Kiefel CJ
Bell J
Gageler J
Keane J
Nettle J
Gordon J
Edelman J
13.
The Court of Appeal majority noted that defence counsel made the submission in his closing address that A's account could not be accepted because "it's impossible basically", there having been no opportunity for the events to have occurred in the way that A described. In their Honours' view, the submission made it incumbent upon the prosecution to seek to negative that the offending was impossible by demonstrating that there was a realistic opportunity for the offending to have occurred. While their Honours acknowledged that there was no onus upon the applicant to prove impossibility, their Honours' analysis proceeded by asking, in relation to each piece of evidence that was inconsistent with A's account, whether it was nonetheless realistically possible that that account was true.
As Weinberg JA noted, defence counsel's choice to employ the language of impossibility in his closing address risked setting a forensic hurdle that the defence did not need to overcome. Regardless of counsel's rhetorical flourish, the issue was whether the prosecution had excluded the reasonable possibility that the applicant did not commit the offence/s.
At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself[1]:
"whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".
The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms[2]:
"But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the
