Crampton v The Queen

Crampton v The Queen - [2000] HCA 60 - HCA 2000 case summary — Zoe

[14]

The basis of that contention is that, on the evidence relied upon by the prosecution at trial, the case fell outside the terms of s 81A, as those terms had been construed by the Court of Criminal Appeal[2], and as the same language had been construed by the English Court of Appeal[3]. The section prohibited an act of indecency by a male person with another male person. A later, similar provision was amended to prohibit such conduct with or towards another male person[4], but, at the relevant time, the statutory prohibition was against acts of indecency with another male person. The decisions referred to established that the conduct of the applicant was conduct towards the complainant, but not conduct with him, and therefore s 81A did not apply. The facts of the case appear sufficiently from the reasons of Gaudron, Gummow and Callinan JJ. For the reasons given by their Honours, I agree that the decisions were correct, and should be followed in this Court.
The authorities just mentioned were not drawn to the attention of the trial judge, or of the Court of Criminal Appeal. There was no possible tactical advantage to the defence in failing to raise the point at trial or on appeal. In those circumstances, there is a question whether, as a matter of jurisdiction and discretion, this Court can, and should, grant special leave to appeal. If the answer to both aspects of that question is in the affirmative, the consequence of allowing the appeal will be to quash the conviction.
There is another point in the case, which was taken (unsuccessfully) in the Court of Criminal Appeal, and in respect of which there has already been a grant of special leave to appeal. In brief, it is whether the directions of the trial judge complied with the requirements stated by this Court in Longman v The Queen[5]. I agree that they did not. However, this is a new trial point, and the applicant, even if successful on it, wishes to press the argument concerning the construction of s 81A.
In Giannarelli v The Queen[6], this Court[7] unanimously decided to grant special leave to appeal, and allowed an appeal, in a case similar to the present. The applicants had been convicted of perjury. The offences were said to have been committed in the course of giving evidence before a Royal Commission. There was an unsuccessful appeal to the Court of Criminal Appeal of Victoria. In this Court the applicants raised, for the first time, a point of law which, if correct, meant that they could not properly have been convicted. There was a statute which made inadmissible, at a criminal trial, evidence of what they had said at the Royal Commission. At the trial, and in the Court of Criminal Appeal, the statute had not been relied upon.
Gibbs CJ said[8]:

[16]

That statement reflected the practice of the Court, both in criminal and civil cases[9]. In Gipp v The Queen[10], Kirby J pointed out that the practice was not inconsistent with the decision in Mickelberg v The Queen[11], in which it was held that this Court could not receive fresh evidence on an appeal, and explained why that was so. I agree with the view his Honour then expressed, and with the reasons he gave.
In Gipp[12], two members of the Court, without deciding the issue, expressed reservations about the practice.
In my opinion the conclusion in Giannarelli as to the Court's power to grant special leave even where the point to be relied upon was raised for the first time was correct, as was the statement that the power should only be exercised in exceptional circumstances.
The Court of Criminal Appeal was exercising jurisdiction conferred upon it by ss 5 and 6 of the Criminal Appeal Act 1912 (NSW). Section 6 of the Criminal Appeal Act relevantly provides that the Court of Criminal Appeal shall allow an appeal if it is of the opinion that the verdict of the jury cannot be supported having regard to the evidence. That covers the present case. From time to time, points are raised in the Court of Criminal Appeal which were not taken at trial. In certain kinds of case, r 4 of the Criminal Appeal Rules requires the leave of the Court, but the requirement for leave assumes the power to entertain grounds of appeal based on new points. The Court of Criminal Appeal had jurisdiction to entertain the point upon which the applicant now seeks to rely. This Court is not being invited "to go beyond the jurisdiction or capacity of the Court appealed from."[13] What is proposed is in no sense a re-hearing, or an exercise of original jurisdiction.
The jurisdiction of this Court which is invoked is that conferred by s 73 of the Constitution. It is enlivened by the existence of a judgment, decree, order or sentence. The process of reviewing the final determination of the Court of Criminal Appeal, which was a judgment, in the light of the material that was before that Court, is strictly appellate, notwithstanding that a new legal issue is permitted to be raised in this Court. Error in a final determination does not necessarily involve error in the process of reasoning of the court. This view of the nature of an appeal has been acted upon, in England and Australia, for more than a century. In 1892, in Connecticut Fire Insurance Co v Kavanagh[14], the Privy Council said:

[22]

Secondly, it is common for appellants in criminal appeals to retain counsel different from the counsel who (by hypothesis, unsuccessfully) conducted the trial. This increases the tendency to look for a new approach to the case, and carries the danger that trial by jury will come to be regarded as a preliminary skirmish in a battle destined to reach finality before a group of appellate judges.
Thirdly, it is usually difficult, and frequently impossible, for a court of appeal to know why trial counsel did, or failed to do, something in the conduct of the case. Decisions as to the conduct of a trial are often based upon confidential information, and an appreciation of tactical considerations, that may never be available to an appellate court. The material upon which a judge, either at trial or on appeal, may form an opinion as to the wisdom of a course taken by counsel can be dangerously inadequate, and, when it is, the judge may have no way of knowing that. Ordinarily, a barrister knows more about the strengths and weaknesses of his or her client's position than will appear to a judge, whose knowledge of the case is largely confined to the evidence.
Fourthly, as a general rule, litigants are bound by the conduct of their counsel[17]. This principle, which is an aspect of the adversarial system, forms part of the practical content of the idea of justice as applied to the outcome of a particular case. For that reason, courts have been cautious in expounding the circumstances in which an appellant will be permitted to blame trial counsel for what is said to be a miscarriage of justice[18].
Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.
In the case of an attempt to raise a new point in this Court there is the additional consideration, reflected in the statutory provisions governing the requirement of special leave to appeal[19], that a second appeal is intended to be reserved for special cases. It is not there for the purpose of giving any sufficiently determined and resourceful litigant a third chance of success.
I regard the present case as exceptional, for substantially the same reason as the case of Giannarelli was regarded as exceptional. On the only charge on which he was convicted, the applicant had available to him a point of law which constituted a complete answer. The evidence relied upon by the prosecution demonstrated that he was not guilty of the offence charged. If the point had been taken at trial, the outcome could not possibly have been affected by any further evidence. The failure to take the point cannot have been deliberate.
Special leave to appeal should be granted. The appeal should be allowed. The conviction and sentence should be quashed, and a verdict and judgment of acquittal entered.
GAUDRON, GUMMOW AND CALLINAN JJ. Three questions arise in this appeal: whether and in what respects the case called for a Longman[20] direction; may this Court entertain grounds of appeal and points sought to be raised for the first time in this Court; and, what is the true meaning and application of s 81A of the Crimes Act 1900 (NSW).

[50]

"There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s 36BD requires) that there may be 'good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence'. But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see R v Spencer[32]. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v District Court (NSW)[33]) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient."

[55]

There may be some differences, of degree only perhaps, between the joint judgment and those of the other members of the Court: the former would confine the affirmative obligation to give a warning to the matter of delay and the difficulties of testing and disproving allegations by reason of the passage of time, and of the danger of convicting on the complainant's evidence alone[36]. The reasons of Deane and McHugh JJ might perhaps be read as suggesting that the positive obligation to warn that it might be dangerous to convict on a complainant's evidence, may arise in a case in which emotion, prejudice or suggestion may operate to distort recollection, or, in which other circumstances of potential danger in acting upon particular evidence exist. For reasons which will appear, in this case we do not think it necessary to explore the significance (if any) of such differences as there may be between the respective reasons for their Honours' unanimous decision in the result[37].
In our opinion, the appellant's appeal should succeed on the ground on which special leave has been granted.
As the appellant submits, the first reference by the trial judge to delay was followed by an observation which could have diminished the effect of the caution - it did fall short of a warning - against acting on the evidence of the complainant of a complaint so long delayed. To say what her Honour did in the first passage from her summing up that we have quoted was to say too little, too unemphatically, and less than what Longman required be said in the circumstances of this case. The redirection, which we have also quoted, suffered from some of the same or similar deficiencies.
The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury. Additionally, this was, in our opinion, a case in which the trial judge should, again with appropriate adaptation, when summing up, have drawn attention to the additional considerations mentioned by Deane and McHugh JJ in Longman: the abstention, by the prosecutor, from questioning each co-complainant about the respective charges, the fragility of youthful recollection, the absence of a timely complaint (subject to any reasonable explanation therefor) and the possibility of distortion.
As the allowance of the appeal on the first ground would only result in an order for the quashing of the verdict and an order for a new trial, the Court heard full argument on the further grounds in respect of which special leave was sought. But first it has to be decided whether this Court has power to deal with those grounds.
In our view, there can be no constitutional impediment to the hearing and determination of an appeal on a ground raised for the first time in this Court. The powers of the Court under s 73[38] of the Constitution have been described as "of the widest character which true appellate jurisdiction may possess". This was the language of Rich J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan[39]. His Honour added: "On an appeal we should re‑examine fact and law as, indeed, we have always done, freely and without fetter or restriction."[40] There are already cases in which this Court has made clear that it may entertain and decide points not taken in the courts below in criminal cases[41].
In 1888, in Cooper v Cooper Lord Halsbury LC said[42]:

[60]

The most recent case on point is Gipp v The Queen[49] in which the three judges in the majority[50] entertained no doubt that the Court could hear argument on and uphold a ground of appeal not taken in the courts below although the other two members of the Court thought the question might still be an open one[51]. We do not take what the majority said in Mickelberg[52] and Eastman[53], in respect of the non-reception of evidence on appeal to this Court, to deny the amplitude of the Court's powers to deal with fresh points which can be made on the basis of the record in the courts below.
Accordingly we are of the opinion that there is no constitutional inhibition upon the jurisdiction of this Court to entertain an appeal on grounds raised for the first time in this Court.
The trial of the appellant was conducted in the District Court which was exercising State, not federal, jurisdiction. It follows that in respect of the appellant's conviction and sentence by that Court, s 73 of the Constitution had no immediate operation. This is because, where purely State jurisdiction is involved, s 73 is directed only to the Supreme Courts of the States. Section 73 is engaged here because the appeal is brought from the New South Wales Court of Criminal Appeal, which, for the purposes of s 73, is classified as the Supreme Court. It was held in Stewart v The King[54] that the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act") did not create a new court, but merely directed that the Supreme Court of New South Wales, constituted as therein prescribed, should act as the Court of Criminal Appeal and that, therefore, an appeal lay from the Court of Criminal Appeal to this Court under s 73.
In essence the submission of the respondent is that, with respect to a ground not in the grounds of appeal filed in the Court of Criminal Appeal, that Court would have had no jurisdiction to consider it and this Court cannot do so because its jurisdiction is no larger than that of the Court of Criminal Appeal. Section 5(1)(a) of the Criminal Appeal Act provides that a person convicted on indictment may appeal under the statute against the conviction "on any ground which involves a question of law alone". In other cases there is a requirement for leave[55] or a certificate of the trial judge[56]. Rule 25A of the Criminal Appeal Rules is headed "Further grounds of appeal" and states:

[71]

Two relatively recent decisions in New South Wales are to a similar effect. In R v Page[66] the Court of Criminal Appeal adopted the approach of Scarman LJ in Preece[67] but as a concession was made on that matter by the Crown there the question was not fully argued. The distinction between the words "with" and "towards" in s 61N of the Crimes Act was held, however, to be a real one by a majority (Priestley JA and Grove J, Hulme J dissenting) of the Court of Criminal Appeal in Orsos[68].
In this case the only act of the relevant complainant, the Crown points out, is an act of involuntary participation by that complainant in the wiping from the floor, with the appellant's handkerchief, and at his direction, the results of his onanism. It was not an act done in concert with the appellant. Nor was it, in our opinion, as offensive as it would have been to the complainant, the sort of activity to which the offence in s 81A was directed, that is, as the Attorney-General of the day put it, "the problem of homosexuality" implying, we think, consensual participatory acts, or, acts done in concert. It was not conduct of the kind to which the charge could be directed, as explained in the English and New South Wales authorities to which we have referred and are content to adopt.
Accordingly the appellant should not have been charged with, and the conduct of which evidence was given was not capable of sustaining, the count upon which he was convicted.
We would grant special leave to appeal and allow the appeal on the first of the two further grounds proffered. The consequence is that not only should the appeal be allowed but also that a verdict of acquittal should be entered in respect of the conviction the subject of the appeal. We would so order.
McHUGH J. The facts and issues in this case are set out in the joint judgment of Gaudron, Gummow and Callinan JJ. I agree that the appeal should be allowed and that a verdict of acquittal should be entered in respect of the conviction the subject of the appeal. But my path to that conclusion differs from that taken by their Honours.
I agree with their Honours that the case called for a Longman direction and that the conviction must be set aside. That being so, the question arises as to whether a new trial should be ordered or an acquittal entered in respect of the count which was the basis of the charge under s 81A of the Crimes Act 1900 (NSW).
Before the case reached this Court, the appellant had raised no point concerning the application of s 81A of the Crimes Act 1900 (NSW) to the facts of the case. Despite his failure to do so, their Honours hold that it was open to him to do so as a substantive ground of appeal in this Court. I have previously expressed the view that this course is not open to an appellant, having regard to the nature of the appeal conferred by s 73 of the Constitution[69]. I adhere to that view although the majority decision on this point in the present case will settle the matter for the future.
Because the conviction of the appellant must be set aside, however, the Court has a discretion whether to order a new trial or to enter an acquittal in respect of the count which was the subject of the conviction. As Gaudron, Gummow and Callinan JJ point out, the conduct of the appellant was not capable of sustaining the charge under that count. In those circumstances, it would be futile to order a new trial of that count.
The appropriate order, therefore, is that the appeal should be allowed, the conviction set aside, and a verdict of acquittal entered in respect of that count.
KIRBY J. These proceedings raise three questions. Those questions are identified in the joint reasons of Gaudron, Gummow and Callinan JJ[70].
By special leave, the appellant appeals to this Court against the judgment of the New South Wales Court of Criminal Appeal[71]. That Court rejected his complaint that directions given to the jury by the trial judge did not conform to the instructions of this Court in Longman v The Queen[72] and other cases[73]. Success on that issue would require the setting aside of the appellant's conviction and, normally, would result in an order for retrial.
However, the appellant also sought to enlarge his appeal to include a more basic challenge. This was, in effect, that the Crown evidence, at its highest, did not establish the offence of which the appellant had been convicted and that the trial judge should have so directed the jury. The application to enlarge the grounds of appeal to tender this point for decision was referred to the Full Court. So was the issue of whether, in an appeal as envisaged by the Constitution[74], this Court may permit a new ground (even of a fundamental character) never before litigated. In my opinion the appellant succeeds on each of these three questions. He is therefore entitled to have his conviction quashed.

[80]

Judicial authority concerning the elements of s 81A and its English equivalent was, unfortunately, not called to the notice of the trial judge. That authority clearly provided that it was not necessary, in order to make out the elements of the offence, to establish physical contact between each of the male persons involved[88]. Nor was it necessary to establish any element of compulsion[89]. But that left a question about the legal requirements concerning the involvement of the second male person where that person did no more than to witness the act of indecency of the first. Was such a passive role sufficient to constitute "the commission of ... [an] act of indecency with another male person"[90]? Or was some closer involvement in the act of indecency on the part of the observer required to constitute the offence and, if so, was such involvement proved in the present case?
In England, decisions relevant to the meaning of equivalent provisions go back at least to R v Jones[91]. In that case Wills J, who had stated a case for the opinion of the Court for Crown Cases Reserved on the meaning of the Criminal Law Amendment Act 1885 (UK)[92], questioned whether "the act constituting the crime" had to be one involving the participation of both men[93]. The judges answering the case appear to have assumed, rather than decided, that an act of gross indecency with another involved the active participation of that other[94].
Half a century later in R v Hornby and Peaple[95], the English Court of Criminal Appeal held that the jury, considering a count charging such an offence, should be directed that the prosecution had to establish that the two men were "acting in concert". Indeed, the court regarded it as "essential ... that the minds of the jury should be directed on that point"[96]. A similar requirement appears to have been accepted in the same court in R v Hunt[97]. Later, in R v Pearce[98], that court endorsed the previous authority, concurring in the view that the two male persons "must be proved to have been acting in concert together"[99]. The matter was taken as settled by Archbold's Criminal Pleading, Evidence & Practice in 1962[100]. But at this point, a discordant judicial note was struck.
In R v Hall[101], Lord Parker CJ, after referring to previous authority, expressed reservations about the interpretation of the offence adopted by Humphreys J in R v Pearce. His Lordship said[102]:

[87]

In New South Wales, in relation to s 81A, the construction which the English judges had initially favoured, and to which they returned in Preece, was accepted by the Court of Criminal Appeal in R v Page[106]. In that decision the controversy in the English authorities was noted. So was a concession by the Crown that the interpretation of s 81A of the Act adopted in Preece, in respect of the equivalent provision, should be followed. The Court expressly preferred the conclusion reached in Preece[107]. It rejected the wider view that the word "with" included "against" or "towards". Consequently, in Page the conviction of the appellant under s 81A was set aside. The Court noted that the section "has now been replaced by other provisions in which this problem does not arise"[108].
In a later decision of the same Court in Orsos[109] a somewhat analogous question arose. In that case, the accused had been charged with inciting a person to commit "an act of indecency with or towards" the accused contrary to s 61N(1) of the Act. By majority, the Court found that the count was bad for duplicity[110]. This conclusion was based on the opinion that to commit an act of indecency "with" a person involved two participants, whereas logically and grammatically one person could commit an act of indecency "towards" another[111]. Priestley JA (in agreeing with Grove J) accepted the approach adopted in Preece. He rejected that adopted in Hall on the footing that "it gives to the statutory words a meaning closer to what, as far as I can judge, most English speakers would think they meant upon reading them with reasonable care in their immediate context"[112].
Although Orsos concerned a different section in the current provisions in the Act, the approach taken by the majority of the Court of Criminal Appeal logically supports the construction urged for the appellant in respect of s 81A of the Act in this case. Had Page or Orsos been drawn to the notice of Karpin DCJ, it would have been her Honour's duty, at the trial of the appellant, to give effect to the construction of s 81A there explained. On the basis of the holding in Orsos that "[t]o commit an act of indecency 'with' a person involves two participants"[113], it would have presented the question whether, relevantly, the first complainant in the present case was a "participant" in the act of indecency alleged against the appellant. That is, whether it could be said that he "acted in concert" with the appellant in the commission of the offence.

[89]

Leaving aside for the moment the constitutional and discretionary arguments advanced, the Crown submitted that this first point lacked merit both on factual and legal grounds. So far as the facts were concerned, the Crown argued that, even if a measure of participation by the second male person was required, there was evidence upon which it would have been open to the jury to convict the appellant, namely the evidence of the first complainant. According to his evidence he had been present in a small room with the door closed. He had been forced to watch a sexual act. As Scarman LJ noted in Preece[114], and is a commonplace, some people obtain sexual satisfaction from the fact that another person watches them performing indecently. According to the Crown, the mere fact that there was no physical contact was insufficient in law to excuse the appellant from liability. Emphasis was laid upon the requirement that the first complainant should clean up the ejaculate with the appellant's handkerchief and the statement made to the first complainant concerning his own future sexual development.
I do not believe that the issue can be resolved on this footing. On no view could it be said that the first complainant acted "in concert with the appellant" in the act of indecency which had thus concluded. His age and inexperience at the time would tend to deny such a possibility. Nor do I believe that this is a matter which, had it been signalled at the trial, would have given rise to any further or different evidence. The prosecution case, relevant to testing the legal proposition, was that contained in the evidence of the first complainant. His involuntary observations and subsequent actions cannot be regarded as concurrent conduct by him in the act of indecency found against the appellant.
The Crown then submitted that this Court should prefer the reasoning of the English Court of Criminal Appeal in Hall[115], disapprove the contrary English authority before and since, and overrule the local decisions in Page[116] and Orsos[117] in so far as those decisions required the construction of s 81A urged for the appellant. It was argued that Preece had been affected by an irrelevant concern that an innocent observer of an accused's conduct might be named in an indictment although not charged with the offence[118]. Attention was drawn to the Crown's concession in Page[119] and to Priestley JA's remark in Orsos that the "arguments are ... relatively evenly balanced"[120].
Obviously, the point cannot be said to be unarguable. After all, the construction now urged escaped those who represented the prosecution and the appellant at trial, the trial judge and the Court of Criminal Appeal. I would not, for my own part, criticise too sternly counsel who missed the point[121]. They have not been heard in their defence and it is not an issue before this Court. Their omission was not noticed by four very experienced judges. Sometimes, unless an ambiguity is perceived, one is unaware of all the mental struggles that have gone on to unravel it. On the other hand, this appeal does emphasise, once again, the duty of those involved in criminal trials to familiarise themselves with past decisions concerning the offence charged. This said, for a number of reasons, it is my opinion that Preece, Page and Orsos were correctly decided. They accurately state the elements of s 81A of the Act.
First, it is important to put s 81A in the context in which that provision appears[122]. It was one of those provisions dating back to the nineteenth century, which were directed against so-called "unnatural [sexual] offences" by males with males. It was not, as such, directed at offences against young persons. It was targeted at homosexual conduct. Consent was irrelevant. Age was irrelevant. In s 81A it was made explicitly clear that whether the offence occurred "in public or private" was irrelevant. This was the kind of offence which, in the then opinion of the legislature, outraged decency[123]. The judicial language in several of the English cases cited indicates the concerns to which the provisions of sections such as s 81A were addressed[124]. The preceding sections of the Act also suggest that s 81A was not concerned with the conduct of one male person in relation to another who is wholly innocent and merely observing. The context therefore lends weight to the appellant's interpretation that the mischief which the section was meant to address was male sexual conduct performed in concert with another male.
Secondly, the state of judicial authority also strengthens the appellant's argument. The attempt to give the word "with" the meaning of "against" or "directed towards", as postulated in Hall[125], was expressly rejected by later courts both locally and in England.
Thirdly, the fact that the Act was subsequently changed, on the hypothesis that this understanding of the word "with" represented a correct statement of the law, may not be conclusive. Courts no longer blindly observe the fiction that the legislature, in adopting later amendments, is taken to accept earlier court interpretations of the legislation so amended[126]. But there is no doubt that the addition of the words "or towards"[127] in the present equivalent provision of the law of New South Wales affords a measure of support in at least two respects. It indicates, at the very least, that those legislators who considered the matter (and those in the government who proposed the amendment) thought that the word "with" was ambiguous and in need of clarification. As well, it provides a reason why, in respect of a section that has now been repealed, replaced and amended, this Court should hesitate before adopting a new and different construction.
Fourthly, an examination of the equivalent statutory provisions in other Australian jurisdictions shows that most of the applicable legislation removes the possibility of the ambiguity which appeared in s 81A. It is true that some provisions, like that section, refer only to the commission of an act of indecency "with" another person[128]. However, in most cases the legislation makes expressly clear that the act of indecency extends to an offence committed "with or in the presence of"[129] another person, or simply "in the presence of"[130], or "on" or "upon"[131] a designated person, or "towards"[132] a specified person. In some Australian jurisdictions the alternative reference to the commission of the indecent act as being "in the presence of" an under-aged person goes back many years[133]. A survey of Australian legislation suggests a gradual withdrawal of gender-specific provisions such as s 81A and an acceptance of the need to provide, in varying ways, for offences involving indecent acts in relation to those who, for reasons of age or otherwise, are unable to give a valid consent[134]. Such provisions, and the amendments to Australian criminal statutes adopted in recent decades, tend to support the construction of s 81A urged for the appellant.
Fifthly, it was common ground that such a construction of s 81A would not mean that the criminal law afforded no offence for the kind of conduct alleged by the first complainant against the appellant. At common law it was an indictable misdemeanour publicly to expose the naked person[135]. In successive summary offences legislation in New South Wales, provision has been made for the offence of indecent behaviour and exposure of the person[136]. It is not necessary, for present purposes, to determine the scope of such offences and their availability against the appellant. It is sufficient to say that it could not be assumed that, in default of the applicability of s 81A, conduct such as that alleged against the appellant, if proved, would go unpunished by the criminal law. As argued above, the legislature has now enacted specific offences which take into account considerations such as the abuse of authority and trust. These developments strengthen the argument for the appellant that, at the time of the commission of the alleged offence, the Act had not provided an offence specific to the circumstances alleged in this case. In the matter of criminal offences, it is not for the courts to create new offences in order to repair a legislative omission, and certainly not to do so retrospectively[137].
It follows that the appellant has made out his contention that the facts and circumstances proved at his trial, even if fully accepted as stated by the first complainant, do not constitute an offence against s 81A of the Act. It is therefore necessary to consider the appellant's request for special leave to permit him to argue this point in objection to his conviction. In resistance to that application, the Crown asserted that, for reasons of statute and constitutional law, this Court could not permit the new ground to be added. Alternatively, the Crown submitted that, as a matter of discretion, it should not do so.

[92]

Additional support for this approach may be found in a strict view of the Court's repeated holding that the appeal to this Court for which the Constitution provides is one classified (amongst the many possible categories of "appeal"[141]) as an appeal in its "strict and proper sense"[142]. Such an "appeal" invokes "the right of ... a superior Court, and ... its aid and interposition to redress the error of the court below"[143]. Its purpose is to "determine whether the order of the Court below was correct on the evidence and in accordance with the law then applicable"[144]. It is not an appeal by way of rehearing, as was later provided to many appellate courts, including some such courts in Australia[145]. Such a court necessarily has a larger power to do justice than one confined to the correction of error detected in the record. In this Court, the distinction drawn by the Constitution between the original jurisdiction and the appellate jurisdiction is frequently invoked as a reason for adhering to a strict delineation between the limited functions given to this Court, on appeal, and the broader powers enjoyed by State, federal and Territory courts acting within their respective appellate jurisdictions[146]. Upon this view, the limited power of this Court is only to give the judgment "which ought to have been given at the original hearing"[147].
On this basis (so the first argument runs) it is impermissible and alien to the constitutional concept of "appeals" to correct the decision of a court below which has never ruled upon the point subsequently said to constitute its error. For this Court to determine the new point would be for it to exercise, effectively, an original jurisdiction which has not been conferred upon it by the Constitution. Such submissions resonate with the argument successfully advanced in Eastman[148] to reject the exceptional tender of new evidence before this Court. At the heart of the point is a similar idea. How can the process be an "appeal" if the issue has not been dealt with by the court appealed from, whether for lack of evidence (as in Eastman) or lack of a propounded issue (as in this case)?
In this application, the Crown extended the foregoing logic with a second distinct but connected argument. Doubtless it did so, in part, because of many decisions of this Court permitting new grounds of appeal to be raised before it for the first time[149] and, in part, because of the way in which, in Gipp v The Queen[150], McHugh and Hayne JJ expressed the possible limitation imposed by the Constitution in terms of this Court's jurisdiction. This is what their Honours said[151]:

[94]

Building on this observation, and other similar remarks in earlier decisions[152], the Crown argued thus: in an appeal from the Supreme Court, sitting as the Court of Criminal Appeal[153], this Court's jurisdiction derives from, and is limited to, the jurisdiction of the Court of Criminal Appeal from which the appeal comes. In New South Wales, the relevant limits were imposed by the Criminal Appeal Act 1912 (NSW)[154] and the Criminal Appeal Rules[155]. Such legislative provisions define the character of that Court. It was one limited to deciding grounds of appeal lawfully before the Court of Criminal Appeal. It was not one ranging broadly, as in an inquisition, to discover truth, suppress falsehood and provide justice without regard to legal forms[156].
Although, on this view, a point not raised below might be argued on the basis of the record (as many cases in this Court have decided[157]), any such point would have to be within the jurisdiction of the court appealed from. Because most appeals to this Court come from Full Courts or Courts of Appeal in civil matters, where the appellate court below is conducting a rehearing with very large powers to amend and enlarge the record, no problem is ordinarily presented by the enlargement of issues before this Court. At least this is so where the new ground can be decided within the record, without any evidentiary or procedural injustice to a party[158], and where the demands of justice oblige admission of, and decision upon, the new point[159]. However, where an appellate court is more limited, and confined to determining appeals only upon grounds lawfully placed before it (as it was suggested the Court of Criminal Appeal of New South Wales is), its jurisdiction was limited and so, therefore, was the jurisdiction of this Court.
According to the Crown, any attempt by this Court to go beyond the jurisdiction of the Court of Criminal Appeal would represent an impermissible encroachment on the powers by law confined to that Court (usurping in effect that Court's exclusive right by statute to enlarge the grounds of appeal before it). The power of the Court of Criminal Appeal to enlarge the grounds was given to it by rules made with the authority of statute. Such power of enlargement was not conferred on, or enjoyed by, this Court. Any encroachment by this Court on the power of the Court of Criminal Appeal would take this Court outside the constitutional notion of "appeal". By inference, it would be an invalid exercise of original jurisdiction by this Court where none existed or could exist under the Constitution.

[96]

If one starts from the logic of the narrow conception of "appeal" which has so far been accepted by this Court (the defects of which I attempted to describe in Eastman[160]) it has to be acknowledged that there is considerable logical force in the foregoing submissions. If the fundamental reason for holding that this Court has no constitutional power to admit new evidence, whatever the circumstances and whatever the resulting injustice, is because of the limitations stamped on the notion of "appeals" derived from nineteenth century understandings[161], the suggested limitation upon this Court's constitutional powers to admit new grounds has a certain legal attractiveness.
It will be apparent from my reasons in Eastman that I do not accept that the word "appeals", when used in the Constitution, has such a confined operation[162]. Accordingly, the suggested difficulties urged on this Court by the Crown do not arise from my conception of the Court's appellate function. I will not repeat the reasons I have given for the larger ambit which I favour. Upon my view, the suggestion that "appeals", as appearing in the Constitution, are confined as the Crown urged is fundamentally misconceived. The word "appeals" is a constitutional word. It must be given its meaning according to its essential characteristics derived from contemporary understandings[163]. It is not confined to supposed or invented understandings attributed to the founders or others, whether in 1900 or other times. The idea that, by the constitutional word "appeals" today, this Court is powerless to enlarge the issues in an appeal still before it and brought to it as the final appellate court of the Australian Judicature to cure a fundamental flaw in a criminal conviction, is manifestly untenable.
Nor could any State statute or rules made under such a statute confine the ambit of the constitutional notion of "appeals" to this Court. The supposed qualification of this Court's appellate jurisdiction to permit a new issue to be raised does not, therefore, arise in my conception of the constitutional jurisdiction of this Court to hear and dispose of "appeals". Certainly, this is so where this Court is satisfied that a new ground may be decided with fairness to other parties on the evidence adduced below and where the interests of justice (including reasonable convenience and the economic management of proceedings) suggest or require that leave to enlarge the issues in the appeal should be granted.
But even if one does not share this conception of the ambit of "appeals", where that word is used in a constitutional context, nothing in the decision of this Court in Eastman requires reconsideration of the longstanding practice of the Court, in exceptional cases, including criminal appeals[164], to permit a new ground to be raised for the first time. None of those in the majority in Eastman decided the matter on the basis that the applicant in that case could not be allowed to enlarge his grounds. The order of the Court providing special leave to appeal in Eastman suggests that such enlargement was permitted. The "appeal" was then determined on the issues so enlarged. Those in the minority in Eastman also clearly envisaged that the issues in this Court could and should be enlarged beyond those that had been before the Full Court of the Federal Court in that case[165]. The reasons of McHugh J, alone, reserved the possible inadmissibility of the fresh ground argued for the first time in this Court[166]. It is not therefore necessary to reach back to Dignan's Case[167], Giannarelli v The Queen[168] or even Gipp v The Queen[169] to find against the Crown's first argument suggesting this Court's disablement to permit the new ground. The recent and nearly unanimous authority of the Court in Eastman stands against this submission.
There are many reasons of legal principle and legal policy that explain why this Court should not alter its present authority in this respect. First, the Court has permitted entirely new grounds to be argued in this Court for the better part of a century[170].
Secondly, it is important and conducive to the justice and law which the Judicature upholds under the Constitution, that such a facility should exist in a final appellate court. Whilst a case is still properly before the judiciary, the jurisdiction to prevent miscarriages of justice and fundamental errors of law should remain untrammelled by unduly protective procedural conceptions. Whilst this is true in every matter, it is especially true in a criminal matter so long as a serious or fundamental error can be corrected before the issues litigated pass into final judgment.
Thirdly, in asserting its entitlement to so proceed, this Court has not acted outside the functions usually taken to be proper to final courts of appeal[171]. The Privy Council, whose jurisdiction in appeals was, at federation and for much of the first century thereafter, cognate with that of this Court, asserted such a power[172]. I know of no final court, with functions akin to this Court, which denies itself the right to permit enlargement of the issues before it where justice requires and convenience suggests that course. Generally speaking, the rigidities of procedural rules, that were a feature of the nineteenth century jurisprudence of the common law, were replaced in the twentieth century by a greater flexibility and by judicial impatience with rigidities that would prevent the ultimate attainment of justice according to law[173]. So it is here.
Fourthly, as a matter of practicality, many litigants in appeals, particularly criminal appeals where they may be held in custody, cannot afford experienced, or any, legal counsel. Even where parties are well represented important points may be missed[174]. The logic of the Court's holding in Dietrich v The Queen[175] has not, so far, been extended to criminal appeals, assuming that to be possible. Dietrich has no application to non-criminal matters. There are therefore strong practical reasons which argue against adopting a view of the Constitution, and of the jurisdiction of this Court, which would narrow the Court's entitlement to allow a new point to be raised for the first time before legal proceedings were finally concluded.
Fifthly, the Crown's argument, if accepted, would inevitably impose on this Court an obligation, before exercising its jurisdiction, to search for the "issues" actually decided in the court below. Those "issues" might have gone beyond the formal grounds of appeal which are sometimes ignored or overlooked in argument and disposition of proceedings. As many decisions show, appellate courts in Australia, including Courts of Criminal Appeal, have a large jurisdiction which, being conferred on superior courts, will ordinarily attract ample powers to dispose of all matters before them[176]. Historically, the provision of appeals from criminal convictions and sentences was a large step for a common law jurisdiction to take[177]. The step having been taken, it would be an error of principle to confine narrowly the powers conferred on Courts of Criminal Appeal. More importantly, the Constitution having exceptionally (and somewhat creatively) provided in terms for appeals against "sentences"[178], it must be assumed that, by that provision, a large and novel appellate power was afforded to this Court in respect of criminal appeals. It would be contrary to the applicable tenets of constitutional construction now to impose a limitation where nearly a century of experience has shown such a limitation to be unnecessary and undesirable.

[99]

The foregoing conclusion requires that the appeal be allowed, the conviction quashed and a verdict of acquittal entered. Consequently, it is not strictly essential, in the approach which I take, to decide the point argued on the remaining ground of appeal for which special leave was originally granted. This concerned the appellant's complaint that the directions of the trial judge had failed adequately to warn the jury of the dangers of convicting the appellant given the delay of 19 years between the occurrence of the alleged offence and the initial complaint made against the appellant.
The law on this subject is stated in Longman[182]. It has been repeated in a number of decisions involving delays very much shorter than that in the present case[183]. It is important to note the distinction made by the majority in Longman between comment (which a trial judge may and sometimes should give to ensure the fairness of the trial) and a warning (which in circumstances of "long delay" it is "imperative", in the sense of obligatory, that the trial judge must give to the jury).
Comment will simply remind the jury of matters frequently within common experience which they may ordinarily be taken to know but might have forgotten or overlooked. Warnings derive from the special experience of the law. The specific difficulties that an accused will have, in circumstances of significant delay, in defending himself or herself in a criminal trial, include securing evidence (comprising now scientific as well as lay evidence) and gathering information promptly with which to test and challenge the evidence of the accuser.
The law recognises that there may, on occasions, be cogent reasons why a child or young person does not make a prompt complaint about sexual misconduct. I referred to some of these reasons in Jones v The Queen[184]. It will usually be proper for the trial judge to bring appropriate considerations to the specific notice of the jury by way of comment. Such considerations do not, however, relieve the trial judge of the paramount duty imposed by the law (and quite possibly implied in the Constitution[185]) to ensure the fair trial of a person accused of a serious criminal offence. It is to uphold that basic right, in the context of jury trial, that such judicial warnings must be given.
In view of my primary conclusion, it is not obligatory upon me to elaborate my views concerning the warning required in the present case[186]. However, as otherwise the disposal of that question by the Court of Criminal Appeal might be thought to be correct, I should say that I consider that the directions in this case were defective by the standards of Longman. I say this with respect to the trial judge whose conduct of the trial was otherwise admirably fair.
The warning in a case involving a long delay between an alleged offence and a complaint is, in part, an element in the balance required by the law in such matters. In overseas jurisdictions courts have been more willing than they appear to have been in Australia to provide a permanent stay of proceedings to protect accused persons from the injustices that can arise in attempting to mount a defence to such charges years, or even decades, after an alleged offence occurred. But this has been so, in part, because Australian courts know that Longman obliges trial judges, in cases such as the present, not only to comment about the difficulties which the long delay in complaint presents but specifically to warn the jury, in clear and emphatic terms, of the dangers that may be inherent in such a trial.
The warning required by Longman must be, in the words of the joint reasons in this case, "unmistakable and firm"[187]. It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after 20 years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, 20 years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant.
Twenty years after the alleged offence, the first complainant was an adult whose life's experience, character and motivations would have been unknown to the appellant. The appellant would thus be at a great disadvantage in testing events that may have affected the first complainant's recollection or reliability. Repeated answers to questions, searching the detail of the first complainant's testimony, such as "I can't remember" or "it's too long ago" made it extremely difficult to test that evidence in an effective way.
The idea that these serious disadvantages are unimportant and that the jury, unaided, will somehow sort things out by simply resolving the claims and denials in oath against oath must be firmly rejected[188]. That idea is contrary to the repeated authority of this Court in and since Longman. The jury need the assistance of the trial judge to warn, from the law's long experience, that trials with such potentially grave consequences for liberty and reputation need to be fought with forensic weapons[189]. The passage of time - especially great time - may make it difficult, or impossible, to secure such weapons for an adequate defence. A jury may not understand this. A judge will. And the law requires that the judge warn the jury in clear and unmistakable terms.

[100]

I agree in the orders proposed by Gaudron, Gummow and Callinan JJ.
HAYNE J. In July 1998, an indictment was preferred against the appellant in the District Court of New South Wales charging him with two counts of committing an act of indecency, in 1978, with another male (whom I shall call the complainant) contrary to the provisions of s 81A of the Crimes Act 1900 (NSW) as then in force. He was further charged with three counts of indecent assault. One of those counts concerned the complainant; the other two related to another male. The offences of indecent assault were alleged to have been committed in 1978 or 1979. The appellant pleaded not guilty to each count. The jury at his trial returned a verdict of guilty to one of the two counts of committing an act of indecency with the complainant. The jury could not agree about the other counts and were discharged without returning a verdict on them. The appellant was sentenced to perform community service.
He appealed to the Court of Criminal Appeal of New South Wales against his conviction but that appeal was dismissed[190]. He was granted special leave to appeal to this Court on the ground that the Court of Criminal Appeal erred in determining that the directions given to the jury by the trial judge (Judge Karpin) about "the delay of almost 20 years between the complaint and the conduct giving rise to it were adequate to meet the circumstances [of] the case". He also seeks special leave to appeal on the further grounds (not taken at trial or in the Court of Criminal Appeal) that the evidence led at trial did not establish the elements of the offence charged, and that the directions given by the trial judge did not explain to the jury "the true nature" of the offence of which he was convicted. The application for special leave to appeal on these two grounds was referred to the Full Court hearing his appeal.
It is convenient to deal first with the ground concerning the directions given about the delay between the events the subject of the charge and the complaint made by the complainant. It is necessary to say a little about what the prosecution alleged had happened.

[104]

The trial judge did not give such a direction in this case. Nowhere did the trial judge speak of the dangers of convicting the appellant on the complainant's evidence alone.
The trial judge did comment about the fact that the complainant made no complaint about the appellant until long after the incident was alleged to have occurred. As the trial judge said to the jury, this deprived the appellant of an opportunity to "look at matters which were happening at about [the time of the alleged incident] and to raise them in evidence" and it probably reduced the capacity of the complainant to be accurate. As the joint judgment in Longman points out[193], it was proper to remind the jury of considerations relevant to the evaluation of the evidence and these were considerations of that kind. But what has come to be known as a "Longman warning" is not just a judicial comment of this kind, proper and appropriate as it may be. It is a warning to the jury that, because the evidence of the complainant could not be adequately tested after the passage of so many years, it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. That warning was not given.
The leading judgment of the Court of Criminal Appeal[194] was given by Barr J. Although reference was made to Longman, it seems to have been treated as holding no more than that a trial judge must "bring home to the jury the need for caution and careful examination of the evidence"[195] and, in particular, that delay in complaining produced difficulties for the appellant[196]. That, as I have pointed out, is not a sufficient or complete statement of what was held in Longman. There was a miscarriage of justice at trial.
That conclusion would ordinarily lead to an order for a retrial, but the appellant submits that the evidence given at his trial did not establish the elements of the offence charged. As mentioned earlier, this is a contention that was not made at trial, or to the Court of Criminal Appeal, and which the appellant now seeks special leave to raise for the first time in this Court. Its consideration entails several steps that should be dealt with separately.

[107]

Because the Court may give such judgment as ought to have been given in the first instance, and because "[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below"[203], it may be thought to follow that if, in the court below, a party did not allege error in the respect now in question, it is not open to this Court to entertain the argument for the first time. How can this Court travel beyond the matters agitated in the intermediate court if it is exercising appellate jurisdiction? How can there be an error if the intermediate court was not required to consider the point? It was these questions which McHugh J and I sought to raise in Gipp v The Queen[204].
The constitutional conferral of appellate jurisdiction on this Court is to be construed amply and as "implying the fullest authority to ascertain whether the judgment below ought, or ought not, to have been given"[205]. As will appear, I consider that this authority extends to entertaining a question of law which is raised for the first time in the Court. The exercise of that authority in any particular case is, however, subject to limits[206].
A question of law not raised at trial or in the intermediate court can be raised in this Court only if it requires the exercise of appellate, as distinct from original, jurisdiction. The distinction between appellate and original jurisdiction is reflected in the distinction between an appeal by way of rehearing and an appeal strictly so called. An appeal by way of rehearing is a "trial over again, on the evidence used in the Court below"[207] with power in the appellate court to hear further evidence, to draw inferences of fact, and to give any judgment or order which ought to have been made and such further or other order as the case may require[208]. Such an appeal may, therefore, involve the exercise of original jurisdiction. It is for this reason that appeals to this Court must be appeals strictly so called. But to consider a question of law for the first time in this Court does not require a rehearing of the proceeding, even in the limited sense in which that word is used in the phrase "appeal by way of rehearing".
As has been pointed out, an appellant may be prevented by the course of events at trial from raising a new point on appeal. A new point of law cannot be taken if, had it been taken at trial, the course of proceedings at trial could have been altered (whether by the adducing of other evidence or otherwise)[209]. That being so, a party permitted to raise a point for the first time on appeal can be seen to be seeking no more than the judgment or order which ought to have been given by the trial judge on the evidence led at trial. The party does not seek some judgment or order different from or in addition to the judgment or order which should have been given at trial. The party does not seek to have the appellate court conduct any rehearing of the proceeding. The jurisdiction which the party seeks to have engaged is appellate, not original.
Because the authority of this Court is limited to giving such judgment as ought to have been given by the Court of Criminal Appeal, it is necessary to consider that Court's powers. So far as now relevant, ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) (which, respectively, give a right of appeal and provide for the determination of appeals) provide:

[111]

On an appeal to the Court of Criminal Appeal, that Court is bound (subject to the operation of the proviso to s 6(1)) to allow the appeal if of the opinion that there was a miscarriage of justice. That obligation arises if the Court is of that opinion on any of certain stated "grounds" or "on any other ground whatsoever".
As was pointed out in the course of oral argument of the present matter, the Criminal Appeal Act uses the word "ground" in several different ways. Section 5(1)(a) speaks of appeal "on any ground which involves a question of law". In this context "ground" may well be used to refer to the allegation of error pleaded by the appellant in the notice of appeal. By contrast, in s 6(1), "ground" is used to refer to the basis for the Court's conclusion, rather than to any pleaded allegation of error. Further, other uses of the word elsewhere in the Act (for example, in the phrase "on the ground of mental illness"[210]) and the use of expressions like "the point or points raised by the appeal"[211] suggest that "ground" is not used in the Act as meaning only a pleaded allegation of error. Thus, ss 5(1) and 6(1) do not expressly confine the powers of the Court of Criminal Appeal to allowing an appeal on one or other of the particular grounds of appeal pleaded by an appellant to that Court. Nevertheless, it may be readily accepted that the statute assumes that a criminal appeal is an adversarial, not inquisitorial, process.
Because a criminal appeal is an adversarial proceeding, the grounds of appeal stated by an appellant mark out the whole of the ground for contest between the parties to that appeal. It follows that I do not accept that, absent some specific enabling provision, an appellate court can, or should, engage in some general inquiry for error in the proceedings below. In particular, I do not accept that a Court of Criminal Appeal is obliged to consider for itself whether, for reasons beyond those raised by the grounds of appeal, there has been some miscarriage of justice in a trial. Unless one of the parties to the appeal embraced the contention that the proceedings below miscarried in a respect identified in the course of argument (and it would be rare indeed for counsel not to do so if prompted) the Court of Criminal Appeal would, in my view, have no power to give effect to that contention. (As I said in Eastman v The Queen[212], I consider that other questions intrude when the issue is whether there was a trial between competent parties, but that is a view which did not command the assent of a majority of the Court and it is, in any event, a qualification which does not apply here.)
But it does not follow from these conclusions that this Court cannot entertain a point of law not raised in the Court of Criminal Appeal or at trial. Whether it can entertain a point of that kind depends upon the distinction between the appellate and the original jurisdiction of this Court, not the distinction between adversarial and inquisitorial procedures in the Court of Criminal Appeal. Once it is accepted that, on an appeal strictly so called, a point of law can be entertained for the first time in this Court, there is no question of the Court going beyond its power to give only such judgment as ought to have been given below if it gives effect to that new point. This Court gives the judgment which the court below ought to have given had the point been raised. Whether this Court will entertain an appeal on a point not previously taken raises other issues.

[116]

Ordinarily, an accused must also bear the consequences of a decision not to take a point at trial. Thus, if a point was not taken at trial, the immediate questions which arise on appeal (whether to an intermediate court or to this Court) are why was it not taken, and is it now too late to take it? Could taking the point at trial have caused a difference in the way in which the trial was conducted? If it may have led to a party adducing evidence other than that party did, the point cannot be taken on appeal. If, as is so often the case where the complaint on appeal relates to the directions given at trial, the making of that complaint at trial could have led to a correction being made then and there, why was that not done? Ordinarily, this last question will admit only of the answer that, in the context of the particular trial, the point was not important, the only other explanation being that it was not done because counsel for the accused or for the prosecution (or both) were incompetent or acted in breach of duty.
Ordinarily, if a point is not taken at trial, a party will seek to agitate it in the Court of Criminal Appeal. I do not stay to examine when that can be done. If it is taken for the first time on application for special leave to appeal to this Court, this will suggest strongly that there was a reason not to take the point earlier which is sufficient to make it unavailable in this Court.
Insufficient attention may sometimes have been given in the past by intermediate appellate courts to the considerations I have mentioned and, in particular, to whether the point taken on appeal was important at the trial given the way in which the trial was conducted. Further, insufficient attention may sometimes have been given in the past to the conclusion about the conduct of counsel that is implicit in the holding that the point was important but was not taken. It is as well that those matters be addressed directly.
If a criminal trial is not conducted according to law the individual accused suffers a miscarriage of justice. There is a very large cost to all who are affected by the trial, the consequent appeal and any retrial (the accused, the victim, the witnesses). There is also a very large cost to the community as a whole. Judges and those who represent the parties have responsibilities to ensure that, as far as possible, these costs are avoided. Courts of appeal, including this Court, must do whatever they can to bring home to all involved the nature and importance of these obligations.
In this regard, the duties of counsel are well known. As Mason CJ said in Giannarelli v Wraith[215]:

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