KMC v Director of Public Prosecutions (SA) [2020] HCATrans 6 (6 February 2020)

Last Updated: 7 February 2020

[2020] HCATrans 006

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A20 of 2019

B e t w e e n -

KMC

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (SA)

Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 6 FEBRUARY 2020, AT 10.00 AM

Copyright in the High Court of Australia
MR S.A. McDONALD: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the applicant. (instructed by Legal Services Commission of South Australia)

MR C.D. BLEBY, SC, (Solicitor‑General for the State of South Australia): May it please the Court, I appear with my learned friends, MR M.E. BOISSEAU and MS F.J. McDONALD, for the respondent and for the Attorney‑General for the State of South Australia intervening. (instructed by Office of the Director of Public Prosecutions (SA) and Crown Solicitor for the State of South Australia)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales: If the Court pleases, I appear with my learned friend, MS J.S. CALDWELL, for the Attorney‑General for the State of New South Wales who intervenes in the proceedings. (instructed by Crown Solicitor’s Office (NSW))

MR M.E. O’FARRELL, SC, (Solicitor‑General for the State of Tasmania): May it please the Court, I appear with my learned friend, MS J.L. RUDOLF, for the Attorney‑General for the State of Tasmania intervening. (instructed by Office of the Solicitor‑General for the State of Tasmania)

MS K.L. WALKER, QC, (Solicitor‑General for the State of Victoria): If the Court pleases, I appear with my learned friend, MS K.A. O’GORMAN, for the Attorney‑General for the State of Victoria intervening. (instructed by Victorian Government Solicitor)

MR G.A. THOMPSON, QC, (Solicitor‑General of the State of Queensland): May it please the Court, I appear on behalf of the Attorney‑General of the State of Queensland intervening, with MS F.J. NAGORCKA. (instructed by Crown Solicitor (Qld))

KIEFEL CJ: Mr McDonald.

MR McDONALD: Thank you, your Honour.

KIEFEL CJ: The parties received a letter, I think, from the Senior Registrar advising that the Court would be assisted by submissions on what is effectively a preliminary question.

MR McDONALD: Yes, your Honour. If it is convenient, I might go straight to addressing that issue.

KIEFEL CJ: Thank you.

MR McDONALD: The question that the Court has raised is whether the sentencing judge did make a finding as to which of the alleged underlying acts of sexual exploitation were proved beyond reasonable doubt within the meaning of section 9(1)(b). In our submission, the better view is that the sentencing judge did not make such a finding. The sentencing remarks do not reveal or indicate in terms that he did.

The Crown in this appeal relies by way of a response on section 9(1) and so we would submit bears the burden of demonstrating its application to the case. So if it is not shown that the sentencing judge did make a finding that each of the acts for which he sentenced was proved beyond reasonable doubt then, in our submission, the terms of section 9(1)(b) would not be engaged.

So to address this issue, can I first invite your Honours’ attention briefly to the words of section 9(1)(b). Your Honours will find that in the joint book of authorities, volume 1. The amending Act commences at page 11 and the relevant provision, section 9(1), appears on page 18.

The first observation relevantly to this issue that we make concerns the condition in paragraph (b) that the sentencing court sentenced the person “having regard to” particular acts of sexual exploitation. We would respectfully submit that that expression is probably to be construed as meaning that the sentencing court sentenced for particular acts of sexual exploitation or on the basis of sexual exploitation, as opposed to simply taking them into account.

The second observation about section 9(1)(b) concerns the expression “acts of sexual exploitation determined by the sentencing court to have been proved beyond a reasonable doubt”. There are perhaps a couple of possible constructions of that expression. The first, and the one that we would submit is appropriate, is that it is to be understood as many acts, which the sentencing court itself found proved beyond reasonable doubt.

A possible alternative construction would be acts which the sentencing court determined to have been found beyond reasonable doubt to the satisfaction of the jury, or I suppose a possible third alternative is acts found proved beyond reasonable doubt either to the satisfaction of the jury or the judge.

But what, in our submission, section 9(1)(b) requires – and what is probably perhaps assumed in the way that the court framed the issue in its correspondence, is that the sentencing judge himself or herself must have made findings beyond reasonable doubt regarding acts of sexual exploitation and must have sentenced only for acts that he or she personally found proved beyond reasonable doubt.

To elucidate that slightly further, section 9(1)(b), in our submission, is to be construed as positing an independent determination by the judge of what acts of sexual exploitation he or she was satisfied of beyond reasonable doubt were committed by the offender. By “independent determination” I mean the judge considering whether he or she personally found those matters proved beyond reasonable doubt on the evidence, as opposed to, for example, extrapolating from the jury’s verdict to findings that perhaps seem consistent with that verdict.

So with that construction in mind, can I invite your Honours to take up the sentencing remarks, which can be found in the core appeal book, commencing at page 29. The first submission that we will make regarding the sentencing remarks is that there is not to be found, at any point, any passage where the judge ever stated that he was making findings beyond reasonable doubt or that he was satisfied beyond reasonable doubt of any particular matters.

Indeed, the judge did not in terms state that he himself was making findings at all, nor did the judge, as one often does see in sentencing remarks, include a statement where he identified for himself that he was required to be satisfied of particular acts beyond reasonable doubt before he could sentence for them or have regard to them in sentencing.

That, if I could just say in passing, may be contrasted with what the trial judge said in Chiro, which is apparent from paragraphs 14 and 15 of the judgment in Chiro and it is clear that in that case her Honour first identified that she must make findings beyond reasonable doubt to her own satisfaction and also it is clear that she expressly made findings beyond reasonable doubt. So there is a distinction between sentencing on a factual basis that is identified, in our submission, and sentencing on the basis that the judge himself has found those facts or acts beyond reasonable doubt.

Can I take your Honours through the sentencing remarks but by way of overview what one does see, in our submission, is a couple of points where the judge states that the accused engaged in particular conduct, one point where he identifies the jury’s verdict and other points where he refers to evidence as evidence of the complainant that was led at trial, but there is nothing expressed in terms of findings.

So the first statement about the factual basis that your Honours will see is at page 29, about lines 13 to 18 on the page. That describes the acts in very general terms. There is no indication there of a finding by the judge himself that any particular acts or those acts generally as described were found proved beyond reasonable doubt by him.

The next is at about line 22, on the same page. His Honour recounts the evidence given by the victim at trial, and that continues on over to page 30. So that is all recorded in terms of the evidence she gave and we would submit it is probably fair to infer that he was sentencing on the basis of the acts described in her evidence. But again, that is framed in terms of the evidence given, rather than findings.

NETTLE J: You cannot construe that paragraph there were three distinct occasions as being those of which the judge was satisfied beyond reasonable doubt.

MR McDONALD: Well, no. In my submission, no, your Honour; because it is really just a description of the evidence given. He also describes the nature of the general evidence given.

NETTLE J: That is true.

MR McDONALD: So, in my submission, a fair reading of that whole section is that he is just recounting the evidence.

GORDON J: There is one sentence at about line 25 where, after referring to the three distinct occasions, he says:

also gave evidence of other abuse that she said occurred frequently.

MR McDONALD: Yes, and then in the next paragraph as well of:

what continued to be regular sexual offending against her.

So, in a sense we accept that the judge is identifying the acts for which he is sentencing here, but what is missing is any identification of the need for him to make a finding and an actual - any description of himself as making a finding. Then on page 30, at line 8 there is a reference to the offence having been proved by unanimous verdict:

the jury found the offence proven by unanimous verdict –

and that follows straight after the description of the complainant’s evidence and, in our submission, that supports the inference that his Honour is attaching significance to the fact that the jury, having heard all of that evidence, made a finding which leads into our submission that this is at least open to the construction that his Honour proceeded on the basis of what he thought he could infer from the jury’s verdict rather than his own personal findings of fact.

On pages 30 and on to 31 there are references to victim impact statements and the personal circumstances of the applicant. They do not seem to refer to the offences at all, but then at line 10 on page 31 ‑ ‑ ‑

GORDON J: Before you get there, at page 30 at about line 35 it is described as “during these absences” that this offending took place.

MR McDONALD: Yes.

GORDON J: How do you identify what the offending is? Is it all of the general conduct to which reference has been made as well as the three particular acts?

MR McDONALD: In our submission, that is probably what his Honour meant, yes. I think that is probably the fairer construction of it. Then, on line 10, at page 31, the judge says:

Your offending –

again, not very clear but it would seem to be the offending referred to in general:

is a serious example of this type of offending involving multiple acts –

of the kind there described. In my submission, that, given that he has just turned to sentence, makes it very clear that that is the basis on which he has sentenced – the factual basis. So, in our submission, that leaves the judge having clearly identified the facts on which he is sentencing but not having clearly identified that he is making any particular finding himself. The reference to the jury’s verdict, together with the absence of any reference to himself making any findings, supports that conclusion.

There are a couple of other considerations that perhaps bear on this as well – and I guess the question is whether it should nevertheless be inferred, despite there being no reference to making findings, and particularly beyond reasonable doubt, that he must have done so because it can be assumed he knew what he was supposed to do.

One problem with that, of course, is that what he was doing, on any view, was not what the law actually required him to do at the time. A further indication, in our submission, that the judge was not making findings of his own beyond reasonable doubt is that the sentencing remarks do not engage at all with the arguments that defence counsel advanced as to the inherent unlikelihood of certain aspects of the charged conduct.

So, if your Honours could take up the transcript of the sentencing submissions – they are in the applicant’s book of further materials and the transcript begins at page 216. The first place where counsel for the defence raised the submission concerning inherent unlikelihood of the acts having occurred as described is at page 222, lines 10 to 26.

I do not propose to take your Honours back to the evidence at trial and the submissions that were made at trial, but there is a sense in which this needs to be understood in light of the submissions that were made to the jury, the effect of which was some of the acts that have been described are very inherently unlikely to have occurred because of the way that they were described by the complainant or that they were unlikely to have occurred as described and that should lead you to have a doubt about the entirety of the complainant’s account.

So the point being made by defence counsel here was: “I’m not going to go back over that, but you’ve heard the criticisms I’ve made of the complainant’s evidence and, in effect, although the jury was obviously satisfied that some of this occurred, there is real doubt about particular parts of it”.

There is a passage that may be thought to be of some significance at page 223, lines 17 to 25. I do not really want to put too much weight on this, in a sense, because it is obviously just an exchange in the course of submissions. But at line 17 there was an exchange with the judge and defence counsel where his Honour said:

Does that mean I would interpolate myself into the seat of a juror or the jury, and if, for example, I had a different view that the jury might have formed, do I say that?

Now, I think probably the word “that” when it first appears there, it should be “than”. Then Mr Crowe, the defence counsel, says:

No, in my submission your Honour’s sentencing must be consistent with the jury verdict.

HIS HONOUR: That’s as I understand it. The jury are the triers of fact, it’s not for me to put myself in the position of the jury.

So, one possible interpretation of that, at least in my submission, is that his Honour was considering approaching the matter from the point of view of not putting himself in the position of an independent fact‑finder, making findings of his own beyond reasonable doubt, but rather he saw his role as more to ascertain what the jury found or were likely to have found, and to sentence on a basis that he thought must be held most consistent with the verdict of the jury. So again, I accept not too much can be drawn from that perhaps by itself.

EDELMAN J: Not too much can be drawn from statements made orally in the course of submissions anyway.

MR McDONALD: That is really exactly what I am saying, your Honour. Yes, I agree. It is just that that having been an issue that was raised, it is then not dealt with in the sentencing remarks at all. Then the second matter I should mention is the prosecution at one point in the sentencing submissions submitted that the judge could proceed to sentence on the basis of the prosecution as a whole because, as she submitted, the prosecution case: r

rose and fell on the complainant’s evidence –

That is page 220, line 12. At the bottom of 220, starting at line 29, it was submitted the jury must have accepted by their verdict at least two acts of not necessarily three days. I think maybe the “not” is a slip there. Then after the judge’s question, a couple of lines further down on page 220 and over onto 221, the prosecutor says:

your Honour can sentence on the basis that is consistent with that verdict of the jury and in my submission, in this case it is that the complainant was being truthful in her account to the police.

So there is sort of an assimilation there of the jury must make this finding, and therefore that is the basis that is consistent with the jury’s verdict. I do not submit that is entirely clear. But again, it is something that was an issue raised for decision and then the absence of any discussion of that in the sentencing remarks assumes more significance. I should say also, though, that on page 221, the prosecutor did submit to the judge he:

can be satisfied beyond reasonable doubt of those particulars in a way that the prosecution case ran and can sentence on the basis of the version given by the complainant.

She also submitted a similar submission at lines 30 to 31. But, in my submission, it is far from clear whether that would have been understood as meaning that at least the jury’s verdict could effectively be treated as showing that they had accepted the complainant beyond reasonable doubt, and so the court should sentence on that basis.

So, in our submission those are the - just to emphasise that if the judge did make findings of all the acts that he described beyond reasonable doubt he never explained in the course of the sentencing remarks why he rejected the defence submissions about unlikelihood, so it was an issue that was squarely raised and just was not dealt with, which points in a particular direction in our submission.

So, in my submission, the conclusion of the sentencing remarks did not establish that the sentencing judge independently of the verdict formed his own view of what facts were proved beyond reasonable doubt and there is no statement or indication at all of how he actually came to decide what factual basis the sentencing should proceed on. So if that is what did happen then, in our submission, that would not engage section 9(1)(b). That is all I propose to say about that issue. If the Court pleases.

KIEFEL CJ: We might hear from the Solicitor‑General for South Australia.

MR BLEBY: If the Court pleases. The starting point is the information which is on page 5 of the core appeal book, and that is cast in the same terms as was the informations in both Chiro and Hamra in that it alleges over a period of not less than three days, between certain dates, the accused committed more than one act of sexual exploitation and then it particularises the acts committed in terms of description of the acts.

An assessment of whether the trial judge’s sentencing remarks make apparent the acts of sexual exploitation that he found beyond reasonable doubt, in my submission does require that not only do we consider the reasons in their entirety and notwithstanding your Honour Justice Edelman’s observation in all of the circumstances of the case, these are sentencing remarks, they are not reasons for a verdict on a trial by judge alone.

Now, I think we have supplied to the Court the case of – well, we have not yet supplied to the Court the case of R v Reiner (1974) 8 SASR 102. This is a decision of the South Australian Supreme Court, Full Court. I will just allow that to be distributed. I apologise, your Honours.

KIEFEL CJ: Thank you.

MR BLEBY: This is really looking to set the framework of reading sentencing remarks and I am relying particularly on the observations of Justice Wells at page 114 of the report. At about point 6 on the page, halfway through the paragraph beginning “I am of the opinion” his Honour makes the observation that:

It is, in my opinion, no part of an appeal court’s function to search, with a hypercritical eye for what may, upon one arguable construction, be error or misunderstanding.

That comment was adopted by Chief Justice Bray in the same case at page 106. His Honour Justice Wells then went on at about point 8 on the page, the last full paragraph:

A trial judge, when imposing a sentence, directs his remarks to the prisoner first, and to other people next. They do not constitute a written judgment (they are not “Reasons for Sentence”); they do not purport to represent an exhaustive inventory of the facts and matters taken into account; they are not published as a monograph on the judicial art of sentencing.

Now this, of course, does not mean that the findings need not be sufficiently identified, only that when we approach sentencing remarks we are to do so in the context of this being sentencing remarks of a trial judge.

KIEFEL CJ: But this is sentencing remarks more generally in cases of this kind. Section 9(1)(b) requires that there be specific findings.

MR BLEBY: Certainly, your Honour, and all I am saying is that that requirement – we are investigating whether that finding is sufficiently made and communicated. We do so in the background of this understanding of sentencing remarks. I do not put it any higher than that. But to look then at the circumstances of the case against which the sentencing remarks occurred, that starts with the observation that the applicant gave evidence and that the evidence took the form of bare denials, and that was both in‑chief and in cross‑examination.

That is in the applicant’s book of further materials, and that is at pages 139 through to 141. I would simply draw your Honours’ attention at page 139, from line 35, all the way through, going into cross‑examination, halfway down page 140 through to about halfway down page 141.

NETTLE J: But, Mr Solicitor, what do you derive from that, that the judge is to be taken as having found to be proved beyond reasonable doubt every act alleged by the complainant?

MR BLEBY: That is where I am going to land, your Honour. I need to establish a couple more circumstances of the case to reach that conclusion. I appreciate I am taking a relatively long run up, but that is my ultimate submission, yes.

GORDON J: Can I just test the reference to this material. On page 140 the applicant is, in effect, cross‑examined about multiple acts, not one single act.

MR BLEBY: Yes. That is correct, your Honour.

GORDON J: Thank you.

NETTLE J: She is not precise, nor can she be, understandably, as to just how many there were or when they were, in a lot of cases.

MR BLEBY: Indeed, your Honour, and that of course is the entire mischief which this section was always designed to address and, therefore, why the information is particularised in the terms that it is. The questioning, for example, as we see at line 24 on page 140 is, with respect, quite appropriate in the terms, given the way that the information was laid.

NETTLE J: No question, but which of all of these generalities are ultimately found by the judge to be proved beyond reasonable doubt? How does one get the number, as it were?

MR BLEBY: Well, one does not need the number; one needs more than one act over not less than three days in a given period of time.

NETTLE J: For a conviction.

MR BLEBY: For a conviction.

NETTLE J: We are talking about 9(1)(b).

MR BLEBY: Certainly, and but the acts - there is no difficulty with expressing the acts as long as they are sufficiently expressed at the same level of generality.

NETTLE J: I see.

MR BLEBY: Now, against that, we then need to look at how the issues were framed in sentencing submissions in order to understand the remarks. As my learned friend, Mr McDonald, has taken the Court to, that appears in the applicant’s book of further materials at tab 3, commencing at page 216. Now, can I ask the Court first to go to page 218, line 11, where Mr Crowe for the defence said:

The charges of persistent exploitation are a –

“vexed”, that should be:

issue for a court and counsel at this stage of the trial your Honour. I can’t really make any further submissions about the facts, it’s a matter for your Honour what your Honour finds proved.

The prosecutor then commenced, relevantly at line 19 on the same page, and she said:

In my submission your Honour can sentence on the basis of the prosecution case, which was that there were multiple acts of penile/anal penetration, cunnilingus and fellatio, urinating upon the child, between the ages of about six and approaching the age of nine.

Then at page 219, line 34, his Honour raised the matter of Chiro. Then in response to his Honour raising that case, at line 11 on page 220, the prosecutor said this:

In my submission this case is much simpler because it rose and fell on the complainant’s evidence which is quite simple, it’s that over a period of time, there were acts she could describe the first occasion . . . Your Honour has the evidence of the defendant about the occasions where he had the opportunity, there was agreement really that there were occasions when he would look after the children . . .

This was a case where there was complete denial by the defendant.

Then at line 3 on page 221, the prosecutor observes, line 3:

For example, this is not a case where, for example, one act that she described could not have occurred, she must have been mistaken because of this other objective evidence.

Now, for example, had there been evidence that the accused was not in the jurisdiction, or something of the sort. The prosecutor then frames the issue from line 20 on page 221 in the only terms in which it was raised at the trial, that is, the veracity of the complainant’s evidence and those denials. Commencing at line 20:

In my submission there is no reason to doubt the complainant on those three separate incidents, nor that it occurred more than that. In my submission your Honour can be satisfied beyond reasonable doubt of those particulars in a way that the prosecution case ran and can sentence on the basis of the version given by the complainant. In my submission there is no reason to doubt any aspects of that evidence given by her, in which case I suppose I’m submitting your Honour can be satisfied of each of those particular occasions beyond reasonable doubt and that there were other occasions beyond reasonable doubt.

Contrary to my learned friend’s submission, there can be no doubt in my respectful submission that this is a prosecutor explaining his Honour’s obligation to find the acts himself and to find them beyond reasonable doubt.

Now, that is how the prosecution frames the case for sentencing. The defence counsel then commences on page 221 at line 38. Going over the page, your Honour submits that special verdicts would have been preferable. Bearing in mind what this Court then said in Chiro it may be that counsel was actually referring to the idea of questions, but, nonetheless, that is a relevant aspect of the context. It was clearly by then too late to ask questions of the jury.

Absent that ability, counsel then makes submissions, as my learned friend pointed out, as to the unlikelihood or implausibility of the victim’s evidence. This is at page 222 from lines 10 through to 32, noting at the end of that submission at line 32, “but we are left with her evidence”. Counsel then submits, going on from that:

What I could say your Honour, is that in my experience the sentencing courts would usually refer to the conduct they found proved during the sentencing remarks. It’s not necessary for the court to identify the two or more acts which have been proved beyond reasonable doubt but rather the conduct which has been proved beyond reasonable doubt, so that there is a basis for sentencing, if that makes sense.

Let us just put that submission on hold for the minute, in light of what this Court said in Chiro, but then went on at line 26 to say this:

But there are cases where the court might find that a court is at least satisfied beyond reasonable doubt of certain types [of] conduct, but may not be satisfied of another type of conduct that had been alleged. Because we do not know whether the jury found all of the conduct proved beyond reasonable doubt, it’s open for the Court to come to that conclusion in sentencing.

So he is clearly distinguishing here between the role of the jury and the role of the sentencing judge. Critically, at page 223, line 37 he makes a submission that effectively dots the position the prosecution has to approach:

As my friend has submitted, it’s difficult in this case to say that there was a different category of evidence. However, I just relied on the implausibility and at times the bizarre nature of perhaps two of the types of conduct, being the anal intercourse and the urinating. But ultimately it’s a matter for your Honour, on hearing all the evidence but consistent with a jury’s verdict.

EDELMAN J: That is very close to a submission that maybe the sentencing judge should not conclude beyond reasonable doubt that those two particular instances of conduct were proved.

MR BLEBY: Yes. I do not actually shy away from that, your Honour, but it is only put in terms of, if you like, the inherent implausibility of the accounts and, indeed, at no point in the sentencing submissions were the issues framed as anything other, from the defence point of view, than the plausibility of parts of the victim’s account.

That is, of course, quite consistent with the way that the trial was conducted and with bare denials of the accused. Both counsel reminded his Honour what findings he did have to make as to the acts committed for the purpose of sentencing and to do so beyond reasonable doubt. It is in that context that we then come to the sentencing remarks. They, as your Honours have seen, appear at pages 29 to 31 of the core appeal book.

KIEFEL CJ: I am sorry; what was that page?

MR BLEBY: Page 29 of the core appeal book, your Honour. My learned junior reminds me just before I go to that, also at page 223 of the further materials, line 3, Mr Crowe, defence counsel’s submission:

Your Honour’s not required to guess which two either similar or different acts the jury found proved, but on hearing all the evidence and taking into account the jury’s verdict your Honour should sentence, in my submission, on a basis that certain conduct was proved.

In light of what then happens from the bottom of page 223, my submission is that that is clear. But then against that context of the way the issues were framed we go to the sentencing remarks, first at page 29, second paragraph. My submission is that that is a summary of his Honour’s findings, even if he does not use the word “findings”. Then at page 29, three paragraphs from the bottom, his Honour summarises the three distinct occasions that the victim recalled.

Now, in circumstances where we have that second paragraph in the sentencing remarks my submission is it can be inferred that this is at least an acceptance of that, and I am conscious of what the sentencing judge’s obligations were in this context.

NETTLE J: So you say that is a finding beyond reasonable doubt that those three were proved.

MR BLEBY: I do, certainly in the context of the entire sentencing remarks but I say there is sufficient there on its own, although I do of course accept that it is framed in terms of recounting the victim’s evidence.

KEANE J: There is no addressing the argument about implausibility in relation to one type of offending or two types of offending?

MR BLEBY: That is not addressed, your Honour. I must accept that.

KEANE J: So the trial judge or the sentencing judge does not resolve that argument?

MR BLEBY: Not out loud.

GORDON J: It is put all in terms of recollection of evidence. He is summarising the complainant’s evidence, from lines ‑ ‑ ‑

MR BLEBY: Those paragraphs – I beg your pardon, your Honour.

GORDON J: From lines 22 or 23 onwards is exactly what he says he is doing.

MR BLEBY: Yes, your Honour, and so I do not put too much store on those paragraphs on their own. That is why I answered Justice Nettle’s question that we look at those in context of what has already come before. Then of course on page 31, in two parts, we have the third paragraph, the last sentence:

Your offending is a serious example of this type of offending involving multiple acts of penile‑anal penetration, cunnilingus and fellatio and urinating upon a child.

But that language of the multiple acts, and then the words that follow, that is the precise language used by the prosecutor at page 218, line 19, when addressing the basis on which the court sentenced. That is then followed, two paragraphs down, by a passage commencing at the second sentence:

EV was a very young child when you began sexually abusing her –

et cetera. So against the context of both the course of the trial and the sentencing submissions, my submission is that there can be no doubt that the judge was making the finding beyond reasonable doubt.

EDELMAN J: One also needs to take into account, I suppose, that the sentencing submissions are being directed at the convicted person rather than at the prosecutor and the defence counsel.

MR BLEBY: With respect, indeed, your Honour. In that context his Honour is communicating, in light of what was put, his findings beyond reasonable doubt that the accused had, over a period of not less than three days, between the dates particularised on the information, committed all of the acts alleged by the complainant. That is the context, your Honour Justice Nettle, that I say that we do get to that finding of all of the acts.

GORDON J: Does that include, Mr Solicitor, the reference on page AB29 to her also giving evidence of “other abuse”, et cetera, that “occurred frequently”?

MR BLEBY: Yes, your Honour.

GORDON J: Does that pick up also that reference to “this offending” on page 30? You could read it as to be extending to include everything?

MR BLEBY: Yes, your Honour, because specifically of what then appears on page 31 in the last sentence of the third paragraph, which we relate back in its precise terms to the way the prosecutor had addressed.

Now, your Honour Justice Keane said then that there is no resolution, if you like, of what is said to be the implausibility. Obviously this Court has made statements in the past about what is required of a sentencing judge and I am thinking particularly of a case of Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086, and I am not particularly proposing to go to that case because I can hand it up.

Of course, Douglas does not stand for the proposition that I am sentencing, you must explain why you reject something. That might be required if all you are doing is not explaining why you are doing any more than preferring one account over another but the question always that is required by Douglass is that the reasons must be sufficient to exclude as a reasonable possibility that the judge simply preferred the complainant’s evidence and proceeded to convict upon standard less than proof beyond reasonable doubt.

It does not describe a formula for acceptance and rejection of competing evidence and if a complainant’s evidence is accepted beyond reasonable doubt in terms and in a context that leaves no room for the reasonable possibility that the denials have not been rejected beyond reasonable doubt, then the judge’s task is discharged. Here, of course, they were bare denials and the context is such that, in my respectful submission, that is the only conclusion that is available on the sentencing remarks in the context to which they were responding. May it please the Court.

NETTLE J: Does that mean then, Mr Solicitor, that the trial judge sentences only on the basis of the underlying acts of sexual exploitation particularised in the information or on those plus all of the others to which the complainant referred in her evidence?

MR BLEBY: Your Honour, if we go back to the information, it there talks of more than one act of sexual exploitation by doing these things. So, this incorporates in its terms that which the complainant gave evidence of so the answer is the latter.

GORDON J: What is the latter, sorry, Mr Solicitor?

MR BLEBY: That is the specific occasions that the complainant recalled and her evidence that it had occurred on other occasions as well. May it please the Court.

KIEFEL CJ: Thank you, Mr Solicitor. Anything in response on this issue, Mr McDonald?

MR McDONALD: Yes, thank you, your Honour. Just very briefly, your Honour Justice Edelman raised an issue to the effect that this was obviously a statement directed to the offender and not to the lawyers, so perhaps does not take the form of a reasons for sentence. We accept that, but the ultimate position is that section 9(1)(b) is only going to be engaged where there are specific findings. So the fact that it is directed to the accused might explain, in a sense, why the judge did not articulate findings beyond reasonable doubt and did make particular findings about which acts were involved. But that might be the reason why section 9(1) is not engaged by this particular sentence.

EDELMAN J: Or it might be the way in which you construe or interpret the reasons, the sentencing remarks that are given.

MR McDONALD: Well, it would certainly - it obviously does bear on the way that they are to be interpreted, I accept that much. But the other issue that I was going to mention is the issue, I think just raised by Justice Nettle, which was to the effect, well, do we take this as he has been sentenced on the basis of each of the acts particularised in the information, and I think Dr Bleby’s response to that was, in essence, that they covered all of the acts that the complainant described. But, in fact, the complainant also described further acts which would not be covered by those specifically particularised. So, to the extent that the judge has identified the complainant’s account as the basis, that does seem to run into a slight problem. I am just trying to pick up the reference.

GORDON J: Is the reference to other abuse?

MR McDONALD: No, sorry, what I particularly had in mind was - perhaps the easiest way is if your Honours go to page 18 of the core appeal book, which is the summing‑up of the judge, but it is a description of the trial evidence given by the complainant, and at paragraph 71 it said:

After that first time at the [Hotel] she said that she recalled that the accused, whom she referred to as her father, touched her on the vagina.

Then, what follows, in my submission - that is an act that is not identified as one of the particulars but it is part of the complainant’s account, and so there is a real question about whether the court has made a finding in relation to that act or if, probably to be interpreted as a kind of act that occurred on multiple occasions, whether the court had made any finding at all about that.

EDELMAN J: Is it not a different ground of appeal, then? If you are accepting what the Solicitor‑General has submitted, in other words, that the sentencing judge has sentenced beyond the particularised matters in the information, is that not a separate error?

MR McDONALD: Well, it would be, your Honour, a separate error as well, but what I am really saying is that the difficulty is that the sentencing remarks do not identify clearly which particular acts - if they are open to either of those interpretations it is not readily obvious how you resolve that.

GORDON J: One way of looking at it is to take what appears at AB 29 possibly, where the sentencing judge sets out a recollection of the evidence and has treated it not as findings, because as they say at line, about 25:

She also gave evidence of other abuse that she said occurred frequently –

which picks up this idea that there was other abuse that was not the subject of the information.

MR McDONALD: Right, I adopt that. Yes, thank you, your Honour. There is also, although it was not particularly the subject of submissions on sentencing, the fact that the complainant’s account in terms was this happened nearly every day. The independent evidence established that at most it could have happened about three times a week. So, again, if it is sentence on the basis of the complainant’s account, is the judge’s finding that this happened nearly every day or is it a finding that it happened as often as was consistent with the other evidence at trial. There were actually issues about the nature and extent of the conduct that are not identified, are not resolved by these sentencing ‑ ‑ ‑

BELL J: Does it not come down to the circumstance that section 9(1), to the extent that it alters the laws stated in Chiro, does so on the basis that the trier of fact is to determine the acts of sexual exploitation that have been proved? So an account that it happened nearly every day, or words to that effect, would not comply with the requirement, and if the requirement is not met I do not understand there to be a contention that the law – the principles stated in Chiro – would not apply.

MR McDONALD: With respect, yes, I would adopt that as well. Thank you, your Honour.

KIEFEL CJ: Mr McDonald, if your submissions are accepted by the Court, what course do you say the Court should take?

MR McDONALD: Well, in that case your Honour section 9(1)(b) would not preclude the applicant raising the two grounds of appeal that he relies upon. We have accepted that the appropriate course would be, in that case, to remit the cause removed back to the Full Court of the Supreme Court. We would then hear the appeal as an ordinary sentence appeal on those two grounds. One of the options available to the court, the Full Court, would be then to remit to the trial judge.

KIEFEL CJ: Trial judge.

MR McDONALD: Which might be necessary for the making of findings. This Court, because it is a cause removed probably can directly do that as well, if that was thought to be the appropriate course.

KIEFEL CJ: Mr Solicitor, what do you say should occur in the event that the applicant’s submissions are accepted?

MR BLEBY: Your Honour, the entire cause has been removed into this Court, so I see no barrier to this Court remitting the matter to the trial judge, for sentencing in accordance with the court’s orders and reasons.

KIEFEL CJ: That would be by way of allowing the appeal.

MR BLEBY: I beg your pardon, yes, your Honour would allow the appeal ‑ ‑ ‑

KIEFEL CJ: But remitting direct to the trial judge is your point.

MR BLEBY: Yes.

KIEFEL CJ: Yes. The Court will adjourn to consider the course that it will take.

AT 10.51 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.03 AM:

KIEFEL CJ: The Court is unanimously of the view that the appeal should be allowed. The orders of the Court are:

1. Appeal allowed.

2. The matter is to be remitted to the trial judge to sentence according to law.

Reasons will be provided at a later date.

MR McDONALD: Your Honour, may I just raise one matter, which is that formally we also need a grant of permission to appeal and an extension of time to bring the appeal to the Full Court. That is by consent.

KIEFEL CJ: I do not think that was ever – that was overlooked. Thank you, Mr McDonald. There will be an order in those terms.

The Court will now adjourn to 10.00 am on Tuesday, 11 February in Canberra.

AT 11.04 AM THE MATTER WAS ADJOURNED