KNZ v The State of Western Australia [2022] HCATrans 200 (11 November 2022)

Last Updated: 15 November 2022

[2022] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P12 of 2022

B e t w e e n -

KNZ

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 11 NOVEMBER 2022, AT 1.30 PM

Copyright in the High Court of Australia

GORDON J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR T.A. GAME, SC appears with MS G.E.L. HUXLEY for the applicant. (instructed by MGM O’Connor Lawyers Pty Ltd)

MR L.M. FOX, SC appears with MS G.N. BEGGS for the respondent. (instructed by Office of the Director of Public Prosecutions for Western Australia)

GORDON J: Mr Game.

MR GAME: Thank you, your Honour.

GORDON J: You need an extension of time. Is that opposed, Mr Fox?

MR FOX: No, it is not, your Honour.

GORDON J: Thank you. Mr Game.

MR GAME: Thank you, your Honour. So, your Honours, this is, dare I say, another case about the common form provision and whether or not the relevant intermediate court has taken the correct approach to whether or not a verdict is unreasonable or cannot be supported, having regard to the evidence. If successful, we are seeking a remitter to the Court of Appeal of Western Australia to hear the substantive argument and the argument we wish to put very much concerns the process by which the court addressed the submission that was put to it. Timewise, this case sits post Pell but pre Dansie and, in some respects, we submit it may have proceeded on a misapprehension about what was actually determined in Pell.

Your Honours, if I could take you to the relevant parts of the judgment, just turning very briefly to 136 and 137 of the application book, there is a recitation of some propositions. For present purposes, at 136 one might note (c) the reference to Libke, and (e) is pretty much a recitation from things said in Pell. Then in 138 to 140, basically the arguments were put on what I will call the unsafe.

Now, what we say is, your Honours, that the approach taken betrays a failure to conduct an independent examination of the evidence to assess its sufficiency and, importantly, its quality. If I could take your Honours to the – actually to the back end of the judgment where we submit this can be seen most clearly, obviously enough this is a case involving major conflicts in testimony between that which the complainant said and that which the accused, or now the applicant – but if one looks at paragraph 294, in considering what was the last category of evidence that was relied upon by the appellant in the court below, we see at the end of 294, we see an observation that:

it is common for those who commit serious crimes, particularly of a sexual nature, to consistently and convincingly deny them even in private communications –

That rather sets the tone of that which follows. If we look at a couple more paragraphs, at the end of 295 – this really should be part of the court’s independent assessment of the defence case, and here it is about the pretext call. What is said is:

It was open to the jury not to accept that the responses of the appellant were entirely spontaneous and honest.

Now, if those were admissions, it would no doubt be submitted that they were spontaneous and honest, shall I say. But it is not really the right question to ask there about what the jury might make of them. At that point, it is for the court to determine – in the light of all of the evidence in the defence case – whether or not it raises a doubt.

GLEESON J: Mr Game, the title of this section is “Evidence supporting innocence”.

MR GAME: Yes.

GLEESON J: Are you saying that there is something wrong with the court examining evidence through that prism?

MR GAME: I am not concerned about the heading, your Honour, but I am concerned about the way in which it is done because the real question is – the Court would have to examine his evidence and ask themselves, was it discredited? Then, if it was discredited, you would still have to go back to, what we call, the Liberato question – am I nonetheless satisfied beyond a reasonable doubt? But none of this betrays the Court conducting its own independent assessment of the evidence. And we see that in ‑ ‑ ‑

GORDON J: So, just so I understand the answer to that question, does that mean that the last sentence is to be looked at through the Liberato lens?

MR GAME: Yes, your Honour. So, then the next paragraph is the appellant – I do not want to be kind of hyperbolic about this but if he was innocent, what more could he do than get into the witness box and deny his guilt? So, this is kind of turning the thing on its head. Then, in 296:

The appellant voluntarily participated in the police interview –
Then, it says:

There is nothing remarkable in that.

Then:

Nor is there anything remarkable in the fact that the appellant gave evidence at the trial to the same effect.

So, again, for the court to conduct an independent assessment to assess its sufficiency and quality, we are talking about, shall I say, hypotheses consistent with innocence. The court has to inspect it through that lens – is it reasonably possible that what he said was true? What is said there is:

the jury had the very considerable advantage of seeing the appellant give his evidence and it was open to them to reject it.

If you go through this whole judgment and whole process of reasoning time and time again and say that, then you are going to end up with nothing in your hands. Whereas, you have to kind of – so it is really important ‑ ‑ ‑

EDELMAN J: Mr Game, there is no doubt that the language, certainly after Dansie, of “open to accept” is, at best, loose language. But this is coming at the end of 297 – pretty detailed, her paragraphs – including very, very lengthy examination of all of the evidence. It is ‑ ‑ ‑

MR GAME: But, your Honour – sorry, I interrupted you. I beg your pardon.

EDELMAN J: No, no, go ahead.

MR GAME: There is a kind of fraction of a second of silence that sits there. I am sorry about that – and I did interrupt you. I take your Honour’s point, but I am going take you back to show you some other paragraphs earlier to show that the flaw in our submission – and I am not suggesting that this a straightforward exercise – this is quite a difficult exercise in a case like this where you have got one on one, you do not have the – the applicant was not really discredited – he has got strong character evidence – the pretext call is, there are no admissions made – it is the record of interviews, no admissions. So, it is quite a difficult exercise to actually do the M v The Queen exercise, but we say that the way it is done here is quite deeply flawed. Now, the next paragraph ‑ ‑ ‑

GORDON J: Could you just identify, with some precision, what the deeply flawed bit is that you just put, because there is no dispute that it is M v The Queen, there is no dispute that we have got the Dansie post‑Pell language issues.

MR GAME: Yes. So, your Honour, the problem is this. If you say to yourself, all the way through, any doubt that we would have is resolved by what the jury could have decided about this, and that is what the process of reasoning is all the way through this judgment – and that is it at its best. But by the time you get to the end, you do not know whether or not you would have had a doubt yourself and then you do not know how to apply that, then ask yourself the second M v The Queen question. That is why I say ‑ ‑ ‑

GORDON J: Let us draw that together, can we? So, if it is that kind of reasoning undertaken by the Court of Criminal Appeal, other than those matters under the heading, “Evidence supporting innocence”, what are the other strands of it that you say would give rise to a different analysis adopting the M approach?

MR GAME: Yes, your Honour. I will do that in one second, but if I could just – while I am still at paragraph 297 shall I just talk about that and then I will come back to answer your Honour’s question?

GORDON J: Yes, I apologise for interrupting.

MR GAME: No, no, I understand. I was going to go back to that, but I wanted to take your Honour to this. So then if you look at “good character”, and then it said in the middle of that paragraph, people with good:

character, is all too frequently found to have occurred.

Then it says:

It was for the jury to decide upon the weight to be given to the opinions of the character witnesses –

But, in our submission, you have thrown the exercise away at that point because what the exercise is this. In this case there is evidence that the complainant was sexually assaulted between the ages of four and eight but not thereafter.

The character evidence is both evidence about credibility, but it is also evidence about likelihood, so it is anti‑tendency reasoning. It supports anti‑tendency reasoning. You would have to apply that to the facts that were involved in the case about tendency. So, did this person indeed have such a tendency when nothing happens after the age of eight? Then what has been brought into here is an assumption that people with good character frequently commit sexual offences. Now, if one knew that a jury had reason, in any of these ways, one would say this whole process was suspect. And then it ends with:

It was for the jury ‑ ‑ ‑

GORDON J: Can I ask this question though? Is that any more than to say, on your analysis, they did not do the M process of analysis?

MR GAME: That is right. They did not do the first step of M. They went straight to the second but you cannot work out what you are taking through if you do not do the first exercise.

GORDON J: If you go back to the passage that is relied upon in the intermediate appellate courts of Justice Hayne in Melbourne about character evidence, is that any more than to say that it was a matter for the Court of Appeal rather than for the jury?

MR GAME: Well, it was a matter for the Court of Appeal, but the Court of Appeal, when they asked themselves the question, they had to address themselves to character, both on the question of credit and as to the likelihood of commission of the offence. They had to actually apply themselves to the principle, and in PYN, which is the case that is cited, they actually doubt those propositions as being logical. So that is my answer to that question.

But if I could come back to answer your Honour’s, shall I say, deeper question – that is to say, does this flow right through to judgment? If your Honours have a look at 299, just before I do it, we see for example, a conclusion that we failed to establish:

it was not open to the jury to –

find that:

the complainant was truthful and reliable.

But, if you go back to paragraph 263, it starts with, we conduct this:

on the assumption that . . . the complainant as credible and reliable.

But one needs to read the relevant paragraphs of Pell, which is a rather different kind of a case. The focus is on credible, we see, but ultimately whether or not the evidence was reliable was the aspect that was problematic. But, if you start with this assumption and carry it all the way through, you are never going to get to the real question. And it means that you have no circumstances where a doubt entertained by the Court of Appeal would not be trumped by the jury’s advantage.

So, actually you are foreclosing a conclusion. And so that when we see – and I will just have to give your Honours a few paragraphs to see the examples. So, paragraph, for example, at the end of 267, a submission about doing this when everybody else was in the house and said:

it is not unknown for offenders who commit offences . . . to persist notwithstanding an obvious risk of discovery.

I am just picking some of the examples, and there are plenty of others, but then at the end of, say, 280:

It was open to the jury to accept these explanations and to give little weight to delay.

And then 288 – these are just ones that I have picked – last sentence:

The contact with Mr Relph did not involve a definitive assessment that GU had not suffered sexual abuse as a child and did not exclude it as a possibility.

Same with the end of 290, which says:

It was open to the jury to conclude that this inconsistency either did not exist or was not significant.

Then 291:

It was open to the jury to accept those explanations.

But every time – and those are just some examples. It runs right through the judgment. Every time the thing is done through the spectre of whether or not it was open to the jury to accept. But if you have got an open to reject or accept, and you go through and find that it is open to do (a) and not (b), and you get to the end and you have said, open to do (a) and not (b) for every one, then you have foreclosed the possibility that you will assess this thing for yourself, and that is the problem with this kind of approach.

Sure, I agree with your Honour Justice Edelman that the thing would be expressed in a different way post Dansie, but this actually betrays a serious problem with dealing with the unsafe submission, and it is quite important because a case like this throws up – and I do not wish to say this against myself – but it throws up a quite difficult circumstance, where you have got a credible complainant, and you have got a credible defendant, and you have got no corroboration, and you have got a series of external things that might throw doubt on the complainant’s account, or they might not.

I am not saying that there is a definite outcome to this case. I am saying that the way the court approaches it in this case betrays such an error that you are not going to get to the position that you have actually done the first leg of M v The Queen, and hence you will not get to the second at all. That is ‑ ‑ ‑

GORDON J: Can I just put a proposition against that argument?

MR GAME: Yes, your Honour.

GORDON J: When I read the judgment, it is apparent that the respondent’s position was that having regard to the matters raised by the appellant in the Court of Appeal, at least one of their answers – if not their primary answer – was that any doubts that might be raised by you below were capable of being resolved by taking into account the jury’s advantage of having seen and heard the witnesses.

MR GAME: Yes, that is the heart of the argument against that which I am putting. But my answer to that is this: unless you actually examined the evidence yourself, without overlay and without making an assumption each time as to whether or not something is open for the jury to reason – unless you make your own assessment, and ask yourself whether you have a doubt, you are never going to be able – you are not going to be able to get to the question as to whether or not that doubt is resolved by the jury’s advantage. So that, for example, if the absence of any finding of any gynaecological damage, any physical damage in an examination at the very end of the charge period.

Now, if you thought that that was a significant piece of evidence, regardless of what the jury might or might not have reasoned about it, then you would carry that through and then you would say – and I have also got
this problem, and this problem, and this problem. But those – is that group of problems such that the jury’s – the advantage that the jury had is such that it resolves my doubt? That is the second leg, and that is how the exercise is done. It does not throw up – it does not follow the approach taken here, and it does not necessarily throw up the answer that was reached. That is my answer to your Honour’s question. But I do put ‑ ‑ ‑

EDELMAN J: Mr Game, even if – sorry, I have cut you off now – but even if one were to assume, for the sake of your argument, that the Court of Appeal did not engage in that proper exercise, because of the use
of the expressions like “open to the jury” and so on, if that conclusion were to be reached on appeal and the matter were to be remitted back, would not the same result be inevitable in light of the vast advantages that the jury had in relation to credibility of the complainant and the accused?

MR GAME: Your Honour, my answer to that is, no, and that the Court did not get to the position where that issue was kind of finally framed. But it is not as – I gave an example before about the question of whether or not there was any physical damage, but there are other things that do not turn on credibility, including the vast amount of medical evidence, about the engagement that the complainant had inconsistent – I do not want to rattle things off – but it is, for example, quite importantly inconsistent accounts about when she did complain to the general practitioner then coupled with the fact that the applicant himself – his evidence was not apparently – one looks at it, one does not see that this was necessarily discredited.

So, we have got kind of two credible accounts, on our submission. We say one does end up having to ask oneself a quite difficult Liberato‑type question. That is where the court – if they did the exercise properly – would land. So, my answer is, yes, there is a question, and if the Court is satisfied that the – but I have to concede that – I am not saying that we will win if you remit this case, but I am saying we do have a reasonable argument that needs to be heard.

If the Court pleases.

GORDON J: Thank you very much, Mr Game. Yes, Mr Fox.

MR FOX: Your Honours, can I deal with the test and, in particular, the language of “open to accept” that might not be considered orthodox post Dansie. The distinction in this case and why that type of language – that does permeate the judgment – does not reflect error in this case, is not just to do with the fact that this was primarily a credibility assessment, but that the various attacks that were made on the complainant’s credibility in the Court of Appeal turned upon an assessment of her explanation for her conduct; an assessment of her explanation for why she continued to associate with the applicant; an assessment of her explanation for why she did not disclose to various people over the years.

That type of language in the context of this case does not reveal error, and I will come back to specific examples later in my submissions. But as to whether the Court of Appeal applied the correct test and made an independent assessment of the evidence for themselves, both the structure and the contents of the court’s reasons below revealed that.

As to the citation “the correct test”, my friend took your Honours to paragraph 245 of the decision. My friend specifically referred to subparagraphs (c) and (e). I would also draw your Honours’ attention to subparagraph (a) where the court stated:

The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence.

That is similar in language to the way they have expressed it in – the court has expressed it at the very beginning in paragraph 2 of the judgment at application book 80, the last sentence:

A ground of appeal of this nature requires the appeal court to consider the whole of the evidence at trial to determine whether it was reasonably open –

And so on. But, more significantly, it is reflected in the structure of the reasons and their substance. By the structure, as I think your Honour Justice Edelman referred to, there is a lengthy summation with a great deal of precision of all of the evidence that was adduced at trial. When their Honours came to assessing the cogency of the evidence, they did so by starting quite logically with the complainant’s evidence, and they did so in a way that did not pay any deference, let alone inappropriate deference, to the credibility findings of the jury.

May I take your Honours, please, to page 144 of the book, and specifically paragraphs 264 and 265. In my submission, these paragraphs are the most significant in illustrating why the complaint about approaching the matter in the wrong way has no merit.

GORDON J: Mr Fox, do you propose to address Mr Game’s complaints about 263 and the window or the entry point through which this passage came?

MR FOX: I do, your Honour. But, to simply note as a starting observation, at 263, that:

this court performs its function on the assumption that the jury assessed the evidence of the complainant as credible and reliable –

is an orthodox statement of principle. What then happens in the immediate next two paragraphs in no way turns upon any deference to that jury’s assessment of credibility – other aspects of the reasons do. They do not reflect error and I will address some of those in due course.

EDELMAN J: I suppose, in a way, 263 could be read – the opening words of 263 could be read as a sort of a form of modified Liberato direction to itself – that one starts with the credibility and reliability of the complainant and determines what the jury’s assessment was of that.

MR FOX: Yes, your Honour. But, the point of distinction is that 264 and 265 do not mention any assumptions and why their contents do not depend upon them. So, when they refer in 264 that the evidence of the complainant:

was detailed, clear and largely consistent regarding the incidents of sexual offending.

It talks about on one occasion where she conflated an incident but:

otherwise resolutely maintained that each of the incidents had occurred as she had described them. She was not shaken in cross‑examination –

That is not paying any deference to a jury’s assessment of the credibility. They are conclusions that are drawn from the contents of the trial record itself. The same can be said with a point that is made at 265, which is what the court described as:

a compelling feature of her evidence.

was the detail she was able to provide about the incidents of sexual assault and, having listed all of those – listed numerous examples of those details that the court found to be compelling – concluded that:

There were no obvious features of fantasy or reconstruction . . . To the contrary, she expressly denied having had hypnotherapy and there was no evidence that she had.

That is an independent assessment of the plausibility – the credibility of the complainant – that is in no way dependent upon the jury’s finding as to credibility. It also belies this notion that there was a failure to independently assess the complainant’s evidence for those very reasons.

Perhaps as an example of what is, perhaps, described as the loose language of not “inherently improbable” or “open to the jury to accept”, does not reveal error in this case, is explained by, perhaps, one of the complaints that was made in the court below about the complainant’s continuing association with the appellant. The court below dismissed this by reference to the complainant’s explanation that she gave – I need not go into detail to what it was – but the court concluded that that was not “inherently improbable”. This is passage 291 of the judgment.

That does not reflect error for this reason. In describing the complainant’s evidence as being not “inherently improbable”, the Court of Appeal was doing nothing more than noting that the point that was being made by the applicant below was an attack on the complainant’s credibility. The complainant gave an answer or an explanation for that attack on her credibility. Acceptance of that explanation would neutralise that attack, but acceptance of that explanation turned upon assessment of the complainant’s credibility as she was and could be the only source of those explanations.

Now, the Court of Appeal must presume that the jury found her to be credible and reliable, and hence I must presume that the explanation that was offered was also accepted by the jury as being credible and reliable. But, notwithstanding that assumption, the Court of Appeal was of course not bound by the jury’s findings of credibility and, if there was some inconsistency, discrepancy or inadequacy that would cause the Court of Appeal to reject that explanation, they were obliged to do so regardless of that presumption as to a finding of credibility by the jury. So, simply finding that the explanation was not inherently improbable is nothing more than a finding that there is nothing in the objective evidence of the trial record which would have prohibited the jury from accepting the explanation as credible. The jury clearly did accept this as a credible witness and acted accordingly.

The same can be said with the various other examples about being open to the jury to find. What distinguishes this case from Dansie, is that we are not dealing with a case of circumstantial evidence, and in the context of the trial by judge alone where there was undue focus on the inferences that were drawn by the finder of fact – as opposed to the evidence that was actually adduced.

The problem the applicant faces in this case is that the various attacks that he brought as to why he contended that the verdict was unreasonable primarily all turned upon acceptance or rejection of the complainant’s account for why she acted in certain ways. Those propositions were always going to be resolved by the jury either accepting or rejecting the complainant as a credible witness. The Court of Appeal must presume that the jury found her to be credible, and thus answering in that sort of negative way of not being open or not inherently improbable, does not reveal error – it simply reflects the forensic realities of this case that the explanations for the conduct that was said to give rise to a reasonable doubt were purely within the remit of the jury. There is no error in a Liberato sense in the way that the Court of Appeal has approached its task.

Can I deal firstly with the way in which the court approached the evidence of the applicant himself. The evidence is set out in detail in about 30‑odd paragraphs, between 179 and 205 of the judgment. I will no doubt do a disservice in these submissions in briefly summarising those 30 paragraphs, but large parts of the evidence given by the applicant at trial were of background issues as, to a degree, consistent with the evidence of the complainant.

Her health issues – that she suffered from urinary tract infections and abdominal pain as an early child. That she became withdrawn around the age of nine or 10. Her mental health and substance abuse issues in her teenage years. What might be said as opportunity that, on his evidence, he would look in on the children when arriving home from work at night and that, at least on some weekdays, he would arrive home after bedtime at 8 pm or 9 pm. None of that sat as being largely inconsistent or inconsistent with the evidence in the account of the complainant.

The most contentious aspect of his evidence, of course, was just the bald denial of any offending. That bald denial is, again, a credibility issue, squarely within the province of the jury and need not have been subject to any greater scrutiny than it was.

EDELMAN J: Mr Fox, the Court of Appeal does, however, at the start of its analysis of whether the verdicts are unreasonable or unsupported by the evidence, start with the end of the Liberato analysis, which is the end of the complainant being credible and reliable, rather than the assessment of the applicant. So, it has modified it in a way of reversing it.

MR FOX: But it must necessarily follow: not only did the jury find that the complainant was credible, but they must have found that the applicant’s denials of the offending were not credible. Because if that presumption was not true, then that would never have been before the Court of Appeal. He would have been acquitted. The deference to the jury’s findings of credibility works both ways; it works with respect to the finding of the complainant’s credibility, but also a lack of credibility on the part of the applicant.

When what the jury were effectively asked to do was assess a bare denial, given that a lot of his evidence as to the surrounding circumstances – the things as to opportunity, health issues, and the like, which I just mentioned – whilst not exactly on all fours with what the complainant had to say, they were not largely inconsistent. So, it is for the jury to assess whether the denial – purely on a credibility finding issue – should be accepted or not. The jury did not. There is nothing in the evidence that would cause the Court of Appeal to revisit that.

The answers to that, no doubt, would be what is effectively put forward as evidence on what is said to be a consciousness of innocence – the repeated denials that the applicant made and which my friend took you to the passages to. The problem, of course, with that, is that that was said to be – not only his evidence at trial, but his interview – obvious, in my submission, why the applicant would deny the offences in a formal interview with the police.

Nor could any great weight be attached to his failure to omit his offending during the course of the pretext call, because although while the applicant gave evidence that he himself was unaware of any police involvement, he had certainly been at the state that he was certainly aware that the complainant had been now making allegations against him to others – albeit not necessarily the police – at the time that that call was conducted. Thus, there was objectively reasons for him to be suspicious of what appeared to be a phone call out of the blue from his estranged daughter, where she wanted to discuss issues concerning her childhood sexual abuse.

So, those matters have no great weight. The Court of Appeal dismissed them for effectively the reasons I have just articulated, especially with respect to that pretext call. We are then left with an assessment of the bald denial in the video interview that is repeated at trial, which is very much an issue that turns upon the jury’s assessment of the applicant’s credibility and the advantage that they had. That is a constant theme that runs through this judgment. It is a theme that does not reflect error; it is a theme that reflects the forensic realities of this case, in my submission.

Similarly, with respect to the medical evidence, my friend points to this as perhaps a matter that is more objective in nature that is not turning upon on credibility claims. The problem with that is the – perhaps the most compelling piece of evidence that from the applicant’s point of view upon which they relied, was the evidence of Dr Veling, to the effect that he did not observe any gynaecological injury or change to her vulva or vagina that would suggest penetration.

There are two answers to that: first, the time that the doctor conducted the examination was roughly in the middle of the timeline when the act of penetration was said to have occurred. The complainant said that this type of offending occurred when she was four or five years of age. The medical examination that is referred to by Dr Veling – which is not his own notes, of course, but the notes of a colleague – was conducted in July of the year of her fifth birthday. So, we have taken the complainant literally saying that she was either four or five – she had only just turned five when this medical examination had occurred.

So, put another way, it is quite possible that the penetration offending did not commence until after this point of examination because it is roughly in the middle of the timeline that the complainant presented. Perhaps more significantly, though, the issue of Dr Veling was a credibility issue. I will not take your Honours through the passage in detail at page – sorry, at paragraph 275 the Court of Appeal set out its findings and with respect to the various credibility attacks that were mounted against Dr Veling. And noting that quote:

Whilst he denied any bias against GU, it was open to the jury to form the view that he was not an entirely impartial witness.

That is the language spoken to the jury, but it draws home again that Dr Veling’s evidence was not just to be rejected on the basis of an objective forensic assessment of other pieces of evidence or other explanations. But rather, there was a genuine credibility attack on Dr Veling. It was for the jury to decide whether that credibility attack by the prosecution had merit.

Before I move on to ground 2, your Honour, the only other submissions I would make is that the purpose of the Liberato direction, ordinarily, is to – well, firstly, it is simply an aspect of the burden and standard of proof. It is not to guard against any impermissible reasoning, that impermissible reasoning being that the positive rejection of an accused’s evidence is . . . . . evidence probabitive of guilt. Simply an aspect of the burden and standard of proof. It does not have any role to play with respect to a Court of Appeal exercising the M test. Even if that was the case, there is nothing in this judgment that reveals that their Honours did engage in such a process of reasoning where they placed any weight upon a positive rejection of the accused evidence.

EDELMAN J: Mr Fox, if you are about to move on to ground 2, can I ask you about paragraph 297 where the Court of Appeal set out the principles from PYN and then say that:

The courts have recognised that sexual offending by adults of previously unblemished reputations, and who appear to their friends, relatives and business and social acquaintances to be of impeccable character, is all too frequently found to have occurred.

That sentence, if that were contained in a direction to a jury, would you accept that that would be erroneous?

MR FOX: Well, certainly problematic, I accept that. I appreciate I am dodging the concession that your Honour seeks. I accept there would be a problem with that, but if it was framed in a way to suggest that it is a matter for the jury as to how much weight they give to good character evidence on its first limb, that is, probative of innocence as opposed to supportive of credibility, then there could be no issue. The reality of ‑ ‑ ‑

EDELMAN J: So you rely then on the penultimate sentence, to put that sentence into perspective, which is that:

It was for the jury to decide upon the weight –

MR FOX: Precisely, your Honour. There is no rule of law that requires a jury to give some sort of disproportionate high, significant, substantive weight to the evidence of good character on its first limb. Indeed, any direction which sought to do so would be problematic. It would be an impermissible trespass into the domain of the jury because you would effectively be directing the jury as to how much weight they ought to give to a certain piece of evidence, which is very much a question for them.

That may well serve as a segue into my submissions concerning ground 2, which is very much related to this point simply because if it is open for the jury to consider how much weight they do or do not give to evidence of good character, the same could be said of the Court of Appeal, and the same could be said of the Court of Appeal in assessing that it was open to the jury to give only little weight.

The problem ground 2 places for the applicant though is that the question raised by ground 2 is largely moot because, even if ground 2 were decided in their favour, one would simply substitute a finding of something more than modest credibility into the judgment below – sorry, modest weight to be given to prior good character in the judgments below, none of which detract from the ultimate finding that it was open to the jury to accept or reject the evidence of the complainant and it was open to the jury to accept or reject the evidence of the applicant in his denials, and this was very much a credibility case on which there was no misdirection on the good character ground.

May it please the Court.

GORDON J: Thank you, Mr Fox. Anything in reply?

MR GAME: Just on paragraph 297. So, it can be taken that the court is saying to itself that people who commit offences all too frequently have good character and therefore they put it to one side. Then it is a segue that it was for the jury to decide upon the weight of the character evidence.

But that is not – that is actually throwing the exercise away because the court is obliged to consider the character evidence for itself, and that kind of betrays the whole problem with the way in which they dealt with the defence case because all of it is said to be something that was open for the jury to reject without the court addressing itself to it in terms. Then, if you go back to 263, you start with the assumption, and the assumption – “credible and reliable” – never goes away because each time you ask yourself a question about when there is a criticism made, you just – if you use the formula, it was:

open to reject –

you end up with a situation where you have never considered the question for yourself, and the credible and reliable question has only ever been framed in whether or not it was open for the jury to take a particular view about a particular question. That, in my submission, is the deep-seated error that flows through this, and one can see it in the final paragraph of the whole thing at 302:

After paying full regard to the consideration that the jury was the tribunal of fact entrusted –

Et cetera, and:

after paying full regard to the consideration that the jury had the very significant benefit . . . we do not have a reasonable doubt –

So, what is happening is that the jury’s advantage is not getting incorporated into the first M v The Queen question. So, you can never get to the second one. And that turns the test on its head, in our respectful submission. That is our reply, if the Court pleases.

GORDON J: Thank you, Mr Game. The Court will adjourn for a short moment to consider the course it might make.

AT 2.12 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GORDON J: The Court is of the view that there are insufficient prospects of success to warrant the grant of special leave in this matter. Special leave is refused.

Please adjourn the Court until 2.30 pm.

AT 2.17 PM THE MATTER WAS CONCLUDED