question regarding the presence of people at the meeting would have gone to things like the condition of the complainant at that time, although that issue was not, it must be said, specifically addressed to any of the individual witnesses who gave evidence about it. But there was no challenge that the complainant was in fact at that meeting that was conducted at 1 o'clock. The discussion that was had at that meeting related more to the mother's conduct and the fact that she was being expelled, as it were, from the organisation, Kenja, but the actual meeting itself did not really go to the core of the issues in the trial.

KIRBY J: Presumably the suggestion was that Wendy, or the other witnesses who were at the meeting at 1 o'clock, might have been able to say the complainant was upset, the complainant looked distraught, the complainant said something or did something. The point is that your predecessor, who was counsel at the trial, seemed to go along with that. That is how the trial was conducted apparently.

MR BYRNE: He did not ask any specific questions of the witness who was called in relation to the meeting - that was the witness Diana Moore -regarding - - -

KIRBY J: It is pretty peripheral, really.

MR BYRNE: The 1 o'clock meeting is, but it seemed to - - -

KIRBY J: What was the hour of the alleged offence?

MR BYRNE: The offence was alleged to have occurred in the earlier hours, from approximately 9.30 onwards, and that was the time at which it was said that the appellant was in the company of the woman, Wendy Tinkler.

HAYNE J: Does the complainant put a time on when these things happened? I could not pick it up from her evidence-in-chief. All we have is that she got to the centre in the morning about 7 am and that after some events that she described - I am reading from page 68 of the appeal book:

When you went to the office what happened?

We met with Ken, myself and my mother, and we spoke to him for a while and then him and myself had a processing session.

MR BYRNE: Yes.

HAYNE J: And it is during that session that the assault is alleged to have occurred.

MR BYRNE: Yes.

HAYNE J: Now, where do we get this 9.30 idea from? I am not saying you are wrong. I just want to know where we get it.

MR BYRNE: Your Honour, 9.30 was the time that, as I recall it, the witness Hamilton put on the occasion - I am sorry, that is not correct. There was evidence from the mother of the complainant, if I recall correctly, that she came to the Kenja establishment with her daughter, having come up on the bus that night from Melbourne. They arrived very early in the morning and went directly to the Kenja premises, and it was some time after that that the appellant arrived. If your Honours will just excuse me. My learned friend reminds me that at page 219 the mother says that she got there at about 8.30 and she went for a walk, as I recall the evidence, and left her daughter with the appellant. There is also reference at - - -

McHUGH J: The accused himself said in his statement, did he not, that she arrived about 9.30?

MR BYRNE: That was when they first arrived and they were sent away at that time and told to come back when the meeting was due to take place and that he had no contact with her in the intervening period.

McHUGH J: He said he had a session at 10 o'clock with Wendy Tinkler.

MR BYRNE: That specific reference to 9.30, I might get that later, your Honours. The essence of the case presented against the appellant was that the offence committed against the complainant was committed at that "energy conversion session", as it was described, in the morning where the session took a period of some hours between approximately at least 8.30 in the morning and midday.

McHUGH J: At page 181, is there not a reference - - -

MR BYRNE: That was when the mother said she was away for some time in that period from about 9 o'clock to 11, 11.30.

HAYNE J: The complainant having, before she left, gone in for the so-called processing session?

MR BYRNE: Yes, your Honour. Your Honours, after this matter was referred to by counsel for the appellant in his final address to the jury the matter was raised by the learned judge shortly after he had commenced his summing up. At page 468 of the appeal book, and this is - - -

KIRBY J: Perhaps the other relevance of the meeting at 1 o'clock is that when it turned to a scrutiny of the mother it might be suggested that at that point it would have been said by the complainant or by the mother and the complainant, "This is all a smokescreen for you to get rid of me because of what has just happened to the complainant", that that would have been a natural reaction at that time if that was the explanation that was working itself in the mind of the complainant and the mother, "This is just an excuse to get rid of me".

MR BYRNE: Yes.

HAYNE J: Well, did the mother know? Was there evidence that the complainant had told the mother of what had happened by this time?

MR BYRNE: No, she did not say anything.

KIRBY J: But at 181 it does say that she came out, "He was screaming at her, yelling abuse" and "Calling her a bitch". That would not be usual, one would think, in an energy conversion procedure.

MR BYRNE: No. That was one of the matters where the meeting did become important because the prior confrontation between the appellant and the mother and the complainant together was said to be a particularly acrimonious one where the appellant was yelling abuse at the complainant and the mother was present to observe that being done, to observe it occurring, but in the meeting at 1 o'clock, relatively shortly after this relatively violent confrontation, there was nothing untoward observed by at least the witness, Diana Moore, who was present at that meeting.

KIRBY J: I saw in the written submissions a statement that it was common ground, or words to this effect, that no complaint was made for five years, I think.

MR BYRNE: Yes.

KIRBY J: Does that extend to the mother, that it is agreed that she did not tell her mother about this alleged offence until five years later?

MR BYRNE: Yes, that is right.

KIRBY J: So that all the mother had seen was the abuse, the accusation or screaming and so on, "yelling abuse", but no mention at that stage of any sexual affront.

MR BYRNE: No, and that was a matter which was the subject of part of the address by counsel for the appellant that that was an inherently unlikely situation that the mother would be confronted by the daughter, apparently distressed and upset and the appellant "yelling abuse", as she described it, at her, and at no stage did the mother seek to ascertain what the reason for that confrontation between them was and it was certainly never said by the complainant at that time that the appellant had done anything untoward to her. There was just no explanation given by - - -

KIRBY J: In a sense, too, allowing the mother and daughter to stay on for the weekend seminar was a bit inconsistent with this offence having occurred.

MR BYRNE: Yes.

KIRBY J: If the intention was to get rid of the mother and the daughter because either of an accusation or of an offence, one would have thought it would have been followed through immediately, not after a weekend.

MR BYRNE: Yes.

KIRBY J: But then again one might have thought it would follow through immediately, not after a weekend, if the accusation was one of defalcation, or at least loss of money.

MR BYRNE: Yes.

KIRBY J: Like so many things in life, logic does not answer the problem entirely.

MR BYRNE: No. One of the other questions about the plausibility of the sequence of events was that within the space of approximately two months after this alleged assault by the appellant, the complainant, but not her mother, the complainant in company with her sisters, one younger, one older, attended an occasion described as an eisteddfod which was conducted by the Kenja organisation and the complainant not only attended the function but was seen by one of the witnesses who gave evidence to be on cordial terms with the appellant at that meeting only a couple of months after this apparently violent confrontation, which followed upon, according to the complainant's version, the sexual assault. So that there were certain implausabilities about the sequence of events which - - -

HAYNE J: Why? You have a 13-year-old complainant who, for good reason or ill, is engaging in processes of sitting, knees touching with an older man, for 40 minutes staring into each other's eyes for the purpose, so it is said, of energy conversion or energy clearance. Are we to expect that a 13-year-old girl at that stage, understands that that which has, according to her, been done to her in the process, is improper? Maybe we are. Maybe we are not. I do not think that you automatically assume that a 13 year old, according to the offence alleged, in a position where someone is in authority over her, requires her to take her clothes off and then subjects her to fondling of an indecent kind, automatically leaps to the conclusion that that which has been done to her is improper, illegal and should be the subject of complaint.

MR BYRNE: I accept, your Honour, that it is not correct automatically to leap to that conclusion, but the circumstances that were established in evidence did cause some justification for saying, "Well, that is a rather implausible situation."

HAYNE J: I am not saying there are not arguments, but let us not fall into the usual trap that we have fallen into for years, of saying that every complainant of sexual offending will complain at the first available opportunity about what has been done to her.

MR BYRNE: I do not suggest that - - -

HAYNE J: I thought we had moved on from that stereotypical assumption.

MR BYRNE: I think with respect we have, and I do not suggest for one moment that there should be, as your Honour puts it, an automatic destination reached because of just these circumstances. It is a matter though that calls for careful scrutiny because at least at first blush it might reasonably be said that it is somewhat implausible that a 13-year-old girl - the situation would perhaps be different if the girl was younger. The situation would be different if she was older, but a 13-year-old girl in a situation like this, where there is apparently a distressing confrontation between her and her alleged assailant is then, within the space of two months, seen to be on apparently amicable terms with him.

KIRBY J: I do not find that curious at all. Many of these cases that come before us are inter-family matters.

MR BYRNE: Yes.

KIRBY J: And people just have to get on, and they do so. No doubt the complainant had many friends in the Kenja movement, and she would have gone to the eisteddfod for them and if she saw the appellant then her being cordial or correct to him is not at all inconsistent, in my mind, with ordinary human conduct. We see it all the time in family situations. People are not only cordial, they are loving.

MR BYRNE: But the family situation is, with respect, different because that is a situation where the young person is, in effect, conditioned towards a certain behaviour towards the assaulting parent, if that be the case. This was a different situation. This was not a sequence of events where there had been a whole history of sexual abuse where a very young child had been conditioned to improper conduct, and not realised perhaps the seriousness of the event in which she had been involved. This was a 13-year-old girl who, for the very first time apparently, according to her evidence, was sexually assaulted by this man who she - it has to be said she was in a position where she regarded him as a person in authority, but the way in which the version of events which she told unfolded was that she understood that what he was doing was wrong because she resisted certain things that he had suggested to her.

KIRBY J: What I find more curious is that there would not have been a complaint when the appellant turned, as it was thought, on the mother during the session at 1 o'clock where the daughter was present, and it was then said, "Mum, I have to tell you the real explanation for this is they want to get rid of me because of what has just happened."

MR BYRNE: Yes.

KIRBY J: Of course as Justice Hayne points out, it does not always happen and we know that it does not always happen. People are embarrassed or ashamed.

MR BYRNE: Yes.

KIRBY J: Victims are ashamed.

HAYNE J: And a 13 year old must come to the realisation that that which has been done is wrong and improper, and there are teenagers and teenagers.

MR BYRNE: Certainly, I accept that.

HAYNE J: We are all familiar with the teenager who is 14 going on 40. We are also familiar with the teenager who is sometimes 14 going on four.

MR BYRNE: Yes, but this particular - - -

CALLINAN J: There must have been an impression at the time though that what was happening was improper because she refused to remove her underclothing.

MR BYRNE: That is the matter that I was referring to, where she resisted something that the - if the appellant was in a situation in control, as it were, over her and able to get her to do whatever he wanted to, that would be different.

CALLINAN J: I do not think it is conclusive but I think it assists you.

MR BYRNE: No, it is a matter which causes concern. The other factor that is not present in this case which is often present in cases where young victims of sexual assault do not complain or delay complaints is that there is often a fear in the young victim that by bringing the matter to a head it will in some way damage relationships within the family or cause some other repercussions for which they would then consider they might be blamed. This was not a situation where the complainant would have considered that by bringing this matter to her mother's attention she was in any way jeopardising a relationship that existed between the mother and the appellant because it was quite clear that that relationship was at an end.

KIRBY J: This seems to have wandered into your argument about unreasonable verdict. I thought we opened with the Jones v Dunkel point.

MR BYRNE: Certainly, but I suppose it is an overall consideration that is important in this case, that the failure to complain at an earlier time than the passage of five years is somewhat surprising and is a factor that causes the allegation to be subjected to greater scrutiny.

CALLINAN J: Can you tell me where the cross-examination is about the events immediately following the private session?

MR BYRNE: Yes, your Honour.

CALLINAN J: Her evidence-in-chief is at 72 to 74.

MR BYRNE: This is immediately following.

CALLINAN J: Yes.

MR BYRNE: Your Honour, the relevant passage commences at 113. This is the events of the day.

CALLINAN J: There is no need to take me to it, if you just give me the reference. Is there any reference to what the aims and objects of the Kenja sect is, or is it some sort of a religious organisation?

MR BYRNE: No, it is not a religious based - - -

CALLINAN J: Is there any evidence about it, Mr Byrne?

MR BYRNE: Yes, there was some evidence given by - - -

CALLINAN J: Just tell me where that is too, please.

KIRBY J: Is this a relationships organisation?

MR BYRNE: It was described as a "cultural social organisation" which was essentially designed to assist people in achieving better personal relationships, better communications. It also was involved in sporting activities, cultural activities. It is not, with respect, your Honour, properly described as a sect. It was a group of people who had a common interest and this - - -

CALLINAN J: All I want to know is where the evidence is about what the interests are, that is all.

MR BYRNE: The witness, Diana Moore, did give some evidence about that. Her evidence commenced at page 305 and the relevant cross-examination commenced at 319. There were questions put to her about the way in which - if I can take your Honours perhaps to 322, line 45, a question was asked of the witness in cross-examination:

Q. How did it improve your life?

A. The main thing was my self-esteem came up a lot -

in the sense of it was enhanced -

and I had a lot more certainty, and had a lot more fun in my life.

KIRBY J: Who was this witness?

MR BYRNE: This was the woman, Diana Moore.

CALLINAN J: What is energy supposed to be converted into?

MR BYRNE: I do not know the answer to that question. It was said by one of the witnesses - and I think it was Diana Moore, if I recall correctly - that these energy conversion sessions are designed to remove what are described as negative emotions, negative feelings within the body and it is a form of meditation, as it was described by this witness. There was a document tendered in evidence which described the energy conversion sessions in the same way as in one of the Buddhist religions, a process of eye gazing, as it was described, was used as a form of meditation. But the specific answer to your Honour Justice Callinan's question is it was not so much the conversion of energy into something else; it was the removal of negative sentiments, negative emotions from the individual.

CALLINAN J: I see Ms Moore charged $50 a session.

MR BYRNE: It was $50 for what was described as a one-on-one session. I think later one of the witnesses said that there was a session which involved a charge of $75 for a similar type of consultation.

Your Honours, if I can just return to that part of the summing up where the learned judge raised this question of the manner in which the failure of the parties to call witnesses might be dealt with in the course of the summing up. It is at page 468 of the appeal book, just below line 10. This is immediately following counsel for the appellant referring to the age of the case. His Honour said this:

Now both counsel have addressed on this question of failure to call witnesses. Your comment -

and this was clearly addressed to counsel for the appellant -

Your comment relates to the failure to call - you mentioned a person by the name of Ralph did you?

The answer:

Ralph Lee and Rebecca and Renee.

Rebecca and Renee were the two sisters of the complainant. There were other - - -

KIRBY J: Were they present at the 1 o'clock meeting, were they?

MR BYRNE: No, they had been in Melbourne and were coming up the following day. This meeting was on a Friday. They were leaving Melbourne on the Friday to attend a Sydney meeting on the Saturday, so that they were not in Sydney on the Friday, but they were at the eisteddfod which was conducted approximately two months after the events of late July 1988 and that was the reason it was suggested that their evidence was important.

Your Honours, the discussion went further on page 468 in relation to the calling of witnesses. At line 35 his Honour said:

Mr Crown you rely upon the - do I take it the failure to call any witnesses in regard to the meeting, not specifically referring to the accused's wife?

The Crown Prosecutor acknowledged that he had not referred to the appellant's wife because of the statutory prohibition, of course. Then there was reference to "other ones" and the Crown Prosecutor then said this:

That's right there was no attempt made during the running of the defence case to adduce evidence as to their possible unavailability, in fact though I myself asked Diana Moore if she'd seen Denise -

Louth is the name -

recently and she gave evidence that she'd seen her Wednesday week ago at the Sydney Centre.

That was the end of the discussion about this matter.

In our submission, that was an occasion when the learned judge should have made inquiries of counsel as to, in the first place, the question of unavailability of witnesses. In the second place, that was the occasion and the opportunity, prior to any direction being given in his Honour's summing up, for him to determine not only whether a Jones v Dunkel-type direction should be given but, if so, what its content might be. If things had been conducted in a manner which, we would submit, was properly in accordance with the authorities, this issue should in fact have been raised prior to the learned Crown Prosecutor first, as it were, launching into it in the course of his address to the jury because it was at that stage, in effect, that the damage was initially done.

Your Honours, the learning judge having raised the matter at this juncture - and it is all recorded there in what appears at page 468 of the appeal book - there was no further consultation with counsel about the way in which this matter should be dealt with. His Honour came to deal with it in the course of his summing up at page 512 of the appeal book. At line 45 his Honour said this:

In his address to you, Mr di Suvero referred to the failure of the Crown to call the man Ralph and Rebecca and Renae. In his address to you, the Crown Prosecutor also - and I omitted to say this when I was taking you through the Crown's address - referred you to the failure of the accused to call, I think it was Denise and Wendy and Peter and Mariata and Bernie, or some of those people that are mentioned in the diary, as to what occurred on the day, if they were present. He said they have not been called, they are of no assistance, all we have heard is from Diana and the accused.

KIRBY J: His Honour says "on the day", so it is not confined to the meeting. As I understand it, what is being suggested is that on the whole day one might have been able to expect these witnesses to indicate that the appellant had said nothing in their presence and had not appeared distressed or had not evidenced any indication of anything having occurred and that it might have been expected that that would have been the subject of evidence from these witnesses. I take it that is what is being said. So it is not just the 1 o'clock meeting.

MR BYRNE: No, it is specifically as well the earlier events in the day involving the person Wendy, because it was said that the appellant was involved in a conversion session with her earlier in the morning at the time when the assault is said to have taken place.

KIRBY J: So it is pretty significant, is it not? If the event is said to have occurred between 9.30 and 11 and if there is an indication in the diary that at 10 o'clock Wendy was in for a session of X minutes, or whatever it was, then that is an almost perfect alibi for at least that period of time when Wendy was undergoing the therapy. Your client's statement was that he never saw the complainant alone on that day, is that correct?

MR BYRNE: He did say that in his statement. His case was that there was never any conversion session with the complainant at all.

KIRBY J: Well, is it not something the jury might have thought, "Well, here is the perfect alibi, a completely independent person, not related to the appellant, who was undergoing therapy at 10 o'clock, she is in the diary and she is not called." Now, I am not saying that that is enough to allow the judge to give a Jones v Dunkel direction, but it is something that would occur to a jury. It occurs to me.

MR BYRNE: Yes, it may well legitimately occur to a jury, "Where is this woman?", and that is the way, with respect, the Crown Prosecutor raised it, whereas we do not have the benefit of the flourish.

KIRBY J: Well, if it occurs to a jury, why cannot the Crown raise it and comment on it?

MR BYRNE: Your Honour, as the authorities, in our respectful submission, established, there may be good reasons why the witness is not called and those reasons were never explored with counsel. It was a matter raised initially by the Crown Prosecutor without any prior consultation and continued, as it were, by the trial judge. It was not, it has to be said, resisted or opposed by counsel for the appellant at his trial but - - -

CALLINAN J: But it is a matter of evidence why they are not to be called and if the accused does not give evidence, then he cannot be cross-examined about it. So it is not something surely that can be settled in debate or in submissions to the trial judge, because all counsel could do is tell the judge what reasons there might be, but he could not prove to the judge that there were reasons. Normally evidence is given to explain why people are not being called or evidence is given sometimes as to why they could and should be, as perhaps was the case here. There was evidence that they were available anyway.

MR BYRNE: There was not any evidence in relation to Wendy Tinkler as - - -

CALLINAN J: Well, in respect of one of them there was, yes.

MR BYRNE: In one of them, the woman Denise, there was some evidence that she was at least around.

CALLINAN J: The point I am making is at the moment I cannot see how this is a matter that can be settled in submissions. There might be some unusual cases in which it could be explained, but generally speaking it is a matter to be proved by evidence.

MR BYRNE: Well, with respect, it depends what the reason why the witness is absent or not available - - -

CALLINAN J: But there has to be evidence of that.

MR BYRNE: Well, it does not necessarily have to be in the presence of the jury, with respect, because it may often be a situation - and this is as the cases establish - that the reason why the witness is not being called by, in particular, the defence, is a reason which should not be disclosed to the jury.

CALLINAN J: Well, perhaps there might need to be a voir dire on that issue.

MR BYRNE: Yes, and that is - - -

CALLINAN J: It is part of your submission.

MR BYRNE: Yes, exactly. What should have happened in this case would have been some attempt to determine, first of all, whether it was reasonable to expect the defence to call a particular witness, whether there was, putting it in terms of Jones v Dunkel, an explanation and whether or not it was a matter that should be, as it were, aired before the jury.

The big problem in this case, in our submission, is that there was a ready explanation available for the failure to call the witness, as there will always be in a case which is talking about events of 11 years ago. It is completely inappropriate, in our submission, to apply the provisions of Jones v Dunkel to cases which involve events in the distant past, because that will always constitute a valid explanation for the failure to call the witness, simply that the witness has no recollection. That might be the case.

HAYNE J: Well, does that submission then impliedly concede that these are witnesses who could have given evidence, had they remembered events, about issues that were live issues at this trial?

MR BYRNE: If they had remembered the events it would appear that they would be people who could give relevant evidence.

HAYNE J: What is the issue that was live at this trial, that those who were noted in the diary as intended to attend the 1 o'clock meeting might have given evidence about?

MR BYRNE: So far as the 1 o'clock meeting is concerned, those witnesses may have been able to give evidence about their recollection of the condition, the disposition, if you like, of the complainant.

HAYNE J: Now, was that a live issue at trial? Was any question asked of any witness on those issues? This argument is proceeding, let me tell you, Mr Byrne, at a level of abstraction which I find unhelpful. This was a real live trial with real live issues.

MR BYRNE: Yes.

HAYNE J: Asking in the abstract was Jones v Dunkel open is not helpful. Who were the witnesses? What could they be expected to say about what issue that was live at trial?

MR BYRNE: Well, the most important witness in the Jones v Dunkel context was the witness, Wendy Tinkler, because she was a person who was said to be in the company of the appellant at a time when it was alleged that the assault in question occurred. So, the issue that her evidence might have been able to shed some light on was what had happened and where the appellant was during that period.

KIRBY J: This is a point separate from the 1 o'clock meeting. This is the 10 o'clock meeting.

MR BYRNE: I accept that the witness, Wendy Tinkler, is in a different situation from those witnesses who were present at the 1 o'clock meeting because their evidence is it can legitimately be said, in our submission, relatively peripheral that the witness, Wendy Tinkler, is to an issue which is more central if not crucial. But this is a situation where the events which were the subject of the charge were, at the time they were first raised, relatively distant events.

HAYNE J: If Ms Tinkler had a memory of events and there was no reason to doubt her willingness to tell the truth, what obligation, if any, would the prosecution have had to tender her evidence at the trial?

MR BYRNE: In our submission, that was something that the prosecution should have examined. The point may be made against that that it was only at a late stage that the prosecution became aware of the person, Wendy Tinkler. It is not completely clear whether they were aware of the person, Wendy Tinkler, until the appellant made his statement but even at that stage it would have been within the power of the Crown to seek to question that woman and, if necessary, to call the case in reply to that which was presented on behalf of the appellant. But there was no obligation, in the circumstances, on the appellant to call Wendy Tinkler as a witness. There can never be, in our submission, any obligation on the accused person to call any person as a witness.

KIRBY J: No obligation but I could understand a jury - leave aside the 1 o'clock meeting, I regard that as an entirely different kettle of fish, but when you have somebody who can give an alibi and does not come forward, it is a curiosity that the jury would have definitely, I think, considered.

GAUDRON J: It is a matter, perhaps, that directs attention to why a Longman direction is given in such cases and whether, consistently with Longman, when the prejudices of an accused might suffer because of delay, it is ever appropriate to give a Jones v Dunkel direction of this kind as against the defendant.

MR BYRNE: Clearly, with respect, your Honour, the question of the appropriateness of giving a Jones v Dunkel direction and the nature of the Longman direction are interrelated in this case, they are not separate issues. There was never any real attempt made to ascertain, firstly, whether the witness, Wendy Tinkler, was even available. There was just no evidence about it. It was not a matter that necessarily had to be the subject of evidence. It could have been the subject of discussion in the absence of the jury prior to, we would submit, the Crown raising this issue for the first time. It may have been that Wendy Tinkler had been spoken to and simply had no recollection of the events in question or was unable to give any evidence that was of any assistance at all but the circumstances are that her absence was completely unexplained, never any attempt made to ascertain whether there was an explanation but, ultimately, a direction given which effectively endorsed a point made by counsel for the prosecution, a direction given by the learned judge which was clearly adverse to the appellant because it invited the jury to infer that the evidence of the witness, Wendy Tinkler, firstly, should have been called by the appellant, and that was not a necessary inference on the material available to the court, but secondly, that the invitation was put that the failure of the appellant to call her was a matter that could be used adversely to the appellant.

The suggestion is made that the direction in Jones v Dunkel is that the evidence of the witness would not assist the case for the party who might be expected to call the witness, but that, effectively, amounts to an adverse direction, a direction which is adverse to the interests of the party who has not, in fact, called the witness who, it is said, they should be expected to call.

Your Honours, the way in which the learned judge directed the jury in relation to this issue, just going further - what he said at page 513 of the appeal book, in the third line he said, this is reference to the learned Crown Prosecutor's address:

They have not been called, they are of no assistance, all we have heard is from Diana and the accused. Diana Moore and the accused have told you what occurred there. He says, therefore, the only conclusion you can draw from their failure to attend is like the defence asked you to draw that they could not help. They would not help what the defence version of events is if they had been called.

KIRBY J: This is what the Crown calls is a bipartisan direction, equal to the Crown and equal to the accused.

MR BYRNE: Yes, it is not only the Crown who called it that, it was what the Court of Criminal Appeal called it as well. It is the notion of a bipartisan Jones v Dunkel direction is, in our submission, misconceived. There should not be a Jones v Dunkel direction against the accused at a criminal trial.

GAUDRON J: Even in relation to alibi?

MR BYRNE: Alibi, in the true sense, may be a different thing, but this case is not really properly characterised as a case of alibi, in our submission. The case for the appellant was that the events in question simply did not occur. He was not saying that he was in another place at the relevant time. He was saying that he was at the place where it was said that this offence occurred - - -

KIRBY J: But with somebody else. That was his alibi.

MR BYRNE: It was what he was doing at part of the time, but the essence of his case was that this was an incident that did not occur. The traditional defence based on alibi is that, "We accept that the events in question occurred but we were elsewhere at the time they occurred, so that we couldn't be the person who committed the offence."

KIRBY J: He was elsewhere. He was elsewhere with Wendy.

MR BYRNE: He was in the company of this woman for part of that period, when it was alleged that he was in fact in the company of the complainant, but he was at the same place where the complainant said the events occurred. So it is not really properly, in our submission, characterised as a defence of alibi. The defence was always, "These events did not occur in the way that the complainant alleges they did."

KIRBY J: But that is usually the case. The complainant's allegations are the foundation of the Crown case and the accused says, "That didn't happen because I was somewhere else." He says, "I was with Wendy." Is it accepted that the onus of proof of the alibi rests on the accused?

MR BYRNE: No.

GAUDRON J: But there may well be an evidentiary burden.

MR BYRNE: There may well be certainly an evidentiary burden for the accused.

GAUDRON J: When something is raised which may not have been reasonably within the contemplation of the prosecuting authorities. I think that would be the only situation, would it not? Which is why you give the alibi notice.

MR BYRNE: Certainly.

GAUDRON J: And the evidentiary burden is discharged at that point by giving the notice and the burden is then on the prosecution.

MR BYRNE: To disprove beyond reasonable doubt.

GAUDRON J: To disprove it. So when one talks about an evidentiary onus, it is really only an onus to raise the matter.

MR BYRNE: Yes. There has to be some basis on which the contention can be put that the accused was at some other place at the time.

KIRBY J: Did you give a notice in this case?

MR BYRNE: No.

KIRBY J: Could you give me reference to the statutory provision?

MR BYRNE: It was section 405A of the New South Wales Crimes Act 2001 , which has probably now been - it is now in the Criminal Procedure Act, I think.

CALLINAN J: Could either of you give us a copy of that section please, as it was at the time.

MR ELLIS: The section is the same.

MR BYRNE: Yes, it is a section which is - - -

CALLINAN J: Same number?

MR BYRNE: No, it is not the same number. It has, in fact, been moved from one piece of legislation to another. It used to be 405A - - -

CALLINAN J: If we could have a copy of the section that applied at the time, with a reference to the Act that it is to be found in.

MR BYRNE: Yes. That would have, in fact, been 405.

CALLINAN J: By the way, Mr Byrne, "sect" is defined in the Oxford Dictionary as, "A group of people following a certain course of conduct". So this was a sect.

MR BYRNE: I accept that, your Honour.

KIRBY J: It tends to have a religious flavour in Australia. I am sure the Macquarie Dictionary would have a better definition.

CALLINAN J: It would have a descriptive but not a prescriptive one.

MR BYRNE: If I might just draw your Honours' attention to another matter which was the subject of directions by the learned judge on this issue. This is still at page 513 of the appeal book at line 30, reference is made:

But where the witness is a person, who, in the ordinary course, you would expect one of the parties to have called to support what they are asserting in their evidence and there is no satisfactory explanation for the failure of that party to call that witness, you are entitled to draw the inference that the evidence of that witness would not have assisted the party who you have assessed should have called that witness.

In this case, I do not think there has been any explanation given by anyone as to why those particular persons were not called, but you will remember if there is, it is in the evidence if there is.

That direction simply leaves it up to the jury, with respect, to speculate about whether or not the absence of the witness is adequately explained. There was no evidence and it was a matter which the jury were left to speculate upon. There was some evidence in relation to - - -

GAUDRON J: They were left to speculate upon it in a context in which the prosecution had invited them to draw the conclusion that the diary entry was bogus.

MR BYRNE: That was the specific submission put and the way the witness, Hamilton, was cross-examined about that aspect, but the way the prosecution left it to the jury was that it was up to the accused to call Wendy and for Wendy to support the case that he had put saying that he was in her presence on the morning of the alleged offence, where there may well have been perfectly adequate explanations, particularly having regard to the passage of time since the events in question as to why Wendy was not being called.

KIRBY J: He tendered the diary in his case?

MR BYRNE: Yes, the diary was exhibit 15, I think.

KIRBY J: Tendered for the appellant?

MR BYRNE: Yes.

KIRBY J: So it was put forward as a truthful statement, in effect, an alibi or an indication of where he was at part of the relevant time?

MR BYRNE: A contemporaneous statement, more importantly, which was relied on by him.

KIRBY J: Was there evidence about the average length of the conversion sessions? Were they normally an hour or 45 minutes?

MR BYRNE: There was. It was said that the normal session, the one-on-one sessions, were 30 to 45 minutes, although this particular session which involved the complainant and the appellant was said by her to have lasted a lot longer than that because they were in the room together for a very long time. The appellant denied any such meeting had ever taken place with the complainant, of course. There was evidence from a number of the witnesses that a standard energy conversion session, if that is a concept that can be referred to, took between 30 and 45 minutes and that involved two people, but this was one was much longer and it was a point that the defence made some reference to and relied on significantly, that the complainant had given a version that had placed her with virtually no clothing on on a relatively cold winter's morning in a place that wasn't heated for a period of some hours, which would have at least been distinctly uncomfortable. It was said that this particular session lasted a lot longer than the normal sessions. The estimate given was some three hours.

KIRBY J: One problem for you is, is it not, that counsel appearing for the appellant at the trial not only did not object to this but went along with it?

MR BYRNE: He did certainly acquiesce in the giving of the direction, but it should be said, with respect, that at the time this trial was conducted that was the manner in which things were understood to conventionally happen. This trial and summing up in particular was in July 1999. The judgment of this Court in RPS was not give until 3 February in the following year, the year 2000. It was not really until the judgment of this Court in RPS that the questionable procedure of giving a Jones v Dunkel direction against an accused person was really brought to the forefront. So that it is accepted and it cannot be avoided that counsel, as it were, went along with the procedure that was followed and did not oppose - - -

KIRBY J: On the contrary, he said the judge is going to give you this direction, but you say that is explained by the developments of the law?

MR BYRNE: Yes, as the law was then, he would have anticipated that the learned judge would give such a direction and was trying to cope with it as best he could by predicting what might be said and seeking to deal with it by giving alternative explanations or by providing at least from the evidence before the jury. Counsel could not, of course, put up before the jury explanations that were not in evidence. The only thing that he relied on in any significant way was the fact that he was not intending to call extra witnesses because they would not take the matter any further and all that it would have the effect of doing was to prolong the trial proceedings unduly about matters that were relatively peripheral. The lengthy cross-examination of those witnesses who were called in the appellant's case does, in our submission, give some support at least to that contention.

KIRBY J: I can understand that in relation to the witnesses at 1 o'clock. I find it harder to swallow in relation to the alibi witness, Wendy.

MR BYRNE: I accept that that witness is in a different situation, but the point cannot be overlooked, with respect, that her absence is unexplained. It is not an inadequate explanation for her not being there. It is completely unexplained.

KIRBY J: What is wrong, on that hypothesis, with this reasoning: since 1832 in the case that Justice McHugh referred to, and it is referred to in the Crown's statement, it has been said that where the onus of proof of an evidentiary kind rests on a party and that party does not call the evidence, the jury are entitled to draw inferences that that evidence would not have helped, that here he tendered the diary, the diary tendered Wendy as his exculpation and explanation. One would have expected Wendy to be called. The jury would have wondered why she was not called and the judge was entitled to say, "In the absence of some explanation for not calling Wendy, you are entitled to infer that Wendy would not have helped the appellant."

GAUDRON J: Or would not have helped the prosecution unless the prosecution explains. It is a question of where the onus lies, is it not, ultimately?

KIRBY J: That is why I said picking up the case in the 19th century. I do not remember at the moment if the onus of proving as a matter of evidence an issue - - -

HAYNE J: That, if I may say so, is not what Burdett held. Burdett concerned proof by the prosecution of the fact of publication and it concerned inferential reasoning in aid of proof of publication of a criminal libel in the named county; not a case, I think, concerning an issue on which the accused bore some burden of proof of any kind.

CALLINAN J: You immediately have a major exception to the rule about evidentiary onuses because the accused himself, or herself, is in a position almost always to give evidence and, in that sense, if the rule were unqualified, there will always be an immense evidentiary onus on an accused, but in a criminal case there is not.

MR BYRNE: Yes.

CALLINAN J: It is a major exception and one of the questions is, whether having regard to that exception, which stems from the fact that the onus lies upon the Crown, whether there stems from that the necessary consequence that the exception applies to any witness.

GAUDRON J: It may be that in this case it would not have been proper for the trial judge to say, for example, "You may draw the inference that Wendy would not have helped the prosecution case", it being the case that, apparently, it would have emerged that Wendy was not known to the prosecution until late in the day.

MR BYRNE: We are not sure about that, but that may be - - -

CALLINAN J: Well, the question may have arisen immediately there was cross-examination by the Crown. Was there cross-examination at any stage about the failure to call Wendy of any of the witnesses?

MR BYRNE: No, none, I think.

CALLINAN J: When was the first mention of Wendy made in the case?

MR BYRNE: My understanding is that that was in the statement made by the appellant.

CALLINAN J: And then there are a number of witnesses called, or some witnesses were called after that.

MR BYRNE: There were four witnesses.

CALLINAN J: The trial went on for some time. Well, with all the resources of the Crown, why could not the Crown have gone and interviewed Wendy?

MR BYRNE: That is a possible - - -

CALLINAN J: There is a real question. The witness is a material witness. She is living in Sydney. The trial is in Sydney. I cannot see why the police or the Crown did not cause her to be interviewed. Apostilides would require that, would it not?

MR BYRNE: That is one of the difficulties, that there was just no analysis of who might be expected to call Wendy.

CALLINAN J: We know that the Crown's obligation, in general, is to call all material witnesses.

MR BYRNE: Certainly.

CALLINAN J: And you do not always know who is going to be a material witness at the beginning of the trial.

MR BYRNE: No.

CALLINAN J: The Crown often produces witnesses at short notice, as do defence counsel on occasion.

MR BYRNE: The Crown had a right to call a case in reply, particularly if it was - - -

CALLINAN J: Exactly.

KIRBY J: Is that right? There are cases in this Court about cases in reply and criminal - - -

GAUDRON J: Yes, if they could not have anticipated.

MR BYRNE: If the Crown was taken by surprise - - -

CALLINAN J: Taken by surprise.

MR BYRNE: - - - by something in the defence case, that is exactly the situation where they are entitled - - -

KIRBY J: And the issue of the diary had not come up in any committal proceedings or - - -

MR BYRNE: Not that I am aware of, although there was a previous trial in this matter, of course, in which there was a jury disagreement.

KIRBY J: That is true, yes. It is said that there is no evidence of that previous trial.

GAUDRON J: Well, no. What I heard whispered was that she was called at the previous trial.

MR BYRNE: I have to say that I was not aware of that.

GAUDRON J: And was cross-examined and she was called by the defence, I presume, from the shaking of the head. Well, none of that is in these appeal books. Well, there you go. On that basis, presumably, the prosecution knew how to get her and - - -

KIRBY J: Presumably also, she did not much help the appellant or he would have called her again, at least. These things are not known by the jury and they are not really known by us because we do not have the detail of the previous trial. We do not even know that a previous trial took place. The Crown took objection to our knowing that. It is not evidence. It is not in the record.

MR BYRNE: I was aware of the previous trial, but I have to say I was not aware that she had been called.

KIRBY J: I think we just have to banish that from our mind because of the principle in Mickelberg. It is just not on our record. We cannot receive it.

MR BYRNE: Can I just go back to one - - -

GAUDRON J: Well, it does at least answer one theoretical possibility I put forward.

MR BYRNE: Your Honours reference to Burdett's Case, that decision, I think, was in 1820 at a time when the accused person did not even have the right to give evidence. So that it is a case that is, in our submission, difficult to apply to the circumstances that exist here. It may be said that there is an evidentiary onus on an accused person in raising a defence of alibi. In this case, that onus was discharged by the accused when he said - and we do not accept that this is a genuine case of alibi; this is a case, as we have put, of a denial that the events said to constitute the crime ever occurred.

The evidentiary onus was discharged by the accused in calling - not only giving that version that he did in his unsworn statement, but in calling the evidence of the witness, Diana Moore, to give evidence about the events of the morning and also the witness, Hamilton, gave evidence of relevant circumstances about the events of the day in question. But there was material there, unlike some of the other cases where it is - and, in particular, the case of Gordon, which is referred to in another of the grounds of appeal, that there was positive evidence, sworn evidence, called by the appellant which supported the case which he presented in the trial proceedings.

HAYNE J: Can I just understand what the burden of the cross-examination of the complainant amounted to. What challenge was mounted to her evidence by trial counsel for your client? At the moment I cannot pick up any question which challenged her evidence directly. You have a lot of discussion about eisteddfods and the like and what Kenja was and who is a junior professional and lots of things that are off-stage left along way, but what issue was joined with the evidence she gave? What challenge was made to it?

MR BYRNE: The challenge was always made clear, as we would submit, that the appellant's case was the event simply did not occur.

HAYNE J: So much is clear from the way trial counsel for the appellant opened the case at the very start of the trial. That we have the benefit of and trial counsel recorded that one of the issues was, did the incident occur? What was the challenge put to the complainant in cross-examination? I think you are about to get some undoubtedly innocent assistance from Mr Ellis in this regard.

MR BYRNE: Your Honour, the defence case was always that the events did not occur; the specific passage that Mr Ellis has referred me to is at page 105 of the appeal book. There was never any, in our submission, doubt that that was the way in which the case was being run for the appellant, that these events simply did not occur; the meeting between the appellant and the complainant just did not happen. So that the alleged sexual assault could not have occurred. That was always the way it was put.

Your Honours, can I go from the summing up of the learned trial judge to deal with the manner in which this particular ground was dealt with in the Court of Criminal Appeal. It is at page 557 of the appeal book where their Honours deal with the question of the complaint, the challenge made, that the learned trial judge should not have directed the jury that they were entitled to draw an inference that witnesses not called by the defence would not have assisted the defence case.

Your Honours, the judgment of Justice Ireland in the Court of Criminal Appeal sets out the background to the matter and then makes the observation at page 558, alongside line 35, that:

No objection was taken to the clear intention of the trial Judge to give at least a bi-partisan Jones v Dunkel direction.

The observation is then made by the Court of Criminal Appeal which, in our submission, is an important one, at page 559, alongside line 20:

There is no evidence as to why the witnesses in question, in the present case, were not called to give evidence.

That is an important feature of the case which, in our submission, should cause a trial judge to be cautious and to exercise care in determining whether a Jones v Dunkel direction should be given.

There was then reference to this Court's judgment in RPS which had only relatively recently been handed down and reference to the joint reasons of the majority, particular at paragraphs 28 and 29 referred to - I will come back to RPS in a moment - but there is a further observation made by the court in its judgment, or Justice Ireland on behalf of the court, at page 560, paragraph 67, where his Honour says this:

In the present case, a reading of the transcript makes plain that the witnesses referred to by the Crown Prosecutor in his address were not witnesses whom the Crown, in fairness, would be expected to call to give evidence.

GAUDRON J: Once you accept that the burden is on the prosecution to call all material witnesses, at least in general, a statement like that can only be correct in relation to evidence which would be peculiarly within the knowledge of the accused. Very rare circumstances.

MR BYRNE: Or, it may be said, with respect, where there is some evidence before the court which explains why the Crown is not calling a particular witness.

GAUDRON J: It would not ordinarily apply in a case such as this. It would not ordinarily apply as to witnesses. It might apply as to particular facts peculiar within the knowledge of the accused person, as, perhaps, was what was lying behind the Weissensteiner decision.

MR BYRNE: Yes. The particular complaint we make about that conclusion in the Court of Criminal Appeal is that there is not, with respect, anything in the transcript which establishes why the particular witnesses referred to would not be expected to be called by the Crown. There is no explanation given at all so that it cannot be said to be plain from a reading of the transcript that the Crown could not be expected to call them.

The further challenge that we make to this important part of the judgment of the Court of Criminal Appeal in determining whether it was appropriate to give a Jones v Dunkel direction is contained in the sentence which commences with reference to this Court's judgment in RPS. What the Court says is:

RPS v R does not proscribe the giving of a Jones v Dunkel direction in a criminal trial.

Well, that is true but what this Court said was that there should be extreme caution exercised before such a direction was given. That is what the majority of the Court said. Your Honour Justice Callinan's judgment, in our submission, went further than that to say that although the matter was ripe for consideration, as it were, the view your Honour took was that there was no occasion where a - - -

CALLINAN J: I went further than the others.

MR BYRNE: I appreciate that, but to say simply that the giving of a Jones v Dunkel direction is not proscribed by this Court's judgment in RPS, therefore, it can be given and this was a case in which it was legitimate to give it, does not in any sense analyse the reasons why it was legitimate to give. There is no reason given as to why it was legitimate to give it. It simply said that a reading of the transcript makes it plain that the witnesses were not witnesses who could be expected to be called by the Crown. That is not a reason for giving it against the accused and it is not a valid reason in any event, in our submission, because it simply does not emerge from a consideration of the transcript.

KIRBY J: But what is your submission? Is it your submission that in no criminal case may a Jones v Dunkel direction be given to the jury in respect of a failure of an accused to call any witness?

MR BYRNE: Yes.

KIRBY J: However, it might appear appropriate or rational that the accused should call that witness?

MR BYRNE: Yes, that is - - -

KIRBY J: It is an absolute rule?

MR BYRNE: It is an absolute prohibition, in our submission.

KIRBY J: What about on issues where the accused bears the onus of proof?

MR BYRNE: That is a different situation.

GAUDRON J: But do you not accept that there may be information peculiarly within the knowledge of the accused which has a bearing on the matter and he or she would be the only one who could provide that evidence? I am thinking, for example, say it became an issue as to whether or not the accused had a particular rare medical complaint, for example, and he might be the only one who would know that - it might be well expected that he would be the only - and he might well be the only one who knew that it had been treated by or diagnosed by a particular medical practitioner. Assume that became relevant. It is hard to imagine but it is conceivable.

MR BYRNE: Yes. All that can be said is that in that situation the failure of the accused to call some other person to give evidence about that matter does not take the matter any further. It cannot detract from the position. It simply is not - - -

GAUDRON J: Yes, I understand that. Because what in effect is happening here - and you see it in the way the prosecution put the submissions to the jury - but it is almost being turned into evidence of consciousness of guilt, in this way: they did not call that witness; therefore you can infer that the diary record is bogus; therefore you can infer - and you can infer that a bogus diary record was made because he was conscious of his guilt. It is not quite put like that, but once you do allow for it beyond, "Well, it is a question for you whether or not you find that proven", or in the case of a defence assertion, "a reasonable possibility". I suppose once you go beyond that, you really are doing something more than changing the onus of proof.

MR BYRNE: It is permitting the jury to draw an inference, depending on the circumstances, which either points towards guilt - - -

GAUDRON J: Of untruth ultimately.

MR BYRNE: It points towards the guilt of the accused, that is what it does.

GAUDRON J: Yes.

HAYNE J: There are two key features that so far have not really been the focus of attention, are there not? One, what is the chain of reasoning that was being invited in this case? The chain, as explained by the judge, stops at the link of saying the evidence of witnesses A to E would not have helped the accused. It may not have helped the accused because they could not remember or anything. There is a further link in this chain of reasoning unexpressed but apparently invited. The second feature to which I think it critical to pay attention always is that the assumption that a person should give evidence depends upon much more than the conclusion that the person could give or call the evidence in question. What is it that leads to the conclusion that the accused person should have called the evidence? I doubt they could have, but why should they? Those are the two key elements that underpin the argument which, if I may say so, often proceeds by reference to the slogan, "Can you give a Jones v Dunkel direction or no?" It states the problem; it does not solve it.

MR BYRNE: Yes. Your Honour, in relation to the first matter that your Honour has put regarding the chain of reasoning that is invited, as it were, in a criminal trial, to tell a jury that the evidence that a particular witness might give would not assist is, in our submission, equivalent to saying that it would be unfavourable in the sense that it would point to the guilt of the accused. To say - - -

HAYNE J: That leads on, does it not, to the further difficulty in this notion of giving a bipartisan Jones v Dunkel direction? What is the jury to make of that?

MR BYRNE: Yes, as though each side has the same function. That is the difficulty.

CALLINAN J: Mr Byrne, I would have thought that the non-calling of the witness Wendy anyway - that is, by the Crown - could not be justified "by reference to the overriding interests of justice", and I am using the language of this Court in Apostilides at page 576. The Crown knew about this witness. It is not an excuse that the Crown might have thought the witness unreliable. Apostilides says that clearly. The Crown could at least have called the witness and tendered her for cross-examination. It just makes this whole field of discourse, I think - that is, a Jones v Dunkel discourse - irrelevant to the accused in a criminal trial.

McHUGH J: It may be the Crown had no obligation to call the witness because the witness was not a material witness. The witness was not giving any evidence as to the events that occurred. This was a case where the witness, if the accused and his case was correct, could have presented what was, in effect, an alibi. Do you go so far as to say that you can never have a Jones v Dunkel direction? Supposing it was the wife that had had the session. Could the judge have commented on her failure to give evidence?

MR BYRNE: There are statutory prohibitions.

CALLINAN J: It is statutory prohibition and - - -

McHUGH J: No, there is no statutory prohibition. There is a statutory authorisation, is there not, in section 20(2) of the Evidence Act 1900 .

CALLINAN J: She is not compellable. She can give evidence, but she cannot be compelled.

MR BYRNE: But no comment can be made about the - - -

McHUGH J: I thought the judge could.

MR BYRNE: Not in relation to a - - -

McHUGH J: Subsection (3):

The judge or any party . . . may comment on a failure to give evidence by a person who, at the time of the failure, was:

(a) the defendant's spouse or defacto spouse; or

(b) a parent or child of the defendant.

MR BYRNE: But not in a manner which suggests that the accused might be guilty or believes that he is guilty.

McHUGH J: That is so. Subsection (4) goes on to say that it:

must not suggest that . . . failed to give evidence because:

(a) the defendant was guilty -

But the authorisation is meaningless unless a judge can make some comment on a Jones v Dunkel direction, and the whole theory of the previous Crimes Act was that Jones v Dunkel directions could be given. That was why, what was it, 408 or 409 of the Crimes Act, prohibited a judge making any comment on the failure of the wife to give evidence.

MR BYRNE: Section 407, yes.

McHUGH J: Section 407, was it?

MR BYRNE: There was an absolute prohibition under 407. The terms of section 20 are - and it has been held by this Court that the direction to be given cannot be adverse to the - - -

McHUGH J: That is what RPS held and that is what it decides. Let me ask you this. Until RPS would it not have been reasonably thought that the only evidentiary differences between a criminal trial and a civil trial were these: one, in the criminal case there had to be proof beyond reasonable doubt, in the civil case, on the balance of probabilities; two, the judge had a discretion in the criminal trial to exclude evidence whose prejudicial effect outweighed its probative effect; three, in a criminal trial the accused could not be compelled to give evidence; and, four, the accused in some common law jurisdictions could make an unsworn statement. Subject to those matters, evidence was weighed by the same process of reasoning in both types of trial, was it not?

GAUDRON J: Well, was it? What his Honour has not mentioned is that the burden is on the prosecution to prove the essential elements of the offence.

McHUGH J: No, I said until RPS.

GAUDRON J: I think, subject to statutory exceptions, even until RPS - - -

KIRBY J: I do not think RPS changed - - -

GAUDRON J: - - - the burden was on the prosecution to establish the essential elements of the offence.

KIRBY J: RPS reminded those lawyers who had forgotten that there was a fundamental difference between the two forms of trial. One is a contest between parties truly adversarial. The other is an accusation by the Crown on behalf of the people against a person. The person does not have to say anything. He has to merely meet the accusation of the Crown. It is an absolutely fundamental difference between the two and RPS reminded people - correctly, in my view - of that fundamental difference that people tend to forget. It is part of our liberty.

GAUDRON J: It is also sometimes said that there is a presumption of innocence.

McHUGH J: Rather late starters in the common law. Anyway, we will not go - - -

CALLINAN J: We become more enlightened as we go along.

KIRBY J: Some of us.

HAYNE J: That is a very large statement.

McHUGH J: I have to tell you that RPS and Azzopardi are two decisions I could never bring myself to accept. The question for me is, how far do they go? They are the law and they have to be applied.

KIRBY J: Was that helpful, that - - -

MR BYRNE: If I could perhaps take it up, in response to what your Honour Justice McHugh said, by using that part of your Honour's judgment in Azzopardi which said that once it is conceded that there are some circumstances in which an inference might be drawn from the failure of an accused person to give evidence, then it is just a question of degree. In our submission, the proposition that has been put about matters peculiarly within the knowledge of the accused and those exceptional circumstances which might justify an inference there, that cannot apply, in our submission, to a witness being called on behalf of the accused.

There cannot be anything in the notion of something peculiarly within the knowledge of the accused and a witness to be called on behalf of the accused. It just does not stand to reason. So that it can be said in relation to an accused person calling a witness or having a notional obligation to call a witness that that should not have any part at all in a criminal trial, that it can be said, contrary to the position of the accused, as your Honour put it in Azzopardi, in relation to witnesses called by the accused the rule can be made absolute that there can be no presumption or inference drawn against an accused for a failure to call a particular person. That places it in a different situation, in our submission.

We did make reference in the written submissions to that passage in your Honour's judgment in Azzopardi at paragraphs 114 to 116, but, in our submission, the position so far as an accused person having an obligation to call witnesses is different in character from any notional obligation that may exist in exceptional circumstances for an accused person himself or herself to put forward some explanation as it is put.

KIRBY J: Now this problem must have arisen in Canada and in New Zealand and in other common law countries.

MR BYRNE: Yes. We have referred in the written submissions, and very loosely, to some of the English cases and the Canadian cases, not, I should say, to any New Zealand cases, but the difficulty now is that in England the law has changed dramatically so that an inference can be drawn from silence. That is legislatively enacted in England now.

GAUDRON J: We hear the different warning on "The Bill" now.

MR BYRNE: That is right. What the Americans describe as the Miranda warning has significantly changed. But those cases are not of great assistance in the light of RPS and Azzopardi. RPS and Azzopardi establish for this country rules that are much firmer than those that exist in any of the other English-speaking countries.

KIRBY J: But was there any development after Burdett before the statutes in England or not?

MR BYRNE: There are. We have to confess the researches that we have made of the English authorities may not be exhaustive, but there appears to be, at least in England, a recent trend to discourage directions which invite a jury to speculate about the reasons why a particular witness was not called by the defence. There are a couple of recent decisions where convictions have been quashed, because that type of direction is seen as undermining the onus of proof in the same way.

HAYNE J: Not least may that be explicable by the fact that the function of the judge is to instruct the jury on issues of law. True it is a judge may make comments about the fact, but it is not the province of the judge to decide the facts nor, for my own part, do I think it commonly useful for a judge to spend time instructing a jury about how the jury may, as a matter of fact, reason to a conclusion of guilt.

MR BYRNE: Yes, your Honour.

KIRBY J: What would your submission be if the jury came back, as it quite possibly could in a case like this, and said, "We seek a direction from your Honour on what we are to make of the fact that the appellant did not call Wendy"?

MR BYRNE: In the circumstances of this case, on the evidence that existed before the court, the jury simply should be told to put that consideration out of their minds. It is not part of the accused's task to call any witness in a criminal trial. There is no evidence before the court as to why she was not called; as to whether she was even available.

CALLINAN J: Well, the judge might have been asked to tell them something from Apostilides too, what the Crown Prosecutor's obligation is.

GAUDRON J: Yes. Why would not it have been the obligation at that stage of the Crown Prosecutor to disclose to the trial judge that she had been called in a criminal trial? The prosecution had at least known how to contact her at that stage and it would be proper to say that you could assume it would not help the prosecution case.

MR BYRNE: That sort of direction would not be objectionable but the question really discloses a misconception by the jury about where the onus of proof lies in a criminal trial and at least a notional understanding that the accused does have some sort of burden to discharge. That is something about which a jury should be very strongly advised.

KIRBY J: Yes, very well.

MR BYRNE: Your Honours, just in conclusion in relation to the Jones v Dunkel matter. What the Court of Criminal Appeal said in paragraph 67 in that paragraph on page 560 of the appeal book, in our submission, simply discloses, with respect, a failure to address the issues that RPS required the Court of Criminal Appeal to look at in determining whether this was an appropriate case to give a Jones v Dunkel direction. If they had applied the cautionary approach which this Court required in RPS, then the court should have concluded that this was a case in which a Jones v Dunkel direction should not have been given against the accused person.

CALLINAN J: Mr Byrne, say you were to succeed on that ground and say the other grounds did not succeed, for example, what should happen? Should there be a retrial in this case or should it be left to the prosecutor?

MR BYRNE: It is a new trial point, as it were. It is not an acquittal point so-called. But this Court has, on occasion, in cases where a ground of appeal which is one which would lead to the ordering of a retrial has been successful, directed a verdict of acquittal.

CALLINAN J: What is the last of those occasions, do you know? You might tell us later but I would like to know.

KIRBY J: It is very rare because it does involve the Court interfering with the prosecution process. We are not prosecutors and I do not, myself, feel comfortable about doing that.

MR BYRNE: There are cases where that has happened and I apologise that I cannot immediately refer your Honours - - -

GAUDRON J: Perhaps you could give the Court a note about that in due course.

MR BYRNE: There is an earlier decision of the Court, a very short decision, in a case called Nauru v Fowler - the island of Nauru - which is a case, as I say, a very short decision, but it is about - - -

KIRBY J: Was that an appeal from Nauru, was it?

MR BYRNE: I think it was, yes.

KIRBY J: That was in our exceptional jurisdiction, doing exceptional things. But it is also in Australian appeals. I have seen it but sometimes - I remember Justice McHugh said in a case, having regard to what the complainant has been through and the accused has been through, it would not be appropriate to, but it must be left to the prosecution.

MR BYRNE: Justice McHugh's judgment in Longman said precisely that.

KIRBY J: Longman, yes.

MR BYRNE: So that is a case in point, as it were.

McHUGH J: King is a case where the Court entered an acquittal but that was because the Crown, in effect, wanted to re-run another case altogether and in those circumstances an acquittal was entered.

MR BYRNE: King v The Queen (1986), or something.

McHUGH J: Yes, I think it was 162 CLR, or 161.

MR BYRNE: Yes. If I might have leave to gather some authorities in relation to that over the lunch hour.

GAUDRON J: Yes.

MR BYRNE: Thank you, your Honours. Your Honours, there is a relatively short ground of appeal raised in relation to this matter which concerns - it is really a consequential matter arising out of RPS and Azzorpardi as well. That concerns the manner in which the Court of Criminal Appeal approached the determination of whether or not the verdict of the jury in this case could be said to be unreasonable. The argument in support of that ground is as set out in the written submissions that have been filed. In very short terms, if I cold take your Honours to page 544 of the appeal book, after dealing with the basis of the contention put by the appellant in the Court of Criminal Appeal that the verdict of the jury was unreasonable, the court went on at paragraph 32 to make some observations which, in our submission, are, with respect, wrong.

GAUDRON J: Paragraph 32. You have to go further than that in this Court. I mean, one can readily conclude that the Court of Criminal Appeal, in taking the approach outlined in paragraph 32, has failed to conduct a review as required by the authorities. Are you suggesting we should do that?

MR BYRNE: No, your Honour.

KIRBY J: That is a separate ground. That is a separate issue, is it not?

MR BYRNE: Yes, it is.

KIRBY J: That is the one you sought and gained leave to add.

MR BYRNE: Exactly.

KIRBY J: But you are saying that it is an erroneous criterion to consider in deciding whether or not the verdict is unreasonable to take into account the fact that, though entitled to do so, the accused has not given oral evidence but has made a statement.

MR BYRNE: We would not, with respect, submit that it is wrong to take it into account in the sense that notice is made of it or, as was said by Chief Justice Gleeson in the Court of Criminal Appeal of New South Wales in that case of Blade which has been referred to in the written submissions where his Honour simply said it was a matter that was pointed out. That is not what the judgment - - -

KIRBY J: His Honour said it would not have escaped the jury's notice.

MR BYRNE: That is right and it was a matter that meant that the evidence was unchallenged or it was unrebutted by any sworn evidence. The difference between that and this case is that there was a very substantial case put on behalf of the appellant which was, in fact, sworn evidence, evidence which challenged the very basis on which the complainant's allegations were put but that simply seemed to be overlooked because he, himself, made an unsworn statement. But that is part of the objection that we take to the way in which the Court of Criminal Appeal dealt with this, is that they simply seemed to ignore the fact that there was a substantial body of evidence from four separate witnesses who were very extensively cross-examined, which went to the reasonableness of the conviction. But more than that the court said, and if I can just underline the words in paragraph 32, that:

the failure of the appellant to give sworn evidence . . . represents a substantial impediment to -

his success on an unreasonable verdict ground. Now, that is using the failure to give evidence as - to use the words of that part of the judgment of the majority in Weissensteiner, which has again been picked up in RPS and again in Azzopardi - a makeweight. That is using it as in a positive matter adverse to the accused and that, in our respectful submission, must be wrong.

GAUDRON J: Yes, but where do you go from there? Do you invite this Court to conduct the review to determine whether or not the verdict is unsatisfactory?

MR BYRNE: We do.

GAUDRON J: You do.

MR BYRNE: That is the reason why that additional - - -

GAUDRON J: As distinct from remitting the matter to the Court of Criminal Appeal and suggesting they get it right.

MR BYRNE: In our submission, this Court, having - - -

GAUDRON J: But that requires us to look at all the evidence. We have had a look at some.

MR BYRNE: It is a lengthy transcript but the evidence is relatively narrow.

GAUDRON J: And I do not think your written submissions go to it.

MR BYRNE: No.

GAUDRON J: Indeed, they do not. Well, you had better consider that position, Mr Byrne, I think, particularly as I would expect that your submissions should conclude by the luncheon adjournment to enable Mr Ellis to put his.

MR BYRNE: Certainly, your Honour. Your Honours, that may be my fault in that regard. It was my assessment that it was somewhat presumptuous to have put written submissions in relation to a ground that - - -

GAUDRON J: Did not have leave to.

MR BYRNE: - - - was not properly before the Court.

KIRBY J: You should have had them waiting in reserve under your wing.

MR BYRNE: I am prepared to - - -

KIRBY J: Tantalisingly offering them to us so that we could have the pleasure of going through every page of the appeal book.

MR BYRNE: I accept that criticism. It is, though, a case where the evidence for the prosecution was not, in our submission, strong. It was evidence that was - - -

GAUDRON J: That is not the question to be determined. The question is whether the jury should have entertained a reasonable doubt, having regard to all of the evidence in the case.

MR BYRNE: Yes.

GAUDRON J: And that is a large exercise.

MR BYRNE: Yes. Your Honours, the final ground which is raised in this appeal is the ground shortly described as the Longman direction ground. The submissions in relation to that ground have been shortly put in our written submissions. Could I just take your Honours to some parts of the transcript in order to illustrate the way in which the lengthy delay between the time of the alleged incident and the first complaint and ultimately the conduct of the trial proceedings was actually dealt with in the case.

Can I take your Honours firstly to something said by the learned Crown Prosecutor in his address to the jury at the conclusion of the evidence. At page 423 of the appeal book at line 20 the learned Crown Prosecutor said this, talking of the complainant and her mother:

In each case, those two witnesses were called upon to cast their minds back some years and I submit to you that it would be very hard for them to recall those specific things, in particular I suggest to you that when you consider the evidence of Strang this morning that there were various things that he said in answer to questions by Mr di Suvero which indicated that he really had doubt as to what was happening during those years.

So the Crown Prosecutor was referring to the fact that there was a difficulty confronted by the witnesses in remembering things so long ago, but that was something which should be taken almost, as it were, in favour of the Crown by giving the witnesses the benefit of the doubt.

The next matter that was put by the Crown Prosecutor at page 429 of the appeal book, this time dealing with one of the witnesses called in the case for the appellant, at the top of page 429 the learned Crown Prosecutor said this:

Again, I put it to you that Amanda Hamilton, like the other defence witnesses, is not a witness of the truth and you'd have concerns about her evidence as to how she's able to remember all these things after so many years.

So on the one hand saying in relation to the prosecution witnesses where their recollection is vague or faulty or inconsistent, that is understandable because of the passage of time but where it was apparent that the defence witnesses were giving evidence which might point against the guilt of the accused, their evidence was sought to be discredited on the basis that they would not reasonably be thought to be able to remember as clearly as they claimed to about events in the past.

Your Honours, that kind of reasoning was also endorsed, in our submission, by the learned trial judge in his summing up. If I can just refer your Honours very briefly to page 505 of the appeal book.

KIRBY J: Which page?

MR BYRNE: Page 505, your Honour. This proposition put in the learned judge's summing up just below line 15:

The Crown concedes that you might conclude that there were inconsistencies between -

the evidence of the complainant and her mother -

but says that when you look at these, bearing in mind the time that's elapsed, those inconsistencies are of no great significance in this case.

In other words, again, he saying, "Well, time passes, memories fade, but that is not something you can take into account in assessing the witnesses or it should not be."

GAUDRON J: The trial judge is not really endorsing anything there; he is just repeating what had been put in the submissions there and into the next paragraph.

MR BYRNE: Yes. There is a further proposition put just below that at line 45, where the learned judge talks of the evidence of the witness being:

explained away in the sense that, `Well Mrs Walmsley was referring to something five years after an event'. And when you look at her evidence, really there is not a great deal of conflict with it.

Your Honours, on this line of reasoning, if I can finally just take your Honours briefly to the judgment of the Court of Criminal Appeal at page 543 - - -

GAUDRON J: But in those matters you have referred us to, they are really only the trial judge repeating the submissions, are they not?

MR BYRNE: Yes, but without any apparent criticism of those - - -

GAUDRON J: The trial judge did, in fact, give directions about delay, did he not?

MR BYRNE: He did. I propose to come back to that.

GAUDRON J: Very well.

MR BYRNE: There is this general theme throughout this trial from the Crown Prosecutor through what the trial judge said and this was, in our submission, in effect, endorsed by the Court of Criminal Appeal and this is at page 543 of the appeal book in the judgment of the court. There was a schedule of so-called discrepancies given to the Court of Criminal Appeal and what was said about them in the second sentence of paragraph 28:

I am not persuaded that they are matters of significance but are readily explicable on the basis that the witnesses were doing their best in the circumstances to recall events which took place some eleven years before.

Again, it is using the fact of the delay, as it were, to explain the lack of quality in the evidence and using that in a manner which is, in our submission, adverse to the appellant.

Your Honours, returning if I may to the specific directions that were given about the delay, page 478 of the appeal book is where that starts. Just alongside line 25 his Honour refers to the fact that there was an "absence of such a complaint" and this general topic is dealt with in the following approximately five pages of the summing up. The essence of the Longman direction perhaps commences at page 480 after the learned judge makes the observation that this case depends entirely on the evidence of the complainant and that that evidence is uncorroborated. He does not make that observation there, but he then says, alongside line 30 on page 480:

In these circumstances you must carefully scrutinise her evidence, both in general, and more particularly in so far as it relates to the charge. In order to determine whether you can act upon it, having decided that question, will depend on what you do thereafter.

If after the closer scrutiny you are satisfied it is reliable and safe to act upon then you go on to determine whether that evidence establishes the three essential elements to which I have referred -

There are further directions at page 481 which deal with the fact that the witness is recalling events of 11 years ago and alongside line 10:

The fact that she has no memory now, eleven years later, of certain events is not fatal to the Crown case -

this is reviewing the submission of the Crown -

that she is an honest and reliable witness and the fact that she is in some disagreement with her mother's evidence again negatives any assertion that she and her mother, or she alone fabricated her evidence, because if she did fabricate her evidence, if she was that sort of witness she would have ensured that her evidence was closer to her mother's.

The following page, 482, deals with the disadvantages which are caused to the appellant by reason of the long delay and his Honour says, in the opening line of the first paragraph:

In those circumstances you may think that those facts place him in a very difficult and disadvantageous position in the sense that after the passage of five years, without an inkling that such an allegation would be made, it may be difficult for him to reflect back on what he was doing at that particular time -

and then a little further on:

Even bearing in mind there is no onus on him to prove anything, but still he is placed, you may think, at a disadvantage -

Then a little further down - this is alongside line 35:

So the time that has elapsed without him becoming aware of these allegations is a factor for you to take into consideration, both on the issue of the reliability of -

the complainant's -

evidence and also on this question of whether the accused has been disadvantaged in any way by such a delay in him receiving notice of . . . allegations.

Those are the directions that were given and it is true that there was no objection taken by counsel for the appellant at his trial to those directions, although in that passage that the Court's attention was drawn to earlier, it was clear that that was a very live issue in this trial.

The proposition that we put in the written submissions is that the directions which the learned judge gave in relation to this matter are not adequate in that they do not meet the standard which was established in Longman and reinforced in Crampton's Case and again confirmed in the case of Doggett. In particular, there is not, in these directions, a warning. There may be comment about the difficulties and the problems created by delay but there is nothing that can be characterised as a warning - - -

KIRBY J: Well, there are three levels. On 479:

I must warn you that the absence of making a complaint . . . does not necessarily indicate that the evidence of the complainant is false.

That is a warning from the judge.

MR BYRNE: That is in favour of the complainant, though.

KIRBY J: That is right. At 480:

In these circumstances you must carefully scrutinise her evidence -

That is in the nature of a warning. That is the highest it gets and then at 482 "you may think", "you may think", "you may think". That is comment; it is not a warning.

MR BYRNE: Yes.

KIRBY J: This Court has drawn a distinction between the duty to warn and comment, so the real issue comes down to whether "you must carefully scrutinise" on 480 reaches the Longman standard. Does it get up to the point of a warning? That is the essence of it, is it not? It does not use the word "danger". "I warn you that it is dangerous to rely on testimony at such a long period of time in the past without some other supporting or confirming evidence." So the issue is whether that statement on 480 is enough.

MR BYRNE: It does not use the word "danger" and we accept that it is not absolutely essential that that very word be used, but something similar to it. If not the actual word, "dangerous to convict" should be used and that appears to be what this Court has held, not only through Longman and the majority judgment in Longman - I will not take your Honours to the details of those judgments because I know your Honours have recently dealt with it - but it is that concept that is used in Longman itself, it is used in the joint reasons in Crampton, it is used in your Honour Justice Kirby's reasons in Crampton and what your Honour Justice Hayne said in Crampton, and it is also used in what your Honour Justice McHugh said in Doggett, in the sense that Doggett was a case where it was said that there was significant corroboration of the version of events given by the complainant.

This is one of those cases where there is no corroboration but a significant delay and your Honour's Justice McHugh's judgment in Doggett was to the effect that if it was a Longman or a Crampton type case, then it was necessary for a warning of the dangers to be given. That is at paragraph 80.

KIRBY J: They are not dangers in the abstract, they are dangers of the disadvantage in the forensic setting, and the judge does deal with those at page 479, I think it is, where he says that learning about this five years later puts him at a disadvantage.

MR BYRNE: It is, in our respectful submission, not simply just the dangers of the disadvantages faced by the accused person. It is also the inherent unreliability of the evidence that may be occasioned through delay. Because of the delay, there needs to be much greater scrutiny given to the evidence to determine whether it is reliable. That is a separate issue from looking at the dangers from the point of view of disadvantage to the accused person.

Your Honours, the submission is, in essence, that these directions do not reach the standards - admittedly high standards but it would seem, with respect, deliberately high standards - established in those authorities recently decided.

GAUDRON J: They are your submissions, are they?

MR BYRNE: May it please the Court.

GAUDRON J: Thank you, Mr Byrne. Yes, Mr Ellis.

MR ELLIS: Thank you, your Honour. Perhaps I can start by saying that the written submissions put the Crown case at its highest in relation to the various grounds.

GAUDRON J: Your written submissions or the - - -

MR ELLIS: The written submissions prepared by the Solicitor-General, who is indisposed or ill today, to which I think I was a signatory, put the case at its highest, your Honour.

GAUDRON J: So you would like to retreat a little, would you, now?

CALLINAN J: Strategic withdrawal.

MR ELLIS: Your Honour, there are a number of matters that I will cover that have been raised by various members of the Bench which might perhaps be seen by some as being a strategic withdrawal, but I will leave for your Honours to determine. There obviously are a number of matters which are raised over and above those which are covered in the written submissions.

The history of this matter obviously is that this case was decided at a time when the trial judge was bound by the Court of Criminal Appeal's decision in RPS which was, in fact, overturned by this Court in the subsequent decision. The trial judge would also have been bound by OGD. Similarly, some observations in OGD were commented upon in RPS - - -

GAUDRON J: What does that matter? The question ultimately was whether the appellant had a fair trial according to law.

MR ELLIS: That is so, your Honour, but I am simply putting it in its context. The Crown accepts that those cases it was pre-Crampton and Doggett and that perhaps now the directions are not as they ideally ought to be now. Whether or not they are deficient is the issue, in the context of a fair trial, is what I propose to take your Honours to.

This trial in fact, as a matter of record in this Court, was a retrial following a hung jury. In fact, the witness, Wendy Tinkler, as I indicated, did give evidence - that is a matter of record. She was cross-examined and challenged by the Crown quite strenuously as to her evidence and as to her credibility.

KIRBY J: You are saying this and you say it is a matter of record but it is not a matter of our record. We only have the record of this trial. I just feel anxious about receiving statements about this without proper foundation in the record.

MR ELLIS: The difficulty, your Honour, is that to deal with it absent that information is to deal with it on a false basis. For instance, to endeavour to - - -

KIRBY J: Yes, that may be so but that is what Mickelburg - - -

GAUDRON J: But the jury would have had to deal with it absent that information.

MR ELLIS: Yes, your Honour, it is more the issues that have been raised, for instance, about the Crown's duty to call. It is whether or not those issues can be addressed, because, for instance, any decision a Crown might make not to call a witness based on, for instance, the Kneebone situation or what was I think Richardson in this Court, where the Crown reaches a conclusion that the witness is not a witness of credit, for instance, that type of information is not given to a jury and the Crown does not announce to the judge in the presence of the jury that he is declining to call a witness because he has reached a conclusion that the witness is unreliable. So there are occasions when there will be information perhaps that the trial judge has which will be relevant to any decision to give a Jones v Dunkel direction, which the jury might not be privy to.

GAUDRON J: A Jones v Dunkel direction against the prosecution.

MR ELLIS: Both on that ground and theoretically on the ground of whether a direction ought to be given against the accused.

GAUDRON J: The first question is whether such a direction ever can be given against an accused - - -

MR ELLIS: I understand that, yes, and I do propose to deal with that.

GAUDRON J: Yes.

KIRBY J: I can understand how this arose. The Crown Prosecutor obviously had his cross-examination all ready for Wendy - - -

MR ELLIS: Yes.

KIRBY J: - - - and Wendy does not materialise, so he is extremely frustrated at this and he makes this comment to the jury which sends the matter off down the Jones v Dunkel route.

MR ELLIS: But once the last witness was called, virtually immediately after the last witness is called for the accused, the Crown is called on to give the closing address, so it is only in that very short intervening period. For instance, your Honour asked about some of the English decisions up until the change in the legislation. The case of Gallagher which is referred to in our written submissions, the English Court of Appeal there said that:

it is permissible for a judge in an appropriate case to tell the jury that they are entitled to take into account the fact that a potential witness -

for the defence has not been called, particularly in a case where the prosecution has had no possible means of knowing that the potential witness had any relevant evidence to give until the defendant himself gave evidence. So they gave that as an example of a case in which this case would fall - - -

GAUDRON J: No, it would not.

MR ELLIS: The Crown knew that she was a potential witness because the Crown had cross-examined her. The Crown did not propose to call her or did not call her.

GAUDRON J: Well, did not call her, yes.

MR ELLIS: Did not call her. The Crown then sits and cross-examines the various witnesses who were called following the dock statement made by the accused. The last witness is called. The defence case is closed and then the Crown is called on to address.

GAUDRON J: But you might have had an opportunity even then to call the witness if you wanted to. It was no more in your interests - I mean, the point of the matter is, at the end of the day, it might not have been in anybody's interest to call Wendy and it seems that that was the situation. Assume that, how then can you justify the direction that was given?

MR ELLIS: Perhaps the first leg is whether - - -

GAUDRON J: Let us just assume she would not have helped either case. She would not have helped you as a witness.

CALLINAN J: And the remarks that are made to the jury in the closing address - and they always do this - they imply more than what they say in substance. They say, "Look, the accused hasn't called this witness because the witness would have given adverse evidence." That is really what juries infer and that is what they are really being invited to infer.

MR ELLIS: Your Honour, I do propose to come to that. There is a distinction between - for instance, the jury is entitled to evaluate the material which an accused person puts forward by way of an impediment to the Crown proving its case. That is not to move the onus of proof. The onus of proof has stayed on the Crown. But because the accused has chosen either to give evidence or to call evidence, the jury needs to evaluate that evidence and to then put it as part of its decision as to whether the Crown has proven its case. Obviously, one of the factors in evaluating evidence which might be put forward, especially alibi evidence, will be the cross-examination of the witness, any relationship between the alibi - - -

CALLINAN J: But you do not assert that this was alibi evidence, do you?

MR ELLIS: Well, I think it is alibi evidence, your Honour. What the accused says is that - - -

CALLINAN J: That is the first time that has been suggested in this case, is it not?

KIRBY J: Apart from by me.

CALLINAN J: Yes.

MR ELLIS: I do not believe so, your Honour.

CALLINAN J: On your side of the Bar table has anybody before sought to characterise this as alibi evidence?

MR ELLIS: I do not know that anyone has actually said, "This is alibi evidence", but it is alibi evidence. I mean it is evidence - the accused says, "Wherever the complainant was, I was not with her, I was not there." That is, in essence, what he is saying.

HAYNE J: Well there were two strands to the sort of answer that was being made, were there not? One, "It was improbable that I did what the complainant says" - see her subsequent conduct; two, "I could not have done what the complainant says I did. I was otherwise engaged at the time it is said to have occurred."

MR ELLIS: Yes.

HAYNE J: And on the "otherwise engaged" strand of the matter, there was, was there not, the complainant's evidence, the dock statement and no other sworn evidence touching the issue, was there?

MR ELLIS: The diary was tendered.

HAYNE J: And that is it?

MR ELLIS: There was evidence from the lady, I think, Amanda Hamilton. She was the receptionist and she gave evidence denying that the appellant had had an energy conversion session with the complainant. So there was her sworn - - -

HAYNE J: That is different from, "I was otherwise engaged at the time alleged", is it not?

MR ELLIS: It is another limb.

HAYNE J: Another strand. Now, on the "otherwise engaged" point: the jury has to evaluate the evidence they have, namely, sworn evidence of complainant, dock statement of accused, written document being the diary.

MR ELLIS: Yes.

HAYNE J: How, if at all, can they usefully - leave aside properly - take to account the fact which you say is revealed by the diary that there are others who might have said he was otherwise engaged. What is the chain of reasoning that you say can be undertaken by the jury and pointed out to them?

MR ELLIS: Your Honour, I think it is really only the Wendy Tinkler evidence. That in his statement the accused says, "I was with her" so, clearly, if she gave evidence she may be able to recall.

HAYNE J: But if things were different - things were different - but she did not.

MR ELLIS: She did not.

HAYNE J: She was not there. The jury did not have them. What do you tell the jury they may think?

MR ELLIS: The Jones v Dunkel direction is that they can infer that the evidence she would have given would not have assisted the accused.

GAUDRON J: Why would it not also be, at least on that chain of reasoning, that it would not also have assisted the prosecution. At least that much. If you want a bipartisan approach to it, at least it must be it would not help the prosecution, either.

MR ELLIS: Perhaps the better direction would be simply to say that that witness does not assist the jury because the witness is not there.

HAYNE J: Until the jury focus on the evidence that has been given in the case not the evidence that has not been given.

MR ELLIS: Yes. I accept - I do not know if it is a concession - I accept that that is a better way of dealing with it and from my experience it is all that really is necessary that the jury are told, "This witness is not here. Do not speculate about what they may or may not have been able to say. You get no assistance from that witness. Put them out of your mind. Deal with it on the evidence that you have".

GAUDRON J: Now, Mr Ellis how long do you expect to take this afternoon? I am not pressuring you. I just wish to know at what time we should resume.

MR ELLIS: I think that I can - I will endeavour to deal with it within an hour; hopefully less than that, your Honour.

GAUDRON J: We will adjourn until 2 o'clock. That should give you ample scope.

MR ELLIS: Thank you, your Honour.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GAUDRON J: Yes, Mr Ellis.

MR ELLIS: Thank you, your Honour. Your Honours, just very briefly I just want to point out the complainant in this case indicated that she had this processing session and that it was during that that she claimed to have been indecently assaulted in the way in which she described. Her mother supported her in the sense of supporting opportunity and the abusive behaviour after. The evidence was that they, that is, neither the complainant nor her mother, actually attended the meeting, the 1 pm meeting, so there is no common ground between the Crown case and the defence case on that issue.

KIRBY J: By the abusive behaviour you are referring to the shouting out - - -

MR ELLIS: I mean the oral exchanges that took place. The evidence of Mrs Walmsley was that she was asked to leave Kenja after or within a short time after that abusive oral conversation - - -

KIRBY J: But that could have been explained as related to the difference with the mother, is that not correct, that the mother had been, in effect, sacked because of alleged misappropriation or misuse or inability to account for money?

MR ELLIS: Yes, and there does not seem to be any issue that there was an issue about money not having been accounted for. On the claim of Mrs Walmsley it was that the money had been stolen by others; she had left it unattended.

The defence case though was, firstly, the dock statement by the appellant in which he asserted that he had met with the complainant and her mother that morning and told them to come back at 1 o'clock. Then he had the session with Wendy Tinkler at 10 am and there is some suggestion that that had gone for some hours. Wendy Tinkler was then a director of the Canberra Kenja Centre and she subsequently took over as the Melbourne director in lieu of the complainant's mother.

The two most important witnesses called by the accused were Amanda Hamilton, who was the receptionist, who has denied that there had been an "energy conversion session" with the complainant that morning, and Diana Moore, who gave evidence wherein she asserted that she had attended the 1 pm meeting and that both the complainant's mother and the complainant were in attendance and that the complainant's mother was asked to leave because of the unexplained loss of Kenja money.

The Crown's position in relation to, obviously, this case is that this area in terms of Jones v Dunkel has presented and continues to present a number of significant difficulties in trials and the Crown certainly would like there to be some clarity on the issue. Some of the things I intend to put to your Honours, though quite briefly, in a moment, deal with the problems and deal with an acknowledgment that there is a problem and an acknowledgment that when one looks at RPS and Azzopardi that the law has moved somewhat from what, perhaps, was the situation in Jones v Dunkel in those days, Jones v Dunkel itself having been a decision which related to the drawing of an inference and whether or not such an inference was available to be drawn.

We seem to have come a little further down the track to say in a case such as this where it was not a case of drawing an inference but rather was a case of acceptance or rejection of direct evidence. It is a bit like the comparison between the Weissensteiner Case drawing an inference on those accepted facts and the RPS where it was a sexual assault claim and there was direct evidence. So, the Crown acknowledges that there is a difficulty, perhaps, in the way that the law has progressed. One looks at Buckland's Case. Certainly, his Honour the Chief Justice - - -

GAUDRON J: What do you say the difficulty is? I do not understand this.

MR ELLIS: Your Honour, if I am allowed, I will develop that.

GAUDRON J: Yes.

MR ELLIS: The situation is that there are a number of problems, I think, as in terms of what does "would not have assisted" mean. Can it, or does it leave available for the jury to infer from that an unfavourable inference to the accused? Does it leave it available for the jury to draw an inference that could, in turn, be tracked back to a suggestion of consciousness of guilt as being the reason not to call it?

The reality in these cases, as I said just before the break, is that if a direction was given simply that the absence of the witness means that that witness does not assist the jury, the jury are then directed that they ought not speculate and that they ought determine the case - - -

GAUDRON J: Well, the first question is why does there have to be any direction at all? I think it was pointed out with absolute clarity in RPS that the judge gives directions about the law. He does not tell juries how to reason.

MR ELLIS: No, but he ought to tell the jury that if a witness is absent that they cannot speculate.

GAUDRON J: Why should he tell them - yes, he can tell them that.

MR ELLIS: That they cannot speculate about what that witness would say one way or the other. In that sense, the direction is that they should put the witness out of their mind and decide the case on the material that is before the jury. Now, direction of that type means that you do not have to determine the difficult issue sometimes of who ought to call the witness. You do not have to determine issues such as what are the explanations - - -

CALLINAN J: I do not accept the propositions involved in that.

MR ELLIS: Your Honour, can I come - - -

CALLINAN J: No, let me just ask you this. Who has to call the witness. That involves an assumption that the accused might have to call the witness, and you have to deal with that proposition first, I would have thought.

MR ELLIS: No, your Honour - - -

CALLINAN J: You cannot assume any obligation, unless you can satisfy the court that there is such an obligation.

MR ELLIS: I do not suggest there is any obligation, evidentiary or otherwise in - - -

CALLINAN J: You put it as if either party could be obliged to call the witness.

MR ELLIS: No, your Honour. Why I was raising that is that the obligation to call a particular witness is certainly a question of whether the Crown has such an obligation. That can lead to difficulties, whether or not in any given case a Crown should have called a particular witness. I am not suggesting - - -

CALLINAN J: If it gives rise to not unfamiliar problems, I agree that there will be cases of the margin which are difficult but, in general, if the witness is material, and by "material" I would think one would mean a witness whose evidence might influence the jury, reasonably influence the jury in reaching the verdict. That would seem to me to be a fair enough test and there should not be any difficulty about applying that. This Court having said in Apostilides that doubts about reliability will usually not suffice, to justify the non-calling.

MR ELLIS: I think it is clear, and I do not seek to challenge the fact, that the Crown bears an obligation to call all relevant witnesses. The only exception to that obligation arises in relation to some statutory exceptions where witnesses are not compellable, sometimes the accused and certainly the wife of the accused, or de facto spouse. The only other exception that this Court has recognised is where a Crown Prosecutor reaches a determination that a witness is not a credible or reliable witness and that he or she cannot put that witness forward as a witness of truth. That is the only exception.

CALLINAN J: It is must a very, very rare exception though, I would have thought, because it is not the sort of judgment that can likely be made.

MR ELLIS: No, your Honour, it is not that rare because regularly you will have examples. For instance, you may have taped conversations wherein you have a witness saying X and Y, and yet you have statements in which he is saying different things. So there are many occasions where you can have apparent and obvious inconsistencies of a witness. You can have a situation where that is combined with an association with the accused. Sometimes you can have a situation where there is a suggestion perhaps of the person being a co-accused, but the evidence does not go that far. Those things occur reasonably regularly that you get into that area of, "Can I put this witness forward legitimately?"

All I am trying to say is that those types of problems, and also the problems associated with having to give an explanation for why a witness is not called, sometimes that explanation itself is prejudicial. Sometimes it might go down to something like the incompetence of counsel. As the Canadian Supreme Court said in relation to their directions, care ought to be taken both in relation to a direction against the Crown as well as against the accused on the basis that it is counsel who determines whether someone is called or not and that there may be some reason, for instance, unknown to any but defence counsel or unknown to any but the Crown that either they did not think of it, they have had a conference, drawn that conclusion, they cannot tell the jury that this person is not truthful or, in the case of the accused, they have made a tactical decision not to do so. So what I am saying is that all of those areas are problems that do arise, and yet we do not need to ever get that far because, if the direction is simply a direction that the witness or the potential witness - - -

GAUDRON J: What you are really trying to do is to secure the position of the prosecution against a direction.

MR ELLIS: No, your Honour, I am not suggesting that. I am suggesting in relation to a direction that we are talking about which is a Jones v Dunkel direction against an accused, that the only direction that really needs to be given is a direction that the witness is not there.

GAUDRON J: The only direction that can be given? Do you accept "can be given"?

MR ELLIS: Not at the moment. The law is that a Jones v Dunkel direction at the moment can be given.

CALLINAN J: It is not how I read - only in very exceptional cases.

MR ELLIS: Yes, but still can be given. There is nothing - RPS did not as I think the CCA judgment said, completely prescribe. Section 20 does not - even though section 20 deals with not being able to make a comment about the accused and about the de facto and parents and child, it does not in fact include any other types of witnesses in that prohibition on comment. If your Honours have a look through the cases, certainly in New South Wales, Buckland, Taufua, Newland's Case, they were cases in which the court clearly was saying, "Look it is or ought to be an exceptional or rare case because you have to be very careful before you do so, but that, it would seem on the law as it stands now, it is still possible in some circumstances to get such a direction against the accused". Perhaps all I am saying is conceding, not that it is a question of conceding because the Crown's position here is to endeavour to arrive at what would be a just direction and a just direction would simply be the potential witness does not assist the jury and the jury should not speculate - - -

GAUDRON J: Why would you go beyond saying the witness was not called? You should not speculate. You determine the matter on the evidence that has been presented.

MR ELLIS: That is what I am saying.

KIRBY J: Can I just try to put in my own words what I understand to be the Crown submission. Is it your submission that Jones v Dunkel was not a case about reasoning in a civil trial; it was a case about the process of human deduction in reasoning. It happened to be given in a civil trial, but the High Court in that case was addressing how one moves from one thought to another and that what was said about the process of inferences in Jones v Dunkel is as much true of criminal trials, except that you have to adjust that to the unshifting onus of proof, which rests upon the Crown in respect of most matters and that therefore, in so far as juries will certainly ask why a witness, such as Wendy, was not called, it is a proper province of a judge to give them some assistance as to how they will take that process of reasoning in order to defend them from making illogical or erroneous steps in their logic. Now is that the concept that you are urging on the Court, that this is not about the onus of proof in civil trials and how you prove a civil case, but about the process of human deduction?

MR ELLIS: And the direction, if any, which is given to the jury in relation to that process.

KIRBY J: Quite, but Justice Gaudron raises the point that in a criminal trial maybe the judge should not interfere with that, maybe it is like trying to explain beyond reasonable doubt, maybe this is exactly what is just left to the jury and that they should just be told, "Do not speculate about why a witness was not called", and if asked why did not the accused call so and so, they should be told, "The accused does not have to call anybody."

MR ELLIS: Yes, I think that is what I put; perhaps I did not do it so eloquently, your Honour, but I am suggesting that the fact of what happens now is, the witness is not here, there is nothing said by the witness to assist anybody, you should not speculate - - -

KIRBY J: No, but it went a bit further than that, Mr Ellis. First of all the Crown Prosecutor, obviously upset that his star witness who he was going to savage in cross-examination was not called, then started to mutter to the jury about the failure to call the witness and then the judge gave, what has been called, a bipartisan direction in a trial which is not bipartisan.

MR ELLIS: I do not think I am actually defending the direction that was given here, because even if a direction of that type could have been given in this case, I think that it would have been necessary for the judge to give some direction in terms of who had the obligation to call witnesses, under what circumstances they could and what type of inference they could ever draw against the accused. He perhaps should have given another clearer direction on the fact that there was not a shifting of onus, it was only a question of valuing what had been said.

GAUDRON J: All of which shows that discretion may well be the better part of valour and it is unnecessary to refer to it at all.

MR ELLIS: Well, that is what I am suggesting in fact, your Honour. I am suggesting that the direction does not need to be a direction which flirts potentially within appropriate inferences. The direction can really just be a statement of fact, "Is not here; you do not have any assistance; do not speculate as to what they could or could not say, deal with the case on the material which is before you."

KIRBY J: Does that extend so far as to say that a judge cannot or should not give direction if the Crown fails to call a witness?

MR ELLIS: But that is the next argument I was going to come to, your Honour. Certainly the first leg is the one we have just discussed. The second leg is whether it is appropriate to give this type of direction even against the Crown and, bearing in mind what the Canadian Supreme Court said, there are some dangers again in juries not actually deciding the case on the material that is before them; they are, as it were, speculating. Sometimes the Crown will be able to call an explanation: the witness is overseas, the witness is dead. In one of these cases the Crown actually led evidence and was criticised for doing so, that the witness had been spoken to by police and had refused to speak to police and refused to give evidence for the Crown.

Now, to lead evidence of that explanation produces a number of problems of its own. So that it may well be that if the Crown does not call a witness, then the Crown misses out on what that witness could have said. The Crown gets no assistance from that witness. As a matter of fact, is it necessary to say to the jury that that witness would not have assisted the Crown?

KIRBY J: Yes, because the law is that the Crown has a positive duty, save for the very exceptional cases, to call all witnesses who are material to establishing the alleged offence or to not establish it and therefore - - -

MR ELLIS: I accept that, your Honour, and perhaps I push it in - - -

KIRBY J: You see what you are doing, you are really complaining about the weighted nature of the criminal trial, but that is just fundamental to its character.

MR ELLIS: No, your Honour. Perhaps the position I should arrive at is that so far as the accused, it ought to be the direction that we have spoken about. So far as the Crown is concerned, there will need in each case to be a determination as to whether a Jones v Dunkel-type direction ought to be given against the Crown. That will depend on whether there is an explanation or not. That can be dealt with in the absence of the jury. So in that sense there is no problems with saying things which might be prejudicial in front of the jury. But certainly, if you have an unexplained non-calling of a Crown witness - and one assumes these matters ought to be discussed prior to anybody raising it, either the Crown in an address or the defence in an address, it ought to be something that is clarified with the trial judge before addresses. If there is no explanation forthcoming from the Crown, even to the pathetic one of, "I didn't realise that we'd have to call such a witness." I mean, sometimes those are the realities, or there is insufficient time when a trial is pushed on.

I accept though that it may well be, given the onus that the Crown has to call witnesses, apart from those exceptions I have just mentioned, that if the Crown does not do so the jury ought to be able to infer the adverse or the unfavourable.

KIRBY J: So it comes down to this. Where the Crown fails to call somebody and has not explained it and it is relevant to the Apostilides' principle, then the judge should tell the jury - where the accused does not call a witness the judge should warn, "Don't speculate", and leave it at that.

MR ELLIS: Yes, your Honour. In fact that is the situation that - I recently gave a paper to all the Crown Prosecutors and that was the direction that I gave, that you should not in fact ask for a Jones v Dunkel direction against the accused. It is just that it needs to be clarified. There is still divided opinion as to whether it can or cannot be given. If there is clarity, it ought to deal with the problem, and if the direction that I have spoken about is given in relation to the accused, then you do not have to go through the exercise that would be necessary now when giving a direction, "I have explained to the jury so that they could determine if the Crown bore the onus or not", if it was one of those exceptional cases. It is a much simplified one. The direction is a much simplified one so far as the accused is concerned. Indeed, even so far as giving it adversely against the Crown, it is simply a straight statement that, "The Crown has an onus to call relevant witnesses and has not done so, absent explanation you can infer". So it is a fairly straightforward direction.

HAYNE J: Now, as to what can be inferred, would you accept that as a statement of what may be inferred this, that the jury draw the inference. They may properly take it into account against the party in question and - - -

MR ELLIS: The Crown.

HAYNE J: - - - the Crown presently, for two purposes; namely (a) in deciding whether to accept any particular evidence which has in fact been given either for or against that party and which relates to a matter with respect to which the person not called as a witness could have spoken and (b) in deciding whether to draw inferences of fact which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken. That may well require adjustment to take account of the burden of proof and the standard of proof - I think it probably would - but do you accept it would have that twofold purpose?

MR ELLIS: Yes, I think there are two prongs.

HAYNE J: The citation is from Mr Justice Newton, Justice Norris' judgment in O'Donnell v Reichard [1975] VR 929.

KIRBY J: Your position that you have now adopted is different from the written submissions and, indeed, from the submissions of the Crown before the Court of Criminal Appeal. As I understand it, it effectively amounts, Judge Shillington having in accordance with the then understanding of the law gone further, to really a concession that the judge gave a misdirection to the jury in this case.

MR ELLIS: Your Honours, I have discussed this matter with the Director and I have arrived at the position I have arrived at after those discussions. If it is a concession, if that is the term, that is the position the Crown puts as being the appropriate position in these cases. If that is a concession, then it is a concession. This particular direction was in accord with Jones v Dunkel and in that sense was accurate at the time it was given but there were many things absent from the direction that I accept ought to have been included, even if it was correct in the first place to give the Jones v Dunkel direction. So the Crown is, firstly, accepting that the direction given here did not, if it was to be given at all - - -

McHUGH J: You mean the Crown in right of State of New South Wales because I can tell you I may not necessarily accept your concessions.

MR ELLIS: Yes, your Honour, I understand that too, your Honour.

McHUGH J: If we declare the law we declare the law for Australia.

MR ELLIS: Yes.

McHUGH J: And concessions made by the Director of Public Prosecutions in New South Wales cannot bind us in any way.

MR ELLIS: I accept that, your Honour, and I understand the implications.

KIRBY J: I acknowledge what Justice McHugh has said but you are a party before this Court and I am asking what the parties' position is. I only asked it because there is a gulf as wide as the Red Sea between the written submissions which we received and, apparently, which were put before the Court of Criminal Appeal, and the submission that you have now put before this Court.

MR ELLIS: The gulf is this, your Honour: the issue that is now raised and which can, in fact, be determined by this Court is whether or not, at all, a Jones v Dunkel-type direction can ever be given against the accused. Bearing in mind the progress of such a direction through the courts over the last 50 or 60 years the position the Crown arrives at now is that it is so fraught with danger and, in a sense, of so little value to the Crown to get such a direction, because the reality in this case is without that direction the jury would no doubt have retired, considered the dock statement, considered the fact that Wendy Tinkler was not present to confirm that and given what weight they then determined was appropriate, to the claim made by the accused.

McHUGH J: That is part of the problem, is it not? As I pointed out in Azzopardi, if the judge erred in that case the judge erred negatively as well as positively. It seems to me that Azzopardi requires a judge not merely not to make the statements that were made in that particular case but to tell the jury that they cannot reason in that sort of way. So a judge must go further, must he not? If Jones v Dunkel is not to apply at all a jury ought to be told they cannot use that type of reasoning, they just cannot be left at large.

MR ELLIS: They will be told that they cannot speculate so, in essence, that will be telling them that they cannot use the Jones v Dunkel-type reasoning.

HAYNE J: They cannot speculate about the evidence that that witness would or might have given.

MR ELLIS: Yes. I understand what your Honour is saying. I argued Azzopardi but I am bound by the majority in Azzopardi and it is clear I can only put submissions now on the basis that Azzopardi is the law. I do not want to revisit Azzopardi but the difference here is that the direction which can be given will not leave things up in the air. Things are still left up in the air so far is Azzopardi is concerned because the jury can in fact go off, take note themselves that the accused did not give evidence, draw an inference that nobody knows about, but that is, in fact, a consequence of Azzopardi.

McHUGH J: That is the problem that they should be told they cannot do that, not merely - - -

MR ELLIS: Well, that was a limb of the Crown's argument in Azzopardi, which was rejected, so that I do not feel I can revisit - - -

McHUGH J: But what do you say? It is still the practice in New South Wales - you still have an equivalent to the old 405A of the Crimes Act about giving notice of the alibi, have you?

MR ELLIS: Yes, section 48 now.

McHUGH J: Now, supposing an accused person says, "Well, I wasn't there. I was in Broome with my best friend fishing", and the best friend is not called. What is the Crown's submission about that?

MR ELLIS: Well, the Crown's submission is when you come to evaluate the evidence of the accused and his claim that he was elsewhere, you will evaluate that in light of the fact that there is no evidence from person X and one cannot speculate as to what they would or would not say, but the accused is not supported.

McHUGH J: I think this really overlooks the way jurors would approach it. They have to be given some guidance one way or the other. If the law is that they cannot use it, then it seems to me they have to be told that they just cannot draw any inference adverse to the accused at all, not a question about speculating.

MR ELLIS: But, your Honour, the situation with RPS, Azzopardi and this case was not what a jury could or could not do, but rather what direction or comment could or could not be made by the trial judge.

McHUGH J: Yes, but that was what the judge told the jury they could do in Azzopardi and in RPS and it was held to be wrong.

MR ELLIS: That is what I am saying, your Honour, the fact is that is the law at the moment - - -

McHUGH J: Well, are jurors now to be left at large with no assistance on this problem?

MR ELLIS: I think that is, in fact, the situation or the consequence of Azzopardi, but in relation to this type of issue, it is not because the direction, "You are not to speculate", is a clear direction that they are to, as it were, put this person completely out of their mind, simply consider the accused. The accused makes a claim that he is not present and you evaluate that as his claim, not supported by anyone else, in the same way as the jury is asked to evaluate many witnesses who are unsupported.

McHUGH J: I doubt if Bertrand Russell could analyse a problem in such a vacuum. The first thing the jury would be saying to themselves, "Where's the man in Broome? Why wasn't he called?"

MR ELLIS: I understand that, your Honour, but the direction - the Jones v Dunkel direction at the moment - unless it is said that that is a direction which allows the jury to draw an unfavourable inference, which is what Buckland said could not be done, does not really change the position. The jury is not entitled to say, "He mentions the man in Broome and the man in Broome is not here. The reason he didn't call the man in Broome is because he's guilty and he knows he's guilty and he knows if he called the man in Broome he wouldn't be supported." That is an inference - - -

McHUGH J: The Wigmore view was that the failure to call a witness was some evidence the witness, if called, would have exposed facts unfavourable to the defendant or whoever, the party that should have called the witness. So it was, in effect, a form of admission in relation to that fact.

MR ELLIS: It was, but that line of reasoning has been said by this Court in RPS and Azzopardi - - -

McHUGH J: I understand that.

MR ELLIS: And, at the moment, even in the current situation as it perhaps is, that in Buckland it says that the Wigmore version goes too far, that you cannot get to the point of getting an unfavourable. You can only get to the point of not being assisted. You cannot step past, because in order to step past and go from the negative to the positive, you have to start drawing inferences which relate to whether or not the person failed to call by reason of guilty knowledge, or failed to call by reason of knowing that the witness would not support him.

So that then means that the Crown is not only getting the benefit of the negative, of the absence of the witness, but the Crown in that sort of case would be getting the benefit of an unfavourable inference and it is of the type which has been prohibited by this Court in RPS and Azzopardi so far as the accused is concerned so one would think logically if you cannot get such an inference on the failure of the accused to give evidence, you could not get it as the Crown on the failure of the accused to call a witness. I would be the first to argue that Azzopardi should be changed and the direction should be that the jury be told exactly what they can and cannot do.

McHUGH J: You will have to go to the legislature to do that.

MR ELLIS: I have been down that track and the Court has handed down its decision in that. So that when it comes to assess Jones v Dunkel in light of those developments in RPS and Azzopardi, it seems to me that logically we are left with this position, that you can get a safe midway course in terms of the accused where the Crown will have the benefit of the negative but the Crown will not be getting a positive out of it, an unfavourable. I am not sure that I can take that - - -

HAYNE J: Which at the end of the day reflects on what is the role of the judge in charging the jury.

MR ELLIS: Yes, and it reflects the adversarial situation.

HAYNE J: And the division of functions. It is not the judge's task to tell the jury how to reason to a conclusion of guilt. Of course prosecutors want the judge with the authority of office to tell the jury, "This is how you get to the answer I want you to get to." It is not the role of the - - -

MR ELLIS: But, your Honour, with respect, I do not think it is just that. The other perhaps better example is, "Why would she lie?" The jury are not given assistance on that, yet probably the first question that is asked in that jury room is, "Why would she lie?"

KIRBY J: No, the first question, according to a lot of research, including a recent article of Criminal Law Review, is: what does "beyond reasonable doubt" mean? That is the very thing which we are not allowed to tell juries. We do not tell juries because we infer that they know this. Maybe the process of inference is another thing. We just have to infer that juries know.

HAYNE J: It is the one way in which we keep the system rooted in the community.

MR ELLIS: I understand that.

HAYNE J: We seek to avoid its over-intellectualisation.

MR ELLIS: But it does leave the situation that the second question that the jury is asking is, "Why would she lie?" The fact is they should not be asking that question because of the changing of the onus and they are not told that they cannot. I can understand what Justice McHugh is saying is the problem by saying you limit how many directions you give the jury. That is, I would have thought, more than fair enough, but there are some directions in some situations which perhaps are necessary.

McHUGH J: But it must also mean that counsel cannot address on that and the judge cannot make a comment. Historically it was always the view that the judge could make any comment on the evidence and tell the jury that they are at large to adopt it. So, by hypothesis, any process of reasoning that the jury could adopt the judge was entitled to adopt to make a comment, but I am not sure that the judge - - -

MR ELLIS: I think Azzopardi changed that. That is the situation which pertains to these submissions. So that I am, as it were, bound by that and working with that as the law.

McHUGH J: Can I ask you this question but do not feel under any pressure to answer it. These submissions were signed by the second law officer of the Crown. Your oral submissions have changed the argument dramatically as far as I am concerned. Have you discussed the change with the second law officer? You do not have to answer that if you feel embarrassed or pressured by it.

MR ELLIS: I would have to say, your Honour, that I had not discussed this with the Solicitor-General prior to his returning the brief to me, and thereafter I spoke with the Director. The Director is the client and in a sense, whilst the - - -

McHUGH J: Is he?

MR ELLIS: I believe that he is, your Honour. Certainly that is the way it works. The Solicitor-General and - - -

KIRBY J: Her Majesty the Queen is the client.

GAUDRON J: I am not too sure about that.

MR ELLIS: The Director represents the Attorney-General, who represents Her Majesty.

GAUDRON J: The Act makes provision that proceedings may be entitled "The Queen", et cetera, but the Director is a statutory officer and I would have thought he was the client. I do not think the Act goes beyond authorising the institution of proceedings in the name of the Queen, does it?

KIRBY J: You do not have to send a wire to Buckingham Palace.

MR ELLIS: No.

GAUDRON J: They are not acting in the prerogative - - -

MR ELLIS: No.

GAUDRON J: They are acting under statute.

MR ELLIS: Obviously, as your Honour put it out before, we act as but one of a number of States, but all we can do is to act for that State and put the law as we perceive it to be and, in light of the position adopted by this Court in Azzopardi and in light of the fact that whilst it might be said to be a concession, from my practical experience, it is really not a particularly huge concession. It is not a loss because the Crown has the advantage that if an accused claims that a witness was with him and that witness is not there supporting him, then all you have is the word of that individual.

McHUGH J: In the past a lot of air time has been wasted by counsel.

MR ELLIS: That is probably true. In any event, your Honour, there is generally a lot of air time wasted.

GAUDRON J: Do you go further now and say that, in the circumstances of this case, there was no miscarriage of justice?

MR ELLIS: I missed the first part. I got the last part, your Honour.

GAUDRON J: I am sorry, I have lost my voice. Do you make the submission now - you personally on your feet, forget about the Solicitor-General's submissions at this stage. Do you now go on to say, "But there was no miscarriage of justice in the particular case"?

MR ELLIS: No. I do not know that I could, having said what I said and, in that sense, whilst I have submissions in relation to ground 2 which relates to the use the Court of Criminal Appeal made of the dock statement which are based really on the fact that the jury are told that that is not on oath and is not tested by cross-examination and is to be given such weight as they the jury feel it ought to be given. So in that sense, it is a factor for the Court of Criminal Appeal to have regard to. Despite the fact that an accused might call other evidence, the complainant makes an allegation that she was alone with the accused and she makes that on oath and, subject to cross-examination, the accused did not. So that the Court of Criminal Appeal was entitled to take that into account as a factor in considering whether or not there was a miscarriage or the verdict was unreasonable.

CALLINAN J: Mr Ellis, it is right, is it not, to say that there would only be no order for a retrial in this case if we accepted ground 4 of the appellant's submissions?

MR ELLIS: Yes.

CALLINAN J: Ground 4 really depends upon the force, as it were, or the combined force of grounds 1, 2 and 3 even, or perhaps some of them?

MR ELLIS: Yes.

CALLINAN J: So that - - -

KIRBY J: Plus a review of the evidence which has not been done because of the view that the Court of Criminal Appeal took of the high significance of the omission to give testimony.

MR ELLIS: I am not sure, your Honour, with respect, that you can run those three grounds together and say, therefore, that makes - - -

CALLINAN J: It seems to be a kind of argument based upon force or weight, all three and not very convincing, I might say.

MR ELLIS: I think that the Crown's position is that on this point, the Jones v Dunkel point, that it is a retrial point, that it ought to be a matter which is left - - -

CALLINAN J: To the discretion of the prosecuting authority.

MR ELLIS: - - - to the discretion of the Director.

GAUDRON J: Now, we have allowed Mr Byrne some time to put in a written note about that. I do not know if it - - -

MR ELLIS: Yes, and, your Honours, all I can say on that is that the attitude of the Crown is apparent and - - -

GAUDRON J: And there is the other question, of course, there is the unreasonable ground, a new ground of appeal, which Mr Byrne has not put any submissions on either.

MR ELLIS: No, that is so. I was handed something as your Honours came in, I have not seen it yet, but I assume it is to do at least perhaps partly with ground 4, but the Crown's position is that on all, except ground 4, it ought to be a matter that is referred to the Director and that - - -

CALLINAN J: But ground 4 cannot succeed because it really is an argument not only that the verdict was unreasonable, but also because 2 and 3 should succeed. Therefore, there is so much weight on that side, the whole thing should succeed and there should be no retrial. It is really what it is, as I read it.

MR ELLIS: That I think is the essence. The Crown position obviously is that that second ground is not made out that the Court of Criminal Appeal did not misapply any principles. The third ground, which was the - - -

KIRBY J: Longman.

MR ELLIS: - - - Longman ground is a retrial point in any event. So that the fourth ground is a question of a combination perhaps of 2 and 4, but if there is no error in the court taking into account that a jury was entitled to take into account not on oath, not subject to cross-examination, which they are, in fact, instructed, when they came to assessing the weight they would give to the dock statement, then it must be that the court is entitled to take into account what the jury were entitled to take into account in the court's assessment of the miscarriage of justice point.

CALLINAN J: Mr Ellis, can you help me on this. Apostilides speaks of the witnesses names on the indictment. Now, I do not think there is a uniform practice about that.

MR ELLIS: In New South Wales the names of witnesses are not included on the indictment. The only name that appears - well, there are two names if there is a named complainant; there is the name of the complainant and the accused.

CALLINAN J: We should take that to mean material witnesses then, should we not? Because all material witnesses should presumably be called and those who are to be called should be named on the indictment in those States or places where that is the practice.

MR ELLIS: Yes. I can only speak for New South Wales. It is not the practice to include them on the indictment, but it is often the practice to provide a list, when requested, containing the witnesses to be called.

CALLINAN J: Apostilides came from Victoria I think, did it not?

MR ELLIS: I think it did.

CALLINAN J: I do not know what the practice is there.

McHUGH J: There was a practice at one stage of putting the deposition witnesses name on the - is that still the case?

MR ELLIS: The short answer is, no, your Honour. It has changed a fair bit now obviously with paper committals. The deposition in the old term is often just a notation of the matter being committed for trial, but there is now a brief of evidence is served, which contains a list of witnesses, and that is served prior to committal. There is then an issue about whether any of those witnesses are to be called at committal or not, but thereafter - I know in the old days there used to be various formal documents which were signed as depositions or a list of witnesses who had given depositions and were to be called, but most of that formal material has gone by the by or been replaced by the paperwork involved in the paper committal legislation. Your Honours, I am not sure that I can take it any further, other than in relation to the Longman point. Did your Honours want to hear me on that?

GAUDRON J: Well, I was just going to ask you, do we take it that you rely on the written submissions as to the other grounds of appeal?

MR ELLIS: I do rely on the written submissions in relation to the Longman point, your Honour.

GAUDRON J: Yes. Well, we perhaps just need to have that clearly understood.

MR ELLIS: Yes. I think that the written submissions contain all the references that I had. Perhaps the other point that I wanted to make in relation to the Longman point is made at paragraph 7.3 of the written submissions when it talks about or identifies the circumstances that Longman identified as requiring the warning being:

the delay in prosecution, the nature of the allegations, the age of the complainant -

I think in Longman the complainant was aged six; in this case, I think she was about four days past her 13th birthday. In Longman there was the situation of a child just waking up and whether or not they were dreaming or confused and the absence of complaint was an issue. The situation here, in terms of the disadvantages, it is significant in this case that whilst there was a break of five years the case itself did not demonstrate the type of forensic disadvantage that often does arise for an accused. He was, in fact, able to produce a diary; he was able to produce witnesses - four of them he was able to call - and he had a clear recollection; he was able to say he was with Wendy Tinkler and never had a session with this young lady. It was not an issue of mistake. It was she was either telling the truth or she was not.

When one looks at the directions at I think it is 482 of the appeal book, his Honour in fact goes through and lists those directions. He goes on to remind the jury at - my learned friend took your Honours to 478, 480, 481, 482. I would ask your Honours to read 482 in full. My learned friend did not read the passage starting at line 25. At 483, a reminder that there was no onus on the accused even though he called evidence and sought, as it were, to rebut some part of the Crown case. A reminder that the onus did not change. At 485, at line 16, he again made reference to it being - of the Crown case relying upon the complainant's evidence only, and then from line 40:

But on the other hand where the onus is on the Crown you must be satisfied that you can rely upon Angela Park's version of what she says did take place in that room.

If you have a reasonable doubt about her evidence in that regard the accused is entitled to the benefit of it . . .

It is for those reasons that I told you earlier that you must scrutinise her evidence with the utmost of care, both from the point of view of reliability and honesty, and determine firstly whether you are satisfied you can act upon it, and secondly if you can whether it establishes beyond reasonable doubt the essential elements that go to constitute the offence charged.

So that is a second reference to care and scrutinising. Then at 505, at the top of the page:

The Crown said that this is a case in which you must scrutinise the evidence of Angela carefully because she is the only one that gives evidence as to the events on which the Crown relies. And the Crown says that in those circumstances you must look at her evidence very critically -

And then he goes on to say, "but you will be satisfied" et cetera. Again, that is a reminder of the need for care, in this case confirming, or reiterating what the Crown had said about that.

In terms of the use of the word "danger" under section 164, there is no rule of practice that that magic phrase of "dangerous to convict" be used, simply because the evidence is uncorroborated. Longman moves on to say, "Yes, but there will be cases where obviously there is a disadvantage and that the delay has caused problems." The Crown says that that has been dealt with sufficiently by his Honour and that in this case it was not a case of there in fact being significant forensic disadvantage. It certainly was the situation with Crampton and Doggett where certainly they were talking in those cases I think of up to 20, 24 years. So there was an even greater problem with memory in those cases.

The aspect of memory: my learned friend was saying the Crown - made a little bit about the Crown arguing that the memory might affect the Crown witnesses. Clearly, if something that happened a long time ago that can be an explanation for why detail might be missing. It is a legitimate observation to make. The accused can make the same observation about his own evidence or those called by himself. It is a different issue though because the Crown in relation to the accused's witnesses was saying, "Well, they couldn't possibly have remembered this detail because it was such a `nothing' incident as it were compared to a complainant who may well remember such an incident because it is such a significant event in her life". Indeed her mother on this occasion, it was a significant day in her life, the day as it were she was thrown out of Kenja.

KIRBY J: What do you say about my feeling that in such a case one would have expected, even with inhibitions and so on, that she would have said, "Mum, the real explanation of this is that this is a reaction to what he's done to me"?

MR ELLIS: But, your Honour, the evidence does not suggest that money was not missing. It was not a case of a trumped-up charge.

KIRBY J: You say it is just a coincidence?

MR ELLIS: Yes. So from this young girl's point of view - I mean, we say she is 13 but she had been 12 four days before, so she is still very young, and perhaps her appreciation of the machinations within a political environment of the Kenja movement would have been limited, one would have thought. So that there was not any reason for her to do what your Honour perhaps suggested might have been a logical thing, and - - -

KIRBY J: Yes, I understand that.

MR ELLIS: - - - especially given that on their evidence they did not go to the meeting, that, as it were, there was this abusive conversation, she was kicked out, as she would say, of Kenja and they left.

KIRBY J: So the mother did not admit that she was at the meeting?

MR ELLIS: The mother's evidence is that she never went to the meeting. That is contrary to the evidence of Diana Moore, I think her name was.

McHUGH J: But also with the accused, was it not? It was not because the whole - - -

MR ELLIS: Yes, contrary to the accused's statement.

McHUGH J: This was a planned meeting and it was expected to be, on the accused's case, a rather difficult case for the mother, that she was going to have a hard time at the meeting.

MR ELLIS: That was the accused's case supported by the accused's statement as well as the witness, Diana, but it was never the Crown case. There was a challenge made to the diary. I am not sure if your Honours have available the original exhibit, but there were issues raised in that about whether or not all the entries were made then or whether they could have been added. They were in different pens, some in pencil, there appeared to be some erasion. So there was a genuine challenge made by the Crown to the legitimacy of a number of the entries.

KIRBY J: The fact that the mother came up from Melbourne might suggest that she came up for the meeting to sort this matter out.

MR ELLIS: Except it was a weekend, as I understand it, and they stayed for that weekend. It was some type of weekend and she brought her daughter with her. One would have perhaps thought that if she was just coming up for a meeting where she was going to have to explain missing money, she would not have brought her daughter. That would have been - - -

KIRBY J: Except that she might have been the carer of the daughter. A 13-year-old child would not be left on her own.

MR ELLIS: I am not sure, your Honour, whether there was an option. Nevertheless, perhaps all I am saying is that the comment your Honour made before, logic does not necessarily explain things and often there are two possible explanations to a lot of things.

KIRBY J: That is true.

MR ELLIS: Unless there is some other area that I can be of assistance, they would be my submissions.

GAUDRON J: Thank you, Mr Ellis. Yes, Mr Byrne.

MR BYRNE: If I can just make one submission in reply in relation to the Longman direction. One of the important features of this case so far as the terms in which the Longman direction was to be given - indeed, arguably at this stage whether it would be given - was the fact that the complaint made by the complainant was uncorroborated in any way. That matter was referred to in the general area of this part of the summing up dealing with the Longman direction. If I might just take your Honours back to that page of the summing up that my learned friend has just referred you to at 485 in the appeal book.

GAUDRON J: I am not too sure that it was wholly uncorroborated. On one view the mother's evidence as to the oral abuse may constitute corroboration.

MR BYRNE: There was not any suggestion that that oral abuse contained any element in it that in any way supported the version of events given by the complainant.

GAUDRON J: No, but it would require some explanation. Anyway, I do not think anything turns on it too much but it does not necessarily mean that there was a complete absence of corroboration.

MR BYRNE: May it please your Honour. There is a reference made by the learned judge which, in our submission, tends to diminish the importance of the absence of corroboration and that is at page 485 just alongside line 15, where he says this to the jury:

As I said the only evidence relating to what the Crown has identified as the indecent assault falls from the lips of -

the complainant -

There is no evidence to support it as to what occurred in that room. That of itself is not surprising because you may think that if somebody is going to behave in that way, if you are satisfied that behaviour took place, then they would do it in private, they would do it out of the eyes of other persons.

That is an important direction which negated the importance of the absence of corroboration by suggesting nobody saw it happen. Corroboration can take many forms, as your Honour Justice McHugh's judgment in Doggett just recently canvassed that matter. His Honour then went on further to say:

So the fact that a witness has no support for events such as that is not surprising. It would be highly unlikely that a third person would be looking through the key hole of any room and to see what is going on in those circumstances. So you should make allowances for that.

That direction effectively negated - we would say at least substantially diminished - the importance of the consideration that there was no corroboration here because it tended to suggest that corroboration required somebody who actually saw the events happening, whereas corroboration can be in many other forms.

Your Honours, there is just one other matter that arose. There was discussion between my learned friend and your Honours about the need for a judge to give warnings against the impermissible use of the failure of an accused person to call a particular witness, and reference was made to what was said in Azzopardi.

In the joint reasons in the judgment in Azzopardi at paragraph [51] it was, in our submission, made clear that it was normally necessary for a judge to give a jury a direction as to the impermissible reasoning which they may indulge in, referring to the fact that the accused did not give any evidence. That same kind of principle should, in our submission, be applied to the situation where an accused person has not called any evidence, and of course particularly if there is some comment made by the learned Crown Prosecutor.

Your Honours, during the break we handed up two documents. One was a copy of the terms of section 405A of the Crimes Act, New South Wales, that being the applicable provision at the time the proceedings against this appellant were conducted. Section 405A(7), which is on the second page of that two-page document, contains a definition of the meaning of "evidence in support of an alibi" and that definition, in our submission, establishes that the defence raised by the appellant in this case could not, at least in accordance with the statutory definition, be described as an alibi defence.

McHUGH J: Well, it may depend upon what the evidence was as to the relevant processing room.

MR BYRNE: Yes.

McHUGH J: Was the evidence that it was in the accused's processing room on both versions, that is the Wendy version and the complainant's version?

MR BYRNE: Well, I do not think there was anything specific said about which processing room. It was just referred to as "a room", is my recollection, but the essence of the accused's case, as he was, was that he was at the place where the offence was alleged to have been committed but the complainant was not, so it was not an alibi defence in that sense.

KIRBY J: No, but would you not read that as at the very place where the offence was committed, namely the room where the offence was committed when it was committed and that, therefore, if you are looking at this from a purposive point of view you would have to construe it, I would have thought, to say it is unlikely to have been committed or it was not committed, because at the very moment when he was alleged to have been committing the offence he was having a session of empowerment with Wendy. So, unless you give a very narrow interpretation to "place", which undermines the purpose of putting the Crown on fair notice of the opportunity to meet an exculpation, then I would have thought the section does apply.

MR BYRNE: Your Honour, I am instructed that the rooms referred to by the complainant, on the one hand, and by the appellant on the other are, in fact, the same room. There was no - - -

KIRBY J: I accept that but, anyway, I would have thought you would construe the subsection to mean he could not have been doing the offence there because at that time he was with somebody else at that place.

McHUGH J: Yes, you throw all the weight of your argument on place or area, but it may be that the definition throws the weight of the argument on the words "at a particular time" and "at the time".

MR BYRNE: Yes, I accept what your Honour says.

Your Honours, the other document that was handed up was a copy of this Court's judgment in the Director of Public Prosecutions for Nauru v Fowler, that short judgment reported - - -

GAUDRON J: That does not take you very far.

McHUGH J: No.

MR BYRNE: It does not help - - -

GAUDRON J: There are other decisions in which the matter has been discussed, are there not?

MR BYRNE: There are. I have traced the occasions on which this particular decision has been referred to and there are a number, but not references that are of any real significance, King v The Queen [1986] HCA 59; 161 CLR 423 does deal with the matter. That was a decision where the Court was split 4:3. In that case a retrial was in fact ordered. But the most recent case, and it is not a case that really assists the cause of the appellant, that I could find where this issue was considered was the case of McKenzie v The Queen, that is the case involving the legal practitioner who had, in fact, served his full sentence.

KIRBY J: It is incompatible verdicts, inconsistent verdicts.

MR BYRNE: Yes, that case. There was an issue in that case, the appeal having succeeded, whether or not there should be a retrial. In that case the successful appellant had, in fact, served the whole of a custodial sentence and even in those circumstances a retrial was ordered with observations that it was very much a matter for the discretion of the prosecuting authorities.

KIRBY J: That was connected with his being a solicitor and having a conviction and he was, in fact, retried, as I remember.

MR BYRNE: Yes, it did have. Yes, he was.

McHUGH J: What about Stanoevski? Did we not say something about it in Stanoevski, did we? That is the solicitor's case.

MR BYRNE: Stanoevski? Stanoevski was a case last year - - -

KIRBY J: It was definitely an order for retrial?

MR BYRNE: I think there was a retrial ordered in that case.

McHUGH J: Yes, we ordered a retrial in that case even though, I think, the sentence had been served.

MR BYRNE: It was a sentence of home detention in that case.

McHUGH J: Home detention had been served and the other case was the case on fraudulent misappropriation, it starts with "F", it is on the New South Wales Crimes Act and there was a question of inconsistent verdicts. The Court of Criminal Appeal substituted its own - - -

GUMMOW J: Spies.

McHUGH J: Sorry, Spies.

MR BYRNE: I would have to say I do not know what the order of the Court was in Spies.

McHUGH J: No, we ordered a new trial in Spies, as well.

MR BYRNE: The authorities are not in the appellant's favour on this question but - - -

McHUGH J: Yes.

KIRBY J: I have to say to you as a matter of principle I just do not think - you can perhaps allow a very exceptional case where the sentence has been served, but otherwise it is not our function. We are not prosecutors and should not be so. So that if you want to persuade me that this is a case for entering a verdict of acquittal, if you get up on your Longman or Jones v Dunkel point, you are going to have to put in a note because on what you have said now I would not interfere with the prosecutor's discretion.

MR BYRNE: No, well the authorities are certainly, we have to concede, against us on that issue, so that unless we can find something else - - -

GAUDRON J: Now what about your submissions under ground 4. Are you going to put in some written submissions?

MR BYRNE: Your Honours, there is a series of documents that have been prepared and I apologise for not being in the position to assist the Court more constructively in relation to this ground, but there are a series of documents that have been prepared, setting out matters that would - - -

GAUDRON J: Well now, Mr Ellis will have to have an opportunity to consider them in reply.

MR BYRNE: Certainly. What I was going to seek was the Court's leave, perhaps indulgence as well, to enable us to put these documents in a more appropriate form for submission to the Court, in particular that the documents do not, in fact, refer to the appeal book; they rather refer to - - -

GAUDRON J: Is seven days sufficient?

MR BYRNE: It is.

KIRBY J: You want to run them through the word processor deleting Court of Criminal Appeal and substituting High Court of Australia?

GAUDRON J: And would seven days be sufficient to have to answer, Mr Ellis.

MR ELLIS: Yes, thank you, your Honour.

GAUDRON J: Yes, well you have both leave. Do you think you need to reply to them? It is just sufficient, I think, if you have seven days in which to put in written submissions and Mr Ellis has seven days in which to reply.

MR BYRNE: May it please, your Honours.

GAUDRON J: Well, in that case the Court will consider its decision in the matter.

AT 3.12 PM THE MATTER WAS ADJOURNED