MFA v The Queen S38/2002 [2002] HCATrans 472 (1 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S38 of 2002

B e t w e e n -

MFA

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 OCTOBER 2002, AT 10.16 AM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, in this matter I appear for the appellant with my learned friends, MR J.E. BARNETT and MR P.J.D. HAMILL. (instructed by Legal Aid Commission of New South Wales)

MR R.D. ELLIS: If the Court pleases, I appear for the respondent Crown with my learned friend, MR G.E. SMITH. (instructed by S.E.O'Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: Your Honours, this appeal raises a question of principle regarding the manner in which a Court of Criminal Appeal should approach the task of determining whether the verdict of a jury in a criminal trial is unreasonable. In turn, the appeal raises an issue regarding the authority of this Court's decision in Jones v The Queen 191 CLR. The Court would be aware from the judgment of the Court of Criminal Appeal of New South Wales in the decision in Markuleski, a specially constituted bench of five judges, that there are differences in approach in the application of the principles established in Jones.

KIRBY J: But does not Jones really establish the principle? Justice McHugh was a party to the joint reasons of Jones and that embraced the principle in M, which on the face of things seems to be the principle that Justice Smart was trying to apply.

MR BYRNE: In our submission, Justice Smart did not apply the principle which we say was established by this Court in Jones. Perhaps in order to expand on that submission, I should take the Court directly to the terms of the judgment of Justice Smart which is at the centre of this appeal.

KIRBY J: I interrupted you. Maybe it would be best to start with the principle and for you to take us to Jones where it states the principle, in your submission, and then to take us to Justice Smart's judgment.

GUMMOW J: And to the statute too, at some stage.

MR BYRNE: Certainly, your Honours. If I may start with the Court's judgment in Jones 191 CLR, the important parts of the joint reasons given in the majority are at page 453.

KIRBY J: Where do we find section 6(1) of the Act?

MR BYRNE: Section 6(1) of the Criminal Appeal Act 1968 was put on our list of authorities.

KIRBY J: It is on page 450.

MR BYRNE: As your Honour Justice Kirby says, the relevant part of the Criminal Appeal Act is set out in the middle of page 450 in the joint reasons. The contention in the Court of Criminal Appeal in this case was that the verdicts of guilty that were returned in relation to counts 7 and 8 were unreasonable and could not be supported, having regard to the evidence. In support of that ground, which was directly based on the terms of the statutory provision in New South Wales, a provision which is reflected in similar provisions in the other States, reliance was placed on the basis of the verdicts being unreasonable upon the decision of the majority in Jones.

What happened in the appellant's case was that, as your Honours are aware, there were nine counts on the indictment. The appellant was acquitted of seven of those counts and convicted of two, counts 7 and 8. The fact of the appellant's acquittals in relation to seven of the counts on the indictment was, in our submission, and it was submitted before the Court of Criminal Appeal, an important factor to be taken into account in determining whether the verdicts of guilty in relation to counts 7 and 8 were unreasonable.

Can I take the Court to page 453 in the judgment, in the joint reasons of the majority in Jones. Under the heading, at the top of the page "The adverse impact of the acquittal on the second count" there are a number of statements made regarding the way in which the impact of the acquittals should bear upon the assessment of the reasonableness of the verdicts.

HAYNE J: Do you say that that is establishing a set of rules or is that simply establishing propositions relevant to the particular case?

MR BYRNE: In our submission, what is said there in the joint reasons establishes rules" which should be applied in cases where the basis of unreasonableness is said to be the acquittal in relation to some counts on an indictment and the conviction on others.

HAYNE J: Is that not the core difficulty? The statute tells us what the relevant test is: "unreasonable, or cannot be supported, having regard to the evidence". How does one go beneath that statutory prescription to the formulation of rules dependent upon different verdicts in a multi-count indictment? What is the process of reasoning that permits you to do that?

MR BYRNE: There are various ways in which a verdict of guilty might be sought to be established as being unreasonable. One of the ways is by reference to the jury's verdict in relation to counts on the indictment which were tried at the same time and where the verdict in relation to those counts entitles certain inferences to be drawn about the jury's assessment of, in a sexual case, the credibility of the evidence of the complainant. The process of reasoning essentially is, that deriving from the very short terms of the legislation which referred to the concept of unreasonableness, this Court has expanded upon the basis on which unreasonableness can be established by reference in particular to the impact of the acquittals on other counts in an indictment.

GLEESON CJ: Which, if any, of the terms of section 6(1) would apply to a case of the kind that is sometimes referred to by courts of criminal appeal as suggesting that there has been a compromise?

MR BYRNE: The terms of the first part of section 6(1), that is that the verdict is unreasonable or cannot be supported, would, in our submission, apply to those circumstances where it is suggested that the verdicts are, in fact, a compromise. It might also be said that what is sometimes identified as the third of the elements under section 6(1), that is the general ground, that on any other ground whatsoever there was a miscarriage of justice, that may have some role to play in the resolution of what are said to be compromise verdicts. But the essential challenge to a compromise verdict is that it is unreasonable.

Your Honours, the important parts of the joint reasons at page 453 - and important for the purpose of the determination of the issue of reasonableness in this appellant's case - are the opening lines of the material which appears under the heading. It is there said, in the joint reasons:

The jury's finding of not guilty on the second count damaged the credibility of the complainant with respect to all counts in the indictment.

There is a further observation in the middle of that paragraph, in the sentence commencing with the words:

Whatever the explanation may be, however, the jury's rejection of the complainant's account on the second count diminished her overall credibility. The only reasonable conclusion is that the jury were not satisfied beyond reasonable doubt of the truth of her evidence concerning the incident the subject of the second count.

There is an observation made, which we accept is limited to the facts of this particular case, but it is an important yardstick, in our submission, to be used in the process of determining whether a verdict is unreasonable and, in particular, in cases such as this appeal, where there are verdicts of guilty on some counts and verdicts of acquittal on others.

McHUGH J: But in some respects Jones is a special case. If you read on into the next paragraph, the majority said:

It is difficult to see how it was open to the jury to be convinced beyond a reasonable doubt of the guilt of the appellant with respect to the first and third counts. There is nothing in the complainant's evidence or the surrounding circumstances which gives any ground for supposing that her evidence was more reliable in relation to those counts than it was in relation to the second count.

MR BYRNE: Yes, that is the part that we would say is based on the specific facts of Jones, particularly the second sentence, regarding the fact that, in the observation of those comprising members who delivered the joint judgment, there was in that case:

nothing in the complainant's evidence or the surrounding circumstances -

which gave ground for thinking that her evidence was more reliable in relation to one count rather than another. Now, that is a finding in relation to Jones itself, but it is a matter which is an important, as we say, yardstick against which to measure the question of unreasonableness. It was something which should have been applied in this case but which, in our submission, was either not applied, or, if it was applied, it was wrongly applied.

KIRBY J: We had to be a little careful because the principle which is repeated by the Court about the particularity of charges, the particularity of the counts, the particularity of the instruction on the law and facts relevant to the count; particularity of the jury's verdict on each count. You could not support a proposition that every time where there are multiple counts of sexual offences, as is not an uncommon phenomenon, and there are verdicts of guilty on some and not guilty on others, in deference to the particularity principle that therefore that cast doubt on the safety of the verdict in those of which guilty verdicts have been returned. So you are not suggesting that, as I understand it.

MR BYRNE: No, not at all. We accept, with respect - - -

KIRBY J: You could not propound that proposition consistent with the principle of particularity, but what you have to say is that when one gets to the analysis of the facts of this case, the conclusion will be the same as in Jones.

MR BYRNE: Yes.

KIRBY J: But, as against that in this case, as I understand it, the suggestion is that these were the only counts where there was some form of confirmation or corroboration and though you say that was imperfect corroboration or confirmation, as I understand it, these were the only counts where that was available in the trial. Is that correct?

MR BYRNE: Well, there was, if it can be expressed this way, perhaps, some support of a very limited degree deriving from the evidence given by the witness who has been identified by the initials "MA", the person who was not the complainant who was present when it was said that the offences involving the complainant were committed. That, we would say, measure of reasonableness that is set out in that part of the judgment at page 453 should have been applied to the circumstances of this case to reach the conclusion that this case, like Jones, was one in which it should be said that there was nothing in the surrounding circumstances which would have entitled the jury to give the version given by the complainant in relation to counts 7 and 8.

McHUGH J: But, Mr Byrne, if Jones is fact specific, then the statements are statements about particular facts. The case is not a precedent for anything on that part of the judgment. The opening sentence is:

The jury's finding of not guilty on the second count damaged the credibility -

There was no general statement to the effect that a jury's acquittal on one count damages the credibility of a complainant on all other counts. The paragraphs under the heading "The adverse impact of the acquittal on the second count" strike me as very fact specific.

MR BYRNE: They are, with respect, fact specific in the way in which they were used by this Court in analysing the relevant facts of Jones, but the way in which that analysis was conducted is, in our submission, a model which should be followed in analysing the relevant facts of comparable cases. If the same form of analysis that this Court applied in Jones had been applied to the circumstances of the appellant's case, then the conclusion should have been different, in our submission, from that reached by the Court of Criminal Appeal. We do not suggest that every case where there are inconsistent verdicts can immediately be brought under the umbrella of these principles that are established in Jones and that they should be applied without reference to the specific facts of the individual case.

GLEESON CJ: You are not suggesting that the present is a case of inconsistent verdicts, are you?

MR BYRNE: There is a form of inconsistency.

GLEESON CJ: You used that expression "a form of inconsistency" is of some significance. There are some cases where one verdict is logically inconsistent with another. They might be called cases of true inconsistency or strict inconsistency but, once you get beyond that into the area of cases where it is argued that the result in relation to one count bears upon the reasonableness of the result in relation to another count, it must be highly fact specific, must it not?

MR BYRNE: Yes, each case has to be looked at individually; we accept that.

GLEESON CJ: When you are looking at each case individually, what are you looking for?

MR BYRNE: In terms of determining the question of reasonableness if you are working from a premise that there are some counts on the indictment which depended on the jury accepting the complainant's evidence as credible and reliable, you would look to the existence initially - it is not a conclusive matter - you would look to whether there was any other evidence apart from the complainant's evidence which supported the complainant's version of events in relation to the matters which were the subject of convictions. That is essentially the approach that the Court of Criminal Appeal took here but, in our submission, the manner in which the Court of Criminal Appeal analysed the other evidence, apart from the complainant, was incorrect.

GLEESON CJ: Mr Byrne, can you just remind me about a matter of fact here. Did Judge Ford give the jury a direction about corroboration?

MR BYRNE: He did not give the jury a direction in terms which discussed the concept of corroboration. He did talk about the other evidence and he left it to the jury essentially on the basis that it was a matter for them whether they found that that evidence supported the version of the complainant or it did not.

GLEESON CJ: We know that the jury got worried at some stage about the absence from the witness box of people who, according to the complainant, were present on some of these earlier occasions and there were some very guarded directions about that because of some information the judge had been given about what was pending in relation to one of those witnesses.

MR BYRNE: Yes.

GLEESON CJ: Apart from those very guarded remarks that he made in answer to some questions, I think, did he give the jury any warning about the absence of corroboration?

MR BYRNE: Not in terms.

KIRBY J: Is corroboration still required in these cases? I thought it had been abolished.

MR BYRNE: It is not required as a matter of law for a conviction to be sustained.

KIRBY J: What is the section there that deals with that?

MR BYRNE: The old section that required corroboration related to the evidence of young people in sexual cases. That was section 418 in the original Crimes Act, which was abolished in 1984. Since then the Evidence Act has abolished the concept of corroboration entirely and substituted for that a general concept of supporting evidence.

KIRBY J: And does that apply to cases of sexual complaints?

MR BYRNE: Well, there is no requirement for the existence of supporting evidence in order to sustain a conviction, but in any case where there is a contest, then the existence of evidence which either supports or contradicts the version of the complainant is simply a matter for comment. In this case, the learned judge did leave it to the jury in relation to counts 7 and 8, which are the subject of the appeal, for them to determine whether they found that evidence given by the young man MA to be, on the one hand, supportive of the Crown case or, on the other hand, whether it contradicted the Crown case, and those were the arguments run by the respective parties.

KIRBY J: I think you have been handed the Evidence Act. Could you just tell me the section of the Evidence Act?

MR BYRNE: Section 164 of the Evidence Act in New South Wales 1995 abolishes the requirements for corroboration but it immediately establishes a set of categories of evidence which may be regarded as unreliable evidence in respect of which warnings are required to be given by the trial judge.

KIRBY J: I have forgotten the facts in Jones. I dissented in Jones and would have upheld the jury's verdict, but were there factual elements of the different counts of where there was confirmation or supporting evidence of some and not of others? Is there any analogy between the fact situation in Jones and this case?

MR BYRNE: There is no direct analogy. In Jones there were three counts on the indictment. The jury convicted in relation to counts 1 and 3 and acquitted in relation to count 2. The distinguishing feature of count 2 in Jones' Case was that there was positive evidence called in the case for the appellant, which suggested that the offence could not have been committed in the way that the complainant claimed. So it was not a situation where there was - - -

McHUGH J: That was only in relation to the second count, was it?

MR BYRNE: That is right. It was what might be said to be explicit evidence in relation to the second count and the evidence in relation to the first count was somewhat more imprecise.

KIRBY J: So on that the Court could have gone either way. It could have said, "Well, there was a point of distinction. It justified the jury's differential verdicts, and therefore there is not an unreasonable outcome and therefore we will not interfere." I think that is what I said.

MR BYRNE: Yes.

KIRBY J: But the majority said, "It is difficult to reconcile the acquittal on 2 and the conviction on 1 and 3, and it must be inferred that the rejection of the complainant on 2 has some relevance to 1 and 3, and therefore the verdict is unreasonable." Did the Court order a new trial or quash the - I think it entered acquittal, did it not?

MR BYRNE: Yes, in relation to counts 1 and 3 it did.

GLEESON CJ: In the present case to which of counts 1 to 6 inclusive would the evidence of those three absent witnesses possibly have been relevant?

MR BYRNE: The way counts 1 to 6 were broken up was that the first three counts related to the same incident. The next three counts, 4, 5 and 6, related to a separate incident, so that counts 1 to 6 canvassed two separate incidents in time.

GLEESON CJ: I understand that. Now, in relation to counts 1 to 3, were the events alleged to have occurred whilst there was somebody else apart from the complainant and the appellant present?

MR BYRNE: Yes. It was said in relation to counts 1 to 3 that another person, a man by the name of Bosmans, who had problems of his own, as your Honour the Chief Justice observed, he was present.

GLEESON CJ: Now, in relation to counts 4, 5 and 6, were people other than the complainant and the appellant alleged to be present?

MR BYRNE: Yes, again, the man Bosmans who has been referred to, and two other people who were cousins.

GLEESON CJ: Two other youngish people.

MR BYRNE: Yes.

GLEESON CJ: Leaving count 9 to one side for the moment, a point of distinction between counts 7 and 8 and counts 1 to 6 inclusive is that in the case of counts 1 to 6 inclusive there were absent from the witness box, to the evident concern of the jury, people who according to the complainant were allegedly present at the time of the events, whereas in the case of counts 7 and 8 the other person who was allegedly present was called as a witness and gave evidence that was to some extent supportive of the evidence of the complainant.

MR BYRNE: Yes.

GLEESON CJ: Am I right in thinking that in relation to count 9 the complainant did not allege that anybody else was present at all?

MR BYRNE: In relation to count 9 the complainant said that the same witness, who is the subject of the supposedly supporting evidence in relation to counts 7 and 8, was present. Count 9 was supposed to have happened in a tent.

GLEESON CJ: But MA did not support it?

MR BYRNE: He did not.

GLEESON CJ: So, that is the difference between count 9?

MR BYRNE: He supported it to certain degrees but he did not support it in relation to any specific, or even general, sexual misconduct.

GLEESON CJ: So, the difference between the counts on which they convicted and the counts on which they acquitted was that on the counts on which they convicted there was some support for the evidence of the complainant?

MR BYRNE: There was some support.

GLEESON CJ: And in relation to counts 1 to 6, not only was there no support for the evidence of the complainant, there was an absence from the witness box of persons alleged to have been present on the occasions?

MR BYRNE: Yes, that is correct.

KIRBY J: That seems to give a rational basis and a reasonable basis for the differentiation that the jury drew - or at least, subject to what you are going elaborate in argument, it does in respect of 1 to 6 and 7 and 8, but I am still a little unclear about the difference between 9 and 7 and 8.

MR BYRNE: Perhaps if I could explain it this way, your Honour. In relation to 7 and 8, those events or incidents were said to have occurred at more or less the same time. They were part of an occasion when the complainant and the appellant were together in a caravan one afternoon, as the evidence established it within the time specified by the indictment, between March and November, and the witness MA was also present in the caravan with the complainant and the appellant and MA gave evidence of certain things that he observed.

It is suggested in my learned friend's submissions that two of the features of MA's evidence which was supportive of the evidence given by the complainant is the fact that these events happened in the afternoon, on the one hand - that is one head of support - and, secondly, that they happened in the caravan, or in a caravan. If one goes to count 9, the witness MA said that he was in a tent together with the appellant and the complainant and that the occasion in question was New Year's Eve, I think 1997, but on that occasion MA claimed that he was asleep and did not observe any sexual misconduct of any kind. But MA's evidence I suppose, using the analysis which my learned friends had used, supported the version of the complainant to the extent that he gave evidence that the complainant and the appellant were together in a tent on New Year's Eve.

KIRBY J: So, the time and the venue are there and in that sense it is common with 7 and 8 but what is different is - and this gets down to an important point of the case - MA gave evidence of a sexual incident or misconduct in respect of 7 and 8, though in many ways, in some ways different from that of the complainant, but in 9 he gave no such evidence because he was asleep?

MR BYRNE: That is right.

KIRBY J: So, the point of differentiation is MA's testimony as to an incident or misconduct?

MR BYRNE: Yes, that is the clear distinction between the nine counts - - -

KIRBY J: I see. Well, you have clarified all that. Thank you.

MR BYRNE: It really comes down to an examination of the way in which the Court of Criminal Appeal used the evidence of MA as evidence which was supportive of the version given by the complainant.

McHUGH J: You do not make any complaint about the use of MA's evidence at all, or do you? How does the Hoch test bear on this evidence? If you are going to rely on other sexual conduct as corroboration, then Hoch and other cases show it has to meet certain stringent tests. They do not seem to apply here, or they seem to have been disregarded.

MR BYRNE: Well, they do not seem to have been considered, either in the trial proceedings or in the Court of Criminal Appeal - - -

KIRBY J: Could you explain that to me, because these were separate counts, of separate incidents. It was not left in generality; it was particularity, as it should be. So how does Hoch help? It was not calling on other events, sort of similar fact evidence, or anything of that kind. The Crown either proved or did not prove the particular counts of the indictment.

MR BYRNE: Well, there had been earlier proceedings which involved the complainant MA which had resulted in acquittals. The situation here - - -

McHUGH J: I am sorry if I am interrupting your answer to his Honour's questions - that is not what I had in mind. What I have in mind is the use the Court of Criminal Appeal made of the expression "sexual incident". They seem to be saying, "Well, from the evidence of MA, the jury can conclude there was some sort of sexual incident", but it is a very different sort of sexual incident to what are the particulars of the charge.

MR BYRNE: Yes. Your Honour, I think the answer to the question lies in the fact that the evidence that was given by the witness MA came as something of a surprise in the trial proceedings. What appears on the transcript is a situation where MA, on one view of it, at least, is giving evidence of other sexual acts which are not the subject of charges, and if there was some advance notice of that evidence having been given, then issues relating to Hoch would have been aired or, at least, resolved in the normal - - -

KIRBY J: Could you just explain that to me? I do not quite remember what Hoch says that is relevant to that principle.

MR BYRNE: Well, Hoch is essentially a case about similar fact evidence and one of the issues that needs to be examined in determining the admissibility of evidence of that kind is whether there is the possibility that the two people giving evidence of separate sexual incidents involving the same offender, whether there is any possibility of concoction or collaboration between them. As I say, if that evidence given by MA had been known in advance, then it would have given very sound grounds for having that evidence excluded on the basis of this Court's decision in Hoch, because, on one view, what MA was saying was that there were other sexual offences being committed by the appellant, not those which were the subject of the charges.

Those other sexual offences might be used in certain circumstances as evidence to establish those which were the subject of the charge, but they would not be able to be used if, for example, the fact of the opportunity for concoction between MA and the complainant could be established - and it probably could have been established in the circumstances of this case, because they both knew each other well. But the way in which the trial proceedings were conducted was that MA was an eyewitness to the events involving LB, not that he was giving evidence of other sexual acts, not charged, involving the appellant. As it turned out, that is, in a sense, what these acts which the witness MA gave evidence about amounts to.

HAYNE J: Can I just understand that? That is the evidence given at pages 44 to 46 of the appeal book, is it?

MR BYRNE: It is, your Honour.

HAYNE J: And in particular the evidence given at 45 lines 35 and following went to count 7 and at page 46 line 25 over to 47 about line 30 or thereabouts went to count 8. Is that right?

MR BYRNE: Your Honour, count 7, my note is page 45 line 35 - this is in the evidence.

HAYNE J: Yes.

MR BYRNE: That is count 7. Count 8 is immediately following questions at approximately line 42 and alongside line 45.

HAYNE J: And it is, on its face, evidence of an eyewitness to the events charged in counts 7 and 8. Is that right?

MR BYRNE: Well, we would say no. They have some broad similarities, but the details are completely different and, in our submission - - -

McHUGH J: The principal difference is, is it not, that on the complainant's case in respect of count 8, the complainant was ordered to suck the appellant's penis, whereas MA said the appellant was sucking the complainant's penis and MA said that the appellant had anal intercourse with the complainant.

MR BYRNE: Yes, and those two acts observed by MA, which are, in our submission, different from the allegations made by the complainant are, effectively, uncharged acts.

GLEESON CJ: What is the difference in relation to count 7?

MR BYRNE: Count 7 essentially turns on whether the touching of the complainant's penis was inside or outside the pants worn by the complainant. That is the essence of the difference.

KIRBY J: The Crown's allegation was inside.

MR BYRNE: Yes.

KIRBY J: And did MA give evidence that it was outside?

MR BYRNE: That is right.

KIRBY J: I see. So that the difference on that matter is not as significant as the difference relevant to count 8.

MR BYRNE: We accept that, yes.

KIRBY J: Where it is a difference between who was sucking whose penis which, on one view, could be confused in a sexual incident, but then the allegation at 46 line 25:

He put his penis up Lyndsay's backside.

MR BYRNE: Yes.

KIRBY J: Which is a more serious offence and uncharged.

MR BYRNE: Yes.

KIRBY J: It is not what the count of the indictment alleged.

MR BYRNE: It was not alleged in the indictment, nor was it said in the evidence of the complainant. He made no reference to - - -

HAYNE J: You have lost me, I am afraid, entirely, Mr Byrne. You will need to go back.

MR BYRNE: Certainly, your Honour.

HAYNE J: Count 8, a count of "did have homosexual intercourse".

MR BYRNE: Yes, oral sexual.

HAYNE J: Oral, is it?

MR BYRNE: Yes, the terms of count 8 were particularised as being that the appellant forced the complainant to suck the appellant's penis. That was the allegation there.

HAYNE J: Yes.

MR BYRNE: And the witness, MA, gave evidence of precisely the opposite event occurring. It might be of assistance to draw the Court's attention to a part of the transcript where these incidents were particularised at the request of the learned trial judge. I refer your Honours to page 70 of the appeal book. Alongside line 5, the learned Crown Prosecutor said:

The third incident includes counts 7 and 8. Count 7 is the aggravated indecent assault -

Count 8 is the homosexual intercourse matter and the particulars are there described.

KIRBY J: Now, as to count 7, I said that, after all, MA was a boy of 11 or 12, was not he?

MR BYRNE: Twelve.

KIRBY J: When this was alleged to have occurred, and 15 at the trial?

MR BYRNE: Yes.

KIRBY J: It is possible that in that time and having regard to his age that he could make a mistake concerning the inside or outside of the pants. That, on one view, is a matter of detail, but the issue of anal and oral intercourse are quite different?

MR BYRNE: Yes.

KIRBY J: Can one say in respect of whether the appellant was sucking the complainant's penis or the complainant was required to suck the appellant's penis that that is like count 7, a matter of detail, about which somebody, at that age, could become confused and not quite remember the detail. He just remembered there was some penile sucking of some kind?

MR BYRNE: Well, it may be a matter about which people may become confused but, in our submission, if one person says that the events occurred in one way, and another person says they occurred in a completely different way - in fact precisely the opposite way - it cannot be said that one version supports the other. In our submission, the conclusion should be reached that one version in fact contradicts the other.

GLEESON CJ: Mr Byrne, MA was 12 at the time of the event. How old was the complainant?

MR BYRNE: He was 15, I think, your Honour.

GLEESON CJ: Fifteen. And how old was the appellant?

McHUGH J: He was born in 1959, was not he?

MR BYRNE: He was 38, I think.

McHUGH J: Well, these points you are dealing with now, in effect, go to a verdict point, that convictions are unsafe and unsatisfactory, and therefore there should be an acquittal entered. But one of the matters that concerned me on the special leave application was to the extent to which the Court of Criminal Appeal had properly dealt with the matter, and I had particularly in mind, was what appears at page 110 of the record, where at line 10 his Honour said:

The jury were obviously satisfied that a sexual incident took place in the caravan and rejected the appellant's evidence to the contrary.

KIRBY J: That expression appears also on 109 at line 26, "sexual incident", and somewhere else "sexual misconduct" or some words like that appears.

MR BYRNE: Yes, "sexual malpractice" at 108 point 30, and the concept of a sexual incident is referred to at 109 point 26, and at 110 point 1, the concept of what is described as an "extended sexual incident", and then again, as Justice McHugh has referred to, that passage at 110 point 10.

McHUGH J: Particularly having regard to the evidence of MA, the issue is not whether a sexual incident took place in the caravan but whether your client was guilty of the offence as charged?

MR BYRNE: Yes.

McHUGH J: That is what had to be examined.

MR BYRNE: Yes. And what is involved in the analysis of the Court of Criminal Appeal, in our submission, is a failure to appreciate, with respect -at least in the manner in which the reasons for judgment are given - that what the apparently supporting witness MA had testified to were different offences than those with which the appellant was charged and of which he was convicted.

KIRBY J: So, really, the bottom line of this case is the acceptability for the test of the reasonableness and the sustainability of the verdict of approaching differences in the testimony of the complainant and a corroborating or supporting witness of the kind that have occurred by reference to the fact, "Well, it may not be exactly as the Crown has charged in the indictment and particularised, but a sexual malpractice, a sexual incident, an extended sexual incident of some kind has occurred and been confirmed."

MR BYRNE: Yes.

HAYNE J: That brings us, does it not, to the very core of the case? Is the Court of Criminal Appeal to undertake an analysis of all of the evidence given at trial to determine its logical consistency? Is that the proposition for which you contend?

MR BYRNE: No. In our submission, what the Court of Criminal Appeal is required to do is to look at the evidence given in the trial proceedings to determine the quality of that evidence and in particular whether that evidence is of sufficient quality to entitle a jury to find guilt proved beyond reasonable doubt.

HAYNE J: Let us come back in a moment to the notion of "quality of evidence", for that carries with it many overtones. Is the Court of Criminal Appeal to examine the evidence with a view to determining whether the jury was bound to feel reasonable doubt?

MR BYRNE: In our submission, that is putting the test at somewhat too high a level. Those words that your Honour has used are the words that were used by Justice Dawson in Chidiac's Case in this Court and which have been quoted in subsequent decisions of the Court. In our submission, that is putting the test at somewhat too high a level as in the same way the test which is sometimes suggested to apply in this area, whether the jury must have had a reasonable doubt. That also, in our submission, is putting the test at somewhat too high a level. In our submission, the test should be whether the jury ought to have had a reasonable doubt.

HAYNE J: That, you say, involves an assessment of the quality of the evidence given?

MR BYRNE: Yes.

HAYNE J: How can that be done on the paper? How can it adequately be done on the paper?

MR BYRNE: To use an example, in Jones' Case, in looking at the evidence that was given in the trial proceedings to support the verdicts of guilty in relation to counts 1 and 3, the Court was able to determine from the nature of the whole of the evidence whether it considered that those verdicts were reasonable. It is a task which the authorities say quite clearly there must be some allowance given for the fact that the jury has had the benefit of seeing the witnesses and has, as it were, soaked in the atmosphere of the trial. But Courts of Criminal Appeal have always undertaken that task and this Court has said that that is the task that they should properly undertake. There is no other way of doing it, at least under current conditions, apart from looking at the transcript and determining whether there are inconsistencies, inadequacies, as was said in M in the trial evidence, which leads the court to conclude that the jury should have had a reasonable doubt.

McHUGH J: M is your high-water mark, is it not? Justice Brennan, Justice Gaudron and myself dissented in M but the Court set aside the convictions.

GLEESON CJ: This argument that you are on now is independent of the argument about different verdicts, is it not? This argument would be just the same if the only two counts that were ever charged were counts 7 and 8.

MR BYRNE: In our respectful submission, it would not because we would not be able to rely on that important feature, which was identified in the decision in Jones as being an important feature, that there was in relation to some matters an acquittal, which meant the conclusion could be reached.

GLEESON CJ: I am not suggesting you do not also have an argument, but the argument that you are now putting about the difference between MA's account of what happened and the complainant's account of what happened is an argument that would be equally available, whether it is right or wrong, even if the only two counts charged had been counts 7 and 8, would it not?

MR BYRNE: Yes, it would be.

KIRBY J: And, in fact, section 6(1) requires you to look to the verdict of the jury, so presumably that means in a multi-count you look at each verdict and if there is just one count, you look at the verdict on that particular count. It is not expressed in terms of the conviction should be set aside; it is the verdict of the jury which sustains the conviction.

MR BYRNE: Yes.

GLEESON CJ: Now, apply that to count 7. Suppose there had been three witnesses, as I think is the case in relation to count 7. The complainant says one thing; MA says what he says on page 45 at line 36 - the material difference between what he says and what the complainant says lying in the word "outside" - and the appellant gives evidence and says, "Nothing even remotely resembling that ever occurred. I was never even alone with these two people in a caravan." That is the evidence. Do you say that in that state of affairs a jury's verdict of guilty on count 7 is unreasonable, and why?

MR BYRNE: If the evidence of MA is properly analysed, it does not support to any significant degree the precise charge which is alleged against the appellant.

HAYNE J: Let that be assumed. It may be a very large assumption but let that be assumed. What follows from that? You have a conflict in the evidence.

MR BYRNE: Yes.

KIRBY J: You still have the evidence of the complainant. The jury might be very impressed with the concern. It might accept the complainant fully.

MR BYRNE: Certainly, and that would mean that the argument in relation to count 7, if counts 7 and 8 stood alone without the other seven counts, would be much weaker.

HAYNE J: But it points to the fact, does it not, that the acceptance of a witness' evidence may importantly require consideration of questions of logic but is by no means confined to its logical persuasiveness? There are other factors that are affecting its persuasive character, are there not?

MR BYRNE: Yes, and that is a judgment in a case starting with "G" which escapes me for the moment, when your Honour was in the Court of Appeal in Victoria is - - -

HAYNE J: Girgines, unreported, yes. That is reading up a man's prize, is it not?

KIRBY J: Do you draw in any support at all from the fact that the jury came in at 2.15 or so on the second day of the trial and said, "We cannot agree", and then the judge said, "Go away and keep trying until 4 o'clock. Is that unreasonable?", and the foreman said, "No". They went away and came back at 3.10 or so and acquitted on the other counts and agreed on the verdict of this count. Is that relevant at all to the issue of unreasonableness?

MR BYRNE: It is a feature of the case but it has not been given a lot of prominence in our submissions. It is a peripheral matter, with respect. It is just something which indicates that the jury were having difficulty in reaching agreement in relation to all of the counts. It is difficult to read a great deal into that situation but it simply shows that the jury were not clearly of this view without some reservation.

KIRBY J: The judge did not appear to put any undue pressure on him. He just said, "Go away". In fact, you do not make any complaint about the judge's directions, do you, or the judge's conduct of the trial?

MR BYRNE: No, we do not. None at all.

GLEESON CJ: Mr Byrne, what was Justice Smart referring to on page 110, line 26, when he talked about MA's "difficulties . . . experienced in giving evidence"? What is that about?

MR BYRNE: As I read what his Honour says, it was merely a reference to the fact of his young age. There was, as I am reminded, some reluctance on the part of the witness MA to in fact give evidence in the trial proceedings.

GLEESON CJ: He gave his evidence on closed circuit television, ultimately, but - - -

MR BYRNE: He did, ultimately.

GLEESON CJ: I remember now, the prosecutor in fact, at one stage, told the judge that it was far from clear that MA was going to be willing to give evidence at all.

MR BYRNE: That is right, yes.

GLEESON CJ: Thank you.

MR BYRNE: I think I may have misled your Honour in relation to the age of MA - he was 15 at the time he gave his evidence.

GLEESON CJ: No, you told me that. You said he was 12 at the time of the incident.

MR BYRNE: I am sorry.

KIRBY J: The complainant was 15 at the time of the alleged offence of 7 and 8, and 18 at the time of the trial.

MR BYRNE: That is right. If I can just go back to answer the question that was raised a minute ago. If the counts upon which there were convictions, count 7 and 8, stood alone on the indictment - and there were convictions in relation to both of them - there would be possible challenges to the correctness of those verdicts, or challenges to them on the grounds that they were unreasonable, but the strength of that challenge would be substantially diminished by the fact that there were not verdicts of acquittal in relation to so many other counts on the indictment. The fact of the verdicts of acquittal, using the authority of Jones, is something that is of real significance. It carries, in our submission, real weight, and it was not something, with respect, that was referred to at all, we would submit, in the reasoning in the Court of Criminal Appeal.

KIRBY J: Was there any light thrown by the Court's decision in MacKenzie, which was a case of inconsistent verdicts? Is there any statement of principle there that is relevant to a case like this, or not?

MR BYRNE: In our submission - - -

KIRBY J: That referred to that passage of the judgment of Chief Justice King, which, in effect, said juries are not automatons, they weigh up all matters and are, in a sense, reflective of the whole community, and lawyers might like to think everything is logical, but juries may not be thinking entirely logically, but may be thinking in overall terms of justice. Now, that is a view which was expressed and, I think, embraced by this Court in MacKenzie. Is that not against you?

MR BYRNE: In our submission, it is not. In that passage of Chief Justice King, there is reference to the approach taken by the Court of Criminal Appeal in seeking to resolve an apparent inconsistency in a jury verdict if it can reasonably do so. Interestingly, the decision in this Court in Jones followed the decision in MacKenzie by almost exactly a year. MacKenzie was delivered on 3 December, I think, and Jones on 2 December the following year, and in Jones there was no reference at all, either in the judgment of the Chief Justice or in the joint reasons, or in your Honour Justice Kirby's dissenting judgment, to MacKenzie's Case. The inference may be drawn from that that MacKenzie was a case which dealt with its own particular facts and Jones was a case which dealt with a different kind of inconsistency.

GLEESON CJ: When did people begin to use the word "inconsistency" to describe a situation in which there are verdicts of acquittal on some counts and convictions on others?

MR BYRNE: It does not necessarily mean that there is inconsistency - - -

GLEESON CJ: The inconsistency is just not apparent to me at all.

MR BYRNE: The expression should be used, I suppose, unless it is determined to be inconsistent, that they are "contended to be" inconsistent verdicts.

KIRBY J: As the Chief Justice said earlier, there are verdicts which are totally incompatible. They are incompatible verdicts - a verdict of acquittal on one and a verdict of conviction on another. So that is the strict incompatibility of verdicts. But when one is asking, "Are the facts such that the verdict is unreasonable?", then that factual inquiry may legitimately take you into a comparison of the verdicts and, at least, that is what the majority of the Court thought was appropriate in Jones.

MR BYRNE: Yes. There are sometimes said to be a distinction which has been described as legal inconsistency on the one hand and factual inconsistency on the other and Jones and, in our submission, this case, are cases where it is certainly not legal inconsistency.

GLEESON CJ: But what we have here is neither legal inconsistency nor factual inconsistency, is it? An example of factual inconsistency in the present case would have been if there had been a verdict of guilty on count 1 and not guilty on count 2, perhaps. There was no possibility of legal inconsistency in the verdicts in the present case, was there?

MR BYRNE: No, we do not suggest legal inconsistency arises in this case at all.

GLEESON CJ: There might have been factual inconsistency if, in relation to two counts, the evidence in support of each was substantially the same and the result was different.

MR BYRNE: Yes.

KIRBY J: Now, all of this factual analysis is interesting and important and perhaps relevant to what Justice McHugh said on the special leave was the visitorial jurisdiction of this Court, but as I would have assumed, the Court gave special leave in order to allow some clarification of the principle that should be applied by Courts of Criminal Appeal and you have referred to the New South Wales Court of Criminal Appeal in the five Bench judgment and Chief Justice Spigelman lists 100 cases where different formulae have been used.

As Justice Gummow said at the beginning of this hearing, you have really ultimately got to go back to the statute and the statute is unreasonable or such as cannot be supported, which is on its face a rather soft test, but presumably has been strengthened up by courts because it appears in the context of respect for jury verdicts and, therefore, the search for formulae that have been applied, and that is what Chief Justice Spigelman spent a lot of time analysing and why I understand the matter has come to us in this case. So, as I understand it, the New South Wales court said Jones was a special case on its own facts and limited to a Longman-type situation.

MR BYRNE: Yes.

KIRBY J: Is the issue of principle we have to decide what is the formula that is used by Courts of Criminal Appeal to elaborate section 6(1) of the statute and its counterparts in the common formulations in order to test whether in a particular case a court will exceptionally have the authority to set aside the verdict of a jury with all the advantages that the jury has of seeing the witnesses, absorbing the trial, seeing all the material and so on?

MR BYRNE: Yes.

KIRBY J: Is that what it is before us for?

MR BYRNE: Yes, in part. The statute simply establishes the ground on which an appeal can be upheld by a Court of Criminal Appeal, that is where the Court of Criminal Appeal finds the verdict to be unreasonable.

HAYNE J: But you go so far as to say, do you, that that engages some set of subsidiary principles?

MR BYRNE: Well, in our submission, what this Court has done is to expand upon the meaning of the expression "unreasonable" and to give it a specific meaning and to require a specific approach to be taken in cases of which this is one and, indeed, of which there are in - as the judgment in Markuleski discloses, it is a very frequently occurring phenomenon in the Courts of Criminal Appeal of the various States.

HAYNE J: Would you be able, either now or at some later point, to state in point form the propositions that you say, or the principles or steps that you say must be taken under that rubric in this kind of case?

MR BYRNE: Yes.

HAYNE J: If you would prefer to do it with the benefit of time and reduce the writing, so far as I am concerned at least, that would be convenient, but at some point in point form.

MR BYRNE: Yes, your Honour. Well, that is an important matter that we might give some time to, with respect.

KIRBY J: Without trying to do that now, because it will require some precision, but is the essential point of difference whether the formula is must the jury have had a reasonable doubt, or is it the formula that it is reasonably open to the jury to be satisfied. Justice Smart used that latter formula. Is it a matter of searching for some common formula that, in a sense, merely elaborates what "unreasonable" or "cannot be supported" means in the statute? This Court, I gather, has said different things, spoken in forked tongues at different times and, as I understand what Justices McHugh and Gummow did on the special leave was to say this is a case to try and get some common reformulation of the test.

MR BYRNE: There are a number of different formulations and they are - - -

KIRBY J: What is the high and the low-water mark? The high seems to be Chidiac. It must have been.

MR BYRNE: It probably is. There are fine distinctions between them, but on one level there are the kinds of standard that are specified in Justice Dawson's judgment in Chidiac and what your Honour Justice McHugh said in M. Justice Dawson put it in terms that the jury were bound to have a reasonable doubt; in Justice McHugh's terms, a jury must have a reasonable doubt. In our submission, the preferable approach is one which sets the standard at a somewhat lower level.

KIRBY J: What is the formula that this Court has expressed at, that is the lower level?

MR BYRNE: It is in the terms of the Court's judgment in Fleming 197 CLR 250. Fleming is a joint judgment of five members of the Court. It was, as your Honours are aware, a case which came before the Court of Criminal Appeal and this Court on appeal from the decision of a single judge sitting without a jury. The formula that was used by the Court in its joint reasons for judgment at page 267 is in the following terms in the last few lines of paragraph 46:

the Court of Criminal Appeal erred in rejecting the submission that the nature and quality of the evidence at the trial was such that, acting reasonably, the trial judge ought to have had a doubt as to the guilt of the appellant.

In our submission, if that principle is applied to jury trials and "the trial judge" is replaced with the words "the jury", then that is the test that - - -

KIRBY J: So the gradation is: must have had a doubt, was bound to have a doubt, to ought to have had a doubt.

GLEESON CJ: That is just a repetition of a submission.

MR BYRNE: It is, I appreciate that.

GLEESON CJ: That is not a statement of the principle according to which you decide whether a verdict is unreasonable. That is a repetition of a submission that was made to the Court of Criminal Appeal and the conclusion that the Court of Appeal was not in error in rejecting it.

MR BYRNE: But it is, in our submission, the basis on which this Court in Fleming approached the determination of the issue of whether the verdicts were unreasonable. It is a question of somewhat fine distinction, it has to be said, but where formulae are used which require the appellant to establish that a jury were bound to have a reasonable doubt or must have had a reasonable doubt, that is setting a standard at a level for a convicted person which is a very high level and it goes, in our submission, close to the problem which Justice McHugh identified in his Honour's judgment in M, where it was said that the use of a test of whether it was open to a jury is very close to the test of asking whether there was sufficient evidence.

GLEESON CJ: To get to the jury.

MR BYRNE: Yes.

GLEESON CJ: Can you point to any case in which this Court has allowed an appeal applying the test of whether - by the way, Fleming was a trial without a jury, was it?

MR BYRNE: It was, yes.

KIRBY J: Did that alter the reasoning of the Court or did the Court say it was the same principle to be applied?

MR BYRNE: It should be the same.

HAYNE J: Why? The reasoning is fully exposed. You are not faced with the Sphinxlike guilty verdict of a jury. Why should the same test be engaged?

MR BYRNE: It is looking towards the evidence. It is not a question of looking to the reasons; it is looking at the evidence to determine whether - and that is an important phrase, in my submission, "the nature and the quality of the evidence".

GLEESON CJ: I thought this was a very contentious question, that is the extent to which in reviewing the decision of a trial judge sitting without a jury a Court of Criminal Appeal applies the same tests as are applied in relation to a review of a jury's verdict.

MR BYRNE: In my submission, the ultimate question is still the same. If the contention is the verdict of the jury is unreasonable or, alternatively, if the verdict of the trial judge is unreasonable, then the test should be the same.

GLEESON CJ: Can you point to any decision of this Court in which this Court in considering whether a jury's verdict was unreasonable - within the meaning of section 6 or a corresponding provision - has applied the test of whether the jury ought to have had a doubt as to the guilt of the appellant?

MR BYRNE: There is a reference to that in the judgment of Justice McHugh in M [1994] HCA 63; 181 CLR 487, if I can just briefly refer to that.

McHUGH J: That was a test that Justice Barwick used to use.

MR BYRNE: I am not sure if it has come from his Honour but - - -

KIRBY J: Was Justice McHugh's reservation that that is to presume upon the constitutional tribunal, that we should show more respect to the jury than to substitute what we think ought - to what the jury decides, given that the jury has a lot of advantages over appellate courts? Was that what Justice McHugh was saying?

MR BYRNE: Well, this was in a slightly different context, and his Honour was not dealing with that specific matter. The passage that I wished to take the Court to is at page 524.

GLEESON CJ: If it says what you say for it, the headnote is badly wrong on page 488.

MR BYRNE: I am sorry, your Honour.

KIRBY J: Justice McHugh was dissenting in this case, was he not?

GLEESON CJ: According to the headnote, Justice McHugh said:

The correct test for determining whether a verdict should be set aside on the ground that it is unreasonable is whether a reasonable jury must have had a reasonable doubt about the accused's guilt.

MR BYRNE: Yes.

GLEESON CJ: You say that headnote is wrong?

MR BYRNE: No, no, certainly not, but your Honour asked me whether there was any judgment of this Court which had held that the test was in terms similar to that used in Fleming, and Justice McHugh does collect a number of judgments in his judgment which deal with that issue.

KIRBY J: The very last lines in the report express Justice McHugh's view:

the evidence does not establish that a reasonable jury must have had a reasonable doubt - - -

MR BYRNE: Yes.

KIRBY J: But he was dissenting. The appeal was allowed. His Honour was for dismissing the appeal. Therefore, is the suggestion that the majority in M applied a different test than the "must have"?

MR BYRNE: No, I do not submit - - -

McHUGH J: I do not know why you say that because what the majority said is set out at 494, I think, from recollection.

MR BYRNE: They said the test was whether it was open to the jury.

McHUGH J: I appreciate that, but they talk about at 494, about point 6:

That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.

Then they go on to say:

If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict -

et cetera. I would have thought that is the high-water mark.

MR BYRNE: Yes, I accept that.

GLEESON CJ: Well, then, the next sentence they state what they call is the "ultimate question", which is turning it around the other way:

The ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied -

Now, you criticise Justice Smart for putting the word "reasonably" in front of the word "open"?

MR BYRNE: Yes.

GLEESON CJ: I would have thought that if that is a qualification at all, it is a qualification in favour of the accused.

MR BYRNE: Well, that was one of the bases on which special leave was granted to appeal, that the Court considered that that test may require review.

KIRBY J: But in Jones, as I understand it, Justice McHugh, whilst perhaps mentally adhering to what he had said in M, joined in a joint judgment in which it was said that the test to be applied is the test in M, which has become the gold standard for this Court. Now, am I wrong in my recollection of that, or not?

MR BYRNE: No, that is quite right.

KIRBY J: So where does that leave the state of authority? Has there been authority since Jones, or not? Or must we now take it that the last word is, there were differences before and in M, but in M four members of the Court, including Justice Dawson, who had earlier expressed in Chidiac the high-water mark, joined in the expression that has just been read and that that is the test to be applied according to this Court? Is that the last word on it, or - I mean, we get lots of these cases.

MR BYRNE: The words that were used in Fleming are subsequent to M and, of course, subsequent to Jones as well.

GLEESON CJ: Mr Byrne, what was the decision of this Court - I did not sit in it - in which the use of the expression "unsafe and unsatisfactory" was deprecated?

MR BYRNE: That is Fleming, your Honour.

GLEESON CJ: That is Fleming.

MR BYRNE: Yes.

GLEESON CJ: No. There is another case.

KIRBY J: Was it Crofts? Burns?

MR BYRNE: Yes, I am reminded by my learned friend, there was an earlier decision prior to Fleming, in which Justice Kirby had expressed reservations - - -

KIRBY J: It was Crofts, was it not?

MR BYRNE: Gipp, it is called.

KIRBY J: Gipp, yes.

GLEESON CJ: I remember about Gipp.

MR BYRNE: Your Honours, there is just that passage that I wanted to take the Court to in Justice McHugh's judgment in M. It is at page 524, the final paragraph:

The judges of this Court have used different terminology to describe the appropriate test for determining whether a conviction is unsafe or unsatisfactory. Some have said that the test is whether a reasonable jury would have, or should have or must have had a reasonable doubt about the accused's guilt. Others have said that the test is whether, having regard to the probative value of the evidence, it was open to the jury to be satisfied of guilt beyond reasonable doubt.

In relation to the earlier formulation, there are a large number of authorities cited, including, in relatively recent times, Chamberlain, Morris, Chidiac, Knight and Palmer.

Can I just take your Honours back to what Justice Smart said in his reasons for judgment on the crucial issue raised by this appeal, which are, of course, the reasons of the Court of Criminal Appeal. They appear at page 108 of the appeal book. What his Honour said, alongside line 10, was this:

The appellant submitted that the verdicts of not guilty on counts 1 to 6 and 9 involving the non-acceptance of the complainant's evidence beyond reasonable doubt on those counts necessarily impacted upon the credibility of the complainant's evidence on counts 7 and 8.

His Honour then said this:

It does raise a query requiring the careful examination of the evidence of the complainant and that of MA.

What his Honour seems to be saying in that short passage is that that simply raises a question mark. It does not apply what we would submit is the more rigorous standard established by Jones, namely that the fact of the acquittals in cases where the case for the Crown depended entirely on the evidence of the complainant necessarily affects that witness' evidence, the complainant's evidence, in relation to counts 7 and 8. His Honour went on to refer to the evidence of MA. Then he said this - - -

KIRBY J: Where are you reading?

MR BYRNE: I am sorry, this is at appeal book page 108 just above line 25. The proposition put that each of the witnesses, that is MA and the complainant, gave a:

substantially different account of what took place -

His Honour then says this:

although the particulars given by each varied significantly, both gave evidence of sexual malpractice on the appellant's part.

That finding is, in one sense, where what the supporting witness is saying is evidence of different sexual offences, it is really evidence of bad character on the part of the complainant. It is not evidence of the specific offences with which he is charged.

HAYNE J: Mr Byrne, can you really maintain that proposition? The Crown calls someone who says, "I was there when the incident happened". The eyewitness gives a version of events different from that of the complainant. It is not really giving evidence of similar fact kind, is it?

MR BYRNE: Well, it is giving evidence of a different offence, on one view of it.

HAYNE J: Yes, on one view of it.

MR BYRNE: It is put on another basis, well, it is evidence as the learned judge found it to be. It is not evidence of the same offence with which the appellant is charged and, therefore, cannot be said to be evidence supporting the commission of that offence.

KIRBY J: It is a disturbing element. It is not so much the hands on the pants or inside the pants or who was sucking whose penis, the disturbing element or arguably disturbing, is the evidence of anal intercourse which scales the offences up substantially one would think in terms of seriousness and punishment when that is not what was charged or particularised or alleged by the complainant.

MR BYRNE: Yes.

KIRBY J: So it is talking about a different factual substratum.

GLEESON CJ: Mr Byrne, the judge's remarks on sentence are not reproduced. Sometimes they are interesting in considering an argument like this. Is there anything in the remarks on sentence that is of assistance, bearing in mind that those remarks usually come from someone who has also had an opportunity to observe the evidence.

MR BYRNE: Yes, I accept what your Honour says. I have seen those a long time ago, but I cannot honestly remember whether they did say anything which is of importance. I do not think my learned friends refer to them in - - -

GLEESON CJ: In fact, I have, in the past seen remarks on sentence which actually dealt with the alleged inconsistencies of verdicts and explained them.

MR BYRNE: Yes, certainly. I do not recall there being anything of that kind in this case, but we will check that, your Honour.

KIRBY J: Is it your submission that whatever test, whether it is the high point in Chidiac and Justice McHugh's view, or the low point in M and Jones that on any of those tests the jury ought, or must, in this case, have had the reasonable doubt that warrants the intervention of the appellate court?

MR BYRNE: Yes.

KIRBY J: And that the failure, the essential failure of the Court of Criminal Appeal was to fail in its reasons to address this issue in subsuming the particularity that is required in talk of a sexual incident or an extended sexual incident or sexual malpractice of a general kind.

MR BYRNE: Yes, your Honour.

GLEESON CJ: The reasonable doubt being a doubt about whether the complainant was telling the truth.

KIRBY J: As to the offence charged.

MR BYRNE: Exactly, whether the complainant was accurate and reliable, more particularly than truthful in his evidence that the appellant had committed the specific offences charged against him.

GLEESON CJ: All right. Well, now, let us test that, first of all in relation to count 7. Suppose the jury had a doubt about whether the touching was on the outside or the inside, or suppose some jurors thought it was on the outside and some thought it was on the inside. What effect would that have had on the verdict on count 7.

MR BYRNE: The prosecution was asked to particularise the nature of the offence committed and charged as count 7 and they particularised it as being an offence which involved touching on the inside of the clothing.

GLEESON CJ: Yes.

MR BYRNE: If, the jury were - - -

GLEESON CJ: That raises the problem. Now, what is the answer to the problem?

MR BYRNE: If the jury were not satisfied that that offence had been committed - - -

GLEESON CJ: When you say - you used the expression "that offence", the offence is the offence charged in the indictment, is it not? An offence of indecent handling? Act of indecency, I think, is the offence.

MR BYRNE: Yes, indecent assault; shortly described as indecent assault.

GLEESON CJ: Suppose the jury had had a doubt about whether the indecent assault took the precise form described by the complainant or the precise form described by MA. What should the jury then have done?

MR BYRNE: If the jury were not satisfied that the conduct of the appellant took the precise form alleged in the evidence of the complainant, then they should have acquitted.

GLEESON CJ: That is a pretty large proposition.

MR BYRNE: That was the precise offence with which the appellant was charged. That was what the prosecution set out to prove.

KIRBY J: Did the judge give any directions relevant to this point?

MR BYRNE: There were references to the evidence of the witness MA but it was essentially left to the jury on the basis that it was a matter for them to decide whether they considered the evidence of MA to be supportive on the one hand or contradictory on the other.

GLEESON CJ: But your proposition, if correct, means that the judge ought to have directed the jury that even though they may have had no doubt that an act of indecency - either of the kind described by the complainant or of the kind described by MA - occurred, unless they were satisfied that the act of indecency took the form described by the complainant as distinct from that described by MA, they must acquit?

MR BYRNE: Yes.

GLEESON CJ: No such direction was ever asked for.

MR BYRNE: No, although a direction was asked for in terms that the evidence of - if I can just perhaps take your Honour to that. It is put at the bottom of page 83 in the appeal book by counsel for the appellant in the trial proceedings. This was a request for a further direction. The relevant part, the final two lines:

Just one matter I would ask your Honour to add is that the strong defence submission that if the jury looked closely at the evidence of -

the complainant and the evidence of the witness MA -

they are significantly different, especially in relation to the -

complainant:

doing things to -

MA, and, as it is described, the allegation of anal intercourse, the complainant:

didn't say any of those things.

HAYNE J: All that is in front of a jury?

MR BYRNE: Yes, it was.

HAYNE J: And the matter was not further pressed, see lines 10 to 15. Counsel had got his whack in.

MR BYRNE: Without, perhaps, the specific support of the learned trial judge.

HAYNE J: Can I come back to this basic proposition you advanced. Let us take it out of the sexual field, let us deal with it as a case of assault without sexual connotations. Had the complainant said, "The accused punched me" and the Crown called an eyewitness who said, "I saw him attack him, I saw him kick him, I saw him pick up a piece of wood and beat him", would you still say that a verdict of guilty should be set aside because of the discrepancy between the account given by the eyewitness and the account given by the complainant?

MR BYRNE: Again, every case must depend on its own circumstances, but if it be the case in that factual situation that the prosecution relied entirely on the punch, that they particularised the punch as being the specific assault which was the subject of the charge, and the eyewitness had said nothing at all about the punch, then it could not be said that the evidence of the - - -

HAYNE J: It would not be open to the jury to convict. Do you go so far as to say that?

MR BYRNE: No, not at all.

HAYNE J: Do you say that the Court of Criminal Appeal would have to set aside the verdict?

MR BYRNE: No.

HAYNE J: Well, where are we in relation to this case? Why did the Court of Criminal Appeal have to set aside the verdict because of this discrepancy between what the eyewitness said and the complainant said?

MR BYRNE: That is, with respect, not the reason why they should have set aside the conviction. Our primary contention is that the whole approach of the Court of Criminal Appeal in determining the question of unreasonableness was wrong. They should have taken the same approach as what we would respectfully say the model established in Jones provides. It is, with respect, surprising that where Jones is such a dominant authority in this field where it relates so closely to the facts of this case that the learned judge and the Court of Criminal Appeal simply made no reference to Jones or to the kind of reasoning which this Court said in Jones should be applied to the determination of this very issue.

HAYNE J: Is it uncharitable to ask whether the argument for the appellant in the Court of Appeal placed such heavy reliance on Jones and the approach revealed in it as now put?

MR BYRNE: Your Honour, I can say that there was only one authority in the list of authorities for the appellant in the Court of Criminal Appeal, and that was Jones. In the list of authorities for the respondent Crown in the Court of Criminal Appeal there was only authority, and that was Jones.

GLEESON CJ: Those lists of authorities go to the tipstaves of the judges.

MR BYRNE: Yes.

GLEESON CJ: Was Jones referred to in argument?

MR BYRNE: It was extensively, as I understand it. I was not there but that is my understanding.

GLEESON CJ: We got into this last area to test the significance of the discrepancy between the evidence of the complainant and the evidence of MA. Undoubtedly it has a factual significance that was examined at some length by Justice Smart, but I understand you now to be arguing that it had a legal significance and that indeed there was a serious deficiency in the summing up of the judge to the jury. Because the prosecution, as you submit, by its particulars was confined, the jury could only convict on count 7 of indecent assault if it accepted beyond reasonable doubt activity inside rather than outside.

MR BYRNE: Yes, that is our submission.

GLEESON CJ: Then if that proposition is right, it would be a fortiori in relation to count 8.

MR BYRNE: Yes.

GUMMOW J: That particular appears at page 70, is that right?

MR BYRNE: That is where the discussion about the particulars took place. In relation to count 7 is at line 8; in relation to count 8 is at line 15 on page 70.

GLEESON CJ: What is the function of particulars in a criminal trial such as this, especially particulars announced in circumstances of the kind that appear on page 70? What goes before the jury are the charges. In fact, did the jury have before them the charges in written form?

MR BYRNE: It is common for a jury to be given a copy of an indictment where there is a large number of counts. Whether this jury had the indictment I am not sure, but it is a common practice in trials where there are a large number of counts. The indictment of course does not with particularity identify the nature of the conduct which is relied on to support the specific charge.

GLEESON CJ: Exactly, and what the jury are left to decide is the charge, whether they are satisfied beyond reasonable doubt of what is alleged in count 7.

MR BYRNE: Yes.

GLEESON CJ: And, for that matter, in count 8.

MR BYRNE: Yes. Well, perhaps another illustration of the difficulty which applies to count 7, but equally to count 8, if the jury, for example, took the view that they were - and count 8, if I might remind your Honours was charged as an act of homosexual intercourse, the particularised act being an act of oral sexual contact, if the jury were satisfied, for example, that there was the anal intercourse which the witness, MA, deposed to, then that would be sufficient to establish an offence of homosexual intercourse.

GLEESON CJ: But the matter was never left to the jury on that basis.

MR BYRNE: It was not.

GLEESON CJ: No.

MR BYRNE: But the difficulty there being that if there is some evidence which supports a different charge, it cannot be said to be supportive of the specific charge which is the subject of the charge. In other words, the allegation of anal intercourse could not in any way, in our submission, have supported the allegation of oral intercourse. In the reasoning of the Court of Criminal Appeal it could not have, but in the reasoning of the Court of Criminal Appeal it appears to have because there is reference to such concepts as sexual malpractice and extended sexual - - -

GLEESON CJ: Those references are in the context of acknowledging and examining in detail the differences between the evidence of the complainant and MA and they are, evidently, an attempt to find a neutral expression which will permit discussion of those differences without foreclosing the issue.

KIRBY J: But your point is that they extend to include the oral and the anal intercourse, or they at least could.

MR BYRNE: They extend to acts which are not the subject of the charges and acts which, in our submission, in the circumstances of this case, could not be used to support the reasonableness of the verdicts.

KIRBY J: But could one say here that the counts charged were, to put it very broadly, touching and sucking a penis.

MR BYRNE: Yes.

KIRBY J: And that the intervention of MA with his statement about anal intercourse is completely separate and distinct and irrelevant to the whole case, that it is not relevant to either count 7 or count 8 and that, therefore, on 7 you have inside or outside the pants, on count 8 you have the appellant sucking or the complainant sucking. On one view one could say that is matter of detail.

MR BYRNE: That is, with respect, a possible view, but that is not the view which the Court of Criminal Appeal, with respect, approached it. They did not analyse the case in terms of saying this is a distinction between an act where the appellant is alleged to have forced the complainant to get him to suck his penis or whether it is vice versa. The Court of Criminal Appeal, as it seems, rolled all of the evidence of MA up together and said, "Well, there is evidence of sexual malpractice on the part of the appellant".

GLEESON CJ: That seems a very unfair reading of what they said between pages 108 and 110 where they are dealing with these discrepancies and then, on 110, in the passage that you most strongly criticise, Justice Smart repeats precisely the formula used by the majority of this Court in , on page 110 at lines 19 and 20 adding only one single word to that formula which I would have thought is a word in your favour, that is to say, "reasonably".

MR BYRNE: There are other, perhaps, curious expressions used by the learned judge. We have drawn attention to these in our written submissions, but if I could draw your Honours' attention to what his Honour said at page 109 of the appeal book when he was dealing with this specific matter, the final sentence of the last full paragraph on the page. His Honour said:

However, I am of the opinion that at least as to count 7 it was reasonably open -

No reason why, or no reference to the evidence upon which he relied, or the way in which he resolved what, in our submission, is the authority of this Court in Jones and the way in which - - -

McHUGH J: I know, but you place the weight of your argument on the main clause on page 110, in the sentence to which the Chief Justice has pointed, that is, "reasonably open". But I would have thought the strength of your case, if it has strength, lies in the subordinate clause, where his Honour said:

While the supporting evidence as to count 8 was not as strong as that relating to count 7 -

Now, that implies that his Honour thought that MA's evidence was supporting evidence as to count 8, and, to my mind, at the moment, that is a critical feature as to whether or not that could be used as supporting evidence.

Now, earlier his Honour had said, at line 50 on page 109, there was "no direct supporting evidence from MA or anyone else", but he then in some way seems to regard MA's evidence as to those two incidents as supporting evidence. That also seems to explain the reason he contrasted count 7 with count 8, that, in respect of count 7, you have evidence about touching - one inside, one outside - but in respect of count 8, he seems to have relied on MA's evidence of the - - -

KIRBY J: In a sense, this really puts the finger on the role of the Court of Criminal Appeal as against the jury. A jury, in accordance with Chief Justice King's view, might have said, "Well, we are dismissing 1 to 6 and we are dismissing 9, but on this one, we have MA. We are pretty sure that some sexual incident happened. We are pretty sure that some sexual malpractice happened. We think that MA was only a boy of 12, he could therefore have got confused in the melee and what was occurring, he was only in the caravan for a pillow fight, and it turns into this series of events, and therefore we think something happened and that is enough for us. We think that this has been proved beyond reasonable doubt."

Now, the question is, given that Chief Justice King and this Court have said that juries do a broad job and they are lay people and they are looking at it as a whole, is that the job that the Court of Criminal Appeal is to do in reviewing the reasonableness of the jury's verdict? Or is the Court of Criminal Appeal a logical check to make sure that the broad job has not glossed over differences in the testimony that are, in the eye of the law, significant, and that that is why formulae have been used, the statute just talking of "is the verdict unreasonable?", but that Justice Smart was, in a sense, confusing his role with the jury's role, which might have taken a broad brush, but his role was to apply a more rigorous test to the evidence, to see whether it reached the standard which the law condones as the verdict which will be upheld by the legal process. Now, do you gather what I am trying to say? Is that a fair understanding of what has occurred here, or not?

MR BYRNE: It is, with respect, your Honour, yes.

HAYNE J: Well, what is the basis for the Court of Criminal Appeal to conclude that the jury took a broad brush treatment?

GLEESON CJ: And, in particular, forgot about the fact that the complainant gave evidence?

MR BYRNE: Your Honour, the particular approach which the Court of Criminal Appeal should have been taking is, in our submission, as has been said, set out in Jones - - -

HAYNE J: I understand that but what is the answer to my question?

MR BYRNE: I have just lost it for the moment, your Honour.

HAYNE J: What is the basis on which the Court of Criminal Appeal could conclude that this jury took a broad-brush approach?

MR BYRNE: It was open to the Court of Criminal Appeal to find here that if there was a proper analysis of the evidence in the case then the evidence which was suggested to be supporting evidence was not in fact evidence of any real substance supporting the particular charges with which the appellant was charged.

GLEESON CJ: But the primary evidence was the evidence of the complainant. All this discussion from pages 108 to 110 is a response to a submission that is summarised on page 108, line 24. You begin with the proposition that the primary evidence relied upon by the Crown was "the evidence of the complainant" from which he did not resile in cross-examination, which was not shaken in cross-examination, and then they are facing up to the significance of an argument that the evidence of MA did not support the evidence of the complainant. They are analysing that argument and saying that it supported it quite strongly in relation to count 7. There is a different position in relation to count 8, but they are not overlooking the fact that the primary evidence on which the jury might well have convicted was the evidence of the complainant, whom they evidently believed.

MR BYRNE: But not by himself. They did not believe the complainant, at least to the necessary standard. They could not rely on the complainant's evidence to establish the offences alleged in the counts which were the subject of acquittals and that was an important factor in this case which needed to be considered by the Court of Criminal Appeal. It was clear that the jury, in determining guilt on counts 7 and 8, had ultimately formed a view that they believed the complainant in relation to those matters but why they should be entitled to believe the complainant in relation to those matters when they were not prepared to complainant in relation to the seven acquittal matters is not adequately explained, in our submission, merely by reference to the evidence of the witness MA.

GLEESON CJ: That is where we came in.

MR BYRNE: Yes, that is right.

HAYNE J: Do you say that this is a case, like M, in which there was an improbability inherent in the complainant's account of events?

MR BYRNE: There was not that feature that existed in M about the proximity of the family and so on, and the offence is said to have been occurring where somebody was almost certain to - - -

HAYNE J: .....the bed, et cetera.

MR BYRNE: Certainly. No, there was not that feature as there was in M. But M was not a case, of course, which involved a positive finding or an apparently positive finding by a jury that they did not accept the complainant in relation to any matters so that made it a different complexion.

HAYNE J: This notion of positive finding of non-acceptance is a very slippery concept, Mr Byrne. The jury was required to consider whether they were persuaded beyond reasonable doubt. That is very different from being persuaded to an opposite conclusion.

MR BYRNE: Yes, and I accept what your Honour says. Those are our submissions, may it please, your Honours.

GLEESON CJ: Thank you, Mr Byrne. Yes, Mr Ellis.

MR ELLIS: Thank you, your Honours. Your Honour, the Crown submission is that the trial judge, in fact, applied the appropriate test being M's test, and that - - -

GLEESON CJ: The trial judge?

MR ELLIS: I am sorry, the Court of Criminal Appeal, and that the failure to specifically name that case is neither here nor there because when one looks at the terminology used it is clear that his Honour extracted that terminology directly from this Court's decision in M and certainly in Jones this Court confirmed, following some discussion, the decision in M by saying, at page 452:

However, the test formulated by the majority in M must now be accepted as the appropriate test for determining whether a verdict is unsafe or unsatisfactory -

or, as the Court has now said, unreasonable or not capable of being supported by the evidence.

KIRBY J: That does not seem to be expressed in terms limited to Longman-type situations, which is apparently how it has been interpreted in the special Bench of the Court of Criminal Appeal in New South Wales. In terms it does not.

MR ELLIS: I am not quite sure what your Honour means by that.

KIRBY J: Well, did not the New South Wales Court of Criminal Appeal say that Jones is to be limited to its special facts and that the - - -

MR ELLIS: What the Court of Criminal Appeal said in relation to Jones certainly was that the decision in Jones was dependent upon the facts in that case, that Jones confirmed the test and pointed out in that case that not only was there a - I forget the quote now - the issue was whether or not there had been the Longman direction, whether or not there had been corroboration - and in that case there had been no corroboration - and specifically the Longman direction was very important because the lady, Mrs Darvall, who had given evidence that she generally was given a lift home with Mr Jones, because of the time which had elapsed, was forced to concede that it was possible that there might have been an occasion when she had not taken a lift home with him, whereas obviously had the complaint been made at an earlier point in time, the appellant would have been in a position of having her evidence that she had never failed to be taken home.

So that was one of the significant factors in Jones which brought about the result in this Court, and the Court of Criminal Appeal in Markuleski's Case was simply referring to the fact that Jones had confirmed M but had in turn been determined on the facts pertaining to that particular case and that that was the explanation for why the verdicts or verdicts of acquittal were entered in that particular case, but there is still an acceptance - - -

KIRBY J: But does it not always involve the facts? I mean, in a sense the statute is the only continuous factor.

MR ELLIS: Yes.

KIRBY J: Every case has to be asked on its own facts, is this verdict, within the terms of the statute, unreasonable or such as cannot be supported?

MR ELLIS: That must be so, your Honour.

KIRBY J: Every case is going to throw up that question.

MR ELLIS: Logically, we cannot be prescient in determining every factual peculiarity which will occur, so each case should be dealt with on that principle, but the particular determination in the case will depend upon the facts and how the facts are applied in any given case.

GUMMOW J: Now, the New South Wales statute and the other Australian statutes come from the English Act of 1907, do they not?

MR ELLIS: They do, yes, originally.

GUMMOW J: Now, that is no longer in force in England, is it? That has been changed, has it not, the 1907 Act?

MR ELLIS: I believe it has, your Honour. I cannot tell your Honour what it has been changed to. I have not looked at that.

McHUGH J: Since 1968 they have had unsafe and unsatisfactory, specifically.

MR ELLIS: Unsafe and unsatisfactory, yes.

KIRBY J: That is where our Court started copying them because it was in the English statute - - -

MR ELLIS: Using that term, yes.

GLEESON CJ: What is the test they use of unsafe and unsatisfactory?

MR ELLIS: I do not know the answer to that, your Honour, other than to say that that is the terminology that is used and whether they have defined it any further than that - it is perhaps a bit like our terminology, unreasonable and unsupported. All that has happened is this Court has said that the question is whether a verdict is reasonably open to the jury based on the evidence. I am not sure whether in England - I have not looked at those authorities recently - whether a similar line has been adopted.

HAYNE J: I think it may have arisen, may it not, in some of the lately brought appeals concerning conviction for events in Ireland? I think it may be that the Court of Criminal Appeal had to apply some test not very different from that in deciding whether those convictions should stand.

MR ELLIS: Yes.

HAYNE J: So that we might find useful discussion in those cases.

MR ELLIS: Yes, your Honour. There is some mention in Markuleski's Case by Chief Justice Spigelman, I think, of a number of foreign decisions or overseas decisions. In a sense, there is a certain amount of semantics can apply to some of these tests because the reality is: how is it practically applied in any given case? If the test is said to be, "Well, was it open on the evidence?" one could hardly say that a jury - if it was not open on the evidence, then the jury ought or must have had a reasonable doubt. Whichever way one looks at that, there would be very few occasions that I could think of, if any, where you could say on the one hand, there was evidence which if accepted would properly base a jury returning a verdict of guilty, yet on the other hand, concluding the same case, that a jury either ought or must have had a reasonable doubt. In a sense, it is the same test - well, certainly "ought" and "must" is not, but in terms of looking at "must" it is the same test but looked at from a different angle, "Was there evidence?" on the one hand or "Was there insufficient evidence which would have left a jury in a position that they must have had a reasonable doubt?"

The Crown would say that the test as it currently stands is an appropriate test which can be applied, and the factual variation of any given case will determine the outcome of any given case, and that there is not any need for this Court to do anything other than confirm what has been used as the basis of decisions all the way through. If one, for instance, goes to MacKenzie's Case 190 CLR 348, where there was - the joint judgment, your Honours, Justices Gaudron, Gummow and Kirby - and I think in this case, on this point, on what is said to be the inconsistent verdict point, their Honours Justices Dawson and Toohey agreed with the joint judgment. At page 366 this Court said:

From a review of the cases, a number of general propositions can be stated.

And they start that firstly by pointing out the difference between a legal or technical inconsistency and a factual one which has been the subject of some discussion to date. The second, they point out that apparently inconsistent verdicts - this is at the last sentence of point 2:

Yet it was pointed out that apparently inconsistent verdicts in such circumstances might be no more than the result of "differences in the evidence presented at the two trials" or "the different views which the -

jury might take. Obviously that generally would relate to where you had two juries rather than one jury looking at two trials within a trial for two counts. Under subheading (3):

Where, as is ordinarily the case, the inconsistency arises in the jury verdicts upon different counts of the originating process in a criminal trial, the test is one of logic and reasonableness.

And the Crown would say that that certainly is the appropriate test to be applied in each and every case to determine whether there is a basis for the verdicts or for different outcomes, and the quotation - - -

HAYNE J: May it not be more general than that in this sense? The statutory ground is unreasonable or cannot be supported having regard to the evidence. Cases like M emphasise the importance of taking account of the advantages the jury have in seeing witnesses and the like. That being so, in many - perhaps most - cases in which this ground of appeal can successfully be invoked, the appellant will be able to point to some logical inconsistency in the evidence such as to require the entertainment of a reasonable doubt about one or more of the elements.

MR ELLIS: I think the example that the Chief Justice gave in this case of a verdict on count 1 being different to a verdict on count 2, the evidence being identical, there would be no logical or any other basis for different verdicts. It might depend upon how many other counts there were and you might have to look at the issue of whether it was a merciful verdict. Some of the matters that your Honour raised, if your Honour continues in the six points, I think, which are raised by this Court in MacKenzie, a number of those factors are highlighted. The quote from Chief Justice King in Kirkman is highlighted. Perhaps in paragraph 4 - this touches on the way in which your Honour was looking at - the fifth line down just after footnote (33):

Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury performed their functions as required, that conclusion will generally be accepted. If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.

Again, that is support for the proposition that comes from M. The Court goes on to mention different instructions in relation to separate counts being separate trials within the trial, to the merciful verdict aspect and they agree with the remarks of Chief Justice King. Then over the page at 368, point 5, the last three sentences of point 5:

It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside. It is impossible to state hard and fast rules. "It all depends upon the facts of the case."

6. The obligation to establish inconsistency of verdicts rests upon the person making the submission.

Their Honours then go on, having stated those six points, to deal with some of the possible reasons for different verdicts which pertained in that case.

The Crown says that in MacKenzie this Court has adequately and appropriately dealt with the test to be applied to what might be said to be a general term of inconsistent verdicts, or might perhaps more appropriately be called differing verdicts on many occasions. The Crown says that there is nothing inconsistent with the approach adopted by the Court of Criminal Appeal which can be found in the judgment of his Honour Justice Smart with either Reg v M, Jones and/or MacKenzie. His Honour has applied the appropriate tests.

GLEESON CJ: What did the judge actually tell them about those three missing witnesses in answer to their questions?

MR ELLIS: He said a number of things. He firstly dealt with it before the question at appeal book page 80. At line 35, he deals with MA and then in the paragraph at line 45, he says:

There is no similar evidence to confirm or support what -

the complainant -

says in respect of the first incident . . . nor in the subsequent incident . . . and of course you have to take into account whether the evidence, which is led to support or confirm what is alleged, does in fact do so. Are you satisfied that it does support and confirm the evidence given by -

the complainant -

this evidence given by -

MA. Then at page 83 of the appeal book his Honour at about line 24:

Well, members of the jury, you did hear that on at least one of these occasions, there were other persons present, the Campbells for example, and also Bosman, I may have referred to him as a boy. But, man or boy, they have not been called here as witnesses, so -

I am not sure what that is supposed to read -

were are not told of course whether they are still - - -

HAYNE J: "We are not told", I think.

MR ELLIS: Yes -

living nearby or living in the district, whether they could be available as witnesses, but if they are available as witnesses, they have not been called as witnesses, so the only inference one may draw is that they will not add anything to the evidence that has been presented here. Is that sufficient Mr Barnett?

BARNETT: If you could go so far as to say they would not have assisted the prosecution case?

HIS HONOUR: Well, that is true.

Then, over the page at 84, line 45, his Honour then refers to the note from the jury, the first question being:

"We the jury wish to know why the three individuals -

and they are named -

were not called by either legal side."

Then, at appeal book 86 - - -

GLEESON CJ: It is a reasonable question, but it put the cat among the pigeons.

MR ELLIS: Not an unreasonable question. It does demonstrate that juries do have a reasonable insight into the realities of life at times. At AB 86, from line 41:

HIS HONOUR: Now the first question you ask is this -

and that is repeated -

Well as I said to you before, there is no evidence to indicate whether they are available or not. But given that they are available and not been called by either side, and that would indicate, I would suggest, they are not going to assist one side or the other. You will remember that there was a reference, in the evidence, to Bosman being involved in inappropriate touching which may have excluded him of course from consideration as a witness. Is there anything further that I can usefully say Mr Barnett or Mr Thomas?

BARNETT: Your Honour, the only matter is the matter I came back to - - -

HIS HONOUR: Yes, of course it may - - -

BARNETT: - - - if the prosecution brings the case, the prosecution has the onus of proof - - -

HIS HONOUR: Assuming that they are available, then the prosecution hasn't called them, so the prosecution doesn't take the view that they are going to be of any assistance to the case for the prosecution.

BARNETT: Yes, that's right and the jury can draw the inference that, because they haven't been called, can draw the inference that they wouldn't have assisted the prosecution case.

HIS HONOUR: Yes. All right.

GLEESON CJ: So they ended up getting a Jones v Dunkel direction.

MR ELLIS: They did, your Honour.

GLEESON CJ: In relation to those - drawing it like extracting teeth.

MR ELLIS: Somewhat dragged out - yes, it was.

GLEESON CJ: But finally, the jury were told the magic words.

MR ELLIS: They were, your Honour, so that in relation to the first two incidents, there was not only the fact that there was no support, there was the positive direction that the lack or the failure of the Crown to call those witnesses indicated that the Crown did not believe that they would be able to assist the Crown case. So there is a positive against the Crown at that point.

KIRBY J: Now, this is not relevant to count 7 and 8, because they were in the caravan and these witnesses were not present - - -

MR ELLIS: Not relevant to - - -

KIRBY J: - - - but it does tend to explain why a jury might reasonably and logically dismiss those counts - - -

MR ELLIS: Yes, your Honour - - -

KIRBY J: Reject them, and yet - - -

MR ELLIS: That is the Crown's submission, that it is very explicable, when you look at it, that the jury would say, "Okay, we are told, not only do they not help, but in fact we can work on the assumption that they would not assist the Crown". On the other hand, in counts 7 and 8, the witness who was present was called and did give evidence, which they could then assess. In relation to count 9, again the witness was called and the witness could be assessed and said that he had witnessed no sexual activity, so that there was no support at all.

Perhaps if I could move on to the impact of the not guilty verdicts, once they had been reached. The Crown would say the starting point is that created by MacKenzie, as I mentioned a moment ago, that if there is a proper way to reconcile the verdicts, then a Court of Criminal Appeal will do so, and that it is upon the appellant to establish that it is necessary for this Court to intervene.

As a general proposition the appellant's reliance upon the effect of acquittals on any remaining counts does ignore a number of possible explanations. In my written submissions on page 5 I have listed a number of bullet points highlighting the "Possible explanations for not guilty verdicts other than the rejection of the complainant".

Obviously, the merciful verdict, the jury might consider one count is sufficient to cover the criminality. That can specifically happen in cases where you have multiple penetrations and therefore multiple counts. The jury might conclude that one count of penile/vaginal intercourse would be sufficient to cover the criminality.

There is a situation where you may, in fact, sometimes have contradictory evidence on some counts but not on others. You may have supporting evidence on some counts but not others. You may have a complainant who had expressed uncertainty as to time in relation to some counts but not others. And, indeed, even in relation to what may have happened, especially where you have a series of sexual incidents alleged over a number of years.

A situation where the jury might conclude that a complainant is honest and generally reliable but may have a faulty recollection in relation to a count or counts. A situation where a complainant is able to give good detail about some counts but is lacking detail in relation to others. Again, where you have had a large number of allegations over a period of time or long delay, that sort of situation can arise. Or where the jury convicts on counts which are first complained on but does not convict on counts which were not complained about initially but were subsequently.

KIRBY J: Your answer to my question - the rather convoluted question at the end of Mr Byrne's submission - is that there is no difficulty in the relationship between Courts of Criminal Appeal and jury verdicts. Courts of Criminal Appeal merely face the realities of the nature of jury trial and in considering the nature of the jury's verdict in the particular case, the court takes into account the advantages, the length of time of the trial, the atmosphere of the trial and all of these peculiar features of the jury system which Chief Justice King mentioned that this Court endorsed in MacKenzie.

MR ELLIS: Yes, and in this particular case I think I listed in my written submissions at page 6, the "Differences between the cases presented to the jury in relation the four incidents" and I think we have spoken about that but clearly the first incident was unsupported. You had the Jones v Dunkel direction. There was also in that case, the appellant had testified that he had not met the complainant until late 1996. That first incident related to a time in 1993.

KIRBY J: And there was some evidence that the appellant had only commenced work in the area in 1996 which gave a little bit of credence to his version of events.

MR ELLIS: Yes, and there was also the factor that at that time in 1993 the complainant was only aged 12 years whereas in relation to counts 7 and 8 he was 15 years of age. Also, in relation to counts 7 and 8, the time frame was until - I will have to double check on this. I think it was mid-1997 - from 31 March 1997 until 30 November 1997 and the complainant was spoken to by police I think in May of 1998. So, that from the end of that period, that is November of 1997 to the middle of 1998, the delay was only a six month delay whereas it was approximately 51/2 years delay in relation to the first incident.

McHUGH J: Mr Ellis, can I put to you the matter that troubles me, and it is whether or not the Court of Criminal Appeal carried out its duty properly. If you go to 109 at line 19, Justice Smart says:

In other words the supporting evidence of MA does not extend to the allegation that the appellant made the complainant suck the appellant's penis and the complainant did so.

That seems to be a plain statement that MA's evidence just did not support the charge in respect of count 8 in any respect. But then when you go to page 110, at line 15 his Honour says:

While the supporting evidence as to count 8 was not as strong as that relating to count 7 -

it seems to contradict what is on 109 -

I am of the opinion that it was reasonable open -

To make it clear that he did regard MA's evidence about the two incidents as supporting the evidence, he goes on to say:

Like the judge, in evaluating the evidence I would bear in mind the age of MA at the time of the incident . . . and the difficulties he experienced in giving evidence.

Now, what are we to make of this?

GLEESON CJ: What particularly does he mean by the words "Like the judge"?

McHUGH J: Does that not really mean that we have to look at what the judge said on sentencing because - - -

MR ELLIS: What he meant there - I can actually take your Honours to that. There is a reference at page 108, line - - -

McHUGH J: On the special leave application we actually had the sentence remarks, if I remember rightly. I am sure we did.

MR ELLIS: We may have, your Honour. But at paragraph 30, line 3:

In his remarks on sentence the judge noted that the appellant had been convicted on the two charges where the prosecution had the supporting evidence of MA.

GLEESON CJ: What did the judge say about that in the remarks on sentence?

MR ELLIS: If your Honour will just pardon me a moment, I have just got it. What his Honour said was:

Now those two charges were charges in respect of which the prosecution have the support of evidence presented by -

MA -

And it was that supporting evidence which evidently influenced the jury to accept that the complaint made by -

the complainant -

was accurate, that his complaint was truthful.

Then his Honour goes on.

GLEESON CJ: What is Justice Smart talking about on page 110 at line 23 when he says:

Like the judge, in evaluating the evidence I would - - -

KIRBY J: Does he mean there "like the jury"?

MR ELLIS: Perhaps that is a reference to the summing up. In the summing up, the trial judge did make reference to the age of the claimant - I will just find that.

HAYNE J: At 106 line 45 you get an extract from the charge where the trial judge says:

bear in mind that he is the boy who was born in -

he has given the year -

he will turn sixteen in April next month. So it may be said that these boys are confused -

et cetera.

MR ELLIS: Yes, and as his Honour went through each of the counts, his Honour had highlighted the age of both the complainant and MA, their young age, especially in the first and the second incident, but more particularly the first incident, and it may be that that is what his Honour was referring to.

McHUGH J: I have a note that on the special leave application, in the remarks on sentence, Judge Ford had said that the supporting evidence of MA, and I quote:

evidently influenced the jury to accept that the complaint made by -

LB -

was accurate, that his complaint was truthful.

MR ELLIS: Yes, that is in fact what it says, your Honour. It says:

And it was that supporting evidence which evidently influenced the jury to accept that the complaint made by -

the complainant -

was accurate, that his complaint was truthful.

McHUGH J: Yes, that was at page 103 in the application book on the special leave. So we had it there. But given what is said at page 110, I think we ought to have copies - - -

GLEESON CJ: Yes, you can make copies at the luncheon adjournment and let us have them at 2.15.

MR ELLIS: Certainly, your Honour. At AB 81, the trial judge there dealt with the question of the contradiction and the age of the boy. At line 30, he said:

but then of course you have got to bear in mind that he is the boy who was born in 1984 -

this is in relation to MA:

he will turn sixteen in April next month. So it may be said that these boys are confused, and it is a question then of whether you could possibly rely upon their evidence to substantiate the charge, or charges, some of the charges at least, against the accused -

MA.

McHUGH J: I am not sure that you have answered my question about the two - - -

MR ELLIS: I was going to come to that, your Honour. Perhaps the first thing that can be said about supporting evidence is - first thing to be said about this evidence from MA is that it was relevant under section 55 and that is why it was admissible. We go back to the Evidence Act that the test of relevance is whether or not it could have affected the jury's consideration of the fact in issue. Now, that is a fairly broad test. So there are a few possible areas where evidence such as this is relevant. The first - - -

McHUGH J: Well, that is the question. Could it? Could evidence that he was having anal intercourse, that the accused was having anal intercourse and was sucking the complainant's penis, rationally prove or tend to prove that the complainant was sucking the accused's penis? At 109 Justice Smart seemed to accept that it could not.

MR ELLIS: He says at 109, with respect, your Honour, that it is certainly not as strong in count 8 as it was in count 7, but perhaps we could start there. In relation to count 7, the criminality involved an indecent assault. What was alleged was that the penis had been touched by the accused. So it was the touching of the complainant's penis which was the illegality alleged in that case. Now, it was a detail of evidence as to whether the penis was touched on the outside of the clothing or on the inside of the clothing, but both MA and the complainant said that the accused touched the penis of the complainant.

GLEESON CJ: And the accused said nothing even remotely like that ever had happened?

MR ELLIS: Yes.

McHUGH J: I have no trouble with that but it is the - - -

MR ELLIS: But, your Honour, once you move then from that specific endorsement on count 7, surely as a member of the jury, the fact that you accept because two young boys are saying it that this boy's penis was touched indecently by the accused, must affect your assessment in relation to whether or not you accept the complainant when he says in count 8 that what followed thereafter was fellatio whereby he was - I will get this right - I think he was asked to fellate the accused. When juries look at these things, they are not all in isolation. The reality is what you have is a witness in a caravan park who is saying, "I was inside this caravan. I saw certain things of a sexual nature take place." Now, for instance, say he was unable to say exactly what happened. "They had their back to me and I could not see but there was some sexual activity." That would be evidence which would support an allegation by the complainant that certain improper acts had taken place.

It becomes a question of degree, it becomes an issue of the weight, how strongly does the evidence of MA support the complainant. In this case he does witness the touching. Certainly, he then goes on to say that there was fellatio. So he is confirming that such an act took place. That, of itself, would assist the jury in their assessment of the complainant's claim, juxta-positioned the accused's position that nothing happened. I mean, it was an adversarial situation in which he is saying, "I did nothing". It is not a case of possible misunderstanding of some circumstances.

The concept now of supporting evidence really comes down to that section 55 test of relevance. It is not evidence as it used to be in terms of corroboration. You do not have a judge having to determine whether such evidence was capable of amounting to corroboration and then leaving the issue for the jury. The issue is a much simpler one. It is a threshold question of relevance: is it relevant?

GUMMOW J: What is the case in which we looked at section 55 last year? It was a bank robbery case.

KIRBY J: Mundarra Smith.

MR ELLIS: Yes, Mundurra Smith.

CALLINAN J: It might be relevant, but have very little probative value.

MR ELLIS: That is certainly so, your Honour. That is why I said in each case you have to determine the weight which it gets, but that is so in relation to every piece of evidence. If this was a pub brawl, for instance - I mean, notoriously in fights in hotels the Crown calls four or five witnesses, all of whom seemingly see a different fight.

GLEESON CJ: Well, we did have a case about a brawl that ended up in the death of a police officer. What was that case?

MR ELLIS: That was Adam, Gilbert Adam.

GLEESON CJ: It just occurred to me that that case might have something in it about the significance of particulars in relation to these charges. Perhaps you could have a look at that over the adjournment.

MR ELLIS: I will do that, your Honour.

GLEESON CJ: We will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.18 PM:

GLEESON CJ: Yes, Mr Ellis.

MR ELLIS: Thank you, your Honours. In relation to the supporting evidence, if I could just conclude that topic fairly briefly by saying, firstly, that it would not have been correct in this case for the trial judge to have directed the jury that there was no support of the evidence of the complainant. In one sense, that is not an inappropriate way to look at it. This Court in Doney, for instance, which I have mentioned in my written submissions in paragraph 23, the quote there comes from Doney where the Court said:

The essence of corroborative evidence is that it "confirms", "supports" or "strengthens" other evidence in the sense that it "renders [that] other evidence more probable".

KIRBY J: Where is Doney reported?

MR ELLIS: It is reported, your Honours, at [1990] HCA 51; (1990) 171 CLR 207. In that same paragraph 23 of the written submissions, there is a quote from Lord Reid in Kilbourne's Case which starts with:

There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.

In this Court in the case of BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275 the Court accepted the proposition that partial support is admissible and quoted favourably - which I have extracted across the page in paragraph 24 or page 8 of the written submissions - from Peacock v The Queen which in turn is quoting from Russell on Crime, all of which leads, the Crown would say, to the situation here that the jury was entitled to look at the evidence of MA as supportive. It was for them to determine the weight that they gave that evidence and therefore they had to quantify the support.

Apart from the matters which I listed in the written submissions at paragraph 12, page 4, as being bullet points of support, that is, that the incidents occurred in the caravan where the appellant resided in mid-1997; that they occurred in the afternoon; that they occurred when the complainant MA and the appellant were on the bed in the caravan; that the appellant rubbed the penis of the complainant and that there was an act of fellatio. The Crown puts that the touching of the penis is a specific support for count 7.

That, in turn, is supportive of the subsequent allegation of fellatio, as is MA's evidence that fellatio did occur. MA generally confirms sexual impropriety, which, the Crown says, makes it more likely that the complainant was telling the truth, and that there was improper sexual conduct makes it more likely that the accused was guilty of the offence. There was no broad-brush approach adopted by the jury. The Crown case was left as being the evidence of the complainant.

KIRBY J: I do not think Mr Byrne was responsible for that. It was in response to the use of the words "sexual incident", "extended sexual incident". It is Justice Smart's expression that just troubled me a little.

MR ELLIS: Well, obviously, your Honour, some type of terminology had to be applied, and whether that was the most appropriate or not. What the Crown says, though, is that it is supportive and it was for the jury to determine the weight that they gave it. They did so, and it is clear from their verdict, if one looks at it this way - rather than looking at it in the converse - it is clear from their verdict that, whilst they were not prepared to be satisfied beyond reasonable doubt on the word of the complainant alone in the first and second incidents, in light of the Jones v Dunkel direction and the other problems which I earlier referred to, they were prepared to accept the complainant, and the Crown would say that there was material which they were legitimately entitled to use from MA as supporting him.

It is really no different than a brawl - if 10 people witness X assault Y, but they all nominate a different assault, it is still supportive evidence of Y when Y comes along to say, "I was at the hotel and I was punched by X". It is for the jury to determine exactly what weight they give it, but nevertheless it is capable of supporting, and if that is so, the verdicts are explicable and there is no basis for saying that there was a miscarriage of justice.

Your Honour Justice Hayne asked in relation to the English situation, or it might have been the Chief Justice, or both. The only case that we have been able to locate over the luncheon adjournment is a decision of R v Chalkley (1998) 2 All ER 155 at 164. This is a quote which says:

"The new provision, the subject of a penetrating analysis by Sir John Smith QC ([1995] Crim LR 920) is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the Court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe.

GLEESON CJ: That seems to run together two elements that we used to attempt to keep separate in the days of the unsafe and unsatisfactory rubric. That was insufficiency of evidence, on the one hand, and irregularity on the other hand.

MR ELLIS: On the other hand, yes, and clearly we still have that delineation within our section because it talks about an error of law as well as unsupported by the evidence or unreasonable, and they seem to have dropped the "unsatisfactory". It is just the "unsafe", rather than "unsafe and unsatisfactory".

GUMMOW J: Which statute are they construing there?

CALLINAN J: United Kingdom.

GUMMOW J: It is later, is it not?

MR ELLIS: It is a later one, your Honour. I will just see if I can find the - - -

GUMMOW J: I need the catchwords.

MR ELLIS: Yes. It is the Criminal Appeal Act 1968 section 2, see 12 Halsbury's Statutes Fourth Edition 1997 at 375.

CALLINAN J: It is quite a good summary of the overseas position in Chief Justice Spigelman's judgment in Markuleski at page 89.

MR ELLIS: Yes, there is, your Honour. Thank you. I do have that Act if the Court wishes to look at that particular section.

GLEESON CJ: Does it use the word "unsatisfactory"?

MR ELLIS: Yes, it says "is unsafe" or unsatisfactory.

KIRBY J: I think that is what I pointed out in those earlier cases when our judges had just picked up words from the English statute and applied them in the Australian condition without having regard to the terms of our statute which is slightly - - -

MR ELLIS: It says the Court of Appeal shall allow an appeal against conviction if they think:

(a) the conviction . . . should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or (b) that the judgment of the court of trial . . . should be set aside on the ground of a wrong decision of any questions of law; or (c) that there was a material irregularity in the course of the trial.

HAYNE J: And the proviso was taken out, was it not, and left in effect to be operated through the unsafe/unsatisfactory, was it?

MR ELLIS: It continues on, your Honour, to say and in all other cases dismiss the appeal provided that the court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant "dismiss the appeal if they consider that no miscarriage of justice has actually occurred".

HAYNE J: So the proviso was left in?

MR ELLIS: Yes.

McHUGH J: But long ago this Court used the term "unjust" or "unsafe". In Davies and Cody v The King 57 CLR at 180 in the joint judgment - in fact it might be the only judgment - yes, it is the only judgment - the unanimous judgment said:

For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.

MR ELLIS: The only proviso I have put, your Honours, is that what I have read from is a 1995 Criminal Appeal Report. Whether it has been amended since then, I cannot say, but over the luncheon adjournment that was as far as we could go.

CALLINAN J: But "unsafe" or "unsatisfactory" seems to have been accepted in the joint judgment in M, does it not, at page 492?

MR ELLIS: Yes, that was the terminology used in M and it was in fact used all the way through until ultimately it was changed by Fleming.

KIRBY J: This is all part of the Court's emphasis in many, many areas in recent years, that this Court's emphasis is that we really have to go back to the statute and see what the statute says because the more judges wander away from the statute using synonyms and metaphors the more likely it is that we will take our eye off the legal principle that is applicable.

MR ELLIS: Yes. Your Honours, the cases that dealt with relevance, section 55, three times this Court has looked at it. Papakosmas v The Queen [1999] HCA 37; 196 CLR 297 was probably the first matter. There it was held, for instance, that complaint evidence and evidence of distress was relevant under 55 because it could rationally affect directly or indirectly the assessment of the probability of the existence of a fact in issue, namely non-consensual sexual intercourse. In Smith v The Queen, in dealing with the relevance of a police officer giving evidence of his recognition of a person from photographs, the Court held that that was not relevant on the basis that the jury themselves had the opportunity of looking at the accused, looking at the provided photos and making the same type of assessment as the police officer did and that therefore, except in cases of changed appearance, it was the situation that evidence was not relevant. Again, that was on the basis that the officer's view could not impact or affect the jury's assessment of whether or not the accused was in fact the robber.

GLEESON CJ: Because the officer was in no better position than the jury to express that conclusion.

MR ELLIS: Yes, and it would only be in a situation where he was in a better position, for instance, where there was a subsequent change of appearance, that he would therefore have relevant evidence. In Adam v The Queen this Court also considered it, although it was more an emphasis on the question of section 38 and how section 38 operated and also sections 60 through to 66 in terms of, if the evidence of the prior inconsistent statement was admitted as the truth, then the principle in Blewitt did not apply.

GLEESON CJ: My memory may be playing tricks with me, but I had a recollection that Adam v The Queen was a case in which evidence was treated as being corroborative or supportive, although it was in some respects different from the evidence of the principal witness.

MR ELLIS: That is so, your Honour. Indeed, similarly in a sense that applied in Papakosmas because the evidence of the complainant in terms of the complaint, her evidence was different to the evidence of those who said they received the complaint. That is not an unusual thing, that a child will give one account of what they recall as having said, for instance, to their teacher and the teacher will give another account of that same conversation. Nevertheless, that type of evidence is capable of supporting and assisting the jury arrive at the assessment of the fact in issue, being whether or not the sexual intercourse without consent had taken place. Your Honours, unless there was some other area, I think the written submissions cover some of the other points.

KIRBY J: Could you just help me in relation to the custodial position of the appellant? He was released on bail - or perhaps Mr Byrne can do that. I do not mind.

MR ELLIS: He is still on bail, as I understand it, your Honour.

KIRBY J: That was pending this appeal or - - -

MR ELLIS: Yes, he received bail after the Court of Criminal Appeal decision.

McHUGH J: No, no, after special leave was granted.

MR ELLIS: After special leave.

KIRBY J: Yes, I think he was in custody at the time of the special leave hearing.

MR ELLIS: Which was February - yes, indeed.

KIRBY J: He was given bail until the Court of Criminal Appeal, then sent back into custody, and then when this Court gave special leave he must have been - - -

McHUGH J: He was given bail on 4 March, was he not? We granted leave in February and I think it was 4 March he was granted bail.

MR ELLIS: I think he has approximately 11 months of the sentence to serve.

KIRBY J: The reduction of sentence by the Court of Criminal Appeal did not effectively affect the custodial period because he had already, I think, served up to that time the sentence for the lesser offence.

MR ELLIS: I think that is so, your Honour, yes. It was lost in the larger or longer sentence. I think that your Honours were also provided with copies of the remarks on sentence.

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

MR BYRNE: Thank you, your Honours. Your Honours, just in relation to that custodial position so far as the appellant is concerned, it is set out in paragraph 4.5 of the written submissions for the appellant. The position as it stands now is that he has served a total period of 1 year, 7 months and 10 days, which is a longer period than the total period imposed in relation to count 7, but in relation to count 8 the non-parole period was 21/2 years and he therefore has, in relation to count 8, 10 months and 20 days remaining to be served.

KIRBY J: I did read the written submission. I must have missed that point, but it does not really affect us, does it? If you succeed, this is an acquittal point, is not it?

MR BYRNE: Yes.

KIRBY J: It is not a new trial point?

MR BYRNE: No, your Honour.

KIRBY J: There is no error of direction?

MR BYRNE: No, your Honour.

KIRBY J: It is unreasonable verdict that would lead to acquittal? So that he either gets the order of acquittal or he goes back to complete the balance of his sentence?

MR BYRNE: Yes, your Honour.

HAYNE J: Do we need to be aware of the terms of that order admitting him to bail in framing orders dealing with the appeal in this Court, or do we simply make orders in the ordinary form?

McHUGH J: Who admitted him to bail, the Court of Criminal Appeal, did they?

MR BYRNE: They did. We have a copy of the judgment of the Court of Criminal Appeal. As your Honour Justice McHugh said, it was on 4 March this year that bail was granted by a Full Court of Criminal Appeal, not a single judge, but we can make copies of this available.

KIRBY J: They do not require any orders from us; they await the determination by this Court of its appeal?

MR BYRNE: Yes.

HAYNE J: But his obligation is then - who knows which way this appeal turns out, Mr Byrne. Do not misread me with my questions, but he would then surrender to the Court of Criminal Appeal, would he? It is that sort of question which leads to enormous difficulty, so perhaps if we could have the form of order and, subject to what other members of the Court may say, if either side thought it necessary to make submissions about how orders might be framed, then it may be useful.

MR BYRNE: I can say, your Honour, that one of the terms upon which bail was granted to the appellant was that on the date of the judgment of this Court that he should surrender himself to the sheriff of the Supreme Court of New South Wales, if it is necessary for him to do so, for the purpose of complying with such orders as this Court might make.

GLEESON CJ: Would you please let us have a copy?

MR BYRNE: I will arrange for a number of copies. Your Honours, there are just a couple of matters. In the proceedings before the luncheon adjournment your Honour Justice Hayne put a question to me in terms of whether there was, in the circumstances of this case, any feature of it that might be identified as an inherent implausibility in the manner in which that had been talked of by the Court in M v The Queen. I perhaps answered that question a little too hastily. There is one feature of this case which is somewhat unusual and which might be said to be some indication of the implausibility of the allegations that have been made by the complainant in this case against the appellant. That derives from the fact that the initial investigation into - if one might look at it in a global sense - the conduct that centred around this caravan was apparently specifically related to the man Bosmans, who has been referred to.

What happened was that this complainant attended at a police station to give a statement in relation to the man Bosmans and in the course of making that statement - and that was, I think, on 21 May - he was also asked whether or not the appellant had done anything to him or whether he had observed the appellant to have done anything in the nature of sexual misconduct, because that was the clear focus of the police inquiry. These matters are generally set out in the transcript in the cross-examination of the complainant at pages 36, 37 of the appeal book. If I might take the Court briefly to that. At page 36 of the appeal book, alongside line 15, counsel for the appellant, cross-examining the complainant, said:

I'm just going to go to the first statement at this stage, that mainly relates to another person we'll say, the person that's been mentioned here, Mr Bosman -

That was the statement of 21 May and it was disclosed in the later questions alongside 45 that that was a seven-page statement that the complainant had made about Mr Bosmans. Then, at the top of page 37, some specific parts of the statement of the complainant, which was taken in question and answer form, apparently - I am sorry, in paragraph form. He said this in relation to the appellant - it is recorded there alongside line 5:

"I have a friend called . . . he's in his thirties may be 40 years old - - -

KIRBY J: I do not think the name should be used, surely.

MR BYRNE: No. I apologise, your Honour. Then, a little further alongside line 10:

"Since I used to see -

the appellant -

at Hendrik's place him and Hendrik were friends -

the appellant -

has never touched me in any way, I have never seen him touch anyone" -

and that was reiterated alongside line 30. There is a further element of the - - -

GLEESON CJ: The explanation was given at the bottom of page 38 and the top of page 39.

MR BYRNE: Yes, that was an explanation given, but a rather unusual context where this young complainant was being spoken to by the police and he was prepared to give information about the man Bosmans and apparently information - - -

GLEESON CJ: The jury actually asked a question about this, did they not? They asked a question of how the police came to find out about all this or who brought it to the attention of police. I think the judge told them there was no evidence.

MR BYRNE: There was not any evidence, that is right. It was clear that when the police were investigating the matter, they asked specific questions about the appellant's conduct and that drew those responses from the complainant. There is a further reference at the bottom of appeal book page 37 which deals with things done by the complainant which might be said to be implausible against the background of the alleged offences committed by the appellant.

GLEESON CJ: But why was it implausible for the complainant to do what he did if he had been told about a threat that had been made to someone else?

MR BYRNE: He had apparently been asked to go to a police station in relation to unrelated matters, and when he did that he asked the appellant to take him down to the police station. That is a separate item of conduct on the complainant's part which is broadly inconsistent, in our submission, with the allegations that the complainant has made being credible.

KIRBY J: It can be explained if Mr Bosmans had never made a threat but he had heard of the appellant's having made a threat, that he did not feel frightened of Mr Bosmans but he did feel frightened of the appellant. We do not know anything about their build or their character or their personality or anything else, so it would hang together if the jury accepted what was said at the bottom of page 38 and the top of 39.

GLEESON CJ: There was never any suggestion, was there, that any of this conduct was other than consensual?

MR BYRNE: The issue of consent was not really raised. Obviously that was not a defence in the circumstances of this case.

GLEESON CJ: But the complainant gave a history of activity extending over a period of years and there was no suggestion that he ever complained to anybody about it.

MR BYRNE: No; precisely the opposite. He gave evidence that he had not complained to anybody about it. Your Honours, the other perhaps relevant associated issue is that, as it happens, the witness MA also made a statement to the police in which he said that the appellant had done nothing to him and he had seen nothing in the nature of those incidents which he claims to have observed involving the complainant and the appellant. The relevant parts of the evidence of the witness MA are at appeal book page 52. The question was put - and this was a question and answer process - at line 1 on page 52:

"What else can you tell us about -

the appellant.

"He's not talking to us any more so I assume he's not our friend . . .

Q. Question 32 "Has anything happened in that caravan that you may like to talk about?" Answer "No."

Then there was some reference alongside line 20 to "somebody being touched" and the witness MA was asked:

"Have you ever seen anything like that, that is a boy being touched?" and your answer "No" . . .

Q. Question 35 "Has anything like that happened to you?" Answer "No".

He gave the explanation that he was scared to say anything to anybody about it.

GLEESON CJ: Was there any evidence about the age of Bosmans?

MR BYRNE: There was. My recollection is that he was certainly an adult and I think he was of a similar age to the appellant. At one stage, during the course of the summing up, the learned judge referred mistakenly to Mr Bosmans being a boy.

GLEESON CJ: A boy. I remember that.

MR BYRNE: But he was not. He was a mature adult. There is a further question put at the bottom of page 53 to the witness MA:

Why did you say that you'd never been in the caravan with -

the appellant and the complainant, and the answer given at the top of page 54:

Because I was too frightened to tell my parents, for the reaction that they would have on it and I felt ashamed about it, to think what they would think of.

Your Honours, the case was one in which there was an usual feature of the authorities, in effect, asking each of these two young people, both the complainant and the witness MA, whether anything had happened, anything untoward had happened, and specific questions leading them to the particular incidents in question, and in each case, each of the young people said that nothing had in fact happened.

One further matter, if I might deal with it very briefly. Your Honour the Chief Justice in the course of discussions with my learned friend asked questions about the English approach. There were, for many years, in England, when the 1968 legislation introduced the concept of unsafe and unsatisfactory, what appears to be a decision made shortly after that, in a case which is extracted in part in the judgment of the Court in M at page 491 of the decision in M, and that the appellant's name is Sean Cooper, so that it may be as your Honour Justice Hayne said, something with an Irish connection - - -

HAYNE J: No, no, the bombing cases I had in mind.

MR BYRNE: This was one of those cases as well, as I understand it. This was a case decided in 1968 where the court used - as far as I am aware for the first time - that expression which is included in the extract in M at page 491 where what was said by Lord Justice Widgery:

That means that in cases of this kind the court must in the end ask itself a subjective question whether we are content to let the matter stand as it is or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done.

That phrase was used, and it is said not very frequently in the period that followed until those two decisions which followed quickly upon each other in 1989 and 1990 which were involving the groups collectively known, I think, as the "Birmingham Six" and the "Guildford Four", but in the 20-year period - almost 20-year period or slightly in excess of 20 years that elapsed between the decision in Cooper which was at the time of the introduction of the 1968 legislation and those two decisions involving the Irish bombings, this concept of a lurking doubt was apparently used on only about a dozen occasions in that period.

Since 1989, 1990 when Ward and Maguire and those cases were decided, it has been used by the Criminal Division of the Court of Appeal according to the commentators much more frequently.

GLEESON CJ: I have a recollection of being told in about 1988 that -and I think it might have been following Chamberlain that there was a great upsurge in the number of notices of appeal that always had as the final ground of appeal the verdict was unsafe and unsatisfactory in the Court of Criminal Appeal. In the mid to late 1980s that became a routine ground of appeal.

MR BYRNE: Yes, that is my experience as well.

McHUGH J: There was never a case that came up for hearing in those days that did not have as the final ground that the verdict was unsafe or unsatisfactory. It is just common ground, almost as if it came of a word processor.

MR BYRNE: Yes.

KIRBY J: I am just beginning to see that maybe the course of history here is that originally the common 1907 formula was unreasonable, and then the Irish cases arose in England - and you will remember there was a lot of controversy about whether the English Court of Criminal Appeal had been insufficiently vigilant - and then judges began to talk or rather, the Criminal Appeal Act in 1968 altered the formula there and that, according to Cooper's Case, seems to, as it were, have made the English judges much more attentive to "lurking doubts" in their own minds, and that was what was deliberately required as a response to the outcry about the confirmation of convictions which were subsequently shown to have been unjust, and we have not gone through that in Australia. We simply still have the 1907 statutory formula. We have just got to be a bit careful that we do not pick up all of this English legal development because we just do not have the foundation for it in the statute.

GLEESON CJ: Not only that, but the English got themselves into a considerable problem at one stage in relation to one of those Irish appeals when the Court of Criminal Appeal not only dismissed the appeal but announced that the Court of Appeal had itself been affirmatively satisfied of the guilt of the accused, and then there was later shown to be a miscarriage of justice.

MR BYRNE: Yes, that was - - -

KIRBY J: These were not glorious moments for English justice.

MR BYRNE: No, well, those two major cases -the two that are known are the Birmingham Six and the Guildford Four, and there was another one involving an individual female by the name of Wade who is also an Irish connection. Those - - -

McHUGH J: Well, the philosophy of the court has changed dramatically. The English Court of Appeal has recently quashed the conviction of Craig or Bentley - I cannot remember which one it was - who was hung for murder. His appeal would have been dismissed back in 1954, but they have just recently quashed the conviction, notwithstanding he is dead.

KIRBY J: They will deal with Mr Evans, as well. It will make everybody feel better, but not Mr Evans.

MR BYRNE: Mr Evans has in fact already been dealt with - - -

KIRBY J: Has he?

MR BYRNE: He has been exonerated.

KIRBY J: Pity he is dead.

McHUGH J: Has been acquitted as well.

MR BYRNE: It was Bentley the case your Honour is referring to.

McHUGH J: Bentley, yes.

MR BYRNE: Craig, in fact - - -

McHUGH J: Craig - he was not sentenced - because he was under age.

MR BYRNE: That is right.

McHUGH J: And he was the one who fired the shot.

MR BYRNE: He was, yes. The sequence of events - those Irish cases that have been referred to followed upon the 1968 legislation quite some time later. They were 21, 22 years later. In that intervening period, between 1968 and 1990, it was said that the power to find the verdict of a jury was unsafe and unsatisfactory was very rarely used by the Criminal Division of the Court of Appeal. But since 1990, it has been frequently used, and part of the reason for these old cases like Evans, Craig and Bentley - and there is a subsequent case of Hanratty which is a fairly well-known case as well, that has come before the courts for review - but there is a separate organisation in England, as I understand it, which is designed to review the correctness of convictions, which is an administrative body which has the power ultimately to refer matters to the Criminal Division of the Court of Appeal. That is why those old cases are coming up.

Your Honours, one other specific matter, if I might refer to it in terms of seeking to equate the circumstances of this appellant's case with the circumstances which existed in Jones' Case, is the evidence in relation to the employment of the appellant. There is a letter which was from his employer - it is reproduced at page 93 of the appeal book - which, if it were accepted by the jury or if it created a reasonable doubt in the minds of the jury, would have established positively that the evidence given by the complainant in relation to at least the first incident, which constituted the first three charges on the indictment, could not have happened in the manner which the complainant alleged that they did.

KIRBY J: Where is that? What page?

MR BYRNE: It is at page 93 of the appeal book. It is a letter from the employer.

KIRBY J: Yes, but that is not necessarily inconsistent. He might have been a friend of Mr Bosmans and may have gone to his home because he was a friend. It does not necessarily indicate that he was never there in 1993.

MR BYRNE: There was some suggestion that the appellant was wearing an item of clothing which had the logo - I think it is described - of this firm on it.

KIRBY J: In respect of the first four - first six incidents - - -

MR BYRNE: I think, ever since the complainant had known the appellant, he said that he wore this distinctive shirt, which had the logo of the - that was my understanding of the evidence, so that a letter from the employer relating to the commencement of his employment was important material, and it - as said, that does bring this case into the same general category as Jones, where there was positive evidence given - apart from the denials by the appellant in relation to each of the charges, there was positive evidence which at least tended to suggest that his evidence that he had not known the complainant until 1996 was correct.

MR BYRNE: Your Honours, that material in relation to the sentence, the remarks on sentence of the learned trial judge do not disclose the basis on which the learned trial judge found the facts for the purpose of sentencing and, in particular, in relation to count 7 whether the touching of the complainant was inside or outside the complainant's clothing.

There is a passing reference to that in the judgment of Justice Smart at page 110 of the appeal book where he dealt with it on the basis that it had been a touching on the inside of the clothing and, even accepting that to be the case, the sentence was reduced and, as has been said, reduced to a level that the appellant has now served the full sentence in relation to at least count 7. There is one final matter - - -

KIRBY J: Was that reduced on the footing that the jury had accepted the count as particularised, namely that there was touching inside of the - - -

MR BYRNE: Yes, it was. That was the basis on which Justice Smart dealt with the sentence issue, although the learned trial judge had not specifically said what the basis was. In those remarks on sentence he simply said there was "supporting evidence" from the witness, MA. He made that observation at the bottom of the first page of the remarks on sentence, and at another part, that is page 3 of his Honour's remarks on sentence, he said this:

Notwithstanding the fact that -

the evidence of the complainant -

was supported in important respects by -

the witness MA, and then he went on to say that they were, in effect, two parts of one incident, but those were the only specific findings he made in relation to the extent of the support. He did not identify particularly what it was. He just said it was in significant respects.

The final matter that we wish to put in reply was the approach of the Court of Criminal Appeal in Markuleski, that decision of the specially convened Bench of five judges. There is a stark contrast, in our submission, between the approach taken by the Chief Justice and by the Chief Judge at Common Law when compared with the approach taken by Justice Simpson.

What Justice Simpson effectively held in her judgment was that where the case, which is being reviewed by the Court of Criminal Appeal with a view to determining whether the verdict or verdicts are unreasonable, where the case is on all fours with the factual circumstances that existed in Jones in this Court, then it is necessary to apply the reasoning which this Court applied in Jones.

Her Honour's approach was that that simply cannot be ignored and we would submit, with respect, that the approach taken by the Chief Justice and the Chief Judge at Common Law in seeking to distinguish Jones on the basis that it was effectively a case that applied solely to its own facts was, in our respectful submission, an erroneous approach. I know we have said it in the written submissions, but it is not something that we specifically referred to - - -

GLEESON CJ: Once you get away from logical inconsistency or even factual inconsistency, all these cases are highly fact specific, are they not? By "these cases", I mean cases where you are relying on differences in verdicts.

MR BYRNE: Yes, they are. I accept each of them are fact specific, but there is a process of reasoning that needs to be, in our submission, followed and it is simply not enough to say there was, as the approach, we say, was taken in this case, some evidence supporting the reliability, the credibility of the complainant because there was evidence of, in effect, something wrong being done by this person charged.

GLEESON CJ: But the present case provides quite a good example, or your recent argument provides a good example. You say to us in this case there was a circumstance that indicated perhaps an inherent improbability in the complainant's story in that when the complainant - and, for that matter MA - were first approached by the police about this, they made a blank denial of any wrongdoing. They were cross-examined about that and they gave evidence about being scared and being ashamed. How do we know what a jury would have made of that kind of explanation? We have never seen those people, we have never seen the people that they profess to be scared of. What are we to make of words on a piece of paper saying, "I was scared and I was ashamed and that's the reason I responded as I did when the police first approached me"?

MR BYRNE: I accept that that is a situation where, as was discussed in M and recognised in Jones, the Court does have to pay regard to the advantageous position that the jury was in but, by the same token, the evidence needs to be considered. These were people who were not at that stage extremely young people. One of them, I think, at the time was about 16, the other was about 13, when they made their complaints to the police. One would reasonably expect that the likelihood is that they would tell the truth to the police and that the police would do their best to try and ascertain the truth. If there was in response to a specific question a clear denial by both of them to the police, then that might suggest that this appellant had in fact done nothing wrong. It was only four days later and for no clearly explicable reason that they both went back to the police and both gave a different version.

The clear inference to be drawn from the whole of this evidence was that these two young men were throughout acting together. They told the same false story initially, according to their version, and then they told a story implicating the appellant some four days later. But the stories that they told about the appellant following their initial statements that he had done nothing wrong were distinctively different. They were not, in our submission, statements which could be said to be so equivalent in the allegations that they made that the truth of what they said was a reasonable conclusion.

KIRBY J: The thesis of your case is that they did not tell the full story on the first return before the police; they told the truth. That is what you would have to say.

MR BYRNE: That is right and, as happens in cases like this where young people are involved, young people who have had the opportunity to put their heads together, they had put their heads together to tell a false story against the appellant and when they came to tell that false story, they got the details wrong because the stories that they told were not in any sense a description of the same events having occurred.

KIRBY J: Did MA give the version to the police when he came to retract his earlier statement that he had never been touched? Did he then give the version that he subsequently gave at trial or did he give a version then which was closer to the version of the complainant?

MR BYRNE: I have to confess that I have not seen the statement of - - -

GLEESON CJ: No, that is what the jury tried to find out. The jury asked a very sensible question about that and they were told the statements were not in evidence.

MR BYRNE: Your Honours, the only insight that I have into that issue is, I think, a statement that I made earlier that the things that the witness MA said in the course of his evidence in the trial proceedings came as something of a surprise. Perhaps the most surprising aspect of it all was that MA in his evidence before the jury made an allegation that the complainant had been anally penetrated by the appellant in this incident in the caravan on the afternoon in question. Curiously, that was not an allegation made by the complainant against the appellant in relation to this meeting between them but it was an allegation made by the complainant against the appellant in relation to two other separate meetings at neither of which was the person MA said to be present. So that the air was fairly heavy with the risk of contamination and with the risk of concoction.

CALLINAN J: Mr Byrne, was it put to either the corroborator or the complainant that they had collaborated on their second stories?

MR BYRNE: No, it was not because their versions were - - -

CALLINAN J: Sufficiently different, do you say?

MR BYRNE: - - - notably different.

CALLINAN J: All right. Can I just ask you this. At page 85 the Crown Prosecutor at about line 40 sought to justify the non-calling of two boys who had been involved in one or more of the incidents, or were witnesses to them, on the basis that they were in the camp of the accused.

MR BYRNE: Yes.

CALLINAN J: That can hardly provide a reason for not calling them, can it?

MR BYRNE: No, your Honour.

GLEESON CJ: The reason was given at line 44, was it not?

CALLINAN J: I take that reason to be simply that they are unreliable because they do not agree with the Crown case. I really am concerned with the fact that there were material witnesses who might not have been called simply because they might have helped the accused's case. That is not the test whether witnesses are called or not.

MR BYRNE: No.

CALLINAN J: I would really like to know what Mr Ellis says about that. I should have asked him about it before.

MR BYRNE: Perhaps that is our fault with respect, your Honour, because we have not specifically raised that as a ground of appeal in this case, it not having - - -

CALLINAN J: It relates to the other offences anyway, does it not, on which there was an acquittal?

MR BYRNE: It does.

GLEESON CJ: If you had raised that as a ground of appeal, there would then have had to have been some kind of inquiry as to exactly what decisions the Crown Prosecutor made and why they made them.

MR BYRNE: Yes, your Honour.

GLEESON CJ: There would be evidence about that, or there might be evidence about that?

MR BYRNE: There may be.

KIRBY J: But you could not appeal, could you, because you got an acquittal on those counts?

MR BYRNE: That is right. There are clearly certain things said - - -

KIRBY J: It is not an argument relevant to this appeal and it is not a matter that would be appropriate to be raised in a ground of appeal.

MR BYRNE: It does not, I accept, relate to the two counts upon which there were convictions but it is an important background - - -

CALLINAN J: I really want to express my concern that there may have been a deliberate decision - I am not saying there was, but there may have been a deliberation decision by a prosecutor not to call material witnesses because they were in the accused's camp. Now, that is not, in my view, a sufficient reason not to call them and it is not a sufficient reason to regard them as unreliable.

MR BYRNE: No.

CALLINAN J: I really deprecate that if that is what has happened.

MR BYRNE: Certainly. The point was taken up by trial counsel. He contested and - - -

CALLINAN J: I saw that.

MR BYRNE: - - - as he said, hotly disputed was that issue as to whether these people could be said to be in the camp of the - - -

CALLINAN J: All material witnesses should be called unless there is some good reason to the contrary.

MR BYRNE: Certainly, your Honour. Well, that is Apostilides. We do have as well in this case - my learned friend has made reference to it - the Jones v Dunkel so-called directions.

CALLINAN J: Yes, but the Jones v Dunkel direction that his Honour gave seems to me to have been a Jones v Dunkel direction that might have been relevant to the defence also - and this Court has said a number of things about that - and it seemed to me that that runs counter to what this Court has said.

MR BYRNE: Yes, it does. What is said at the bottom of page - - -

KIRBY J: It was really a Jones v Dunkel direction by counsel that his Honour confirmed. He had to drag it out - - -

GLEESON CJ: His Honour's direction was the words, "That's right".

MR BYRNE: He did say, with respect, at the bottom of page 86 three times that these witnesses, and he referred to the names of the witness, "they not called by either side". He said that twice and then he said:

they are not going to assist one side or the other.

The clear - - -

KIRBY J: But he got there ultimately and you are not raising any complaint of - - -

CALLINAN J: No, but it is not a question whether it would assist one side or the other in criminal proceedings. It may be in civil proceedings, but it is different because of Apostilides and other observations made in this Court since then.

MR BYRNE: Yes, certainly. But what was said in relation to Jones v Dunkel, at least it left it open for the jury to draw an inference adversely to the accused in the trial proceedings. Of course, since there were not convictions in relation to those matters about which those three witnesses were concerned, it has not been the subject of any ground of appeal. Clearly we would submit, with respect, that what Justice Callinan says is right about that. These directions did not comply with the rules that this Court has established in relation to those matters. Those are our submissions, may it please your Honours.

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

MR ELLIS: Thank you, your Honours. Perhaps the first thing in dealing with your Honour Justice Callinan's question, the Crown duty to call is a duty to call all reliable witnesses. There are clear statements from this Court as well as from other - - -

CALLINAN J: How does the Crown assess whether people are reliable or not?

MR ELLIS: Firstly, it would be necessary for the Crown to conference the individual. In this - - -

CALLINAN J: Have a trial in a conference room?

MR ELLIS: No, your Honour, have a conference with the person and depending what information you have and what the source of the information, there can be many bases upon which you decide. For instance, you might have covert tapes of conversations in which he has said different things inconsistent with his current proposed evidence. He may have a history of counts or convictions for perjury. There are a myriad of different things which will affect the assessment.

CALLINAN J: Accepting all of that, you do not decide not to call them or you do not seek to justify any practice of not calling them because they might be in the camp, as it were, of the accused.

MR ELLIS: No, your Honour. We have clear rules and there are clear guidelines to our prosecutors for them not to call a witness has to be a personal decision that they make based on their personal assessment and conclusion - positively concluding that a person is unreliable.

CALLINAN J: But not because he or she is in the other camp?

MR ELLIS: No. Often, for instance, your Honour, I have not called police informants who give evidence consistent with the Crown case but I have not called them because in my assessment they are not reliable witnesses. More often than not it is a situation obviously where the witness is giving evidence hostile to the Crown but there are occasions regularly where it is the other way. One of the additional problems is that Bosmans was himself an accused person, an accused in relation to this same complainant, so I am to sure where the proceedings were in relation to that.

CALLINAN J: I think he was to be tried in about a month's time but I was not talking about Bosmans, I was talking about the other two who were referred to in that paragraph.

MR ELLIS: Although they were young. I am not sure that he was talking about those - one was only 14, one was only I think 18 - they were younger boys. Your Honour, it is just about impossible off a couple of comments there to actually ascertain what all the background information was.

GLEESON CJ: Are these guidelines published?

MR ELLIS: Yes, and the Director's guidelines - - -

GLEESON CJ: That is what I thought.

MR ELLIS: Yes, and they incorporate decisions of this Court in Richardson and also more recently in New South Wales in a case called Kneebone which is where his Honour Justice Greg James goes through and summarises all the cases over the years and concludes that it is necessary to have a conference. One of the additional factors now with the introduction of the Evidence Act is that it is not necessary for a Crown really to make these decisions. In the past the problem with calling a person who you considered might have been unreliable who was hostile to the Crown was that such a witness would never be tested. The jury would never have the benefit of anyone cross-examining that witness but under the new procedures under section 38 the Crown does not suffer that same problem, or rather the jury does not suffer from the problem of having a witness called who the Crown cannot cross-examine and the defence asks Dorothy Dix-types questions in order to elicit evidence without testing them. But under section 38 the Crown now can seek leave to cross-examine and a lot of the basis for not calling has gone and it is, in essence, an easier position for the Crown simply to call the witness, make the section 38 application, cross-examine and leave the assessment of reliability to the jury.

The only factor that I could say is that it is not suggested that MA lied in relation to count 9 in this case. In count 9, if MA was colluding with the complainant, why does he say he saw nothing, that nothing occurred? It would be very easy to say, "Well, I was there in the tent". It is a three-man tent, after all, which - I mean, a three man tent is hardly a large area. For him to say that he saw and heard nothing is not indicative of someone who is in collusion to give evidence falsely to assist the complainant.

KIRBY J: Is there any discussion of the legal issue that has come out of this case concerning the test for an unreasonable verdict in the Criminal Law Journal or in any academic literature that you are aware of, Mr Ellis?

MR ELLIS: Your Honour, I am not aware of any recent discussion about the test at all, actually.

KIRBY J: If you find it, it would be helpful - - -

MR ELLIS: I would say this case is the first one really to raise it, that I am aware of. I do not think any counsel at the Bar table is aware of any recent discussion-type paper.

McHUGH J: I thought somewhere there was a criticism of Chidiac. I am not sure. It may be some years ago.

MR ELLIS: Yes. When I say, "We are not aware of", I am limiting it to the last 12, 18 months.

KIRBY J: There is always criticism.

MR ELLIS: There is always criticism.

KIRBY J: We have to live with that. Broad shoulders.

MR ELLIS: I am sure that that is why there are so many law books, but I am not aware of any articles within the last 12 months, 18 months, your Honour. Unless there is some other area - - -

GLEESON CJ: Thank you, Mr Ellis. We will reserve our decision in this matter and we will adjourn until tomorrow morning at 10.15 am.

AT 3.23 PM THE MATTER WAS ADJOURNED