WGC v The Queen [2007] HCATrans 415 (8 August 2007)

Last Updated: 16 August 2007

[2007] HCATrans 415

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A20 of 2007

B e t w e e n -

WGC

Appellant

and

THE QUEEN

Respondent

GUMMOW J
KIRBY J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 8 AUGUST 2007, AT 10.58 AM

Copyright in the High Court of Australia

MR D.H. PEEK, QC: May it please the Court, I appear with my learned friend, MR A.J. CROCKER, for the appellant. (instructed by Scammell & Co)

MR P. BREBNER, QC: May it please the Court, I appear with my learned friend, MR S. GILL, for the respondent. (instructed by Director of Public Prosecutions (SA)

GUMMOW J: Yes, Mr Peek.

MR PEEK: May it please the Court. If I can take the Court first to the essential materials. Section 49 of the Criminal Law Consolidation Act, as it was at the relevant period, is most conveniently found in annexure 1 to the appellant’s summary of argument being the first two pages of that annexure. We do for completeness have after the subsequent amendments taking it up to its present form but I do not think that they will be necessary or be needed in this case, but they are there for completeness.

HAYNE J: Just before you depart from Act - - -

MR PEEK: No, I was going to it, your Honour.

HAYNE J: You were going to it, very well.

MR PEEK: Yes, thank you, your Honour. I just wanted to point out some very short matters for the moment and that is that one sees that separate offences were created by subsections (1) and (3); one being a felony, the other being a misdemeanour which tends to underline, if underlining be needed, the separate nature of those offences. I point out that since this time the felony misdemeanour law has been abolished in South Australia but once again, that took place after the relevant time in this case, in any event.

KIRBY J: What is the relevance of that?

MR PEEK: I merely mention that it has been changed, your Honour.

HAYNE J: But on either version of the events only 49(3) was engaged?

MR PEEK: Indeed, but, your Honour, when I come in more detail to the correct interpretation of the statute, as I will in a moment, I will be saying that the separate nature of 49(1) and (3) is of some relevance to the overall correct interpretation of the statute. I will deal with that very shortly. That is all I wanted to say about that for the moment, then to identify the other relevant material and then come to the substantive argument. The information is at appeal book - - -

HAYNE J: You are going away from the statute. Can we stay with the statute a moment? Section 49(3) identifies the relevant offence, is that right?

MR PEEK: Yes, your Honour.

HAYNE J: On either version of events?

MR PEEK: Yes.

HAYNE J: So on the accused man’s version of events 49(3) was the provision that was arguably engaged, is that right?

MR PEEK: That is the charge against him, yes, your Honour.

HAYNE J: He sought to raise a defence under 49(4), is that right?

MR PEEK: Correct, your Honour.

HAYNE J: A defence of which there were two elements?

MR PEEK: Yes.

HAYNE J: One, age in fact and, second, a belief, is that right?

MR PEEK: That is correct.

HAYNE J: Who bore the burden of proving or disproving the matters articulated in 49(4)?

MR PEEK: He did. The appellant did.

HAYNE J: So the defendant raised a defence of which he bore the burden of proof on the balance of probabilities, the defence having two elements, is that right?

MR PEEK: That is correct, your Honour.

HAYNE J: His version of events sought to establish both the age and belief and the jury rejected that, is that right? We do not know whether they rejected some, not being satisfied as to the date of the offending or the date of the incident and thus not being satisfied as to age in fact, or some not being satisfied as to belief, is that right? But all were persuaded beyond reasonable doubt of the elements of the offence defined in 49(3)?

MR PEEK: A statutory majority at the end of the day convicted.

HAYNE J: Yes.

KIRBY J: But we do not know on what basis. There were two hypotheses.

MR PEEK: That is right.

HAYNE J: That is the point I am seeking to have you address, Mr Peek. We do know, do we not, that the elements of the offence in 49(3) were established to the satisfaction of the majority beyond reasonable doubt. What we also know is that the defendant did not establish on the balance of probabilities the separate matter which is the defence prescribed by 49(4), is that right?

MR PEEK: That would appear to be so, your Honour, but we, of course, submit that there are a number of important points of the interpretation of the statute that one must address before one comes to those issues that your Honour has just put to me, namely, that in this particular case the correct interpretation of the legislation is such that because of the wording of the information the defence provision could not be engaged and, of course, I will come to that in some detail very shortly.

KIRBY J: The appellant undoubtedly raised the defence that is raised by 49(4).

MR PEEK: Yes.

KIRBY J: So the anchor of your argument is, we do not know whether a majority of the jury convicted him on either the hypothesis that the complainant was 13 years old or 16 years old?

MR PEEK: Your Honour, that is an important anchor. We would say it is not the only anchor, if I can put it that way. In other words, that of itself would, if we can make out that argument, lead to the allowing of the appeal and in that sense it is certainly a most important anchor, but we would say, before one actually gets to that argument, there is an earlier argument as to the construction of the legislation where you should not have got into this territory at all. The question should simply have been, was the alleged offence in 1986 proven or not and if not, then there should have been a verdict of not guilty.

KIRBY J: Is that not to make the defence part of the definition of the offence?

MR PEEK: We say not. Can I go straight to that argument and follow the course as it is set out in the summary of the argument because I think I need to develop that in order to answer your Honour fully.

KIRBY J: So that is the first way you put it and the second way you put it is that because of the way the verdict was taken, there is no way of knowing whether there was unanimity or the statutory majority of the jury in this case on hypothesis A or hypothesis B?

MR PEEK: Yes, that is the second way we put it, your Honour, and if it is convenient to the Court if I can deal with what I have called the first way first and then come to that second way. If I can, and of course I will not stolidly read it out but if I can, as it were, identify where I am in the outline, it is at page 3, paragraph 9 and just speak to that written argument if that is convenient to the Court.

KIRBY J: Would it not be best for us first to understand exactly what happened in the course of the trial as to whether requests were made to the trial judge to direct the jury in a particular way or to take particular special verdicts?

MR PEEK: Your Honour, we accept that this first point that I am raising was not taken at trial and that in fact the defence counsel at trial did invite the judge to direct the jury that they were to consider a 1989 version if not satisfied beyond reasonable doubt of a 1986 version. We, of course, submit that that was error. Your Honours do have a short affidavit from trial counsel in the materials.

KIRBY J: This was before the Court of Criminal Appeal?

MR PEEK: Yes, it was. It was most certainly before the Court of Criminal Appeal, your Honour, and in fact is referred to in the Court of Appeal’s judgment, so the answer is definitely yes. It is at page 265 of the appeal book, going on to the next page.

GUMMOW J: The crux of it is in your paragraph 10, is it not, it is the “consequence of the correct interpretation of Sect 49”, et cetera?

MR PEEK: Yes, your Honour. That is where I am actually starting. That is what I want to put to the Court, yes. The correct interpretation of section 49 means that the only offences charged by the information were offences in respect of neither of which the defence could be engaged, that is to say, the defence provided by section 49(4) and, hence, the date of such offences had to be proven as alleged. We point to a number of features of the legislation to show that that is the correct construction.

The first is that proof of age of the complainant at the relevant time is of course part of the very actus reus of a section 49(3) offence. It goes to the very heart of the offence and the prosecution is required to prove as an element, when you look at the structure of the legislation, that the person was “of or above the age of twelve” and also that the person was “under the age of seventeen” and that, largely, is because of the fact that there are these two separate offences to which I directed attention earlier.

KIRBY J: The prosecution only has to prove matters which are in dispute and there was no dispute, was there, that the complainant was “of or above the age of twelve years”?

MR PEEK: I accept what your Honour says as to no dispute, but my submission is not going to proof in an individual case – and perhaps I did not make myself clear enough – but, rather, as to the construction of the legislation in general. So what I was trying to submit was that the legislation requires proof in the generality, if I can put it that way, that for a 49(3) offence you actually have to prove that the person was both “above the age of twelve years and under the age of seventeen years”, so that it is a very specific time-based thing that has to be proven and, of course, with good reason because when you are talking about an age, you are talking about a matter that makes proof of date critical or time critical.

The second aspect we put as to the interpretation of the legislation is at paragraph 12 and I have largely covered that, the fact that there are two different offences. The third and most important perhaps matter is this; that the defence in section 49 imposes two requirements upon an accused person. The first is to prove that the complainant was on the date on which the offence – and then I notionally underline – is alleged to have been committed of or above the age of 16 years and then one goes to the second matter, but it is that first that is the most important for our argument.

We say at paragraph 14 that the correct interpretation is that the defence can only be raised as a matter of statutory interpretation in relation to the date on which the offence is alleged to have been committed, that is to say, the date alleged in the information here, February 1986. One finds that information, for the Court’s convenience, at page 1 of the appeal book. I will just take you briefly to that, if I may. There are two offences but the Court knows that one occurs after the other seriatim on the prosecution case so it is only really necessary to look at the first count. One sees that the accused is charged, in effect, in the month of February with sexual intercourse with a particular person – I will not be referring to the name of that person obviously – being under the age of 17 years and then specifying the particular act. Count 2 is the same except for the second different act.

Now, we say that for present purposes the date on which the offence is alleged to have been committed therefore is the date that is to be found in the information which, of course, is February of 1986. This legislation with that phrase “on the date on which the offence is alleged to have been committed” is rather different to other legislation that I have been able to find where those particular words “on which the offence is alleged to have been committed” do not appear. Normally such legislation is much more general, simply speaking of the sexual intercourse, but not as to an allegation and information as to when it occurred.

We have to deal with the words of the statute and we say those words in this particular case are very clear because we say, may it please the Court, at paragraph 16 of the outline that the consequence is that if an information alleges a date subsequent to the 16th birthday, the defence will be open but if, as in the present case, an information alleges a date prior to the 16th birthday, of course it will be impossible for the accused to prove the complainant was of or above the age of 16 on that date because, as the Court has already rightly observed, the date of birth of a complainant is always known.

KIRBY J: Now, just help me with this. The rule of pleading in criminal matters is a strict rule and the allegation on page 1, the first and second count, is very particular. It gives a particular date, namely, 31 January 1986. Just explain to me how, under the pleading practice in South Australia, you can get out of that particularity having regard to the way a trial unfolds and include within offences pleaded with such specificity offences that happened at some other date.

MR PEEK: There are two parts to your Honour’s question, I think, and I want to be clear about my response. The actual information does not allege that the offence occurred on the 31st but, rather, between the 31st day of January 1986 and 28th day of February 1986.

KIRBY J: Yes, but they are both 1986 when the complainant was 13 years of age.

MR PEEK: Yes.

KIRBY J: Was there ever any application to amend the counts of the indictment or is there some practice or real of law in South Australia that, notwithstanding the particularity and specificity of the counts, that you can bring within those counts an offence happening on quite a different day?

MR PEEK: Your Honour, what happened was that there is reference in the outline to a dialogue involving the prosecutor in which she stated that she had considered the question of an amendment but had decided not to apply for an amendment because, to use her words, the complainant was adamant as to the complainant’s evidence that it had occurred in the month of February 1986 and therefore - - -

KIRBY J: Why was not the only issue for trial whether or not the offence had happened at that day and no other question relating to the age of 16 arising because of the specificity and the rule of particularity in general pleading?

MR PEEK: Your Honour, what we are saying is that both as a result of what we say is the correct rule of criminal proceeding, and we agree with your Honour, and additionally as a result of the correct interpretation of this particular statute, what your Honour I think is saying to me is quite right, that it should have been confined to an issue of whether the sexual intercourse occurred, yes or no, in the month of February 1986. That indeed is our first of the two points that we put to this Court.

KIRBY J: Was that point taken at the trial?

MR PEEK: No, it was not. I said before that it was not and that there is an explanation for that in the affidavit that is in the appeal book.

KIRBY J: What I want to know and it really arises out of Justice Hayne’s questions at the beginning, having regard to the charge in the counts of the indicted charges, the counts of the indictment, and having regard to the instructions given by the trial judge, can we take it that the only question which the jury addressed themselves to was whether an offence was proved beyond reasonable doubt at the age of 13 when it is alleged to have happened between dates in January and February 1986?

MR PEEK: Not at all.

KIRBY J: If anything else was introduced, on what warrant was any other offence introduced or defence introduced having regard to the particularity of the counts of the indictment?

MR PEEK: My simple answer is it should not have been and insofar as it happened, it was an error but it was an error that was not pointed to by defence counsel but should have been. That is my very simple and plain answer to what your Honour asks.

HAYNE J: It went to the jury, did it not, on the basis that if satisfied that intercourse had occurred as the defendant acknowledged it had, that could be taken by the jury as proof of the offences charged, is that right?

MR PEEK: It did go through the jury on that basis, in error, we would say, but it did.

HAYNE J: I understand the point about error.

MR PEEK: Sorry, your Honour.

HAYNE J: But it was put to the jury that they could arrive at the conclusion of guilt by alternative paths, either accepting the complainant’s version of events occurring at age 13 or accepting the defendant’s version of events at age 16?

MR PEEK: Yes, but then rejecting his aspect about - - -

HAYNE J: Then necessarily addressing the defence.

MR PEEK: Yes, well, there is no doubt that that is what occurred, your Honour.

KIRBY J: Your point is that six of them or five or three or nine may have accepted that it happened in 1986 and the balance may have agreed that it happened in 1989 but that there was no unanimity on the foundation for the conviction of the accused on the counts of the indictment on which he was charged?

MR PEEK: Yes, and that is the second of what I called before the two main points. That is certainly our position on that.

KIRBY J: To make all this out you will have to show us in due course exactly what the judge said about the gist that the jury could make of matters that are not specifically addressed to events between 31 January 1986 and 28 February 1986 which is all your client was being tried on.

MR PEEK: I am happy to do that right now, if that is convenient to your Honour.

CRENNAN J: Just before you do that, just looking at the statement of the particulars of the offence on page 1 for a moment. The trial was conducted, was it not, on the basis that there was an admission that the acts had occurred with a child under the age of 17 years? That was the admission at the outset, as I understood it.

MR PEEK: Yes. I do not seek to run away from that, but can I just put it in some perspective. What was being put by the defendant, of course, was a very different factual matrix in relation to his version and the complainant’s version. I set out the difference between those two versions at my paragraph 6 of the outline. Now, that involves material that I do not know I need read onto the transcript. If I could just invite the Court to see what, in fact, the difference between the two cases was and you will have, of course, transcript evidence in the footnotes so I will not be going to that for the moment.

When one looks at that – I will at least refer to 6.1 – the prosecution case was a stark one of intercourse in February of 1986 on a particular houseboat somewhere on the Murray River with a 13-year-old girl with the usual accompaniments of a person of that age but the version of the appellant was, of course, that it occurred some three years later, yes, on a houseboat, but obviously on a different one and a different place, but in very different circumstances. You see those circumstances that I set forth in 6.2.

CRENNAN J: I was really drawing attention to the fact that an admission was made, as I understood it, and formed the basis upon which the trial was conducted. The admission was made in terms of section 49(3) as to elements.

MR PEEK: Certainly the elements of sexual intercourse were never in dispute, that is right. It was right from the very beginning, I agree with that. All that I was trying to be careful about was that one cannot, as it were, say it is exactly the same incident we are talking about. We are talking about very similar sexual acts, if I can limit it to that, but the surrounding circumstances were very, very different indeed and, of course, a very material matter going to, for example, sentencing disposition. I will come to those aspects later, if I may. But staying, if I may, for a few moments with my submissions as to the correct interpretation of section 49 for the moment.

HEYDON J: I thought you were going to take us to the - - -

MR PEEK: The summing-up. Thank you for reminding me, Justice Heydon.

HEYDON J: .....the summing-up on page 207.

MR PEEK: The critical directions, I think, are to be found at page 207 of the appeal book.

HEYDON J: What is the background to that summing-up? Was there any debate between the judge and counsel as to whether the matter could be left to the jury in this way or the judge.....on the assumption that.....

MR PEEK: Yes, certainly. No, there was some background and, as I say, the position of the defence was that it could be left to the jury in that way.

HEYDON J: What page?

MR PEEK: We have discussion at page 216 through to 220.

HEYDON J: That is the summing-up.

MR PEEK: I have committed a cardinal error, your Honour, wrong number. Page 187 of the appeal book, top right-hand number.

KIRBY J: Yes, but is there not a cardinal error at the top of 207:

you might think that in this case the accused has admitted all three elements of each of the offences; that is to say, he had sexual intercourse with [the complainant] when she was under 17 –

but the three elements of the offences in the counts of the indictment are offences that occurred in 1986.

MR PEEK: I agree, your Honour.

KIRBY J: Particularity and specificity and he had not admitted those.

MR PEEK: Can I just finish the answer to Justice Heydon and then I will move immediately to what your Honour Justice Kirby puts to me. In answer to your Honour Justice Heydon, and I am sorry for giving you the original transcript page rather than the appeal book page, but it is 187 of the appeal book. You will see that it flows through there as to various issues and one comes at, I think, page 189 to this matter where there is discussion as to the fact that the jury should not be entertaining that there should be a consideration of some act occurring in the interim period of 1987 or 1988 but that they, of course, could consider the prosecution case of 1986 or the defence case of 1989.

Now, by that time, of course, the matter had already crystallised into that situation which was going to be left to the jury. We do not have, I think, a full record of all of the dialogue on that but I am in no way disputing that the defence did not take the position that should have been taken on our present submissions and I have already conceded this was with the consent of the defence.

KIRBY J: Is there any reason why the prosecutor, accepting the accused’s admission at the beginning of the trial of an offence against the act but had a different date, could not then in the alternative have charged the accused of an offence in 1989 and the jury would then have posed starkly for their determination the difference between the version of the appellant and the version of the accused and the defence that was raised only in respect of the alternative counts? Is that not a feasible possibility?

MR PEEK: That is quite right, your Honour. That was a matter that was to some extent referred to on the special leave application but in answer to your Honour – and my learned friend, I know, agrees with this – what occurred was that there were some evidentiary matters prior to trial that were dealt with and there was a conference between senior counsel then appearing for the appellant and the prosecutor. This is before arraignment and plea, I mean. The defence position was made plain to the prosecution that the defence was saying that acts of sexual intercourse occurred in 1989 at a time when the complainant was 16 and the defendant, on his evidence, which he would give, reasonably believed that she was over the age of 17. So the prosecution well knew that before the trial started.

KIRBY J: Is that recorded anywhere in the records we have?

MR PEEK: No, that is not, but, as I say, my learned friend is aware of that. What then occurred was that at the beginning of the trial the prosecution opened and then the defence gave a brief, as it were, mini opening, which is not recorded either but it is referred to in the index to the appeal book and is, I think, referred to in the Court of Appeal judgment, and I can take the Court to what that was. So the chronology to sum up is this. Prior to jury being empanelled and plea taken this matter was made plain to the Crown. A plea was then taken, Crown opening then occurred, and then a short opening by the defence before any evidence called.

HAYNE J: Can we get hold of the opening address on behalf of the appellant at trial?

MR PEEK: Yes, indeed, I think that is in fact reproduced in the judgment of the CCA at page 284 of the appeal book, Justice Hayne. That is the defence opening that I am referring to.

HAYNE J: Thank you.

MR PEEK: So, in answer then to your Honour Justice Kirby, there was every means by which the Crown could have laid a further count.

KIRBY J: I can understand entirely the decision of the prosecutor not to withdraw the 1986 account given the complainant’s adherence to that statement, but is there anything in the law, the statutes or the practice in South Australia that prevents a prosecutor charging in the alternative on the possibility that the jury may not accept that but accept a later day and different counts that can then go before the jury and they can then give their verdicts on those counts?

MR PEEK: No, there is nothing at all that would - - -

KIRBY J: Was that not the correct course to have been adopted at this trial given that an admission of sex – “from the defence point of view I can tell you that it will not be an issue for you as to whether sex occurred”, given that that is only relevant to the matter which was before the jury on the indictment to the offences that were alleged to have occurred in 1986.

MR PEEK: Yes, well, we say there was absolutely nothing to stop that procedure and everything in favour of it should have occurred. That would have been the correct thing to do.

GUMMOW J: It talks about, at about line 18, “the issues joined between the prosecution and the defence” on page 284.

MR PEEK: That, I think, would be a reference to when this occurred, your Honour.

GUMMOW J: It is not a felicitous way of putting it really.

KIRBY J: But it does say timing will be all important in this case.

MR PEEK: Timing, “as Ms Abbey correctly put to you”, the issue and the singular for you - - -

KIRBY J: I mean, the point is that the law has an answer to the problem that is presented to this Court and it is a very simple answer and it is based on the fundamental rule of particularity of criminal pleadings, but it was not one which the very experienced lawyer, who was your predecessor in office, took before the trial judge.

MR PEEK: That was error, I am afraid, in our respectful submission, but it was fundamental.

KIRBY J: Was this matter addressed specifically in the Court of Appeal?

MR PEEK: Yes.

KIRBY J: That this is the way it ought to have been handled at the time?

MR PEEK: Yes, yes, absolutely. The possibilities of laying a separate count were extensively put by myself, actually, and that that should have been done.

GUMMOW J: Yes, Mr Peek. Now, where have we reached in your - - -

MR PEEK: Well, your Honour, I am still struggling with the first argument that I want to persist with and that is the correct interpretation of section 49 of the Act.

GUMMOW J: You have to twist the words “shall be a defence” have you not, in subsection (4)?

MR PEEK: Well, we say no. We say that it is a very specific way that this legislation is - - -

GUMMOW J: Subsection (4) is not drafted well. It should say, “It shall be an offence to some charges under subsection (3)”. That is the problem.

MR PEEK: I take the words as I find them, your Honour.

GUMMOW J: Yes.

MR PEEK: I say that the words are very clear and lead to a particular result for which we contend in this case.

KIRBY J: But it was never a defence to the counts of the indictment. It was never a defence because your client was not asserting that as at 1986 he thought that the complainant was above the age of 16 years.

MR PEEK: Well, that is right.

KIRBY J: It was never a defence to a matter that was properly before the jury.

MR PEEK: Well, that is perhaps a slightly different way of putting - - -

KIRBY J: And it cannot be made a defence, in my humble present opinion, by some obfuscation and lack of clarity in the thinking of people at the trial.

MR PEEK: I agree with that, your Honour.

HAYNE J: That carries with it a number of assumptions, not least an assumption about what is the relevant statement of offence. Do you accept that the relevant statement of offence is that the accused had sexual intercourse with a person who was of or above 12 and under 17?

MR PEEK: No, we would not seek - - -

HAYNE J: That is, do you say that the particular of the date on which the offence occurred is an essential element of a statement of the offence?

MR PEEK: Yes, we do.

HAYNE J: And it is that proposition which you have to address, is it not, that the date of the offending is an essential element of the statement of offence as distinct from a particular, a particular to which the accused may well be entitled in proper criminal practice, but it is more than a particular, it is an element of the offence and what is it in 49(3) that makes it an element of the offence?

MR PEEK: We do make that submission, both relying on aspects of the legislation and the common law.

CRENNAN J: Are you not really bringing it in from the words in (4) “on the date on which the offence is alleged to have been committed”? Are you not saying that because the defence is seeking to prove another date the date is a material element for the purposes of subsection (3)? Is not that the way the argument runs?

MR PEEK: Yes, but not founded on what happens in any particular trial but, rather, the structure of the legislation. With that qualification, if it is one, I agree with you, Justice Crennan.

KIRBY J: Yes, but did your client ever admit that he had sexual intercourse between January and February 1986, ever?

MR PEEK: No, he always vehemently denied it, your Honour.

KIRBY J: How can anything that he said about what happened at some other time be material evidence against him of his guilt of that offence?

MR PEEK: Yes, that is our submission, or one of them certainly.

HAYNE J: Would you be good enough to relate that to the relevant presentment rules that apply?

MR PEEK: Yes, we do have those for the Court. Now, that too is annexed to the summary of argument at 22 in the top right-hand corner of that document, if the Court has it, the information rules as we call them here.

HAYNE J: It is 4(3) which is relevantly engaged, is it not?

MR PEEK: Yes, but also - - -

HAYNE J: What is it in the information rules that elevates the date of commission of the offence to an essential element?

MR PEEK: Yes, I will just try to explain. It is 4(3) but then you go to 4(4) which I think needs to be read with 4(3), if it please your Honour.

HAYNE J: Yes, particulars, yes.

MR PEEK: Yes. So that has to be set out there, and the question is, of course, what particulars are required, and then the further question, what particulars must be proven, but it is a fairly orthodox structure, I would have thought. Obviously I am coming to those further questions that your Honour puts to me that are based on those foundations but I just wonder if it would be convenient if I just followed through so as to, as it were, finish off this first submission and then I can come to that broader matter that your Honour raises with me.

As your Honour Justice Crennan asked me a moment ago, of the three aspects of the legislation, which we delineate at paragraphs 11, 12 and 13 respectively of our outline, that one that your Honour puts to me is probably the most important. What we say is that the position put against us pays insufficient inattention to that phrase “the date on which the offence is alleged to have been committed” because we submit that the legislature would have intended that this date, the date that has been put forward as the thing that engages the defence, would always be certain and ascertainable at all stages of the prosecution, that is to say, including for all pre-trial proceedings and trial preparation.

So that the man is given an information under the rules, as your Honour points out, Justice Hayne, and of course, the legislation makes a particular date very important for the offence, that is to say, the date when sexual intercourse is alleged to have been committed, and that is the date which engages or does not, according to the facts, this particular defence, and so that date remains, and does not, as it were, transmogrify into some other date that just happens to be mentioned at trial.

GUMMOW J: Your point is you cannot state the offence within 4(3) of the rules you have just taken us to, you cannot state the offence without stating a date because that is what is postulated in (4)(a).

MR PEEK: Yes.

GUMMOW J: Postulated that that is already there.

MR PEEK: That is right, and, of course, that is consonant with the common law, naturally.

HAYNE J: And it follows then that a between dates account is not available.

MR PEEK: No, I do not go that far. It would be unreasonable for me I think to go that far.

HAYNE J: There is the difficulty, is it not, that if you say a date has to be specified, or do you say, well, a date within a range or a date that is of a kind that unambiguously engages, you have several steps to take?

MR PEEK: No, we cater entirely for that difficulty, your Honour, and I proceed to address that in the next page of my - - -

GUMMOW J: You have to say then that the date has to have some colour attached to it to observe this distinction between 16 and 17 years.

MR PEEK: That is right, and, of course, in the overall context of a - - -

GUMMOW J: And that whilst it might be between this period and that period, if it is all under 16 that is one thing, but when it straddles that it is another thing.

MR PEEK: Yes, and I come to those matters virtually immediately. But, I mean, one has to be reasonable in this sense that often, as in this case, a complaint is not made until many years after the event, and that is of course what happened here, many years after the event, and that the best that the complainant may be able to do, although she is absolutely adamant as to the trip, the month and the year in which it occurred, but understandably cannot say whether it was 5 February or 10 February. In those circumstances, the Crown may be permitted to charge as specifically as the circumstances permit and hence charge a month within which it occurred and we cannot gainsay that. We would stress the matter that was stated by Justice Callinan in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 which I have in fact reproduced at the footnote 18 to my page 4 of my submission, but perhaps I should take the Court to that case. The relevant passage is at page 52. The case is in the respondent’s book and it is the third tab from the end.

GUMMOW J: What paragraph?

MR PEEK: Paragraph 160, your Honour, at page 52. It is the whole of that paragraph.

HEYDON J: Do you say it is here the prosecution ought to have charged count 1 offences on.....February 1986 or, alternatively, count 2 offences.....long period of time, about three years?

MR PEEK: We submit there should have been four counts actually, if your Honour follows me, two pairs.

HEYDON J: One and two, in the alternative, three and four?

MR PEEK: Yes, 1986/1986, 1989/1989. I mean, it just happens that there are two counts so therefore you have two pairs of counts.

HEYDON J: Where do you draw the line between saying it.....between 5 and 10 February.....

MR PEEK: Your Honour, it may be a matter of degree. An accused may be so prejudiced as to lack of particularity that that may form a real objection to such an indictment.

KIRBY J: An obvious reason would be that in the latter one there is a defence available and it is the latter time and I do not think any judge would permit such an indictment to be particularised in that manner.

MR PEEK: That is right.

KIRBY J: And in any case, it was not.

MR PEEK: And in any case it was not because here the time was a relatively short time, given the lapse of years I mean, and did identify the particular trip, the 1986, if you will, houseboat trip, and, of course, the defence was able to say – and I am not going to go into the minutiae of evidence, but there is a good deal of evidence put that, no, it certainly did not happen on that trip and it happened on the 1989 trip, as the accused said.

HAYNE J: How could the prosecution lay the counts in the alternative when the only evidence available to the prosecution is a complainant who was adamant this occurred in 1986?

MR PEEK: Well, your Honour, the prosecution indeed decided to, as it were, make its bed and lie in it. She specifically said that “I have looked at the question of amendment, I have decided not to amend or indeed lay an alternative count”, as your Honour puts to me, “because the complainant is adamant”, and if there is one thing clear in this case it is that the complainant was adamant. Any look at the transcript, and I have the references in the footnotes, shows that she was always saying, up hill and down dale, it was February 1986.

HAYNE J: The passage of the transcript to which you refer is at 191 where counsel for the prosecution speaks of the possibility of - - -

MR PEEK: Yes, and also 190, your Honour. If your Honour looks at just below the figure 10 on that page there, if I could just read that one:

As to the timing of the sex, what we have to establish beyond a reasonable doubt is that she was under 17. Having said that, we haven’t amended our particulars and I think there’s no grounds that we could have – she is adamant about it being in 1986 - - -

HAYNE J: At lines 33 and following on 191 there is the assertion that the dates are not material particulars.

MR PEEK: That is what the Crown was saying, yes.

HAYNE J: I understand that, but it has not, I think, then taken up in debate further, is it, the assertion simply is left hanging?

MR PEEK: No, because, as I said before, it was not taken up in debate but should have.

HEYDON J: So the upshot is that there was no alternative ground.....

CRENNAN J: In accordance with the duties on a prosecutor.

MR PEEK: If I can answer both of your Honours compendiously. We say that there would have been nothing wrong or nothing inconsistent with the duties of a prosecutor to lay alternative charges because, of course, clearly the man is not going to be convicted on both pairs, that is quite clear, and that there would be nothing wrong or untoward in doing that whatsoever, in our submission, but the decision is the prosecutor’s. They say, “We could do that but we are not going to. The reason we ascribe for not doing it is that she is adamant” and, really, that is tantamount to saying, “We are going to take our chances with what she says”. However, when the case went to the jury and the judge directed on the two alternatives, the prosecutor in fact did address on both.

GUMMOW J: She wanted it both ways.

MR PEEK: She wanted it both ways, and I am not trying to be critical or over-critical, but that is how it actually panned out, just as your Honour has put to me just then.

GUMMOW J: It was not being said at that stage there is an adamancy there.

MR PEEK: No, but there is just no doubt that there was.

GUMMOW J: It is that or nothing.

MR PEEK: There is no doubt that it was.

GUMMOW J: No, I know.

MR PEEK: Yes.

GUMMOW J: The question is, at the end of the day, on who bears the fallout of this way of doing things.

MR PEEK: We will be submitting that there is absolutely no doubt that there must be a retrial. We do not actually formally ask for a judgment of acquittal. We would assume that the Court would order a retrial rather than an acquittal.

KIRBY J: You cannot have a judgment of acquittal because the whole thesis of your argument is that the matter has not been properly tried.

MR PEEK: That is what I was saying.

KIRBY J: How can you possibly have a verdict of acquittal?

MR PEEK: No, your Honour may have misunderstood what I was trying to say. I was saying, no, we would not be asking the Court to do that because of what your Honour has just put to me, yes. Just to finish off this first point although obviously I have canvassed a good deal of the rest of the argument so I will not be doubling up later but just to finish off the first point, if I may. We say that at our paragraphs 17 and 18 of the outline at page 4 that where you do have an information as you do here which alleges a date prior to the 16th birthday, the only course open to an accused who only had intercourse with the complainant at a different and later date, that is to say, between her 16th and 17th birthdays, then believe it on reasonable grounds et cetera, is to dispute the alleged date because it is that phrase, “the alleged date”, which, as it were, holds the key to the availability of the defence.

GUMMOW J: I think we are seized of that construction argument, Mr Peek.

MR PEEK: Yes.

KIRBY J: Could you just give me the reference to the page where her Honour, as you say, left it open to the jury to convict on the counts of the indictment by reference to events that happened three years later?

MR PEEK: Yes, most certainly.

HEYDON J: Page 207.

MR PEEK: Thank you, your Honour. It is 207, I have got the great big yellow highlighting there. It is the fourth line where it starts.

GUMMOW J: It starts at about line 21, does it not, “if you think”?

MR PEEK: It is certainly there and flowing through in some detail on the succeeding pages to about 210 of the appeal book.

GUMMOW J: What it was not allowing for is some people might think one and some people might think another.

MR PEEK: Yes, and perhaps I will just read the last couple of lines on page 209 which seems to accord with what your Honour puts to me:

I should stress here that you are not being asked for separate verdicts depending on the findings you make as to when the incident occurred. You will be asked the single question with respect to each count ‘How do you find the accused, guilty or not guilty?’.

Obviously, we would say that by far the most appropriate procedure is that which Justice Kirby has put to me of alternative counts, but I suppose - - -

KIRBY J: Just help me on this because Justice Crennan has put a little bit of doubt in my mind and that is what I was asking for help on. Maybe Mr Brebner will help on this more. If the complainant insists it was definitely 1986, I have none of the fact that it is 1989, is it then a prosecutor’s duty to put all the eggs in the basket of 1986 or can a prosecutor say, “She may have made a mistake on the date and he admits that sexual intercourse happened in 1989 and that is still an offence so I will put both matters before the jury”? What does a prosecutor’s duty require in those circumstances?

MR PEEK: Your Honour, I think the answer to your Honour’s question is that matter that Justice Gummow mentioned to me, that that, of course, is not the stance by way of ethics or prosecutorial practice that was taken by this prosecutor because when the matter went to the jury she stridently argued in favour of the alternative.

KIRBY J: That is down the track, but I am asking as at the moment where the prosecutor has to decide whether to add alternative counts to the indictment, what we would call theoretical count 3 and 4.

MR PEEK: Yes.

KIRBY J: Does a prosecutor have an open entitlement at that stage to add counts though her own prime or only witness does not endorse those counts or does the prosecutor then have to run with the case which the complainant then propounds? I am not saying that that is what then happened, but I am asking, what is the duty of the prosecutor at that moment?

MR PEEK: No, I follow, and it is a very fair question. All I can answer to your Honour is this. One, I know of no impediment either statutory or a convention of which I am aware that would prevent that, but although I have of course been briefed to prosecute cases I have not had this exact matter and, of course, my learned friend is an employee of the DPP and I am not, so perhaps we will have to ask him in due course, and I think that is the best answer I can give.

KIRBY J: Yes, thank you.

HAYNE J: But does it follow that after the defence opening recorded at 284 the prosecutor should have asked for leave to amend the indictment or, in fact, leave to file a fresh indictment, the accused should have been rearraigned and a new trial commenced?

MR PEEK: In our submission, yes, but, of course, we say that could have been done even more expeditiously due to the fact that the prosecutor already had that information, it could have happened before the jury were arraigned at all, so he did not have to have a discharge, but my answer to your question is yes. I was just going to mention one matter on the passage of the summing-up culminating at the bottom of 209 where his Honour said that:

I should stress here that you are not being asked for separate verdicts depending on the findings you make as to when the incident occurred. You will be asked the single question –

et cetera. We say that an alternative procedure, perhaps not as good as the procedures we have discussed as to alternative counts, but something that could have been done in this particular case was to ask the jury at the end of the day whether they had found 1986 or 1989, this going to the uncertainty matter to which I have not yet arrived, but I mention that now as it were just to point out that his Honour had in fact decided that no such procedure would be entered into as early as this.

GUMMOW J: What do you say about the respondent’s submission in paragraph 37? I think you say that is a wrong description of what the trial judge did.

MR PEEK: I will just turn it up, thank you, your Honour.

GUMMOW J: Para 37 at the bottom of page 9.

MR PEEK: Yes, thank you, your Honour. We entirely disagree with that, your Honour. We have put in a reply.

GUMMOW J: Yes.

MR PEEK: We entirely disagree with it. There is no direction which told them that. The judge, as in every case, was, as it were, speaking to the individual jurors. You, as it were, meaning, you, the juror that is listening to me and that this is what you the juror have got to do and there was no direction express or implied that there would be need to be unanimity or this process. We entirely reject it.

GUMMOW J: All right.

CRENNAN J: What about paragraph 40?

MR PEEK: Your Honour, we come to that in some detail in my submissions. Would it be convenient for me to deal with it at that - - -

KIRBY J: Is there an alternative route to the conviction open before the jury in respect of events that are alleged to have happened in 1989 when the only counts of the indictment refer to 1986?

MR PEEK: That is right, your Honour, we entirely agree but, as it were, I want to deal comprehensively with the various arguments we have placed before the Court.

GUMMOW J: But you are responding, I think, to paragraph 40.

MR PEEK: And asking if her Honour would be so good as to let me - - -

GUMMOW J: You assume that there were two possible routes, and you say, well, nevertheless – paragraphs 11 to 13 of your reply.

MR PEEK: Obviously we say that as a matter of law there should not have been these two possible routes. That is certainly what we are putting and that therefore this procedure does not arise. That is perhaps the simple answer.

GUMMOW J: All right. Now can we move on?

MR PEEK: Certainly, your Honour.

KIRBY J: I cut across an answer you were giving to her Honour Justice Crennan and it may be that there is a nuance here that I am missing and if there was anything else you wanted to say to her Honour, then you should say it.

MR PEEK: What I was actually begging for, as it were, was to be able to come back to that in due course where I actually deal with that in the body of my submissions and I understood that that was convenient, your Honour. The Court then, I think, has this lengthy passage in the summing-up and the specific point I think I have covered. It is in those pages that we have discussed. If I can just make a further point as to the matter of alleging a range of dates which is set out from paragraphs 19 and following at the bottom of page 4 of the outline. We submit that there are three possibilities that I will not stolidly read but appear at paragraph 20 that may arise.

GUMMOW J: The difficulty is 20.3, is it not?

MR PEEK: Yes, and in a particular case, if you had a range of dates straddling a 16th birthday, we, of course, would say the accused would be entitled to further particulars and so forth as to that matter because, once again, this alleged date is so critical as the gateway to the defence.

HAYNE J: Does it follow that absent proof or absent the capacity of the prosecutor to give those particulars the charge cannot be established?

MR PEEK: In some cases it would, we would submit. In some cases it would and we make that submission, for example, by reference, your Honour, in a sort of stark way to the division between a section 49(1) and a section 49(3) offence because, of course, the Court has the distinction between them that the 49(1) offence was a felony and imprisonment for life and 49(3) is a misdemeanour carrying seven years. The point is this, of course, that if the Crown purported to lay a straddling range of dates across the relevant delineation mark between those two offences, then, as we say at paragraph 21, they would be unable to charge the defendant with an offence under either section because they are separate offences. So they would have to particularise the one or the other.

As your Honour Justice Hayne asks me, if they could not do so in that situation, then you would be in S v The Queen territory, I submit. It is those two snippets that I have reproduced from the judgments that immediately follow in my submissions. If the Court would permit me, if I can give the page references and then perhaps just read immediately from the submissions those particular extracts. The first is from Justice Dawson at page 275. It reads:

It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.

The second, to like effect, is in the joint judgment of Justices Gaudron and McHugh at 288. It reads:

While the evidence as given by J at the trial suggests that there may be practical difficulties in particularizing or identifying one or all of the offences charged, it is not obvious that it is wholly impossible so to do. Whatever practical difficulties may exist, those difficulties (even if amounting to an impossibility) cannot justify a criminal trial attended with such uncertainty that the verdict or verdicts must also be seen as uncertain.

We say that there is something of a parallel with this case here. So, your Honour, those are our submissions - - -

GUMMOW J: Where do we go now?

MR PEEK: We go now to the next major point, your Honour, which is the question of proof of particulars generally and we would submit that in relation to proof of particulars as to dates, there are at least two approaches. The first is that proof of the alleged date as laid will be required in certain cases, such as where the proof of the age of the complainant is an essential element of the offence and that, of course, comes down to a statutory construction of the particular enactment involved, as it always does. The second, to foreshadow it, is that the matter is to be addressed in the broader arena of the general obligation of the Crown to prove its particulars and that is a somewhat broader submission that I will come to after the first.

In relation to the first submission as to whether the alleged date is material, we rely, of course, largely on the considerations that I have already put as to the criticality of the dates in this particular statute and we say that the correct construction is therefore that it is material and required to be proved as laid.

GUMMOW J: Well, we can grasp that.

MR PEEK: Sorry, your Honour?

GUMMOW J: You have been talking about that for an hour.

MR PEEK: Yes, and I will not do it any more, but we say that that is consonant with certain remarks that can be found as to the position at common law. For example, two of the cases, both Full Court decisions in the State as it happens, are referred to at paragraphs 30 and 31. So if I can just go to those excerpts. One sees that Justice Mullighan in R v H (1995) 83 A Crim R 402 at 410 stated that:

Dates in particulars of a charge are not to be regarded as an element of the offence or even as a material matter unless it is an essential part of the offence . . . Examples where that could be the case are where the age of the alleged victim is an essential element of the charge or, in former times, where the one year and one day –

and so forth. Similarly, Justice Duggan in the case of R v Frederick (2004) SASC 404 at paragraph 36 stated:

Allegations as to time will be material in some cases such as in the case of those sexual offences where the age of the complainant is one of the elements of the offence.

We would wish to submit that, particularly in reference to this particular statute, those remarks have importance. We say that one can only gauge the age of the complainant by reference to the date at which intercourse is alleged to have occurred, therefore, the date becomes critical because it bears in that way directly upon the age of the complainant and is therefore an essential element of the charge.

HAYNE J: There are two ages of the complainant that are in play here. There is the date which fixes her 17th birthday, there is the age in 49(3) and there is the date which fixes her 16th birthday which is the 4(a) date, a matter upon which the burden rests on the defence.

MR PEEK: But as I have submitted, the very fact that there are that number of critical dates means that the correct structure of this particular legislation is that when you are looking at the date that the Crown elect to select as their alleged date in the information and they decide what it is and whether they are going to allege a narrow range or are able to allege a specific day, once they make that decision and do it, then that becomes the alleged date and since, on an overall construction of the legislation, that has the status of a gateway to a defence that together with a common law approach means that it should be interpreted as an essential matter to be proved and that is our submission on that.

We, of course, appreciate that there are authoritative statements which seem to accept the approach in the English case of Dossi. We, of course, say that that was on a quite different statute as a first point and as a second point, if you look at what happened in Dossi, and I do not intend to take the Court to it, the result would almost certainly be quite different under cases such as S v The Queen and so forth now. But we do accept that what I have referred to as a second approach has been taken in a number of cases. If I can just take the Court to one of them, the case of VHP which is a decision of Chief Justice Gleeson sitting in New South Wales, as his Honour then was, to illustrate this matter. Now, the only report of that that is available is the Butterworths’ unreported cases. It is reproduced in our cases at tab 17, if it please the Court.

The Court will see there that there are print numbers at the top right that do not necessarily correspond to the Butterworths numbers but I will use the print numbers at the top right, if that is convenient. This was a case in which the appellant was accused of unlawful sexual intercourse and the complainant gave evidence that it occurred on a particular day, 27 November 1987. The appellant gave an unsworn statement that called certain alibi evidence which is referred to towards the bottom of page 2 of the print. At page 3 of the print Chief Justice Gleeson observed that:

It was difficult, merely from a reading of the transcript of the complainant’s evidence, to form a clear view as to how certain he professed to be about the date of the alleged offence.

that is the fifth line on that page, if it please the Court – and expressed the view that although the case was being put forward on the basis that that complainant was sure and adamant, there were certain aspects of the transcript which tended to indicate that it was not as certain as that. Indeed, the jury asked certain questions which conveyed that they considered that he, the complainant, was somewhat vague. You see then at page 5 of the print, the first of them being a bit above halfway down, the foreman saying:

Nobody in the wide world could say that (W) was specific or firm in his statements. He was vague, I would have to say.

Then on that same page, third paragraph from the bottom:

“We acknowledge that (W’s) inconsistencies greatly weaken the Crown case, but we strongly feel that (W) was somehow pressured at an earlier time to somehow choose the date of 27 November 1987 whether he was really clear about it, or not. We observe how readily he stressed out under the pressure of cross-examination . . . it would put a totally different complexion of the uncertainty of his evidence. Please comment.”

This was the juror’s rather clear question to his Honour. The Court was to ultimately hold that the summing-up was equivocal as to whether the jury could convict the accused if they found that the offence did not happen on that specified date, perhaps because of the alibi evidence, for example, but found that it did happen on some other date and so there was the danger of those two routes being left open to the jury on his Honour’s construction of the summing-up. His Honour came to the point of principle at page 6 of the print and it would be at the top of Butterworths’ page 15, you will see, about two-thirds down there.

GUMMOW J: “As a general rule”?

MR PEEK: Yes, your Honour.

GUMMOW J: Yes, we can read that for ourselves.

MR PEEK: If your Honour pleases.

GUMMOW J: No need to read it out. We are not here to read along, you know.

MR PEEK: If your Honour pleases.

GUMMOW J: Now, it is a quarter past 12, Mr Peek.

MR PEEK: Yes.

GUMMOW J: We have got special leave matters waiting. How much more time do you think you will need?

MR PEEK: I would have thought about three-quarters to an hour, your Honour.

GUMMOW J: We will sit until one o’clock. How long will you need do you think, Mr Brebner?

MR BREBNER: Three-quarters of an hour or thereabouts, your Honour.

GUMMOW J: Thank you.

MR PEEK: Yes, I mean, I would hope to finish it within an hour, your Honour. I am not entirely confident.

GUMMOW J: We will sit until 1 o’clock and we hope that will be enough.

MR PEEK: The point of principle is that page of that decision and, of course, the comments of Justice Atkin in Dossi are referred to. His Honour Chief Justice Gleeson goes on to allude to the many cases which, however, by reason of circumstances do render proof of date material and requisite.

KIRBY J: I have just been reading that case and it really does not seem to bear any analogy to this case. It is not a case where there was an alternative theory being propounded by the defence. It was a question of whether or not the complainant was accurate in the dates that he had nominated.

MR PEEK: I appreciate that. I thought it necessary, however, to draw to the Court’s attention that there are cases which this exemplifies where this so-called general rule in Dossi is apparently recognised, but then, of course, in the particular circumstances is gone away from, but I do appreciate that apart from that the cases really are not that similar.

KIRBY J: That, by the way, was a second trial and in the end the Chief Justice proposed that there be no third trial, but that is not the situation here.

MR PEEK: No. But what his Honour did find, as has been found in many other similar cases, was that the prosecution became bound by their particulars because in the circumstances it became important that the particulars as laid be proved and that, of course, was the basis upon which the appeal was allowed in VHP, that the jury should have been directed that they could only convict if they found that the events occurred on that particular date that I have read out before.

KIRBY J: Is there any case that is close to the facts of this case? Is there any case where there has been an alternative hypothesis that would be a crime but which was not the subject of the counts of the indictment that you have found?

MR PEEK: Not that I have been able to find, your Honour, no.

GUMMOW J: You would have to find a statute constituting an offence with this wrinkle of the time twist in it.

MR PEEK: That is right, and I cannot find something - - -

GUMMOW J: And then apply Dossi to that. I do not think you can find one.

MR PEEK: No, I cannot.

GUMMOW J: That is why you got special leave really.

MR PEEK: That may be so, but, no, I have not been able to, no.

GUMMOW J: All right.

KIRBY J: That is why a lot of these other cases are on factual circumstances, although they do with a fair degree of commonality emphasise the importance of specificity and particularity of the matter charged, but apart from that they are not really right on the point that we are considering here.

MR PEEK: No, they are probably not, your Honour.

GUMMOW J: That is why I am encouraging you to move on.

MR PEEK: All right then, your Honour, I will take that hint.

KIRBY J: At one stage the wind seemed to be blowing in your favour but I am beginning to wonder.

MR PEEK: I am certainly trying to be as expeditious as possible. It is a fairly full written submission that the Court has so I am not seeking to stolidly read from it.

KIRBY J: It certainly is.

GUMMOW J: We are not criticising you for its amplitude at all.

MR PEEK: No, I did not think you were, your Honour. Could I just mention, without going to it, the case of Stringer that I refer to at paragraph 35, which, as it were, presents a difference in the New South Wales Court of Appeal between the majority who took an attitude to - - -

KIRBY J: This is Justice Adams?

MR PEEK: Yes.

KIRBY J: You quote that at length in your - - -

MR PEEK: If I could say, with respect, a fairly relaxed attitude to proof of particulars, the majority and Justice Adams, who took a more strict approach and, without going to it then, we would advocate for the adoption of the approach of Justice Adams. I have reproduced certain passages in the outline and I will not stay to read them, but we submit that that is in accordance with the proper prosecutorial procedure. That would then take me to page 9, the extent of the requirements of certainty and verdict and unanimity. We submit at that page that although in the older cases - - -

GUMMOW J: What is the rationale for this apart from sentencing considerations? Are there more fundamental considerations?

MR PEEK: There are fundamental considerations involved here, your Honour. One is that it is very important to have a unanimous verdict of a jury, that that of course is superior, for example, to a majority verdict in many ways and there are statements to that effect by this Court in Cheatle, for example – the Court will well know that decision – that once one has divined what the actual pith and substance of the offence being charged is, then it is essential that the jury be unanimous on that pith and substance and, of course, that is just a fundamental freestanding requirement - - -

GUMMOW J: Yes. If this was a Federal offence, there could be constitutional questions that emerge here.

MR PEEK: Yes, that is right, exactly so.

GUMMOW J: That is right.

MR PEEK: As to that, various rationales have been predicated from time to time and one, of course, is autrefois convict and so forth. But the one that has come to the fore and, we say, is one of the more important if not the most important is, indeed, what your Honour put to me and that is for sentencing purposes that the fundamental structure of our law is that there be a clear and certain verdict of a jury as to the important matters of the offence, and then for the - - -

KIRBY J: Yes, but that cannot be an absolute rule because if, say, the jury returns a verdict of guilty of manslaughter, that covers such a multitude of sins that the judge just has to perform his or her function to decide what is the foundation of it.

MR PEEK: Yes, although I do want to put the submission that – and I do in the written submissions, of course – that manslaughter and homicide - - -

GUMMOW J: You say that is sui generis?

MR PEEK: I really do. I think it is rather an exception to the actual rule and, of course, one looks at these cases such as Brown in England as to unanimity and so forth, they are all of quite recent origin, whereas, of course, cases of homicide are as ancient as the law books. So once this practice to which Justice Kirby refers me of a constitutional right of a jury to return manslaughter and so forth has been entrenched for so many hundreds of years and, of course, trial judges were not permitted to quarrel or inquire into it and so forth, it is a matter of history, one can readily understand why that particular practice continues in the homicide area, but when one is looking at specific statutory offences with a mechanism somewhat detailed, as we have here, you have this recent strong body of case law which pertains to such offences and that is why I think you do get a dichotomy arising.

Now, in relation to this traditional conviction sentencing dichotomy that I was referring to a few moments ago, I will simply indicate the passages, would be best I think, in S v The Queen and Walsh v Tattersall, and I give those full page references at page 9 of my outline.

HAYNE J: In the end, is this any more than an emphatic restatement of the basic proposition of construction which you first advanced? Is it a separate point? It seems to me not to be.

MR PEEK: There may well be crossover. It is not as though I am repeating myself but, yes, there may well be crossover.

HAYNE J: No, if your first point is bad, if your first point is not accepted, namely, that the age of the complainant at the date of offending is an essential element of the charge, you are left, are you not, with two elements of a defence which have to be established by the defendant? Why should the jury be unanimous in their conclusion about which of those elements of a defence is not established?

MR PEEK: Yes, well, we do say that is a freestanding objection and on that alone the appeal should be allowed. In answer to your Honour’s question, I proceed to develop that in quite some depth in the pages that I am at the moment taking your Honour through, so if I could stay in the order I will immediately answer your Honour on that. We submit that going, for example, to KBT v The Queen in the High Court you there have an example of the High Court recognising the importance of unanimity of verdict.

GUMMOW J: KBT is 191 CLR 417. That is case 11 in your collection, I think?

MR PEEK: Yes, it is in our book of cases.

KIRBY J: Tab 11?

MR PEEK: Yes. It is a decision where the Court held that the correct construction of the legislation as to the actus reus required proof of the same three acts and there had to be unanimity as to that.

HAYNE J: As I say, this is a bare restatement of the first point that you sought to make, I understand that, and I do not wish to go back over it.

MR PEEK: No, I am not purporting to, I am not attempting to, your Honour. We say that in some statutory offences there are a number of alternative legal routes to conviction and the question as to which route is taken may have important consequences in a number of areas. Now, consequently it has been held in a number of cases that the jurors must be unanimous as to which route is being taken.

One of the decisions to which we refer in the written submissions is the case of R v Beach, at paragraph 50 of the submissions at tab 1 of our book of cases, an incident of culpable driving causing death which could have been constituted by four different types of driving of varying seriousness. The passage, and I will not read it out, there emphasises the requirement that directions need to be given so that you do not have the spectre or the possibility of some jurors coming to a verdict on the basis of one proof of liability, others on another, because that would lead to difficulties in sentence apart from anything else.

So, in other words, it is not a situation, as my friend seems to postulate, it all can be fixed up at the sentencing stage, we will leave it to the judge, rather, you look at the fundamental approach of the common law, which is, of course, entirely the opposite, that there should be specificity in the verdict because that is what the accused is entitled to, rather than a decision by the judge. So we say that the reasoning in Beach is consonant with that of KBT, of course. We give another example of this general approach in relation to R v Zampogna [2003] SASC 75; (2003) 85 SASR 56 which is in our book of documents at tab 20.

There, to put it very briefly, the accused had several packages of drugs found in his possession but had different explanations as to the origin and the way in which he had possession of those drugs. I am oversimplifying it, but the Court will see it more full on the written submissions. All you had there was a verdict of guilty without the judge, of course, knowing what the jury made as to the various positions as to the various packages because there were real differences going to sentence according to the basis upon which this man had been found to be guilty. In those circumstances the Full Court held that the verdict was bad for uncertainty and we, of course, say that that is quite a close parallel to what we have here because on one scenario the possession of the accused was much less serious warranting a lesser sentence than on another possible scenario, just as in the present case. Of course, to some extent you will have matters of degree shading off at the edges because it is, of course, true that all jurors do not have to be unanimous on every piece of evidence, that is quite obvious. The question is how to draw the dividing line.

We have gathered together some statements, but the one that seems to have received the most approval and acceptance is that formulated by the Queensland Court of Criminal Appeal in R v Leivers [1998] QCA 99; (1998) 101 ACR 175, which is at our tab 4 with the critical passage at 188, reproduced at the bottom of my page 13, and it is quite a short passage, “When more than one basis of criminal liability” - - -

HAYNE J: We are literate, Mr Peek.

MR PEEK: If your Honour pleases. We say it is short but important, the materially different issues or consequences test.

GUMMOW J: Which tab?

MR PEEK: I have it as tab 4, your Honour. Sorry, your Honour, that is in the respondent’s book and to save paper we did not – I apologise. Yes, that is my mistake yet again. That is tab 4 of the respondent’s book.

GUMMOW J: Thank you.

MR PEEK: So the materially different issues or consequences test is that which is postulated there and been accepted in a number of subsequent cases. Of course, we say, that corresponds perfectly with what we have got here. Materially different issues, yes. The quite different issues as to time and the circumstances or consequences? Yes, huge differences to consequences in relation to sentence. Of course, we tie that back to the starkness of the opposing cases that I have already taken the Court to and I will not do so again.

We gathered together for the Court – and I need to make a correction here – statements in Cramp. If the Court can run a line through the Mouritz you will see that there is a confabulation there. It should be the next one of Fermanis. So Mouritz should not be there. Fermanis is the next one and Walsh is the decision of the Court of Appeal in Queensland. Can I briefly take the Court to one only of those decisions and that is Fermanis and that too is referred to in the respondent’s table of cases at tab 3. The facts there were facts that tend to recur in cases such as Brown and a number of the cases where it was a fraud case involving a number of different false representations. You will see this at page 7 and paragraphs 11 to 13 of the judgment. Of course, the question was as to whether the jury were unanimous as to which particular and how many particulars were proven.

Now, that, if anything, is a rather finer distinction than what we have got here, you can appreciate, because what is being said in a case like that or, indeed, Brown and the other cases such as Giam, which I refer to in my outline as well in the New South Wales Court of Appeal, is that, look, this man defrauded another man by virtue of making one or more knowingly false representations but the Crown say he actually made more than one and here they are. The jury come back and find him guilty.

So the real gravamen of the criminal conduct is very similar as to whether he made one or more than one representation, given that he made each of them for exactly the same dishonest purpose. Yet the courts have been very astute to decide that such a matter may be void for uncertainty, as it was styled in Giam, or for lack of unanimity, as was the approach in this case of Fermanis, but of course the difference in the case at Bar is much more stark than in those cases.

Then the conclusions of the court at pages 31 to 33, being from paragraphs 67 through to 71, I would ask the Court to look at in due course if the Court would be so inclined. Indeed, if I can just read half a dozen lines at the end of that passage within paragraph 71, if I may, about eight lines down towards the end of line immediately after the words “autrefois convict,” his Honour says:

In my opinion, unanimity might be required in respect of a specific route to conviction in a case in which separate charges could not properly have been brought in respect of each route.

In other words, not only is it required in cases which might be analogous to duplicity or uncertainty cases or where you could bring separate charges, but indeed where you could not:

As was pointed out in Walsh –

which is the Victorian Walsh decision that is in my outline –

there is a distinction between the issue of latent uncertainty arising in a case in which evidence is led of more than one incidence of offending (and where the prosecutor could have charged two offences) and the question whether unanimity is required in a case in which the prosecutor puts forward alternative routes to conviction but in which the prosecutor could not have charged two offences.

As I say, the court in that statement considers that it applies in both classes. Now, if I could invite the Court to look at those paragraphs. It analyses a number of cases. It does refer to an article by Professor Smith which I have also referred to.

GUMMOW J: Yes. Have we been supplied with that?

MR PEEK: We have copies for the Court if your Honour wishes to have that.

GUMMOW J: Yes.

MR PEEK: I can have that handed up now or over lunch as would be convenient to the Court. Would the Court like it now?

GUMMOW J: Over lunch time we will look at it. Give it to the associates when we adjourn.

MR PEEK: If the Court pleases. We do refer the Court to the position in England and to the most recent addition of Archbold and to that article in which some of them are summarised. We refer to two main English cases, however, which are much more recent. The first at my page 15, paragraph 59 is that of Giannetto which is [1997] 1 Cr App R 1 at 7 which is at tab 9 of our materials. That was a case, and again a recurring situation, where the accused’s wife had been murdered by someone. The Crown case was that it was either by the accused personally or by an assassin hired by the accused, but the Crown legitimately could not say which. It was one of the two, but simply they could not say which it was. The court in the process of considering the matter referred to a Canadian decision of Thatcher and we will hand up copies of that along with the article, if it please the Court.

GUMMOW J: That has been referred to in various jurisdictions, Thatcher.

MR PEEK: Yes, and we have copies. We probably should have included that in the book, but we have copies – which basically was exactly the same scenario, actually, as the court being unable to say which of those two murder routes had, in fact, occurred. The Court will appreciate that, of course, in Thatcher the Canadian Code there provided that aiding and abetting on the one hand and personal commission were in fact one offence and of equal culpability. So there is something of a distinction. That point is made by Chief Justice Dickson in that case. The Court will also note that there are two passages – and it might be convenient for me to take the Court to them just a little bit later – from Justice - - -

GUMMOW J: Not much later, Mr Peek.

MR PEEK: No. Perhaps I will ask that the Court to look at that decision now if I could I hand up those copies? If I could just give as a page reference to that reference to the Code, that is at 303. I do not want to dwell on that for the moment, but it is set out there, 303 in the judgment of Chief Justice Dickson. Then the judgment of Justice Lamer at 313 in which his Honour concurs in the result but adds some observations stating that:

Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually consistent theories, even if those theories relate to the particular nature of the accused’s participation in the offence.

Then the important words:

If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt. Otherwise, the evidence will be taken into account by some jurors to convict the accused under one theory while the fact that the evidence exculpates the accused under the other theory is being disregarded by the other jurors who are taking the latter route. In effect, the jury would be adding against the accused the inculpatory elements of evidence which cannot stand together because they are inconsistent.

Also, if I can refer the Court to the remarks of Justice La Forest at page 314, in the last paragraph of that judgment just these words:

The fact that s. 21 makes the particular nature of the accused’s involvement in an offence legally irrelevant does not, in my view, in and of itself justify conviction on the basis of mutually exclusive or alternative theories of culpability. Were it otherwise, concerns would be raised dangerously akin to those flowing from multiplicitous counts. Concerns about multiplicity of counts and jury unanimity are functional, real concerns embodying society’s pre-eminent desire to avoid injustice to accused persons and, as such, cannot be explained away by the mere invocation of a legal fiction.

The remarks of Justice Lamer have, in fact, been endorsed in a number of authorities.

GUMMOW J: Yes, we have seen that.

MR PEEK: We, of course, rely on that, because the present is just such a case. Indeed, the Court will also have seen that the Court of Appeal in Giannetto added to what Justice Lamer had to say by saying “we would extend what was said by Justice Lamer to any theory about either defence”. Your Honours see that in the segment I have reproduced from Lord Justice Kennedy at my paragraph 61 of the outline there, that last sentence. Of course, that applies directly to the situation that we have in this case naturally. Giannetto in the British Court of Appeal is therefore important for that aspect that I have just put to the Court, but also for two other things. Where does one draw the line between matters of mere evidence upon which you do not have to have unanimity and matters upon which you do have to have unanimity? The Court postulated that the line would be drawn if there would be gross disparity between alternative factual scenarios. Now, we say that is exactly what you have got here, so that is one way of putting it. That is the way that the British courts have put it.

The second important aspect of Giannetto is that the court realises that in some cases the prosecution simply cannot say which alternative is true. This is the way in which the wife is killed, for example, as in Giannetto, but that where the Crown can specify the means, they should and where they do nail their colours to the mast, then they will be kept to those colours. That is consonant with what Justice Callinan said in Cheung, of course, and consonant with the general principles of criminal law that Justice Kirby has mentioned to me, and they are “cardinal principles” to use the words in Giannetto.

Cases in which those matters have been followed in Australia – I should have perhaps mentioned before I go to Australia, and then the later English decision of Boreman at my paragraph 65, that again you have got to look at questions of degree, and even in this unfortunately recurring situation of the wife being murdered in uncertain circumstances by either the husband or the assassin, the court says at the bottom of the extract from Boreman [2008] EWCA Crim 1156; [2000] 2 Cr App R 17 at 28G, which is our tab 2. If I can just read the last couple of lines that I have underlined at paragraph 65 of my outline.

it seems to us that where the two possible means by which the killing is effected comprise completely different acts, happening at different times, it can probably be said that the jury ought to be unanimous on which act leads them to the decision to convict.

In other words, it is not just a matter of saying, we do not know whether it was the assassin or whether it was the husband, therefore, go your hardest.

GUMMOW J: We are a long way away from these wife murderers.

MR PEEK: We are indeed, but, your Honour, what we do say is the statements of principle are directly referable and that is that where you have completely different acts happening at different times - - -

GUMMOW J: We can grasp that. We really can grasp what you are saying.

MR PEEK: I am sorry. I am labouring the point, your Honour. Then the Australian cases to which I refer are set out at paragraphs 63 and 64 of Serratore, R v Spathis and Patsalis, and you have those cases there. There is just one snippet that I would wish to add in the Serratore matter, if I can do that, at page 148, tab 14. It is just paragraph 221 at page 148. I will not read it, but it makes it clear that the court approved of that extension by the British Court of Appeal of the principle in Thatcher to the alternative theory advanced by the defence and gave as an instance the availability of an alibi or something like that. So we have looked at Canada. We have looked at England. We have also looked at the New Zealand and I give the Court references to authorities there but obviously I have not got time - - -

GUMMOW J: There is an extensive citation from Chief Justice Elias. We have got that on board.

MR PEEK: Yes, I will not read it. We contend that that should be preferred by this Court. Your Honour, we then, of course, refer the Court to Cheung v The Queen, but my learned friend no doubt will take you to that so I will not. We say for the reasons that are advanced in writing that it really has no bearing on the determination of the issues presently before the Court. We then go on to make the submissions that I think I jumped forward to and probably sufficiently covered concerning manslaughter in particular being rather sui generis and those aspects are referred to from paragraph 69 through to 75. Then the extent of the right of the judge to question a jury, I do not think it necessary to go into that in any depth unless the Court wants me to do so. Really, at the end of the day, it is submitted that that could have been done in these circumstances but it is not and given that it is not, the verdicts remain uncertain and that is the end of the matter. If it pleases the Court, that brings me to the end of the submissions for the appellant.

GUMMOW J: Yes, thank you, Mr Peek. Yes, Mr Brebner.

MR BREBNER: If the Court pleases, if I can commence by respectfully adopting your Honour Justice Hayne’s analysis of the information, the evidence, the issues and the verdicts. The elements of the offence are that the complainant was aged less than 17 at the time of the intercourse and that an act of intercourse took place. The elements that intercourse had occurred and the element of the complainant, in fact, being under 17 were never in dispute, and the defence opening - - -

KIRBY J: Yes, but the variety of the offence that you particularised and fought at trial was that the offence occurred in 1986 and yet the judge gave directions to the jury that they could convict the accused on the offence so particularised by reference to events that happened in 1989. How can that possibly be right?

MR BREBNER: If section 49(4) allows the special defence to engage irrespective of the date particularised in the information and if the date particularised in the information is not a material particular in all the circumstances of the case, it being a matter of fact and degree in every case for reasons which I will get to as I develop my submissions – the interpretation of section 49, and in particular section 49(4), was considered by the Court of Criminal Appeal of South Australia in the case of R v Wilson (No 2) [2007] SASC 219, and it is tab 1, and in particular if I can take the Court to paragraphs 62 to 66.

HEYDON J: R v Wilson.....as it is and why.....

MR BREBNER: I do not know the answer to that, your Honour.

HEYDON J: .....

MR BREBNER: At paragraphs 62 to 66 Justices Duggan and White concurred with Justice Gray’s reasons and I respectfully adopt his Honour’s reasons and his conclusion and I have really very little to add to it.

GUMMOW J: Well, what do you say about paragraph 65 of the judgment, page 14?

MR BREBNER: I agree that it is unhappily worded, your Honour, but, in my submission, it is wide enough to include the date on which it is alleged in the evidence by the accused and not just the date particularised in the charge and it is my submission that if Parliament had intended to restrict the operation of the special defence to the date particularised in the charge, it would have added a reference to the charge and if, indeed, it had intended to restrict the operation of the special defence to the age asserted by the complainant in the evidence, it similarly would have said “or the age asserted by the complainant during the course of her evidence in-chief,” and it does not say that, in my submission.

HAYNE J: But the root proposition you therefore advance seems to be that it was open to the jury on this indictment to return a verdict of guilt founded upon an act of intercourse other than that indicated by the date specified. Now, is that right?

MR BREBNER: In essence, yes, it being my submission that in all the circumstances of this case the date was not a material particular for reasons - - -

HAYNE J: Well, the circumstances of this case seems presumably to place a lot of weight on the treatment by trial counsel for the appellant of the pleading in the information as encompassing an allegation of intercourse at a date later than that specified. Now, there are two steps in that. First, that the information as framed would without more permit return of a verdict of guilt in respect of an act of intercourse occurring at a date other than that specified. The second proposition, separate and distinct from the first, is that whether or not that is so the conduct of trial counsel for the defendant is significant. Both of those steps seem to me to be steps that have to be made good.

MR BREBNER: As far as the first proposition is concerned, it seems that trial counsel took the view that the date was not a material particular, as did the prosecutor, as did the judge and it is my submission, and again I will develop this after lunch, this is one of these cases where the date is not a material particular and a deviation from it is permissible and is not productive of procedural unfairness or any form of uncertainty as to the actual verdict. In my submission, that is all the more so on the unique facts of this case in that it was common ground between the complainant and the appellant that two acts of sexual intercourse had taken place of the same kind on a houseboat trip and that there was no other act of intercourse between them at any time.

HAYNE J: In dealing with that proposition after lunch, would you be good enough to look particularly at rule 4(3) of the information rules, rule 4(4), and perhaps rule 5(1)?

MR BREBNER: Rule 4(3), 4(4) and 5(1), your Honour?

HAYNE J: Yes, in particular in 5(1) the expression appearing at line 4 of rule 5(1), “or states any part of the offence in the alternative” and in particular my question will be after lunch whether, absent a conclusion that date forms a part of the statement of the offence, there could consonant with the rules be an alternative charge. That is perhaps a little time bomb to leave ticking for an hour or so.

MR BREBNER: Thank you, your Honour.

GUMMOW J: We will adjourn until 2 pm.

AT 12.59 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.00 PM:

GUMMOW J: Yes, Mr Brebner.

MR BREBNER: If the Court pleases, I would like to start by addressing your Honour Justice Hayne’s question which, as I understand it, was, is there anything in the rules which prevented the - - -

GUMMOW J: I should interrupt, Mr Brebner. For the assistance of any counsel who are in either special leave lists, neither list will be taken before 3 pm. Yes, Mr Brebner.

MR BREBNER: If I understand your Honour Justice Hayne’s question correctly, your Honour was enquiring whether it would be possible to lay the 1986 date and the 1989 date as alternatives in the one count.

HAYNE J: No, as alternative counts.

MR BREBNER: In my submission, there is nothing in the rules which would prevent that and the answer – and I am indebted to Mr Peek for his assistance in this regard – is probably to be found in section 278 of the Criminal Law Consolidation Act, which deals with the joinder of charges.

KIRBY J: Do we have that in front of us? Is that annexed to - - -

MR BREBNER: I doubt it, your Honour.

HAYNE J: I do not doubt that 278 enabled joinder of charges. My question was rather more focussed upon this proposition. Rule 4(3) hinges about the statement of offence. Rule 4(4) of the information rules talks about giving particulars of the statement of an offence. There is a distinction. At least part of the appellant’s argument, though I think not all of it, proceeded on the assumption that the date of the offending alleged could properly be regarded as particular, not statement of offence. Now, the principal thrust of the appellant’s argument is that the date of offending is properly regarded as part of the statement of offence.

If it is not part of the statement of offence but is only a particular, it seemed to me that rule 5(1) would not enable you to plead and charge an alternative offence founded only on the difference in particulars. Now, where that leads you to is back to the central problem advanced by the appellant which is whether the date of the offending in the circumstances of this case concerning an offence under 49 is an essential element of the offence.

MR BREBNER: With respect, that must be right. If I can return to the construction of 49(4) briefly before I turn to the central issue of materiality, it is implicit in the reasons of Justice Gray, to which I took the Court this morning in my submission, that the special defence is not limited in express terms to the situation where the prosecution alleged the complainant was 16. It is my submission that the limbs of the special defence which an accused is obliged to prove might be significant. It can be seen that he is obliged to prove, one, that the complainant was 16, two, that he believed on reasonable grounds that she was, in fact, 17. It may well be three elements, but for practical purposes my focus is on the obligation which Parliament places on an accused to prove that the complainant was 16.

KIRBY J: Surely only to a count which alleges an offence particularised by reference to the ages of 16 and 17, which is what you not only did not do, but having been informed of this position of the appellant, you positively elected not to do.

MR BREBNER: As far as the second aspect of that is concerned, the prosecution in the ordinary course of events must frame its information or indictment on the basis of the material which it has the capacity to prove. It is very difficult to frame an information on the basis of a forecast given by defence which may or may not be borne out in evidence, given that instructions may ultimately change.

KIRBY J: What about once the counsel for the appellant opened and the terms of the passage which is encapsulated in the reasons for Justice David, would it not then have been open to the prosecutor in the light of that acknowledgement that “from the defence point of view I can tell you that it will not be an issue for you as to whether sex occurred. Consensual sexual acts” took place not in 1986 but in 1989, surely it would then have been open to the prosecutor to have sought to amend the counts of the indictment to add two counts referring to 1989 on the accused’s own admission?

MR BREBNER: Or, indeed, to enlarge the timeframe on the counts as laid, which could plainly be done without injustice on the facts of this case, in my submission.

KIRBY J: But neither of those steps was taken.

MR BREBNER: That is so, your Honour.

KIRBY J: On the contrary, the judge at the passage to which we were directed at 207 then, although the counts were not amended, gave directions to the jury by reference to a defence that it was not available to the counts of the indictment as particularised relating to 1986, but would only have been relevant to amended counts which were not before jury.

MR BREBNER: Assuming that Mr Peek’s contention as to the construction of 49(4) is correct.

KIRBY J: Just as a matter of plain fairness, if you are on trial for an offence which is particularised by reference to 1986, you surely cannot be having the jury consider what would possibly be a defence to a charge that relates to 1989.

MR BREBNER: It seems in this case that that is precisely what the accused thought was fair, that he be given the opportunity to join issue on the date thus giving him a platform on which to mount the special defence, which brings me back to my submission that the fact that it is incumbent upon an accused to prove the age of 16 suggests that Parliament had it in mind that an accused would be able to join issue on the date because if that were not the case, in my submission, the obligation on him to prove that the complainant was 16 would have no work to do.

KIRBY J: You seem to have no conception of the obligation to the prosecutor. What about the obligations and the only prerogative of the prosecutor to charge the counts that can be proved? You have charged a count relating to 1986, not 1989.

MR BREBNER: I would like to think that I have got a reasonable grasp of the obligations of prosecutor, your Honour, and - - -

KIRBY J: I am sure you have and you are representing the Crown, which is a special litigant.

CRENNAN J: On one analysis you have got joining issue on the date, otherwise admitting the elements of the offence, which, in a sense, is admitting a difference offence when you bear in mind the particulars on the indictment.

MR BREBNER: Again it gets back to the question of the materiality of the date, in my submission. An act of intercourse with a person under the age of 17 has been admitted. That satisfies the elements prescribed by section 49(3), in my submission.

KIRBY J: But not as charged.

MR BREBNER: Not as charged. There is no question of that. But again, it boils back to - - -

KIRBY J: That is all an accused has to face under our system of accusatorial criminal justice and of its particularity. He is not at large. He does not have to answer every possible charge that might have been levied against him. He has to answer the charge that you, the prosecutor, levy against him. That is the essence of our system.

CRENNAN J: The point being made does not depend on success of the appellants in relation to the statutory construction argument. It is just an analysis of what the admissions were an admission to.

MR BREBNER: I accept that, but it just gets back to the argument about the materiality of the date in the circumstances of this case. But as far as 49(4) is concerned, it is my submission that unless an accused is permitted to join issue on the date thus laying a foundation for the defence, then one aspect of section 49(4) has nothing to do. It is my submission that by not specifically restricting the special defence in terms, in express terms, to where the prosecution has particularised that the complainant is aged 16,
Parliament has recognised that it is an ordinary feature of cases of this nature that there will be dispute or uncertainty as to the precise age of the complainant as to precisely when the intercourse took place. What Parliament intended to do was to give accused a means of engaging the special defence by proving that a complainant was in fact 16, irrespective of whether it was alleged that she was 12, 13, 14 or 15.

Of course, an accused would know, or in this case certainly he did know, the date on which he says the intercourse took place. Thus, in my submission, he can join issue without unfairness and that is what he sought to do and, in fact, did. I really cannot take that much further other than to say that the defence cannot be part of the offence. The offence and the defence to it are separated into separate subsections, the onus to prove the defence being on the accused. It would have been different, in my submission, if the prosecution bore the onus of rebutting the defence once it was raised.

If I can now turn to the question of materiality which is at the heart of the appeal. From there I will turn to the question of whether separate counts were possible or appropriate and the matter of amendment. The fundamental principle in relation to pleading practice and particularity in this state I set out paragraph 16 of my outline incorporating a quote from Chief Justice Bray in R v Pftizner, [1976] 15 SASR 171 at 185.

KIRBY J: Are not those last words of that distinguished Chief Justice very relevant here because he says obviously if a man is charged with committing an offence on a Saturday and he comes with an alibi for Sunday, he cannot be convicted for committing the offence on a Friday or the Sunday? Is that not entirely analogous to what we have here, that if he comes with an alibi for the 1986 and presents a defence relevant only to events in 1989 he cannot be convicted in respect of 1986? He has got to be dealt with and on a charge relevant to 1989.

MR BREBNER: As a technical proposition that would be unquestionably correct, but materiality will rise and fall on the facts of individual cases, in my submission, as is necessarily implicit in what Chief Justice Bray says and, indeed, what Chief Justice Gleeson said in VHP, to which I will take the Court to in a moment. But if I can address the point your Honour raises with me about the last two lines of the quote from Chief Justice Bray. Say, for example, a man was charged with committing an offence on a Saturday and, say, he did not have any alibi for the Saturday but he did have an alibi for the Sunday, it would certainly be open to him to raise a reasonable doubt that the offence occurred on the Saturday with a view to suggesting that it was a reasonable possibility that it occurred on the Sunday when he did have an alibi.

In my submission, the way the discussion between your Honour and myself is going only serves to emphasise that it is a matter of fact and degree in every individual case as to whether a date is a material particular and relevant to that is the way the issues are joined and the way the accused seeks to join issue. If I can take the Court to VHP, Supreme Court of New South Wales Court of Criminal Appeal, Chief Justice Gleeson, Justice of Appeal Handley and Justice Studdert, judgment 60733 of 1996 and pages 6 and 7 of the Butterworths print, the last four paragraphs on page 6 and the first three on page 8.

In my submission, that is in conformity with what Chief Justice Bray said in Pfitzner’s Case and in that case the particulars did become material, the date became material, because if it were not to be regarded as material, procedural fairness would have arisen of a kind which did not arise in this case. Insofar as a practice in this case with regard to the immateriality of dates is concerned, that was dealt with in the reasons of the Court of Criminal Appeal, particularly the reasons of Justice Layton at pages 277 to 279 and the reasons of Justice David at 287 of the appeal book.

In my submission, it is implicit in the reasons of Chief Justice Bray in Pfitzner, Chief Justice Gleeson in VHP and the cases cited by the Court of Criminal Appeal and in the reasons of the court itself that the prosecution can depart from the particulars of the date if that can be done without injustice. The extracts quoted by their Honours in the Court of Criminal Appeal further serve to emphasise that whether the prosecution ought to be bound is a matter of fact, degree and procedural fairness. Indeed, in my submission, it can be said it would be to create procedural unfairness to deny and accuse the opportunity of engaging the special defence if he wished to do so.

KIRBY J: It just does not seem fair to me at the moment to have the accused answering on a defence which is not relevant to the charge as brought and persisted with by the Crown and for the judge then to be instructing on a defence which, on its face, is not available in respect of events happening in 1986.

MR BREBNER: I cannot take it any further than I can, if your Honour pleases, other than to say the offence at all times was that she was under 17. Irrespective of whether she was 16 or not, his case was that she was 16. He wished to run it and he did. As I say, I cannot take that any further.

GUMMOW J: Yes, Mr Brebner.

MR BREBNER: If I can turn to the question of the availability of amendment and alternative counts. In my submission, amendment would have been available, but if my submissions to this stage are correct, it was not necessary, and as far as a second set of counts is concerned, in circumstances where the prosecution case as postulated revealed offences or an offence of varying degrees of culpability, depending on the view that was ultimately taken of the facts and the feasibility of adopting alternative counts was considered in Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1, particularly in the judgment of the Chief Justice and your Honours Justices Gummow and Hayne at paragraphs 40 to 47 and I will not take up time by reading them.

Irrespective of whether there were alternative counts or not, there would always only be one set of acts of intercourse occurring seriatim. It is my submission, for the reasons set out in paragraphs 43, 44 and 46 of the reasons of the Chief Justice and your Honours Justices Gummow and Hayne, there was no obligation on the prosecution to lay a second set of counts in this case provided, of course, the date was not a material particular. I adopt what your Honour Justice Hayne said this morning about the difficulties involved in laying alternative counts. If I can turn to certainty and unanimity.

HAYNE J: Just before you come to that. Would it have been a sufficient information to allege that the defendant at Renmark or another place had intercourse with the named complainant, a child under the age of 17 years, by performing the act there described, particulars; the offence occurred on a houseboat at Renmark or another place on a date between 31 January 1986 and 28 February 1986 alternatively between date X 1989 and date Y 1989? Would that have been a proper statement of information or would it have been duplicitous?

MR BREBNER: The point your Honour is addressing, in my submission, would be more easily overcome by the adding of alternative counts.

HAYNE J: What I have in mind is the accused person who makes a no-comment interview to police does not open the case to the jury, certainly cross-examines the complainant along a particular path, but until that accused person announces his course to the jury, the prosecutor cannot know whether there will be evidence that would support a case of an alternative date of commission. Is the prosecutor to be put in a position in such a case where a new charge, new indictment, must be filed, rearraigned, all of that, only after the accused has gone into the box, or is the problem solved at the level of particulars?

MR BREBNER: The problem would be solved at the level of particulars or, if necessary, amendment, in my submission. To address your Honour’s question about whether such an information would be duplicitous, the answer would be yes and no.

HAYNE J: No throwing five bob on both horses in the race.

MR BREBNER: I am indebted to my learned friend. Yes and/or no is the answer.

HAYNE J: We are taking the quadrella with both horses, are we?

MR BREBNER: Indeed. In such a situation then quite obviously appropriate directions would have to be given to ensure unanimity as to basis, though that is subject to a consideration which arises in the Queensland case of R v Leivers and Ballinger to which I will come to a moment and to which I have averted in paragraphs 37 and 38 of my outline.

Insofar as the appellant submits that the modern approach to duplicity and certainty focuses on sentence, that is indeed so, but it is not confined to that consideration. It also focuses on questions of autrefois and admissibility, as was recognised by Justices Gaudron and McHugh in S v The Queen (1989) 168 CLR 287 at page 288 and no questions of autrefois or admissibility arise here, in my submission. As far as unanimity is concerned, given my learned friend’s treatment of it in his written submissions, there is no need for me to go through the cases other than to say that those where convictions went off on the basis of some form of latent uncertainty can be divided into a number of categories.

First, where there is more than one activity which has the capacity to satisfy an element of the charge, such as Ford, Fermanis, Beach, KBT, and Giam. In my submission, this is not such a case. There was only one activity which had the capacity to satisfy the particulars of each count. Secondly, where the prosecution advances two routes to conviction involving mutually inconsistent theories or facts, and an example of that is the case of Chignell which is cited in my learned friend’s written submissions. Thirdly, where the prosecution advances two routes to conviction based on different concepts of complicity or liability, and Leivers and Ballinger is an example of such a case.

Exceptionally, where unanimity is not required in cases where the prosecution puts forward two theories as a basis for liability on an “if it was not one then it must be the other” basis and the cases that deal with that are Thatcher, to which my learned friend has referred, and Boreman, to which he has also referred. Given the vast differences in factual scenarios, statutory elements and the way issues are joined, it is, in my submission, very difficult to propound an all embracing test of when directions as to unanimity are required. That is at least acknowledged in some of the cases. One example is the reasons of Chief Justice Elias in R v Mead [2001] NZCA 227; (2002) 1 NZLR 594 at paragraphs 43 and 44.

At the end of the day, in my submission, it distils down to a proposition that in some circumstances a unanimity direction is required to ensure that the jury are unanimously agreed as to the factual basis on which they find an essential element of the charge proved or to ensure unanimity as to the basis on which they find liability established, particularly in cases involving varying degrees of complicity. The other thing I would like to refer to is a passage in the reasons of Chief Justice Dickson in Thatcher v The Queen (1987) 39 DLR 276, 4th Edition, at page 310 where his Honour, in my submission, expresses the realities of unanimity in a practical sense. It is to be found in the last six lines of the first paragraph on that page.

GUMMOW J: Yes.

MR BREBNER: My learned friend referred to the material issues or consequences test propounded by the Court of Appeal of Queensland in R v Leivers and Ballinger [1998] QCA 99; (1998) 101 A Crim R 175. There is no doubt that materially issues were put forward on each case in the case at Bar, but, in my submission, the consequences for the sentence in this case are not materially different in the sense that the appellant is subject to the same statutory maximum irrespective of whether the complainant was 13 or 16 at the time. Had he been liable to a higher statutory maximum if she was 13, then the consequences would be materially different and quite plainly the date would have become a material particular, but that is simply not so.

Now, it is important, in my submission, that none of the cases to which Mr Peek refers to on unanimity deal with a situation where a second basis of liability is effectively thrown up by the accused in circumstances where he bears on onus and, to that extent, this case is distinguishable from Giannetto [1997] 1 Cr App R 1 where the court extended the reasoning in Thatcher’s Case to theories advanced by the defence, but not in the context of a theory where the defence bears the onus.

There was no contest at the end of the defence case as to the existence of the statutory elements of the offence, namely that sexual intercourse had occurred at a time when the complainant was aged less than 17 years. That being so, the jury must have been satisfied of the existence of the statutory elements in order to convict, and their verdicts to that extent are unquestionably certain. At the end of the day, the only questions which the jury had to resolve were questions which the appellant posed to them and upon which he bore the onus. The verdicts reflect the fact that the jury determined those questions adversely to them.

Precisely why, of course, could only have been ascertained by asking the jury a complicated series of questions which, in turn, had the potential to create more uncertainty than it resolved. But, in any event, in my submission, the terms of the summing-up are apt to suggest that unanimity was, in fact, a prerequisite to a conviction. Mr Peek has taken the Court to appeal book pages 207 and 209 of the summing-up. To that I would add a passage at 255, lines 8 through to 30.

KIRBY J: Should not the judge have told the jury that the matter that the accused was raising in relation to events of 1989 was completely immaterial to the matter on which the accused was charged?

MR BREBNER: On the appellant’s contention, yes. On mine for reasons I have advanced as to materiality, no. But when one reads those passages in the context of the summing-up as a whole, it can be seen that the word “you,” which his Honour employs, is a collective and the only implication the jury would have taken from the directions were that as a whole they were first to consider whether they were satisfied that the complainant was 13. If they were not, then as a whole they were to consider whether the appellant had established the limbs of the special defence on the balance of probabilities.

If unanimity is, in fact, required and if it was not spelt out adequately by the learned trial judge, it is my submission that if there are two bases of liability and the more serious automatically subsumes the less serious, then verdicts can stand, even if directions as to unanimity have been given or if erroneous directions have been given, and for that I rely on Leivers and Ballinger [1998] QCA 99; (1998) 101 A Crim R 175 at page 188, where the Court was of the view that a route to liability of aiding and abetting automatically, or at least had the capacity to subsume the alternatively posited route to liability of common purpose.

Applying that reasoning, it is my submission that a finding that the complainant was 13, automatically involved a rejection of the special defence. If, say, six jurors found that it occurred when she was 13 and six found that the special defence failed, then the finding of the first six jurors automatically amounted to a rejection of the special defence and a subsumption of it.

True it is that there are significant differences of culpability between an act of unlawful sexual intercourse with a 13-year-old than with a 16-year-old in the ordinary course of events, but, in my submission, significance in difference of culpability is an ordinary feature of the division of function between trial judge and jury and it is well settled that the trial judge does not determine the basis of the verdict. He determines the appropriate basis for sentence.

HAYNE J: The proposition that the jury may be satisfied as to precise age of the complainant itself injects a false issue into the trial. The critical issue of the offence is being under 17. It is for the defendant to establish that the person was of or above the age of 16.

MR BREBNER: In my submission, that is so. In my submission, any accused in the situation in which this appellant now finds himself, is protected by injustice from the ordinary principles of sentencing.

HAYNE J: We cannot be seduced by the fact that proof of the age of a young person in Australia is ordinarily very easy, but many people have come to this country in circumstances where proof of their age is far from easy. Proving that someone of that background is under 17 may be a relatively easy forensic task. Proving their precise age may be a much more complex forensic task.

MR BREBNER: If not impossible, and I accept that as a general proposition, but, in my submission, miscarriage has to be determined by applying ordinary principles to the facts of a particular case. The facts of this case are a long way apart from the situation that your Honour just posited, but at the end of the day, in my submission, the appellant is protected by ordinary principles of sentencing in that if a judge cannot determine that the more culpable set of circumstances had been made out beyond reasonable doubt, then he is obliged to sentence on the basis of the less culpable - - -

KIRBY J: I thought that that is what I said in the Court of Criminal Appeal in New South Wales in Savvas and recanted in Cheung. I thought the majority in Cheung said that it is just left to the judge to work it out and that you do not necessarily opt for the more lenient view of the facts.

MR BREBNER: As I read Cheung and particularly its reliance on the reasons of Chief Justice Gleeson in Isaacs’ Case, the judge is free to sentence on any basis that is not inconsistent with the jury’s verdict, and indeed, it may be that at the end of the day he sentences on a more serious view of the facts than the jury actually took, but he has to be satisfied beyond reasonable doubt that there are good reasons for so doing. If there is any doubt then that must be resolved in favour of the particular offender.

To apply this case to that situation, if at the end of the day the judge thought that the evidence that he heard did not enable him to take a view one way or the other, then in my submission he would be obliged to sentence on the more favourable basis. What I have just put to the Court is to be found in the joint reasons of the Chief Justice and your Honours Gummow and Hayne in Cheung (2001) - - -

GUMMOW J: It is paragraphs 9 and 14, is it?

MR BREBNER: Paragraphs 4 to 9, 14 and 36 are the essential paragraphs, your Honour.

KIRBY J: The passage that I referred to in my reasons at [104] where I accepted that the view that I had expressed in Savvas was not a correct statement of the law. Mr Brebner, if I ask you this, I ask you on the basis of your experience as a prosecutor. We, of course, can be very wise after events here because we are looking at this case after it has been analysed by a Bench of the Supreme Court and we are looking back on it. But if you look back on it, the advantage of the theory that the appellant puts is that you then, once that statement was made to the jury, you get differentiated the two different theories of the case and the jury then passes on those two theories and returns unanimous verdicts on those theories and the judge then has answers on which the judge can found a sentence which is precisely addressed to the matter that is found.

Is that not looking back on the case and not, as it were, being overcritical of what was done at the time in the heat of the trial and without assistance from the accused side on this point, is that not the way this is supposed to work out, that the prosecutor once the prosecutor heard that acknowledgment, had some more material - it was not just the complainant’s material – and then could have added counts 3 and 4 and then the judge would have to say you have to be satisfied beyond reasonable doubt on 1 and 2 or 2 and 3 and, if you are on 2 and 3 you look to the
defence, you do not consider the defence on 1 and 2, and then you have answers which the jury gives, which is addressed. You have got unanimity of the jury’s verdict and you have sentencing facts if the accused is convicted on which the accused can be sentenced on the correct understanding of the facts. Looking back on it, surely that is the way the system is supposed to work.

MR BREBNER: I can only say that hindsight is indeed a marvellous thing and hindsight perhaps reflects adversely on the practices that have been followed in this State. True it is that alternative counts may have added some degree of assistance to a fact finding for sentencing. For example, if he was convicted on count 1, age 13, that speaks for itself. But if he was convicted on, say, count 3, age 16, there would still be uncertainties attending the factual basis for sentence, because it would not be known if he had been convicted on the basis that he did not believe she was 17 or if there were no reasonable grounds on which he could have held that belief.

KIRBY J: But it is much narrower and you identify whether the person offended here, the complainant, was 13 or 16 at the time of the offence, which as you conceded is a very material fact for sentencing.

MR BREBNER: Indeed. That is what drives me to say what I say in my written submissions, that this is nothing more than a very unusual example of a very ordinary situation, insofar as fact finding for sentencing is concerned. He was, of course, subject to the same statutory maximum irrespective of whether she was 13 or 16. Of course, precise knowledge, the basis for a verdict, where competing bases are likely to affect a sentence, cannot affect the validity of a sentence.

For that proposition I rely on Veen v The Queen [1979] HCA 7; (1979) 143 CLR 458 at pages 466 to 476 in the reasons of Justice Stephen, which is on my learned friend’s list. It is my submission that precise knowledge of the basis for a verdict where competing bases are likely to affect sentence cannot affect the validity of the verdict either. If the Court pleases.

GUMMOW J: Yes, thank you, Mr Brebner. Anything in reply, Mr Peek?

MR PEEK: I will be very quick indeed, your Honour. First, obviously, I tender the whole of the written reply in relation to my learned friend’s submissions and indeed the rest of the written submissions that I did not read out and obviously I tender them to the Court. Secondly, in relation to a matter raised by Justice Hayne, if I may, rule 5.1, your Honour, as to alternative offences, that is in relation to specific statutory offences where one finds a number of disjunctives, if you....., alternate ways of putting what is, in fact, one offence. This rule is passed for better caution, as it were, so as to preclude any argument that in that situation there is patent disjunctive duplicity - - -

HAYNE J: The statement of offence in this case was unlawful sexual intercourse, section 49(3) of the Criminal Law Consolidation Act, full stop. That was the whole of the statement of the offence.

MR PEEK: Yes. Therefore - - -

HAYNE J: And the rest was particulars.

MR PEEK: Therefore, your Honour, section 5(1) has no application to this particular offence at all. It only has application to statutory offences which within them – I do not mean the indictment, I mean the enactment of the offence – have a number of disjunctives, so it does not bear upon this case.

HAYNE J: You say 5(1) is not engaged and could not have been engaged.

MR PEEK: In this case.

HAYNE J: There is the difficulty.

MR PEEK: That is my submission - - -

HAYNE J: I understand, and it seems to me that there is much to be said for that view that 5(1) is not engaged, but if it is not engaged, there is no warrant for charging alternatively. That is the consequence. There is the knife.

MR PEEK: We submit to the contrary. We, with respect, do not accept that latter part of your Honour’s proposition, because the power to charge alternatively indeed has been conceded by my friend and it is just a matter of alternate charges in the indictment, which are perfectly permissible under our common law Consolidation Act. So this rule is not an enacting provision. It is quite a narrow piece of surgery in relation to the background law of duplicity and a very narrow incision indeed. That is all that this law does.

Now, in relation to your Honour’s allied question to Mr Brebner as to whether a count which pleaded an offence at Renmark or another place in February 1986 or alternatively 1989 would be duplicitous, we would say that would be the absolute ultimate paradigm of disjunctive duplicity. In other words, if that is not duplicitous then you may as well forget about the law of duplicity. So the answer to that is that it would be duplicitous and unavailable to the Crown.

The final short matter, your Honours, is that my learned friend put that there is a part of the defence provision here in relation to proving the age of 16 and that it would have no work to do on our construction, as I apprehended the submission. Two very short points are these. First of all, it does not say prove the age of 16. It says “As at the alleged time of sexual intercourse” and I will not repeat all of that, but that is what is to be proved, not 16 in vacuo.

As to not having any work to do, I think Justice Hayne, your Honour, has said that sometimes it is easy, sometimes it is slightly more difficult, to prove that a person is a particular age. So the work to do in that situation for the defendant is to prove that on the alleged date of the intercourse she was 16. So there is ample work to do in relation to that construction. Those are our submissions in reply, if it please the Court.

GUMMOW J: Yes, thank you, Mr Peek. We will consider our decision in this matter and we will now adjourn to reconstitute. There is a special leave Panel No 1 in this court and Panel No 2 in No 2 court.

AT 2.54 PM THE MATTER WAS ADJOURNED