Ayles v The Queen [2007] HCATrans 625 (24 October 2007)

Last Updated: 31 October 2007

[2007] HCATrans 625

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A40 of 2007

B e t w e e n -

RAYMOND FREDERICK AYLES

Applicant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2007, AT 9.56 AM

(Continued from 23/10/07)

Copyright in the High Court of Australia

MR KOURAKIS: If the Court pleases, can I jump straight back into section 281 and say, your Honours, that the respondent accepts it is plainly for the prosecuting authorities to select the conduct that will be prosecuted and the provision of the law on which the prosecutor will rely. Section 281 does not in any way require the trial judge to assume that responsibility about the basic selection of the conduct and the charge. It addresses another question. It addresses the practical problem that the identification of the conduct and the source of the law by the prosecutor may be imperfectly described or addressed in the information.

The responsibility that the judge has under subsection (2) is to ensure that the information, the pleading if you like, is maintained in form that both properly states the prosecution case and ensures a fair trial. If the limitations on subsection (2) which are addressed, without taking your Honours to it, in paragraph 33 of our submissions are properly understood, the occasion will never arise for the trial judge to engage in that prosecutorial function of selecting the conduct that is to be charged. It is purely a responsibility for the state of the pleadings that arises out of two parts of subsection (2).

First, the requirement that there be no amendment unless the information is defective or there is a variation in the particulars, and the other requirement, that no amendment can be made if it would do injustice to the accused. The trial judge could not embark on any inquisitorial role or prosecutorial role without departing from those two important limitations on the section.

Your Honours, the responsibility of ensuring the maintenance of the pleadings in a proper form that will allow the conduct to be tried fairly is not, in my submission, in any way antithetical to the judicial function but it is part of the responsibility one would expect, particularly of a trial judge in criminal matters. The responsibility of trial judges about leave in certain offences, even if they are not raised by the accused, is but one example of that overall responsibility.

KIRBY J: I suppose it depends on the particular case and it varies from case to case, but I am trying to think of what one would normally do if you find something like this in the pleadings when everything is over and you are sitting there in the quiet of your chambers and suddenly you realise that there is a wrong section or a wrong charge. I would have thought that normally on a matter so important as the charge a judge would either call the parties into chambers and see if there was any problem or list the matter. I mean, it is just basic natural justice that you give a party an opportunity to say something before you go changing something so important as the charge that they are facing and then convict them on a new charge.

MR KOURAKIS: With respect, your Honour has drawn attention to an important matter that in a sense might have been assumed but is yet unstated in this case; the question of error in terms of not according procedural fairness and there is the question of error in terms of acceding power. Your Honours, when the judge notices a defect that no one else has noticed and no one has brought attention to, there is no reason why the trial judge cannot bring it to the attention of the parties. No one would suggest that that in any way infringes the division between prosecutor and judge. In this case if the judge had noticed the defect and no one else had noticed it, the judge is well entitled to say, “Look, this is a problem. Prosecutor, do you seek an amendment? Accused, what is your attitude?”

GUMMOW J: It is a question of – the question is obliged.

MR KOURAKIS: Well, and under the section would be obliged.

GUMMOW J: That is the question.

MR KOURAKIS: At this point I am dealing with a question simply of, in a sense, procedural fairness. If it appears to the judge that there is a defect that the section would require the judge to correct by amendment or cure by amendment, if an application was made, even assuming that those words were read into the section, there is no reason why a trial judge could not bring the problem to the attention of counsel.

KIRBY J: That is true, and I just pause and I just stumble when you say, well, “Is there any problem in me fixing it up”? I think in the nature of accusatorial criminal process, is it not the judge’s requirement to draw it to the attention of the prosecutor, leaving it to the prosecutor to make the accusation in the form that the prosecutor decides? Is not that the proper delineation between the role of the neutral judge and the committed prosecutor?

MR KOURAKIS: Yes. Even if subsection (2) ultimately allow and requires the court to make an amendment even if no application for amendment is made, indeed, against the attitude of the parties.

KIEFEL J: That is what I was just going to ask you, Mr Kourakis. You can test it this way. What if it is drawn to the prosecutor’s attention that there is a discrepancy between the evidence and the information but the prosecutor declines to amend the information, you are suggesting that the judge can override the prosecution?

MR KOURAKIS: Your Honour, the first thing I say is that it is only in that circumstance that the critical issue about the construction of subsection (2) and those words if it appears to the judge becomes in any practical sense important.

KIEFEL J: There might be some assumption in that about whether or not the dates are material because for some purposes the prosecution might be reliant upon particular dates to assist in the credibility of the witness and the defence might be interested in dates for alibi or other purposes.

MR KOURAKIS: Yes.

KIEFEL J: On that note, would you mind just recapping what we were taken through yesterday? There was an application to amend the particulars of the offence which was acceded to without objection and the notation of the change to the date was noted on the information.

MR KOURAKIS: Yes, that is the application for amendment at pages 77 to 81.

KIEFEL J: Would you mind reminding me when the amendment which made the offence section 69 of the Criminal Law Consolidation Act came into effect?

MR KOURAKIS: The amendment itself?

KIEFEL J: The amendment itself.

MR KOURAKIS: The order for the amendment was made when reasons were given - - -

KIEFEL J: No, no, I am sorry, when did the legislation - - -

GLEESON CJ: The legislative amendment?

MR KOURAKIS: On 9 November 1972.

KIEFEL J: On 9 November. So when that amendment was made to the information, the period during which the two counts were supposed to have been committed extended between two Acts?

MR KOURAKIS: Overlapped two sections or two provisions, two different provisions, prescribing the conduct.

KIEFEL J: So the statement of offence should have read section 71C of the Criminal Law Consolidation Act and section 69(1)(a)?

MR KOURAKIS: Yes. When your Honour says “should have read” that would have reflected what the accused was at risk of conviction on given the amendment which spanned the sections.

KIEFEL J: Do you say that the effect of the application for amendment though was, in effect, to alter the statement of offence to include the subsequent Act by changing the date - - -

MR KOURAKIS: The subsequent legislation?

KIEFEL J: Yes.

MR KOURAKIS: Yes.

KIEFEL J: That was the intention of the prosecution, the understanding of the defence, but it was not noted on the information.

MR KOURAKIS: Yes. At the time the extension of the period was first made, an amendment by consent on the third day of trial, that was not appreciated. It was at the close of the prosecution case that it was appreciated that the period as extended spanned two different provisions.

KIEFEL J: And there was some discussion about that?

MR KOURAKIS: Yes, and that is the discussion at page 137 and following and, in my submission, the prosecutor’s statement at the bottom of page 139 where she said “the legislation changed”, meaning within that period, the extended period reflected by the amendment made by consent, the prosecutor continued, “so the prosecution would have to proceed on s.70(1)(c) or s.69B(3). What the prosecutor is there saying, in my submission, is just that; that they want to proceed on that count covering that period but to proceed on either of those two sections depending on when the conduct was found to have occurred.

KIEFEL J: What is the effect though in relation to the information, it not having been altered and no specific order having been made to amend the information in that regard?

MR KOURAKIS: Yes. Your Honour, at this stage that is simply the prosecutor’s statement of intention and no order of amendment was made, leave alone the problem of it being noted which, for reasons I will come to later, I say is of no effect, but importantly at this stage no order for amendment is made and so effectively there is no amendment. What we have is a count, or two counts, which are bad, which are defective, because they plead a period that covers two different sections and only one is referred to. Even if both were referred to, the count is defective.

KIEFEL J: That is rather against you, is it not, because when you come to the third date that is sought, if you could have read the information as if it referred to the later legislation, all that you would be talking about is a change in a date but that the statement of offence was the same, but on the approach you are taking at the moment that option is not open to you.

MR KOURAKIS: Because no amendment was made as to the later charge.

KIEFEL J: To the statement of offence.

MR KOURAKIS: Yes, and the reference to the section.

KIEFEL J: Yes.

MR KOURAKIS: No order is made at that stage, an order for amendment was made later. The question is whether the fact that no order was made then matters? In my submission, it does not. The next question is, can the statement at page 139 be read as an application to amend those counts so as to insert the section number that was applicable as of the date that the judge found the conduct to occur on? In my submission, it can be so read.

KIEFEL J: I see. You say it is an application but the order was not made. The order should have followed.

MR KOURAKIS: Your Honour, that is an application to amend, and implicit in what the prosecutor is there saying and in the way the case was thereafter conducted, the prosecutor was saying, “Here are those two counts that span both sections, I rely on both implicitly”, but on necessary implication the prosecutor is saying, “When you, your Honour, find when the conduct occurred because there is a dispute between us about it, I am asking you to amend the information to insert the section number that is applicable to the date on which you find the conduct to have occurred”.

GLEESON CJ: Mr Solicitor, I am not doubting that this is so, but what is the legislative provision or other legal basis for the proposition that it was necessary to insert the number of the section of the legislation that was alleged to have been contravened?

MR KOURAKIS: Your Honour, as to inserting there is a legislative provision in a schedule to the Criminal Law Consolidation Act, that provides that in laying an information for a statutory offence there must be a reference to the section number.

GUMMOW J: But it is rule 4(3), is it not?

MR KOURAKIS: Yes, if your Honour pleases.

GLEESON CJ: It follows, does it not, that you say that both of the alternatives referred to in section 281(2) applied here, that is, the information was defective and there was a variation between a particular stated and the evidence of it in proof thereof.

MR KOURAKIS: Yes, the latter is to the date on which it occurred.

GLEESON CJ: Yes. On pages 262 and 263 of the appeal book the primary judge said in paragraph 54, “The date of the offence is not material to the charge”. What exactly did she mean by that?

MR KOURAKIS: Your Honour, what she meant or at least must have meant, in my submission, is this. As to a difference between May 1973 and October 1973 there was no material difference to the charge because throughout 1973 the relevant section was section 69(1)(b) of the Criminal Law Consolidation Act and, the occasion having been identified by reference to the first occasion of sexual assault whilst vacuuming the appellant’s house, the date was not material in identifying the occasion nor the section number.

GLEESON CJ: Is it related to the first sentence of the next paragraph? In other words, was she saying it is common ground that this incident occurred and occurred in the way the complainant describes it? The only disagreement is about when it occurred and the accused says that it occurred in October 1973.

MR KOURAKIS: Yes.

GLEESON CJ: And then she gives in her reasons, her cogent reasons, for preferring the evidence of the accused on that point, pointing out that he was firm on it, he had records that supported it, whereas the accused was uncertain and inconsistent.

MR KOURAKIS: Very young.

GLEESON CJ: But then the judge went on and said on the top of page 263:

If this were a jury trial, the jury would have to be directed that it did not matter whether the event in question took place when –

the complainant said it took place or whether it took place when the accused said it took place, although, as Mr Tokley pointed out to us yesterday, it might have mattered in relation to sentencing.

MR KOURAKIS: Your Honour, if her Honour was referring purely to the difference between May 1973 and October, that would be right. If her Honour was talking about times before 9 November 1972 and whether or not the jury would have had to have been told it mattered depends on the number of propositions. The first proposition is that it was a good charge in law to allege the identified occasion but allege in the alternative, as it were, within the one count two different sections. If that was permissible, then again perhaps the jury could be told that it did not matter.

If it was not permissible to do so, then it would have mattered and the prosecutor would have had to elect with respect to that charge or seek an amendment so that there were two different counts; one count that alleged a period of time during which section 70 was applicable, the other a period of time during which section 69 was applicable. Both counts would be presented. They would be in the alternative. They would both identify the same conduct, the same occasion, but the jury could then decide whether they were satisfied beyond reasonable doubt the conduct occurred in one or either period, or could not be satisfied as to either.

GLEESON CJ: One reason I am asking these questions is that, as it appears to me at the moment, they may be very material to the question of what would be the proper order for us to make if we accepted Mr Tokley’s argument, which I suppose is only another way of asking what would be the proper order for the Court of Appeal to have made if the appeal had succeeded?

MR KOURAKIS: Yes. Your Honours, I want to go back and say something about the forms of defect and the scope of section 281 in a moment, but it is convenient to go to the heart then of the question your Honour the Chief Justice has asked. In my submission, the correct order for the Court of Criminal Appeal would depend on whether or not there has been a miscarriage of justice arising from the trial judge’s failure to seek submissions before entering her verdict on that count and, your Honours, the way to test that is simply to ask what would have happened if procedural fairness had been accorded? For example, the judge notices the problem, she resolves that it occurred in October 1973, that the proper approach for the trial judge would be to invite the parties in and deliver reasons or at least to intimate that her Honour is concerned to hear submissions about what should happen if the date was October 1973.

GLEESON CJ: Do you mean by that that subject to the problem about subsection (3) that you are going to come to, one argument you are putting is that the trial judge certainly had power to do what she did, that is, to make the order of amendment that she made in paragraph 58 on page 263, but there is a question whether in exercising that power she denied procedural fairness?

MR KOURAKIS: Yes. Your Honour, there is the related question but it is not the same related question which is this. Assuming she did not have power because no application was made in determining whether there has been a miscarriage of justice, in my submission, it is appropriate to ask, well, what would have happened if the judge had acted in the manner which was within power, that is, brought the problem to the attention of counsel and ask for submissions on it?

GLEESON CJ: Well, just a minute, that is why it is important, may be important for us accurately to identify what the problem was if there was a problem. If she acted beyond power, how does any question of miscarriage of justice arise?

MR KOURAKIS: Well, your Honour, if she acted without power, the question - - -

GLEESON CJ: I mean by that, if she had no power to make the order that she made in paragraph 58 on page 263.

MR KOURAKIS: Yes. If she had no power because section 281 is conditioned on an application by the prosecutor, it is still, in my submission, relevant to ask what would have happened if the trial judge had brought the matter to the attention of the parties because, in my submission, without any doubt the prosecutor would have sought an amendment. If the trial judge had not proceeded unilaterally as she had - - -

GLEESON CJ: I cannot quite follow that. We got to the stage yesterday I think of agreeing on all hands that what appears in paragraph 58 is not an erroneous statement of fact, it is an order purportedly made under section 281(2).

MR KOURAKIS: Yes.

GLEESON CJ: One of Mr Tokley’s arguments is that she had no power to make that order. If that is right, then the information remained unamended, did it not?

MR KOURAKIS: Yes. The question is, is it therefore a miscarriage of justice for there to have been a conviction because unamended, arguably, there should have been a - - -

GUMMOW J: Or a conviction, you see.

MR KOURAKIS: Sorry?

GUMMOW J: The problem is in the words “a conviction”. On what provision in the information?

MR KOURAKIS: If it had remained unamended, then there would not have been a conviction on count 1 as it was unamended.

GLEESON CJ: Where is the conviction? Where do we see the conviction?

MR KOURAKIS: Your Honours might see a notation of conviction on the information. Your Honours see a notation of the conviction on page 6.

GLEESON CJ: I see a verdict, but what is it in the South Australian legislation that makes the verdict a conviction?

MR KOURAKIS: Your Honour, I think the position is, and there are authorities plainly that discuss this, is that certainly when the allocutus is given, proceedings have moved to the point of conviction, but that is not to say that there might not be another record other than that notation on the information of a conviction in another way. Effectively, the verdict itself is not conviction. The judgment follows verdict, but - - -

GLEESON CJ: Yes, the order that the Court of Appeal makes on a successful appeal is not to set aside the verdict. It is to set aside the conviction.

MR KOURAKIS: Yes, and the conviction, as I say, may be recorded in a number of ways, but generally the court is taken to have proceeded to a conviction, from memory, when the allocutus has been given.

GLEESON CJ: I am going to ask you a little later to show us the convictions on the counts to which he pleaded guilty to, but we will come to that in due course.

MR KOURAKIS: Yes.

GLEESON CJ: Assuming Mr Tokley is right and there was no power to make the order in paragraph 58 on page 263, of what offence was Mr Tokley’s client convicted?

MR KOURAKIS: He was convicted on the information as it was amended on the third day of trial, which was a conviction for indecent assault contrary to section 70(1)(c) of the Criminal Law Consolidation Act.

GLEESON CJ: Occurring before May 1973?

MR KOURAKIS: In my submission, no, he would have been convicted of an indecent assault occurring in October 1973 but for an offence that was not applicable at that time and an appeal against that conviction would obviously – well, I say obviously – but would have good prospects of success on appeal because of - - -

GLEESON CJ: If Mr Tokley had persuaded the Court of Criminal Appeal that there was no power to make that order and the Court of Criminal Appeal had ordered a new trial, it would be a new trial of what?

MR KOURAKIS: It would be a new trial on that count as it stood on the third day of June.

GLEESON CJ: Unamended?

MR KOURAKIS: Unamended by the trial judge, yes.

GLEESON CJ: You mean the Court of Criminal Appeal would have ordered a new trial on a charge which did not conform to the facts found by the trial judge?

MR KOURAKIS: Yes, that is one order it could have made. More properly, it may well have ordered an acquittal – that was the other order not sought by the appellant at any stage of the proceedings. The appellant has always limited relief to a new trial – presumably on the count as unamended in the sense of unamended by the reasons for judgment but the appellant could well take the position the information was for an offence of indecent assault against a provision that did not exist at the time when the conduct occurred, the proper order is an acquittal. If the appellant took that position the effect would be that a new information could be laid alleging the offence to which the appellant admitted on his oath.

GLEESON CJ: You could prove it by just tendering his evidence?

MR KOURAKIS: Yes, charging October 1973 and pleading section 69. In my submission, there is no miscarriage of justice, even assuming there is no power, that he has been convicted of an indecent assault occurring in October 1973 but against section 70 that did not apply given that which would obviously result should the appeal be upheld.

GLEESON CJ: But that assumes he has been convicted of an offence against section 69 committed in October 1973.

MR KOURAKIS: Your Honour, in my submission, even if the proper result, assuming there was no power, is that there has been a conviction of an offence in October 1973 but against section 70 the Court of Appeal need not intervene, notwithstanding the fact that section 70 was not applicable overall, there was no miscarriage of justice.

GLEESON CJ: That then makes it very important for us to know why you say he has been convicted and that is what the conviction consisted in.

MR KOURAKIS: Yes. Your Honour, I think I have only appreciated the full effect of what your Honour has just been putting to me now. If there was no power to make the amendment, the question arises whether her Honour’s verdict was directed to any provision, any count - - -

GUMMOW J: Any offence known to the law.

MR KOURAKIS: Any offence on the information. Your Honour, the pleading of section 70, if the offence occurred in October 1973, raises the question of an offence known to the law, but there is yet another question and that is whether her Honour’s verdict is that it all directed to any charge as pleaded if the amendment has not been made and that is what I understand your Honour the Chief Justice’s question to be directed to.

KIEFEL J: Mr Kourakis, could I ask you just to in a way separate the statement of the offence under the legislation and the dates in this way. On one view perhaps what her Honour did at paragraph 58 was to give effect – if you are right about the prosecutor having in effect applied to amend the indictment to or to alternatively charge under section 69, her Honour was giving effect to that application viewed in one way technically?

MR KOURAKIS: Yes.

KIEFEL J: If her Honour had not proceeded to amend the dates of the offence, if she had simply left them as they had been amended by the prosecutor, but there was a disparity then between the evidence, if on the same basis, if a jury had proceeded to find him guilty on the evidence but with respect to the wrong dates, what would have been the effect with respect to a jury verdict?

MR KOURAKIS: The jury verdict would be good.

KIEFEL J: Would it be liable to be set aside on that account or what?

MR KOURAKIS: No, your Honour. I understand what your Honour has put to me really to be the facts in Dossi’s Case. I am assuming, your Honour, that there has been an amendment so that an applicable section is referred to.

KIEFEL J: That is right.

MR KOURAKIS: Yes. That is the case in Dossi. In Dossi the trial judge made an amendment because the jury came back and said not guilty on this day but the offence did occur on some date unknown in March. The trial judge amended to make it some day in March. There was an appeal and one of the grounds was that the power in section 5 did not extend to that. The Court of Appeal said, “We do not need to consider that because there was no need to amend”. So that is just a straight out Dossi. It is immaterial.

KIRBY J: Do we have Dossi?

MR KOURAKIS: Yes, it is.

KIRBY J: Yes, I see, it is in the compilation here.

MR KOURAKIS: Your Honours, can I say that discussion about where we are left if the judge did not have power assumes, of course, that the amendment is a nullity and not merely that it is an error.

A judge might exceed power, but it is nonetheless the order of a judge of a court of record and the judge’s order was, in effect, the amendment of the information. Now, on appeal that order might be set aside because it exceeded the power that the judge had. In my submission, it does not necessarily follow that if the order was made in excess of power that, in effect, there is not still a conviction on the albeit wrongly amended information. If that is accepted, then we have a conviction for an indecent assault occurring October 1973 and the applicable statute is specified in section 69 of the Criminal Law Consolidation Act.

GLEESON CJ: Well, there are at least two questions. One is was there power to make the order in paragraph 58. The second question is, in making the order in the manner and the circumstances was there a breach of procedural fairness or any other irregularity. Then a third question, I suppose, is, what is the consequence of the inadequate notation or the incomplete notation that was purportedly made pursuant to subsection (3)?

MR KOURAKIS: Yes. I can deal with that a little later. I just want to stay with the first two issues first. Your Honours, as I have said, in most cases a trial judge bringing a defect to the attention of counsel will result in an application. Counsel wrongly refers to the armed robbery section instead of indecent assault. The trial judge tells them. The trial judge does not have to worry about their own responsibility or duty or any question of acting on their own motion. The application will be made.

Historical sexual offence, again, the prosecutor relies on the section that is not applicable, does not get their research right. The trial judge raises the problem, an application will be made and generally no issue as to the trial judge proceeding against the wishes of the prosecution or the defence or in the absence of an application by then will arise.

Your Honours, there may be cases where the prosecution and the defence for their own very different reasons take the view that they will not seek an amendment. In this case, if at the close of the prosecution case the trial judge had sat down and said, “Look, we cannot have a charge that spans both periods with the prosecutor seeking to rely on the alternative on one provision or the other depending on what I ultimately find”, the trial judge might stay and raise with counsel, “Look, if we do that, the defence is losing the opportunity to submit no case to answer on two quite different charges, one for one period of time with the earlier section and one for the later period of time with the later section”.

The prosecutor might take the position, “Well, no,” the prosecutor would say, “in my submission your Honour has an obligation to deal with the defect, but you can wait until your reasons. I make no application to amend now”. The defence, on the other hand, from their point of view might say, “Well, we do not apply to amend. We say just throw it out”.

Now, the judge there has an alternative. The judge can invite the prosecutor to amend and the prosecutor may, if the threat of dismissal is held over his or her head, finally amend. In some cases, for good reasons or bad, the prosecution and the defence might take the view that they will not make the application. They want the judge to decide on what to do with this matter, that is, proceed with the ambiguity or dismiss it altogether without giving the judge the luxury of an application to use the remedial power under section 281.

Now, your Honours, it is in those cases – and they will be rare – that as a practical matter the question of whether the trial judge can act on his or own motion will arise. It also arises in cases like this where there has been oversight and there is a problem that has to be fixed because of that. But where there is no oversight and people are alive to the problem, that is the only time when the problem will arise.

Now, in my submission, it is not at all antithetical to the exercise of judicial power for a judge to say, “Well, there is a wider interest here. There is the interest of the public, the application of proceedings in this court - - -

KIRBY J: Yes, but there can be no greater interest of the public in this case than the interest of the public in the clear delineation of the role of the prosecution and of the courts. The courts try. They do not charge. That is absolutely fundamental and it ought to have guided the trial judge. It ought to have guided the Court of Criminal Appeal and it must guide us. It is a fundamental principle.

MR KOURAKIS: With respect, your Honour, it is a matter that will guide the judge in the position that they - - -

GUMMOW J: No, it is a matter in which the prosecuting authorities may have to wear when the public becomes aware of the incompetence that has taken place in the prosecution service.

MR KOURAKIS: Your Honour, that is one more convoluted way in which the interests of the public - - -

GUMMOW J: It is not convoluted. It is immediate.

MR KOURAKIS: Well, at least a more indirect way in which the interest of the public might be dealt with. Another more direct way, and one which in my submission is consistent with the enactment of a remedial provision like that in section 281 is to say that the judge will have a responsibility in those particular cases because there is a wider interest in the way in which criminal proceedings are determined and determined fairly. Your Honours, for my purposes I simply wish to illustrate that is in practical terms the only time in which, if their Honours are live to the problems, that this will arise.

GLEESON CJ: Did you say earlier that one of your arguments is that this order in paragraph 58 was not an order made by the judge of her own motion; it was made in response to an application made by the prosecutor?

MR KOURAKIS: Yes, in my submission. That is implicit in what the prosecutor said at, I think, page 139. Your Honour, there is no other way that the prosecutor could rely on both sections. I know it is unstated, but it must be implicit. There is no other way that you could possibly imagine, no other thing that the prosecutor could possibly have had in mind when she said the prosecution relied on the counts in the alternative.

KIEFEL J: So if her Honour was giving effect at least to what you say was an application by the prosecution, what is the effect of it not having been noted on the indictment in accordance with the Act?

MR KOURAKIS: Your Honour, that is a matter that I have been putting off for a while, but I can deal with it quite simply. Can I take your Honours to section 281. It is at page 317 of the appeal book. Your Honours, can I draw attention to these matters. Firstly, in subsection (2) it is the court that makes an order for an amendment and then subsection (3) commences “When an information is so amended”. Now, the words “so amended” refer to the amendment that is made by order.

Subsection (3) then goes on to provide two consequences, two things that follow from that result, from that order. There are two things that follow. One, an obligation is cast on someone, I am happy to accept the court, to make a note of it on the information. That is the first consequence. But the order for the amendment has been made. The second consequence is that, for the purposes of the trial and all proceedings in connection therewith, the information will be treated as having been presented in the amended form.

Again, I say the amended form is the result of the order made by the trial judge. So the first part of subsection (3) is simply the imposition of an obligation to make that administrative note on the information. Your Honours, a purposive construction to this section would allow for no other result, with respect. Commonsense would revolt against the proposition that the failing in not making a note at all or only making a partial note of an administrative officer in the court’s department, will result in the setting aside of an entire criminal trial and I need not say - - -

KIEFEL J: There must be cases on this, Mr Kourakis.

MR KOURAKIS: Your Honour, as it is, there is. His Honour the Chief Justice dealt with this at paragraph - - -

GUMMOW J: Just a minute. Just go back to subsection (3). It says:

When an information is so amended –

comma, right?

MR KOURAKIS: Yes.

GUMMOW J:

a note of the order for amendment shall be endorsed on the information -

The problem is the word “and”.

MR KOURAKIS: Yes.

GUMMOW J:

and the information shall be treated –

Now, is that consequential upon the noting of the order, or simply consequential upon the words “so amended”?

MR KOURAKIS: Your Honour, it is consequential upon “so amended”. They are two things that follow and that is a conjunction of those two things. They follow on the order. Again, I say, a purposive construction would really not allow for any other result.

GUMMOW J: But it then says:

the information shall be treated . . . as having been presented in the amended form.

MR KOURAKIS: Yes.

GUMMOW J: In other words, it is looking to a reconstituted document, the form, “amended form”.

MR KOURAKIS: Your Honour, the amended form is not the parchment.

GUMMOW J: Well, that is the question.

MR KOURAKIS: Your Honour, in my submission, when the section provides, “When an information is so amended”, it is - - -

GUMMOW J: How are you going to work out just by looking at the information what the situation in law was?

MR KOURAKIS: Your Honour, you may or may not - - -

GUMMOW J: Is not the idea of subsection (3) to enable you to look at the original information and see how it now stands so you have a complete statement in the one spot?

MR KOURAKIS: Your Honour, that is plainly the purpose, but it is quite a different thing altogether to say that the administrative failure of a clerk to fulfil that purpose will result in an entire criminal proceedings being a nullity. It does not follow at all. It would be a surprising result. Your Honour, I might say that too much emphasis can be placed on punctuation, but in section 5 of the 1915 UK statute there was a comma in between the words “on the information” and then the word “and the information” and of course the 1915 - - -

GUMMOW J: What is the purpose of having the note? Why does it say that? What is the point of having any note on the amendment?

MR KOURAKIS: Your Honour, it is the point that your Honours observed a moment ago. That is the point. When the note can be kept it will obviously be convenient.

GUMMOW J: What is the point of saying “shall” instead of “may”?

MR KOURAKIS: In terms of making the note?

GUMMOW J: In terms of consequences of not obeying the word “shall”.

MR KOURAKIS: Your Honour, the consequences can be either way with the use of the word “shall,” but - - -

GUMMOW J: You say it is directory rather than mandatory?

MR KOURAKIS: Yes.

GUMMOW J: That is what it comes to, is it not?

MR KOURAKIS: Yes, and that would serve the purposes of the legislation without having the adverse effect. Now, his Honour the Chief Justice below dealt with the problem at paragraph 70 and refers to the English Court of Criminal Appeal decision of Ismail - - -

GLEESON CJ: Just a moment.

MR KOURAKIS: Paragraph 70 is at pages 325 and 326.

GLEESON CJ: I am just trying to turn up Ismail.

MR KOURAKIS: I do not know that anyone has put it on the list of authorities.

GLEESON CJ: Thank you.

MR KOURAKIS: Can I just tell your Honours that in that case an entirely - - -

GUMMOW J: What is the citation?

MR KOURAKIS: It is (1991) 92 Cr App R 92. The consideration of this matter was at page 95. It proceeded over just three or four lines.

GUMMOW J: Yes. By whom?

MR KOURAKIS: Lord Chief Justice Taylor I think, yes. Lord Chief Justice Taylor, Mr Justice Kennedy and Mr Justice Rougier. Your Honours, it was accepted there that the order for an amendment which was that another accused be added to the information operated and the proceedings on it were proper and good although the clerk had failed to make any order of the addition of that accused to that information.

GLEESON CJ: You mean failed to note?

MR KOURAKIS: Yes, failed to make any note of the order that had been made. The result, as I say, is one which is a practical result at least. Your Honours, what is required is, of course, a note of the order, but presumably for that to be effective it would require a note of the contents of the order and it should probably be read in that way, but, in my submission, ultimately it is a question of the effect - mandatory, directory or the Project Blue Sky’s question if that requirement is not fulfilled.

GLEESON CJ: The trial judge here seems to have assumed – this appears from the language of paragraph 58 - that the amendment was effected by her order.

MR KOURAKIS: Yes.

GLEESON CJ: She says in paragraph 58:

I amend count 1 on the Information as follows - - -

MR KOURAKIS: Yes. That, in my submission, is consistent with the construction that I press about provision, that the amendment - - -

GUMMOW J: The problem is no one at any stage referred the judge to section 281.

MR KOURAKIS: No, and my friend has made some submissions about the fact that no one did so and the judge did not expressly call in aid section 281. Question of power is not to be answered, of course, by whether or not it was called in aid in any way or expressly referred to. If her Honour had power, then she had it and it does not matter that there was not a reference to section 281. If she did not have power then she did not have it.

GLEESON CJ: We know that somebody set out to do what subsection (3) requires, but they did it incompletely.

MR KOURAKIS: Yes.

GLEESON CJ: Indeed, the judge actually signed a note, an incomplete note, of the amendment on the information.

MR KOURAKIS: Yes, both the clerk and later her Honour overlooked the fact that the amendment that she had ordered with respect to the section number had not been noted. Your Honours, I have taken your Honours to page 137. Can I just remind your Honours that in the discussion about the amendment of the date to May 1973, which was the time at which the information came to overlap two different sections, that amendment was made by consent. The actual amendment was ordered at page 81 but before then at page 79 from line 5 to line 17 Mr Apps, counsel for the appellant, raised no prejudice caused by the amendment other than needing some time to consider his cross-examination a little further.

Your Honours, that follows given what we know about the defence ultimately and that is that the appellant well knew the occasion that was identified, the occasion that was being prosecuted. He in fact admitted that it occurred exactly as the complainant had described. His only position was that it had occurred at a different time. So plainly no prejudice could have arisen, was not raised then and, in my submission, does not arise now.

On that question and the suggested prejudices that are put against us, can I just ask your Honours to consider how the submissions would have gone if the judge had come back into court after delivering or making an intimation as to her reasons and said to the prosecutor, “What do you want to do?” The prosecutor would have immediately have responded, “Well, I want to amend”. That is what I was saying at page 137 - - -

KIRBY J: Mr Borick on the special leave application rather suggested that type of submission trivialised the prosecutorial discretion and I took him to be saying that the prosecutor might have considered – and these were his words – enough is enough.

MR KOURAKIS: Your Honour, that is extremely unlikely and, in fact, in - - -

GUMMOW J: How would we ever know?

KIRBY J: Why should we be speculating on this? Why should we do anything that minimalises the prosecutorial discretion and why should you be here as the Solicitor-General upholding a court minimising the prosecutorial discretion?

MR KOURAKIS: Your Honour, because it is my submission - - -

KIRBY J: Generally, you are doing exactly the opposite.

MR KOURAKIS: It is my submission that the amendment is completely consistent with the prosecutor’s position, the position that was stated at 137.

GLEESON CJ: At 139, actually.

MR KOURAKIS: Thank you, your Honour. The prosecutor had always intended to charge indecent assault. The defendant had admitted on his oath an offence of indecent assault exactly as had been alleged against him. It is fanciful to think that the prosecutorial discretion would have been exercised to charge gross indecency when he had admitted on his oath indecent assault. The appellant could hardly have pleaded not guilty to indecent assault.

KIRBY J: Yes, but this very submission is asking the court to do the job of formulating charges, which is something that the courts have normally said they will not do, that is your job. Courts will try the charges that the Executive Government brings to them. I would have thought as the Solicitor-General of a State you would be here defending that constitutional arrangement.

MR KOURAKIS: Your Honour, the prosecutor in this case had made it clear that she intended to prosecute that occasion identified as an offence of indecent assault. There was no interference by the trial judge with the exercise of that discretion. Even so, there are occasions when in the interests of justice courts can make orders that affect prosecutorial decisions and discretions. It is now well accepted and no prosecutor I think for a long time has ever argued that the court cannot stay a prosecution although that has the effect of, of course, changing the prosecutor’s decision about what to charge and - - -

KIRBY J: It does not happen very often in Australia. Maybe it should happen more often.

MR KOURAKIS: But, your Honour, no one suggests that that is an infringement on the prosecutorial role and the jury’s role; the prosecutor’s role to decide what to charge, jury’s role to decide whether or not it is made out or not. So there is no absolute in all of this and on that question, your Honours, can I remind your Honours of the actual decision in R v Judge in Bankruptcy; Ex parte Lowenstein where a majority held that the initiation of bankruptcy offences by the Bankruptcy Court was consistent and at the very least incidental to the exercise of its judicial power.

Now, your Honours, what is suggested here, the very limited role the court has under section 281, is far removed from the sort of power that was held to be a proper exercise of judicial power in that case. There are many statutes that provide for a court to be able to act on its own motion. The Federal Court of Australia Act allows the Federal Court to make orders in representative proceedings. The Federal Court under the Native Title Act can of its own motion require someone to show proof that they were authorised to bring a native title claim.

GUMMOW J: They are specific statements in particular legislation.

MR KOURAKIS: Yes.

GUMMOW J: That is not defined in section 281(2), so we are back where we were some time ago.

MR KOURAKIS: Sorry, your Honour?

GUMMOW J: The sections you refer to are specific.

MR KOURAKIS: Yes.

GUMMOW J: Right? They say that the court may do this.

MR KOURAKIS: On its own motion.

GUMMOW J: Yes. This section does not say that.

MR KOURAKIS: Right.

GUMMOW J: You want to say it does, but it does not. The question then is, how is it to be construed? You do not answer that question by saying it will be okay if you construe it as it would have to be construed if it said so expressly. The reason why all these statutes say it expressly is because the drafter knows there is a problem unless they say it expressly.

MR KOURAKIS: Your Honour, it was put against me that there were certain more general propositions that necessarily, as I understood it, led to a particular construction of subsection (2). The submissions I have just made are now addressed to what might be taken from those more general propositions. But having said that, your Honour, and going back to subsection (2), in my submission, the plain words of the section are just that that when before trial it appears to the court that any information is defective, then there is no reference to any requirement for an application. It is put against me that those words should be read in. It is my submission that they need not be and there is no presumption or rule of construction that would require the insertion of those rules.

GLEESON CJ: Now, Mr Kourakis, I would still like to understand a little better than I do at the moment, referring back to what you say was the application to amend at page 139, what is the statutory basis that would have permitted an amendment that would have resulted in an information that referred, as it were, in the alternative to sections 69 and 70?

MR KOURAKIS: Yes. In my submission, there is no statutory basis that would allow a single count that referred to those sections in the alternatives.

GLEESON CJ: Then what is the nature of the amendment that is being referred to on page 139?

MR KOURAKIS: It is a prospective one. The prosecutor - - -

GLEESON CJ: Two informations?

MR KOURAKIS: No, one information.

GLEESON CJ: Two counts?

MR KOURAKIS: Yes. Your Honour, there were two counts relating to this incident in the information. First, they were both indecent assault; one referred to the touching by the appellant. The other was a count of indecent assault out of the same occasion which was a touching by the complainant of the appellant and that was dismissed for other reasons. We do not need to be concerned about that. Relevantly, there was a count of indecent assault being a touching by the appellant of the complainant, that was count one, in an information that contained some seven or eight counts. What the prosecutor is saying here is as to each of those counts in the information, 1, 2, and 4, that she would have to proceed on 70(1)(c) and 69(1)(b)(iii).

GLEESON CJ: But how would that desire be given effect to by amendment?

MR KOURAKIS: Your Honour, it can be given effect in two ways. There can be an application to amend it there and then at the close of the prosecution - - -

GLEESON CJ: Yes, but how would count 1 read after amendment?

MR KOURAKIS: Your Honour, count 1 would have to be split into two counts at this stage.

GLEESON CJ: That is what I am trying to find out.

MR KOURAKIS: Yes. The first count would plead a period of time during which section 70(1)(c) was applicable. The second count plead a period of time during which 69(1)(b)(iii) was applicable, but the occasion identified in each count would be the same. They would be in the alternative.

GLEESON CJ: It follows that the application that you say was being made on page 139 was an application to add further counts to the indictment.

MR KOURAKIS: Your Honour, it could have been that. There is another way in which it can be read as an application to amend in a different way, if I can come to that now, and that is saying to the judge, “I do not want the amendment to be made now. I want the amendment to be made on the one undivided count when your Honour has decided when the conduct occurred and, at that time, when your Honour has decided when the conduct occurred, amend the account to reflect the date that your Honour finds it occurred on and the applicable section - - -

KIRBY J: This is absolutely and fundamentally inconsistent with the accusatorial nature of the criminal process. What are you doing here in this Court trying to get us to change the fundamental nature of accusatorial criminal process in this nation?

MR KOURAKIS: Your Honour, I am putting here what the prosecutor - - -

KIRBY J: You decide what you allege against citizens. The courts try them. Courts should not be fussing around doing your job. If you charge them in the alternative, that is fine. You can do it that way. But you cannot ask courts to do the job of prosecutors.

MR KOURAKIS: Your Honour, I accept that that was the amendment that should have been ordered at that time.

KIRBY J: Well, why do we not just stick to that? You are standing there; you are quite understandably trying to save a particular trial. That is a very proper thing for you to do. Sitting here, we are quite understandably seeking to do anything we do in this case consistent with very basic principles.

MR KOURAKIS: Your Honour, they are our respective roles - - -

KIRBY J: Exactly.

MR KOURAKIS: That is the purpose and the benefit of - - -

KIRBY J: You do what you have to do. This Court has to do what it has to do, defend principle - - -

MR KOURAKIS: Yes, and that is the purpose and great good - - -

KIRBY J: - - - and the fundamental character of the accusatorial criminal trial.

MR KOURAKIS: Yes. If your Honour pleases, the submissions I make in the exercise of this function is to say that I accept that the proper approach, the best approach for the trial judge at that point would have been to say, “Insofar as you are suggesting that I wait until I decide when it occurred and amend accordingly, that is unfair to the accused. If you want to make an amendment, the only way it can be made consistently with ensuring fairness to the accused is to divide that first count into two different alternative charges”.

Your Honours, I am happy to address the question of whether there is any prejudice or injustice because that course did not occur, only there was not, because we know - in fact we knew as soon as the accused cross-examined the complainant through his counsel – that there was no prejudice as a result of not adopting that course because the accused’s case, and this was the case that was put to the complainant, was that yes, it did occur, but not when you said. It occurred later. It occurred in October 1973. The failure to adopt what would have been the preferred course of splitting the counts into two did not result in any unfairness in the circumstances of this case as much as - - -

GUMMOW J: So what follows from that?

MR KOURAKIS: That there has been no miscarriage of justice.

GUMMOW J: This is a proviso point, is it?

MR KOURAKIS: Yes.

GLEESON CJ: If, contrary to your submission, a conclusion were reached that there was no power to make the order in paragraph 58 of the reasons of the primary judge, what follows from that in terms of (a) what were the legal consequences of what occurred at the trial and (b) what order the Court of Criminal Appeal should have made if it had accepted that point?

MR KOURAKIS: Your Honour, in my submission the legal consequence was – and I appreciate I have come to this in a convoluted way after exchange with your Honour the Chief Justice earlier – the legal position was that there was a conviction for an offence occurring in October 1973 against section 69(1)(b). That was the conviction, but it was a conviction that was made based on an error of law, the lack of power. It was nonetheless a conviction for that offence as amended erroneously on this assumption, but it was nonetheless a conviction. The question arises on appeal, should that conviction be set aside because of the error of law that was made by the learned trial judge as to the scope of her power? That depends, once the error of law is established, it does not necessarily follow it goes back - - -

GLEESON CJ: Suppose you also lost on that point and we were to conclude that there was a conviction for indecent assault in October 1973 based on an error of law and we quashed the conviction, or the Court of Criminal Appeal quashed the conviction, what next?

MR KOURAKIS: If it merely quashed the conviction, the order would be a remittal for retrial on that information because the information is still there, just no conviction.

GLEESON CJ: It is not on information that charges an offence in October 1973?

MR KOURAKIS: No.

GLEESON CJ: Another way of asking my question is, order for a new trial on what?

MR KOURAKIS: On that information because that information still might be amended by an application by the prosecutor. It is still not a nullity. It is an information with a defect. The only error here is that the amendment was made without an application.

GLEESON CJ: That would be odd. That would be the Court of Criminal Appeal making an order for a new trial on an information that alleges a different offence from the offence that the trial judge actually found and, for that matter, the accused admitted.

MR KOURAKIS: Yes.

KIRBY J: But I suppose you can say that it would be in circumstances where the prosecutor had foreshadowed a course of possible action which had not been properly formalised and that foreshadowing being before the court, the court should leave it to the prosecutor to make such application or amend the information as seems appropriate to the prosecutor.

MR KOURAKIS: If that course does not commend itself to the prosecution to enter a nolle prosequi ultimately and perhaps lay further information or do nothing.

KIRBY J: That would be a completely conventional approach which I think this Court upheld in Dyers v The Queen of saying, “Well, whether it should go ahead or not is a matter for the prosecution and how and what should be charged is a matter for you”.

MR KOURAKIS: Yes. Any application to amend will obviously be heard conformably with the reasons of the court to guide the trial judge. Your Honours, going back to the question of the proviso, though, if the appeal was to be allowed and the matter remitted or an acquittal ordered, the only practical effect will be to give the appellant an opportunity at being resentenced, which is the very issue that he failed on in the Court of Appeal and on which leave was refused to this Court.

KIRBY J: Again you trivialise the position of the prosecutor. The prosecutor might take the view, “Mr Borick urged this on us. Enough is enough. We will not proceed with this matter”. Why should we assume that the prosecutor would not exercise the prosecutorial discretion in the manner which was proper?

MR KOURAKIS: Because, in my submission, it is not just an assumption, it reflects precisely that which the prosecutor at trial - - -

KIRBY J: I think we have been down this path.

MR KOURAKIS: If your Honour pleases.

GLEESON CJ: Mr Solicitor, in the events that happened, the appellant was tried and convicted on one charge and pleaded guilty to two other offences. Was he convicted of those two other offences?

MR KOURAKIS: Yes, but your Honour wants to ask me where that is noted.

GLEESON CJ: Yes. Again I would like to know, what is the process by which a plea of guilty results in a conviction?

MR KOURAKIS: The plea of guilty becomes a conviction again, from my recollection, after the allocutus and this question has been considered in those cases that consider the power of the court to allow a plea to be changed and the point at which the power of the court to allow that finally comes to an end.

GLEESON CJ: Perhaps you could give us a note on this. Instead of trying to deal with it now you could within seven days let us have a note of the provisions or principles according to which the verdict in the one case or the pleas of guilty in the other two cases were translated into a conviction.

MR KOURAKIS: Yes.

GLEESON CJ: Then the question I want to ask you is why there was only one sentence.

MR KOURAKIS: That is a provision of the Criminal Law (Sentencing) Act section 18A. I will provide that as well. That allows and I understand it is fairly common in the jurisdictions one sentence to be imposed instead of accumulating sentences.

GLEESON CJ: It is common, but it produces an embarrassing consequence when the conviction for one of the offences is set aside and the conviction for the others is not.

MR KOURAKIS: Yes. Your Honours, I meant to raise this. The orders sought by the appellant do not go so far as to seek an order setting aside the sentence that has been imposed. That would, I think, follow and I have not traced through the power under which the court could set aside the sentence under section 18A, once the conviction for one of the offences for which that overall sentence was imposed, goes.

KIRBY J: It must have arisen in the Court of Criminal Appeal of South Australia.

MR KOURAKIS: Yes. Your Honour, I am pretty sure that what happens is that simply then, necessarily, that sentence is set aside but I just have not traced through the way in which the Court of Criminal Appeal has power to do so.

KIRBY J: We would not resentence. What we would normally do, I would have thought, would be to send the matter back to the Court of Criminal Appeal.

MR KOURAKIS: And they could deal with that.

KIRBY J: That would allow you as the prosecutor to sort out what you are wanting to prosecute and the Court of Criminal Appeal to resentence on the residual matters unaffected by the matter, if it be the case, that has been contaminated by the matters raised in this appeal.

MR KOURAKIS: Yes. As your Honour says, if it be the case, because it may all have to wait until the prosecutorial decision and determination of any remitted information or new information. Your Honours, they are my submissions, but can I confirm that I have leave to file within seven days a note on what the records of the District Court are and that too will involve supplying some factual information to your Honours that I will consult with my friend about because there is, for example, a report of prisoners tried which will in part answer both questions as to the records of the court and when a conviction comes into place.

KIRBY J: Normally in New South Wales after the verdict comes the conviction. It is a separate step that is taken by the judge. That does not seem to be in the record here.

MR KOURAKIS: No. There was the procedure of arresting judgment even after verdict because of a defect which was common in one time but not now. I think, your Honours, those were the two matters that I have leave to provide written submissions on.

GLEESON CJ: Thank you, Mr Kourakis.

KIRBY J: Just one last question. You told us yesterday, or I think Mr Tokley told us, the accused is serving a sentence. That is presumably the composite sentence?

MR KOURAKIS: Yes.

KIRBY J: Is that going to be affected in the event that Mr Tokley makes good his arguments by what we do? Is the time sequence such that that might be affected? Is that an urgent matter or not?

MR KOURAKIS: Your Honour, that is a matter for the appellant, but he has served one year, as I understand it, of a two-year non-parole period and he continues to serve that time.

HEYDON J: It is actually 15 months, I think. I think it started in August.

MR KOURAKIS: Fifteen months, if your Honour pleases.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Tokley. At some stage before you finish, at your convenience, we would need to hear what
you have to say about what the precise order was that the Court of Criminal Appeal should have made if it had accepted your argument.

MR TOKLEY: Yes, thank you, your Honour. Your Honours, may I take some minor matters first of all. There are about five or six points that I wish to address by way of reply. First of all in relation to his Honour Justice Gummow’s question yesterday, the District Court of South Australia is a court of record and that is section 5 of the Act.

GUMMOW J: Section 5 of what Act?

MR TOKLEY: Section 5 of the District Court Act.

GUMMOW J: What year?

KIRBY J: It trips off your tongue, but the District Court Act (SA) is not something we visit all that often.

MR TOKLEY: No, I am sorry, your Honour. It is 1991. Secondly, overnight I have checked the criminal rules to see if there is any procedure that has to be followed when an amendment has been made to an information and there is nothing prescribed in the criminal rules to that end. Thirdly, your Honours, I also checked to see if there was a procedure to be followed once the information had been handed over by the prosecution to the criminal registry and again there is nothing in the rules. It seems to be a matter of practice that it is lodged at the registry, a file is then made up and it becomes part of the court file.

Your Honours, one other minor point. Section 34 of the Acts Interpretation Act (SA) stipulates that the word “may” imports a discretion and “shall” is imperative. So the question your Honour Justice Gummow asked of my learned friend, the precise words are:

in any such Act the word “shall” is used in conferring a power, it implies that the power must be exercised.

GUMMOW J: What year is the Acts Interpretation Act (SA)?

MR TOKLEY: It is 1915, your Honour. Your Honours, as to the case mentioned by my learned friend of Ismail (1991) 92 Cr App R 92 dealing with the approach of the Court of Appeal in England, at page 95 it was clear that an application was made by the prosecution for leave to proceed on the indictment as amended. So that in all the English cases there has been an application by the prosecution prior to the trial judge making the relevant amendment. Your Honours, in terms of the reasons given by the Lord Chief Justice in that case as to why the note indicating that an order had been made was not relevant, it is not clear from the precise terms of his Honour’s judgment as to whether he was making an observation that it had not been done. His precise words are:

It is true that that step was not taken as it should have been. It is suggested by counsel for the appellants that that indicates that this was not an amendment, but was a fresh indictment. We do not take that view. We take the view that that was an oversight on the part of the staff. It certainly is not an oversight which in itself invalidates the amendment which we find to have been made.

His Honour the Chief Justice there was proceeding on the basis that there was power to make the amendment, there had been an application to make the amendment and that, contrary to the argument put to him at that point in time by the appellants that the amendment was not an amendment but was in fact a fresh indictment, it was in response to that that he made his comments about the oversight.

GUMMOW J: Was there counsel for both sides in the Court of Appeal or just counsel for the appellant?

MR TOKLEY: No, your Honour. There were three appellants and there were counsel for each of the appellants.

GUMMOW J: What about the respondent?

MR TOKLEY: Yes, there was, it appears, counsel for the Crown, your Honours, but it does appear – in saying this I mean no disrespect to the learned Lord Chief Justice – that it was an ex tempore judgment.

KIRBY J: In Courts of Criminal Appeal that is the norm.

MR TOKLEY: Yes, your Honour. Her Honour Justice Kiefel raised an important question and your Honour the Chief Justice also took my learned friend back to page 139 of the appeal book. We have been over this ground for some time. I want to make one short point about it. Your Honours may recall that in my principal submissions, in an exchange between the Chief Justice and myself, it was the commencement of the touching that was the subject of count 1 of the information and, although my learned friend suggests that what transpires on page 139 of the appeal book constitutes a foreshadowing of an application, in truth, your Honours, that would be - - -

GUMMOW J: I think he eventually said it was an application.

MR TOKLEY: Yes. In my respectful submission, it is not. But, your Honours, that would actually be inconsistent with the approach taken by the prosecution and the reason I say that is, if I can invite your Honours to page 269 of the appeal book, your Honours will see in the very last paragraph on that page, paragraph 92, her Honour is dealing with count 6 on the information. Count 6 relates obviously to a separate account of indecent assault but the allegation was that the incident occurred in May 1972. It was by that date that the account – a trip to the Flinders Ranges was in May 1972 and it was by reference to that that the prosecutor then sought to say that count 1 was also at an earlier point in time than that alleged by the accused.

It is pretty clear that the prosecution case was that the incidents, including count 1, occurred at some point in time around about May 1972, in other words before November 1972, before the change in the legislation. Although this is a particular count, as can be seen from the second sentence in paragraph 92, her Honour says:

For the reasons outlined above, I have found that no sexual contact occurred between T and the accused until after 6 October 1973.

KIEFEL J: Did the prosecutor address consistently with what you say?

MR TOKLEY: Yes, your Honour. That was my submission yesterday, that throughout what the prosecutor was seeking to argue was that the relevant date was when the complainant was 13 years of age. By reference to his birth date that must have been May 1972. This was her case in relation to count 6. As her Honour says in paragraph 93, it is because that particular date was critical to the particular charge that she found the accused not guilty on that particular charge. In my respectful submission, one has to read what was said in the appeal book at page 139 in light of the consistent approach of the prosecutor all the way through, which is evidenced in these two pages in relation to count 6.

KIEFEL J: Mr Tokley, I see that at the commencement of the prosecution address at appeal book 231 there is reference to written submissions. We do not seem to have them.

MR TOKLEY: No, your Honours. The view was taken, perhaps wrongly with the benefit of hindsight, that the Court should not be burdened with all of the written submissions put forward by the parties.

KIEFEL J: Is there anything in the written submissions which bears upon what you have just said?

MR TOKLEY: In all honesty, I cannot say no, your Honour, because I have not read them. They were not available to me. Certainly with the Court’s permission and with my learned friend’s permission I can have a look at those and a note could be made, perhaps a joint note from the parties.

GLEESON CJ: Yes, thank you.

MR TOKLEY: Your Honour, I have left until last perhaps the most difficult question of all which is the question of what order the Court should make. Your Honours have quite rightly seen that my principal submission is that her Honour lacked the power to do what she did. It follows from that that the so-called conviction on count 1 is invalid. I am not quite sure whether it is void or a nullity.

GUMMOW J: It is an order of a superior court, a court of record, anyway, is it not?

MR TOKLEY: Yes, your Honour, and until set aside it is obliged to be obeyed. I think one of the authorities for that is M v Home Office. So until it is set aside it stands as an order of the court. In my respectful submission the proper order to have been made by the Court of Criminal Appeal was to have set aside the conviction, assuming that there is evidence of it been recorded somewhere, and order that there should have been a retrial but leaving it to the prosecutorial authorities to determine whether they would then - - -

GUMMOW J: A retrial of what?

MR TOKLEY: A retrial on count 1, your Honour.

KIRBY J: I think you have to think this through a lot more carefully because, as Mr Solicitor pointed out, there is a composite sentence which includes a sentence in respect of the matters that are now before this Court. Your orders sought on page 331 do not seek any variation of that sentence. They simply ask for the conviction to be set aside. It may be that you are assuming that some consequential change would then be necessary in the sentence, but I think it has to be spelt out because the Court of Criminal Appeal, if the matter were to be sent back, would be entitled to know what we expect them to do.

MR TOKLEY: Yes, your Honour.

GLEESON CJ: Are you asking us to order a retrial by the District Court or are you asking for the matter to be remitted to the Court of Criminal Appeal or both?

MR TOKLEY: There are probably three points we wish to make. One is that, given the complexity of the matter, it may be appropriate for some further thought and further submissions to be put in on the point. Insofar as there is a question as to what is the proper order, I think the options open to this Court are to make the order that would have been made by the Court of Criminal Appeal. I think there is authority in this Court.

KIRBY J: There is authority, there is a provision and it is the Judiciary Act, but how could we possibly, from our knowledge, resentence the appellant and then wrap up the whole matter? A Court of Criminal Appeal could do that because they would have all the detail before them and they have the sentencing experience.

MR TOKLEY: Yes, your Honour.

KIRBY J: But it is not something I would embark on very lightly.

MR TOKLEY: It follows from what your Honour has said that I think the preferable course of action would be to remit the matter to the Court of Criminal Appeal to be dealt with in light of your Honour’s reasons in this matter but at the same time, in our respectful submission, if there is no power to have made the amendment, the convictions would still be set aside.

GLEESON CJ: Did you have an application for leave to appeal against sentence to the Court of Criminal Appeal?

MR TOKLEY: We did, your Honour, yes.

GLEESON CJ: I did not sit on the special leave application in this matter but I understood from a remark that was made earlier that there was an unsuccessful attempt to get special leave to appeal to this Court in relation to the sentence, is that right?

MR TOKLEY: That is correct, your Honour, yes.

KIRBY J: But that was against the sentence in principle, in toto.

MR TOKLEY: Yes, your Honour, that was, yes.

KIRBY J: Whereas what we are now talking about is a consequential need possibly to readjust the composite sentence which included a component in respect of the matter which is now before this Court which, if the matter were then sent back to the prosecutor to make a new prosecutorial decision and if that was that there be a retrial on the count which has miscarried, then you would have to excise from the composite sentence that part which is relevant to the count which has miscarried and that would then be left over to any retrial that took place and the outcome of that trial, is that correct?

MR TOKLEY: That is correct, your Honour.

GLEESON CJ: How do you excise something from a composite sentence? The question is, what order should the Court of Criminal Appeal have made if it had accepted your argument, for example, that there was no power to make the order in paragraph 58? Presumably the Court of Criminal Appeal, if it had accepted that argument, would have, subject to what you want to put in your further submissions, quashed the conviction on count 1 in the indictment and ordered a retrial, query of what, and it would also have set aside the sentence or quashed the sentence and left the matter of the sentencing on the matters to which your client has pleaded guilty to be dealt with by the judge who dealt with the retrial.

MR TOKLEY: I think that must be right, for this reason, that it seems that if one is properly convicted, then the power to impose the sentence comes from the fact of a correct conviction because it is upon conviction that the penalties apply.

GLEESON CJ: But if there is a composite sentence, by hypothesis there is no part of the composite sentence that is allocated to count 1 in this indictment.

MR TOKLEY: That is correct, your Honour.

GLEESON CJ: That is what a composite sentence means. So presumably the only way to deal with that is to look at the sentencing of your client after whatever is going to happen has happened in relation to count 1.

MR TOKLEY: Yes, your Honour.

KIRBY J: The only problem with that which I understand is a sensible and principled approach is that, as I understand it, your client was in prison, is in prison, is serving a sentence and the hypothesis then would be that he would be released from prison to await sentencing on this outstanding matter and that would mean he would have to presumably or may have to return to prison at a later stage including for the matters in respect of which he has pleaded guilty.

MR TOKLEY: Yes, your Honour.

KIRBY J: I think this may need all the wisdom of the Court of Criminal Appeal of South Australia to sort this out. I am not sure that I have enough - - -

GLEESON CJ: Anyway, you let us have submissions within seven days on that matter.

MR TOKLEY: Yes, if it please your Honour. Those effectively are the submissions in reply.

GLEESON CJ: Thank you, Mr Tokley.

MR KOURAKIS: Your Honours, can I have leave simply to give her Honour Justice Kiefel a reference to the prosecutor’s submissions on the timing aspect, just the page numbers.

GLEESON CJ: Yes.

MR KOURAKIS: Pages 220 to 230, if the Court pleases.

GLEESON CJ: Thank you. We will reserve our decision in this matter. We will adjourn for a short time to reconstitute to deal with the special leave applications.

AT 11.21 AM THE MATTER WAS ADJOURNED