Papakosmas v The Queen S139/1998 [1999] HCATrans 42 (5 March 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S139 of 1998

B e t w e e n -

CHRISTOS PAPAKOSMAS

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

GAUDRON J

McHUGH J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 5 MARCH 1999, AT 10.19 AM

Copyright in the High Court of Australia

MR G.P. CRADDOCK: May it please the Court, I appear with my learned friend, MR H.K. DHANJI, for the appellant. (instructed by T.A. Murphy, Legal Aid Commission of New South Wales)

MR A.M. BLACKMORE: If it please the Court, I appear with my learned friend, MR G.E. SMITH, for the respondent. (instructed by S.E. O'Connor, Solicitor for the Public Prosecutions (New South Wales))

MR D.M.J. BENNETT, QC, Solicitor-General for the Commonwealth: May it please the Court, I seek leave to appear with my learned friends, MR P.A. JOHNSON, SC and MS G.L. EBBECK, for the Attorney-General for the Commonwealth.

GLEESON CJ: Seeking to do what?

MR BENNETT: Seeking to intervene in the interests of the respondent for the purpose of making submissions on the lines of the submissions we have filed in relation to the Evidence Act. The State Act - - -

HAYNE J: Why should a person facing criminal prosecution face two forms of the Crown against his interests, Mr Solicitor?

MR BENNETT: Your Honour, first, one is the Crown in right of the State and one is the Crown in the right of the Commonwealth; secondly, there is no additional prejudice to counsel for the appellant in having aspects of the argument put by two counsel. The appellant is ably represented - - -

McHUGH J: That must mean you have got nothing to add to the State Crown's argument.

MR BENNETT: No, your Honour. There are issues of importance which concern what ultimately will be a uniform Evidence Act - - -

McHUGH J: But you have got no interest in these proceedings. If you were allowed to intervene in these proceedings, then the Commonwealth ought to be allowed to intervene in any case where there is a question as to the construction of a statute, similar to a Commonwealth statute.

MR BENNETT: No, your Honour. The Evidence Act goes to the heart of the administration of justice which, of course, is the concern of the Attorney-General.

GLEESON CJ: Mr Solicitor, there is a report of the Law Reform Commission which tells us in a single sentence what was intended in a case such as the present by the legislation in question. Is there anything that you could do to add to that?

MR BENNETT: Only in the way that one can always add to the written word by forensic argument. There are some authorities which need to be referred to. There are some submissions that need to be made. It may be, as in any intervention, that at the end of the respondent's submissions I will have nothing to add. But, it may be that there are matters to which I would be able to offer some assistance to the Court on behalf of the Attorney-General.

KIRBY J: Even those who take a broad view about intervention and amici feel a sense of disquiet about the appearance of two emanations of the Crown appearing in a criminal matter. It looks as though you are disturbing the playing field by two emanations of the Crown turning up here and having their say. It does not look good to the citizen. I mean, here are two well-funded bodies coming along to put their point of view.

MR BENNETT: Your Honour, first, that would apply in any case where an appellant in a criminal case raised a constitutional issue.

KIRBY J: That is by special legislation.

MR BENNETT: Yes, your Honour.

KIRBY J: And for special reasons.

GAUDRON J: Yes. They are different interests in constitutional interpretation than there are in the interpretation of an Evidence Act.

MR BENNETT: But as here, and as in most cases that come to this Court, there is an interest wider than the interest of the parties.

KIRBY J: In almost every case there is, and that picks up Justice McHugh's comment that therefore the Commonwealth could come along in any case where it has legislation that has some relevance maybe in the external territories and say, "Well, we want to be heard".

MR BENNETT: Your Honour, it is always a question of degree in the particular case as to the extent of the interest. But, in my respectful submission, there is nothing unfair about an appellant in a criminal case facing two manifestations of the Crown. There are in this country a number of manifestations of the Crown and there are some different interests in the State and Federal Governments.

KIRBY J: But Mr Blackmore is a very experienced counsel. He appears here often. If you felt that his submissions were not adequate, could you have not privately, on behalf of the Commonwealth, sought to bolster his written submissions, in that unlikely event that the Commonwealth felt that the State Crown needed a little bit of help?

MR BENNETT: Your Honour, it is only a matter of putting a slightly broader perspective on the legislation and on the significance of the legislation. The other problem is this, of course: that there is one difference between the State Act and the Commonwealth Act, which is that in the State Act there is an express provision concerning the significance of the common law in the construction of the Act, whereas in the Commonwealth Act that provision does not appear. It would be of relevance for us to make submissions as to the way the Court should look at that difference and how it should apply it and - - -

KIRBY J: Is your submission limited to one to intervene or is it one that alternatively seeks to put submissions before the court as an amicus?

MR BENNETT: Your Honour, we took the view that it was more appropriate in a case of this sort for it to be done as an intervention rather than as amicus.

KIRBY J: In Canada last week a decision was handed down in Ewanchuk which is a case concerning consent in rape and the Supreme Court of Canada allowed two groups from a feminist point of view to intervene. The acquittal by the Court of Appeal was set aside and the accused was convicted by the Supreme Court of Canada and that has led to a tremendous uproar in Canada and people say, "Well, the Supreme Court changed the ordinary playing field".

MR BENNETT: But, of course, that could not apply here, your Honour, because we have limitations on the right of the Crown to appeal from an acquittal, except, perhaps, in the narrow situation that one has in Messel's Case.

KIRBY J: The point is still the same, you have got an outsider to the litigation coming in a seeking to disturb something that is not just a pure question of civil law, it is a question that is affecting the liberty of a subject, the liberty of a citizen.

MR BENNETT: Yes. But, in my respectful submission, in balancing the role of this Court is doing justice between the parties and the role of this Court in determining the law for Australia, there is an interest in permitting intervention and the effect on the parties, in my respectful submission, is a comparatively light one compared with that factor, and so long as this Court is the final court of appeal and is determining major questions of law, in my respectful submission, the rules about intervention should be a trifle easier than they might be in a court which is only concerned with the individual case.

GLEESON CJ: We had a case in a civil matter raising some very important questions of construction of the provisions of the Evidence Act relating to legal professional privilege. As it happened, we did not need to give a decision on that matter because the case was settled. But there was no application to intervene in that case which in terms of the issue of construction of the Act was at least as important as the present case.

MR BENNETT: Your Honour, that indicates, in my respectful submission, the responsibility with which the Attorney applies - the responsibility he applies to the question of intervention, and a decision - - -

McHUGH J: Why is he intervening in this case then? This case does not seem as important as the other case in terms of legal principle.

MR BENNETT: This case involves two major questions, your Honour. One concerning the role of the common law in interpreting the Evidence Act and the significance of section 9 in New South Wales, whether it makes a difference or not. Secondly, the significance of the structure of the Act in relation to the hearsay exceptions and whether evidence which is admitted under section 66 thereby becomes, or is otherwise relevant for the purposes of the general relevant section and therefore taken out of section 102 dealing with credibility evidence. That is a matter of major significance in the interpretation of the Act as a whole, and it is one which the - - -

McHUGH J: But it is not your Act and it is not your case. This Court does not sit here as if it was a senate committee hearing submissions generally from the public. It is hear to decide a case between a citizen and the Crown in right of New South Wales and you are seeking to intervene because you think there is something that may be involved that affects the administration of your Act. If you have a case then you contest it. You have rights in New South Wales to have cases stated to the Court of Criminal Appeal against adverse rulings to you.

MR BENNETT: Well, your Honour, it is our Act in two senses: first is the uniformity with the Commonwealth Act and the second is the fact that Commonwealth offences in New South Wales are prosecuted in a milieu to which the State Act applies. So it is a State Act in which there is an interest in the construction rather than one in which there is no interest.

KIRBY J: Your application is limited, as you said in your answer to me, to one to intervene.

MR BENNETT: Yes, your Honour. Well, your Honour, I seek leave on my feet to appear as amicus curiae, for the purpose of putting those submissions.

GLEESON CJ: Now, if you are refused leave to intervene, why should you have leave to act as an amicus curiae?

MR BENNETT: Only, your Honour, because the submissions which we have filed are submissions which, we submit, would be of assistance to the Court in deciding important questions of general application.

KIRBY J: Have you spoken to counsel for the appellant on your applications? Is there opposition to your objections?

MR BENNETT: There is, your Honour; I have and there is.

KIRBY J: Have you spoken on then question of whether, if you simply left your written submissions and helped us in that respect, that there would still be opposition?

MR BENNETT: I have not discussed that question, your Honour.

KIRBY J: Because, on one view, they are simply matters of legal argument which we could have read in a Law Review article.

MR BENNETT: That, in a sense, applies to any intervention, your Honour.

KIRBY J: It might have been more eloquently expressed in a Law Review article.

GLEESON CJ: Is there any point you seek to make that is not comprehensively covered by the judgment of the Court of Criminal Appeal in that case of BD?

MR BENNETT: No, your Honour, but one does not know, of course, what will be said in argument between counsel and the Bench which may be something on which we could assess.

GLEESON CJ: That is the key to your presence, is it not?

MR BENNETT: Yes, your Honour.

GLEESON CJ: Not that there is anything in your written submissions that tells us anything we have not already seen covered in judgments in the court below, but that depending upon how the course of argument runs your advocacy might be of assistance to the respondent.

MR BENNETT: Yes, your Honour; and assistance to the Court in determining a question of general importance. That is as high as we would put it.

GLEESON CJ: You could fulfil that role by sitting in Court and passing a note to counsel, could you not?

MR BENNETT: I can, your Honour, but that is a less efficient means of achieving the result. As I say, it may well be - - -

McHUGH J: It may not be. Counsel may put the point better than you can put it.

MR BENNETT: He may; in which case it might be a more efficient way of doing it, except that the hearsay rule does give rise to problems, and gives rise to problems, no doubt, in that area, too.

GAUDRON J: I am not too sure that we ever get to construction of the statute in any relevant sense.

GLEESON CJ: There is no issue of construction here.

GAUDRON J: It is a question of the relevance of the evidence and the basis on which it was previously admitted and whether, absent the Evidence Act, you would say it was relevant to a fact in issue, or relevant only to credit.

MR BENNETT: If that is the sole matter raised in argument by the end of the day, I doubt that I would wish to say anything to the Court, but it is against the other possibility that we seek leave to intervene. It may be that one course, in view of what your Honour Justice Gaudron says, is to defer my application until the conclusion of the argument for the respondent.

GLEESON CJ: Thank you, Mr Solicitor.

MR BENNETT: If the Court pleases.

GLEESON CJ: Mr Craddock, I gather from what was said by the Solicitor that you oppose this application?

MR CRADDOCK: We oppose the application, whether it is on the basis of intervention or amicus - - -

KIRBY J: Thank you, but what is your attitude to the alternative application made simply to - - -

MR CRADDOCK: There are two alternative applications, and one is that the Solicitor, as it were, act as a McKenzie friend to the State Crown. We do not really say anything about that. As to the second fall-back position that the matter be determined as and when there is a need, we do not say anything about that.

GLEESON CJ: Thank you, Mr Craddock.

Mr Solicitor, the Court unanimously refuses the application for leave to intervene and, by majority, refuses the application to act as amicus curiae.

MR BENNETT: If your Honour pleases.

GLEESON CJ: Yes, Mr Craddock.

MR CRADDOCK: Your Honours, we seek to persuade you that notwithstanding a line in the Law Reform Commission Report as to what the Law Reform Commission desired, that notwithstanding the passing of the Evidence Act, evidence of complaint in sexual matters remains evidence going only to credibility that - - -

GLEESON CJ: The line to which you refer, I presume, is the line that says:

The proposal would have the effect that complaints in rape trials which are at present received only showing the consistency of the rape victim could be received as evidence of the matters stated, as long as they were made when the facts were fresh in the memory.

MR CRADDOCK: Yes that is the line or the sentence.

KIRBY J: It is spot on the point of argument in this case, the central point, is it not, subject to Justice Gaudron's point concerning the application of the evidence?

MR CRADDOCK: Yes it is. There is no question that that was the position that the Law Reform Commission anticipated a reform or the result that a change to the law would bring about but that is one matter. It is quite another matter whether that statute has had that effect.

We start with the position that we acknowledge from the outset that the Evidence Act was intended as a reforming Act. It was intended to change the law in a number of ways.

GAUDRON J: Why do you say "reforming"?

MR CRADDOCK: Well, I do not say that in the - - -

GAUDRON J: What I have seen of it thus far proposes very considerable headaches for the administration of justice.

MR CRADDOCK: And that has been said on a number of occasions. Indeed - - -

GLEESON CJ: Although, in fairness to the Law Reform Commission in this respect, they were only following some years behind a judicial alteration of the hearsay rule that was made by the Supreme Court of Canada in relation to evidence of certain types of complainant in sexual assault cases.

MR CRADDOCK: Yes, this is the necessary and reliable - - -

GLEESON CJ: I think in 1990 the Supreme Court of Canada created judicially an exception to the hearsay rule, making evidence of child complainants in sex cases evidence of the truth of what was alleged in the complaint.

MR CRADDOCK: Yes. That is the Khan judgment, I think, which was discussed in some detail by this Court in Bannon.

GLEESON CJ: And there were also statutory provisions in Queensland and in Tasmania in Australia that went some distance in the same direction.

MR CRADDOCK: Yes. We have sent up belatedly what we hope may be of some assistance in at least closing off lines of inquiry in relation to those matters. Can I deal with those at the outset, to get them out of the way.

In Report No 26 which was the interim report which contains the line to which reference has been made, at page 375, the Commission dealt with the question of tender of prior consistent and inconsistent statements and at paragraph , I think it is 685, but in the middle of the page - mine is obliterated - - -

GLEESON CJ: Yes, it is that one, you are right.

MR CRADDOCK: - - - there is a reference to the Queensland and Tasmanian situations and the Commission said:

Enquiries have not revealed any difficulties in those States in the operation of these reforms.

There is a reason for that, as it happens. Firstly, as to Tasmania, my researches have failed to turn up any unreported or reported decision on the Tasmanian provision, which is section 81L of their Evidence Act which deals with the question of prior consistent statements as evidence of the facts. There is one unreported case which deals in a civil context with prior inconsistent statements.

So far as Queensland is concerned, I was surprised to discover that I could not turn up any reference to section 101.(1)(b) of the Queensland Evidence Act. We have sent up a copy of the relevant part of that. Section 101 provides that:

Where in any proceeding - (a) a previous inconsistent or contradictory statement made by a person called as a witness in that proceeding is proved by virtue of section 17, 18 or 19; or (b) a previous statement made by a person called as aforesaid is proved for the purpose of rebutting a suggestion that that the person's evidence has been fabricated; that statement shall be admissible as evidence of any fact stated therein -

Now, I was not able to discover any case which dealt expressly with section 101(1)(b) in relation to prior consistent statements and so I changed the process of research and looked for Lillyman and discovered that in Reg v King [1995] QCA 48; (1995) 78 A Crim R 53, a copy of which has been provided to your Honours - - -

KIRBY J: I have the lost the structure of your argument. You are at the moment seeking to knock out the line, are you? Is that what you are - - -

GLEESON CJ: You have not come to the line, yet. You have been dealing with a previous line.

MR CRADDOCK: No, I have not got to the line. I have taken your Honours to the Law Reform Commission Report where they indicated that a similar thing had been done in Queensland and Tasmania.

KIRBY J: But does that matter if they got that wrong?

MR CRADDOCK: Not particularly, but, your Honours - - -

KIRBY J: Because they then go on to state what they are intending to do.

MR CRADDOCK: Quite so, but sooner or later someone will ask me, "Well, what has happened in Tasmania or Queensland as a result of those reforms, if I could use that word.

KIRBY J: I would not have asked you.

GAUDRON J: I might have, Mr Craddock.

MR CRADDOCK: Thank you, your Honour. As long as someone was going to. As it happens, though, the Court in King dealt with the question of fresh complaint in sexual assault cases and applied the law in Kilby without any reference whatsoever to section 101 of the Queensland Evidence Act, so that it appears that unless something is said in your Honours' judgment about the presence of section 101 of the Queensland Act, it may lay dormant. That does not have any particular effect upon the argument we seek, I am simply indicating that - - -

KIRBY J: But may that not simply demonstrate, as was demonstrated in a large number of cases, that lawyers learn their evidence law at law school and are impervious to everything that ever changes thereafter and they simply go on ignoring Acts of Parliament and proceeding on the basis of what they learned 20 years earlier?

MR CRADDOCK: It may indicate that, your Honour.

KIRBY J: And that is commented right through a series of cases on section 60.

MR CRADDOCK: Your Honour, that may be the case but that does not further the argument in this case one way or the other, it simply indicates the best that the - - -

KIRBY J: But do you agree that the Tasmanian and Queensland Acts are, in a sense, the heralds, in their terms, of what the Australian Law Reform Commission proposed in the Evidence Report?

MR CRADDOCK: Yes, and the Commission indicated that it perceived, upon inquiry, no difficulty in the application of those sections. That may have been because they had not relevantly been applied.

GLEESON CJ: Or because they had not given rise to any appeals. You do not often find reports of criminal trials in the Law Reports.

MR CRADDOCK: No, certainly not, but you might have expected a bench constituted as it was in Queensland to have said something about section 101 paragraph (b) were it to be regularly applied in Queensland. Nevertheless, that still does not advance the argument particularly; I simply want to save anybody any additional research.

GAUDRON J: Is there anything in King to which you direct our attention?

MR CRADDOCK: No, your Honour. All it does is state the law in terms of Kilby and the more recent Australian statements as to the common law regarding complaint, Kilby, Crofts, Suresh, and a whole range of cases, which have all said that it goes only to credibility. We have included a reference to one of the Canadian cases, simply to draw attention to the matter that your Honour the Chief Justice raised in relation to the more recent development in the law there. That is the case of DR, HR and DW v The Queen (1996) 136 DLR(4th) 525. I will not need to take your Honours directly to it.

KIRBY J: This is a decision since Khan.

MR CRADDOCK: Yes, since Khan. Yes, this is a judgment given by the Supreme Court on 20 June 1996, I think Khan was about 1990, but it does not advance the situation there in any particular way, any further than was discussed in this Court in Bannon, which took into account Khan and other - - -

GLEESON CJ: It is a fact, is it not, perhaps not without significance, that this legislation was brought forward at a time when - how shall I put it - there were decisions of this Court foreshadowing the possibility of this Court creating judicial exceptions to the hearsay rule.

MR CRADDOCK: Well, I suppose that - - -

GLEESON CJ: Is that a matter referred to in the Law Reform Commission's Report? I have not checked myself.

MR CRADDOCK: I cannot say it is not, but I cannot recall any express reference to that.

GLEESON CJ: I just had in the back of my mind that, in the course of debate about the proposed Evidence Act, one of the arguments that was advanced in favour of this legislation was that, if it were not enacted, it looked as though there were going to be judicial developments, including developments by way of creating exceptions to the hearsay rule and it was intended to pre-empt - - -

MR CRADDOCK: I suppose that came to a head in Walton but it stopped there, Walton v Queen [1989] HCA 9; 166 CLR 283. But Walton was handed down in the beginning of 1989.

GLEESON CJ: Was that the case about the admissibility of telephone conversations?

MR CRADDOCK: Yes, and of course the interim report of the Law Reform Commission was 1985. Another observation about the context and timing of the report in the present context is that as a matter of history, as some of your Honours may know, in 1985 there was not the proliferation of, or especially child sexual assault matters before the District Court in New South Wales where this matter was tried. The large increase in sexual assault trials probably began at about that time. They now constitute a very significant part of the District Court's criminal jurisdiction workload but that was not the case in 1985.

KIRBY J: You have been reading to us from the Interim Report No. 26.

MR CRADDOCK: Yes.

KIRBY J: Was there a final - remind me about them.

MR CRADDOCK: Report 38, which was - - -

KIRBY J: Did that say anything about this issue? Was its format to - - -

MR CRADDOCK: No, the format worked this way. In the Interim Report 26 the Commission published a very large volume which discussed all of the policy issues and made proposals. A second volume contained a bill which is voluminous itself and about three times the length of the Evidence Act. Then in 1987 there was Report No. 38 which was the final report of the Commission. So far as commentary is concerned, it merely in most cases indicated retention of the proposals that had been made in the Interim Report No. 26. The second report as far as I can tell does not - and it is difficult remaining awake throughout the reading of the entirety of one of these so I cannot guarantee the situation - but as far as I can tell, there is no reference to complaint in - - -

KIRBY J: My understanding was, and I may be wrong, that between even the final report and the legislation there were some changes that were relevant to the area of discourse that we are involved in. Have you analysed the legislation as first proposed, finally proposed and enacted so that we can see whether the legislature introduced any amendments of its own?

MR CRADDOCK: Your Honour, I confess I have not. I should have but I confess I have not.

KIRBY J: I just have a dim recollection that there was a difference between what the Law Reform Commission was proposing and what was finally enacted and that had better be checked.

MR CRADDOCK: We will endeavour to do that.

KIRBY J: Because it may indicate more clearly a legislative purpose to do something beyond or less than what the Law Reform Commission proposed.

MR CRADDOCK: We will take that up, your Honour, but let me say this, Report 38 does not say, as far as I can tell, a word about complaint. The line that the Chief Justice referred to remains "the line".

GAUDRON J: Where is it to be found?

MR CRADDOCK: In the Interim Report, paragraph 693 at page 383 of the report. It is in the middle of that paragraph. It commences:

The proposal would have the effect that complaints in rape trials which are at present received only as showing the consistency of the rape victim could be received as evidence of the matters stated, as long as they were made when the facts were fresh in the memory.

GLEESON CJ: No doubt the word "could" is put in there because of the discretionary power under section 136, I think it is, to limit the use that can be made of evidence or the wider discretionary power to exclude evidence altogether on various grounds?

MR CRADDOCK: Yes, but - - -

KIRBY J: Would not that, at least arguably, be a recognition by the Law Reform Commission that the repeated acknowledgment by judges over the two decades before that it was asking a lot of juries to distinguish between the use of evidence for the purpose of credibility and the use of evidence as evidence of the facts? I mean, judges can tell juries of these things but making that differentiation is quite difficult in the human mind. I mean, I think it is quite difficult.

MR CRADDOCK: Yes. There is no question that it may give rise to that connotation and the Commission said so in a different context but - a slightly different context in the report at page 170.

KIRBY J: Of the Interim Report?

MR CRADDOCK: Yes, the Interim Report. I will refer throughout to the Interim Report unless I say otherwise because there is very little commentary and discussion in the final report. It is at paragraph 334 at page 170 and in relation to prior inconsistent statements there is a reference to the Ontario Law Reform Commission using some colourful phrases like "`pious fraud', `artificial', basically `misguided'" and so forth. That, it seems to me, is a reference to the conceptual difficulties.

KIRBY J: We do not know what juries make of those things. There is some inquiry I think at the moment in New South Wales, with the approval of the Attorney-General, under the Jury Act but it really is asking a lot to distinguish between its use for credibility and its use as a fact which can be taken into account to bolster the facts that the complainant deposes to.

MR CRADDOCK: That may be so, but it is a different - - -

KIRBY J: That may be an argument for withholding it from the jury where there is a real risk that that confusion will occur.

MR CRADDOCK: Equally so, but it gives rise to the question whether Parliament intended to say it is difficult for juries to understand conceptually, say, "We will just let them have it for the wider purpose", regardless of whether it really, truly goes to that wider purpose. In any event, I think that that deals with the assistance that might be found elsewhere.

GLEESON CJ: Thank you.

MR CRADDOCK: Perhaps if I could return from the rest of the planet directly to New South Wales - - -

GLEESON CJ: Just before you leap into the issues about the meaning and effect of the legislation we had better clear up what happened in this case. The judge's direction about the use that could be made of this evidence was not the subject of any complaint by trial counsel, was it?

MR CRADDOCK: No, that is so.

GLEESON CJ: Nor was there any application made by the trial judge to either exclude this evidence, or to limit the use that the jury could make of it.

MR CRADDOCK: No.

GLEESON CJ: How did you come to be permitted to argue about all this in the Court of Criminal Appeal? Did they waive rule (4)?

MR CRADDOCK: I did not appear. I cannot recall any express reference in the judgment to an explicit decision to waive rule (4) but I would infer from the judgment that that is the process that the court took.

GLEESON CJ: Of course, your primary argument is that this evidence could not, and should not, have been received on the question of the truth of the statement in the complaint.

MR CRADDOCK: Yes.

GLEESON CJ: I understand that issue; but, do you also seek to persuade us that the use of the evidence should have been limited?

MR CRADDOCK: Yes, your Honour.

GLEESON CJ: Since there was no application by trial counsel in that respect, are you complaining that the trial judge failed of his own motion to exercise that discretionary power?

MR CRADDOCK: Yes, your Honour; and we do so in this way: perhaps if I could just give the structure of it, say, in thumbnail sketch, so that we know where we are going.

First of all, we say that evidence of complaint is not hearsay. It is evidence as to credibility - credibility only. Accordingly, it is caught by the credibility rule in section 102. If it is caught by the credibility rule in section 102, then it is inadmissible save for the grant of leave to adduce it, perhaps most usually under section 108(3)(b) of the Act. If it is admitted pursuant to section 108(3)(b), then it is evidence which is expressly admitted for the purpose of re-establishing or buttressing credibility. Nevertheless, if it is admitted on that basis then, by the application of section 60, it is evidence of the truth of the asserted facts. So, it goes to the facts subject to the application of section 136.

GLEESON CJ: But none of that was argued about at the trial.

MR CRADDOCK: No.

GLEESON CJ: And it was a case where the cross-examiner was suggesting to the complainant that she had fabricated her evidence, was it not?

MR CRADDOCK: Yes. That being the case, there was a ready case to be made by the Crown for the introduction of the evidence under section 108. No application was made. The matter was simply apparently just not the subject of discussion at all.

GLEESON CJ: Yes. Because of the way the trial was conducted there were possible discretionary considerations that might have arisen for decision by the trial judge that were just never raised by anybody.

MR CRADDOCK: Yes. In that respect it is very much like Graham was.

KIRBY J: But is not the problem that Graham pointed up, that, I think, the Act talks of, "on the application of the accused" or the Act posits a positive application to the judge rather than simply a discretion which the judge can exercise on his or her own motion?

MR CRADDOCK: It may be framed in that way as is section 165 which relates to "Warnings", but we would submit that both in relation to 165 and, if that is the way that 136 is framed - - -

KIRBY J: I think Justice Callinan pointed this out in Graham that there had been no application.

MR CRADDOCK: That is facilitative and it does not obviate the obligation of the trial judge to ensure that there is a fair trial by - - -

HAYNE J: But correct me if I am wrong, I do not think 136 speaks of any application by any party. It simply says "The court may limit".

MR CRADDOCK: Yes, that is so, your Honour.

HAYNE J: Yes. Where then does this point about application by a party arise from?

KIRBY J: It is at 161, is it not?

MR CRADDOCK: I was contrasting it with section 165 which deals with jury warnings.

HAYNE J: Section 165(2):

If there is a jury and a party so requests - - -

MR CRADDOCK: Yes.

HAYNE J: But you depend, do you, on 136?

MR CRADDOCK: That is right.

GLEESON CJ: Except, you say the evidence might have been admissible under a different provision again, that is section 102 and section 108.

MR CRADDOCK: Yes.

GLEESON CJ: Then if that path had been followed at the trial, questions of discretion had to be considered by the trial judge.

MR CRADDOCK: Yes. If evidence comes in as first-hand hearsay under section 66, it is directly admitted for the purpose of going to the facts.

HAYNE J: And thus the argument, the chain of which you have outlined, depends upon the premise from which you begin, namely that the evidence of complaint is not hearsay, it goes to credibility only.

MR CRADDOCK: Exactly so.

HAYNE J: And no question of discretion emerges, does it, save the more general discretions if that premise is wrong?

MR CRADDOCK: It still does. Let me explain why that is so. If the evidence does go to facts in issue and is then admissible as an exception to the hearsay rule by virtue of section 66, the maker being available and the represented fact being fresh in the mind at the time of the representation, then the evidence is admitted directly for the facts. Now, that - - -

GLEESON CJ: This evidence could arguably have been admitted even if the maker had not been available, I should have thought, under section 65(2)(b), but that might be a more controversial issue.

MR CRADDOCK: Yes, I suspect that there would be considerable controversy about that.

GLEESON CJ: It would depend on the circumstances of the individual case.

MR CRADDOCK: Well, perhaps, but that would presume also the same starting point as with section 66, which is that it is relevant to the facts in issue, rather than only credibility, but what I was trying to explain earlier, in answer to Justice Hayne's question, is that if the evidence goes in under section 66, it goes in directly as to the facts, and so that is the purpose for which it is admitted. There might be, in that case - section 136 still applies, you can still ask, but there may be a very much narrower range of considerations that might tell in favour of limiting evidence, which was expressly admitted for the facts, as against a situation where it is credibility only, excluded, comes in via an exception 108(3)(b) to buttress credit, but is rendered evidence to the facts under section 60. In that case there might be much more powerful arguments for the limitation provided by 136. We say that his Honour mistakenly, as to the law, saw the evidence as going in under section 66, as direct evidence of the facts.

GLEESON CJ: But you must be right about that, I should have thought. It looks pretty clear, does it not, from the summing up, as though the judge thought that the evidence got in under section 66?

MR CRADDOCK: Yes, whereas we say that was an error of law. If his Honour had correctly seen the evidence as being admitted to buttress credibility under 108, very different considerations apply to the exercise of the discretion.

HAYNE J: But we need, do we not, to grapple in the first instance with the words of the Act in so far as they apply to that premise from which your chain of argument begins, namely that the evidence is not hearsay, it goes for credibility only?

MR CRADDOCK: Yes.

HAYNE J: Is that the central point that you have to make good.

MR CRADDOCK: Absolutely, yes.

HAYNE J: You have to make it good by reference to the words of the Act, do you not?

GLEESON CJ: And, in particular, by reference to the words of section 55.

MR CRADDOCK: Quite so. We concede that - - -

GLEESON CJ: In so far as there is a question of construction of the Act involved here, it is a question of section 55, is it not?

MR CRADDOCK: Yes.

GLEESON CJ: Now, suppose that in the present case the person to whom the first complaint was made, whose name I think was Ms Ovadia, instead of running into your client just after she left the bathroom, had put her head in the door while the relevant conduct was going on, and the complainant had said to Ms Ovadia, "He is raping me", would that have been relevant?

MR CRADDOCK: That would have been relevant because, in that circumstance, it is pretty hard to argue that it would not be part of the res gestae.

GLEESON CJ: Was the fact that the complainant, when she said to Ms Ovadia, "I have been raped", was sobbing uncontrollably, was that fact relevant?

MR CRADDOCK: That was relevant as evidence of distress which has - - -

GLEESON CJ: But what was the relevance of the evidence of distress?

MR CRADDOCK: It showed that after an admitted act of intercourse she was upset and it is more probable that a person who is upset shortly after an act of intercourse has not consented to it. There may be other explanations but - - -

KIRBY J: Your client posed an explanation, did he not? Did he not express that he had refused to go off with her and went back to his girlfriend, and that that was the cause of her upset?

MR CRADDOCK: Yes, he did, yes. The question of distress and its relevance was discussed in Preston's Case which is, I think, on my friend's list, an unreported case and - - -

KIRBY J: It is also discussed by Justice Smart in BD.

MR CRADDOCK: Yes, it was. I am sorry, it is not Preston, it is Ryan. I am particularly sorry to make that mistake because it was a judgment of your Honour the Chief Justice and Justices Mahoney and Wood.

GLEESON CJ: Never mind, Mr Craddock, I have no proprietorial feelings about it.

MR CRADDOCK: Indeed, your Honour's judgment was that you agreed with Justice Mahoney.

GLEESON CJ: I often did that.

MR CRADDOCK: Very hard not to, most of the time, I would have thought. But his Honour discussed the rules in relation to distress, particularly at pages 6 and 7 of that unreported judgment, and his Honour observed that the jury have to be able, on the basis of the evidence, to infer that the only reason for the distress was the rape complained of, and it may be that in a given case, the distress admits of the possibility of innocent causes. But, nevertheless, if the jury is able to exclude them on the basis of the evidence which is put before them, the evidence of distress is relevant in the sense that it allows the jury to reason that it is more probable than not that the distress was occasioned by the fact that the sexual act was not consensual.

GLEESON CJ: But your argument in the present case is that the trial judge should have instructed the jury that they could treat the evidence of Ms Ovadia that the complainant appeared distressed and was sobbing uncontrollably as evidence of the fact that she did not consent to what had happened, that they could not treat the fact that at the same time she was saying, "He raped me" as evidence of that.

MR CRADDOCK: Yes.

KIRBY J: Is this because of an important distinction which the common law has always drawn between what it deems to be acts and what it deems to be statements?

MR CRADDOCK: Yes.

KIRBY J: What is the heart of that distinction, what is the reason for it?

MR CRADDOCK: The heart of the distinction is, I suppose, exemplified by the judgment of Chief Justice Mason in Walton, where his Honour distinguishes between implied assertions and conduct and direct statements as to facts. And his Honour, when speaking of the possibility of a relaxation of the hearsay rule, admitted of the possibility in the case of implied assertions and conduct - in other words, people's observations of the state of the complainant in matters of that sort - but drew the line at express statements because of the impossibility, ordinarily, except in res gestae, of the exclusion of the possibility of concoction.

HAYNE J: At some point you have to grapple with the words of the Act.

MR CRADDOCK: Yes, your Honour.

HAYNE J: At some point we have to grapple with the words of the Act. How does section 55, if that is the appropriate place, bear upon the issue that you now raise?

MR CRADDOCK: Can I answer your Honour's question after giving a reference to the proposition that I have just put? Walton is reported at (1988-1989) 166 CLR. The discussion by Chief Justice Mason, as to the distinction in terms of reliability for factual questions of implied assertions and direct statements - - -

KIRBY J: Is the foundation his Honour explains that it is easier for people to concoct statements, but not so easy for them to concoct actions?

MR CRADDOCK: Essentially one could put it that way, and his Honour discussed those matters at page 293 to 294 of the report. Now, having given that reference, can I return to Justice Hayne's question. We accept that in order to make good our central proposition, we have to start with the Act. We do not submit for a moment that it is a matter of looking at the common law and seeing how the Act fits in with it. That, we would concede, would be a quite wrong approach. We see the structure of the Act in this way: we commence with section 56. Section 56 provides that:

evidence that is relevant.....is admissible -

and:

Evidence that is not relevant.....is not admissible.

Of course, that is made subject to other provisions of the Act, which is a reference undoubtedly to the exclusive rules such as section 59 in respect of hearsay and section 102 in respect of credibility, and others.

For relevance, we go to section 55 which provides the definition of "Relevance":

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

And section 55(2) is also important, because - - -

GAUDRON J: It is critical, is it not?

MR CRADDOCK:- - - it makes it abundantly clear - yes - that it is meant to include reference to credibility evidence and evidence relating to the admissibility of other evidence and also a failure to adduce evidence.

GLEESON CJ: But now, the essential proposition, in your argument, is that evidence that this complainant said she had been raped, is not relevant within the meaning of section 55?

MR CRADDOCK: No, that is not our proposition, with respect.

GLEESON CJ: Do you accept that her evidence was relevant within the meaning of section 55 or do you say it was not?

MR CRADDOCK: We say that it was.

GLEESON CJ: Her evidence was relevant?

MR CRADDOCK: Yes.

GAUDRON J: Why, because of section 55(2)(a)?

MR CRADDOCK: Because it includes evidence which is relevant to credibility.

GLEESON CJ: But section 55(2) does not add anything to 55(1), does it? Evidence that did not fall within 55(1) would not be relevant, would it?

MR CRADDOCK: We put it this way: section 55 was designed to be a definition of all of the different kinds of relevance that evidence could have in a proceeding. In order to set up the fundamental test in section 56 that:

evidence that is relevant.....is admissible -

subject to exclusionary rules, and:

Evidence that is not relevant.....is not admissible.

So that section 56 is the fulcrum upon which the Act turns.

GLEESON CJ: If this very evidence had been given as part of the res gestae - in order words, if Miss Ovadia had stuck her head through the door at the time it was happening, and the complainant had said she was being raped, it would not have only gone to credibility, would it?

MR CRADDOCK: Precisely. If that were the case then there would be no application of section 102. Section 55 recognises that evidence may have a number of different relevances in a proceeding. It might go to credibility; it might go to the facts as well. If it goes to credibility and the facts, of course there is no occasion for the application of section 102 because section 102 is targeted at evidence which goes to credibility only.

KIRBY J: I think I have to tell you that I am not as familiar with this Act. I had some responsibility in the very early stages, as the Chief Justice, who would have sat in the cases in the Court of Criminal Appeal. You are bandying around 55 and 102, and so on. Do not assume that I have the unscrambling device that Justice Mahoney referred to in one of the cases. I am just alerting you to the fact that I am not as familiar as others about the structure of the Act. I do not have the unscrambler.

MR CRADDOCK: I did not mean to make that assumption. One does need to read this about 350,000 times before then sitting down and trying to come to terms with it.

HAYNE J: It is a reforming piece of legislation.

MR CRADDOCK: One could say against oneself that it is a terrific reform for lawyers, but be that as it may - - -

GLEESON CJ: I think that by the time this legislation enacted, it is fair to say that the hearsay rule was not regarded as one of the glories of common law jurisprudence.

MR CRADDOCK: Although, hitherto hailed as such.

GLEESON CJ: Yes.

McHUGH J: If subsection (2) was not there, and you only had to rely on subsection (1), surely almost any statement by a woman that she had been raped, whenever made, would always be relevant, because the section proceeds on the hypothesis that the statement is accepted - if it were accepted - could rationally affect the assessment of the probability of the existence of a fact in issue. It does not even have to prove the fact. It has only got to affect the assessment of the probability. Now, there might be some circumstances, I suppose, where a statement was made 20 years ago, or something, and you say, "Well, that cannot rationally affect your assessment of the probability of it", by why, if that statement is accepted, why could not it rationally affect your assessment of the probability of the fact that she had been raped?

MR CRADDOCK: I concede that the language is potentially open to that inference. If that were so - - -

HAYNE J: Is not the inference inevitable for this reason: could the complainant stand in the witness box and say "I did not consent"?

MR CRADDOCK: Of course she could and that - - -

HAYNE J: Why would that be relevant?

MR CRADDOCK: Because the whole system of a judicial determination of criminal liability proceeds upon the basis, even after the Evidence Act, that we have a court proceeding where evidence is given by witnesses in court on oath.

HAYNE J: But why would it be relevant, her statement after the event "I did not consent"?

MR CRADDOCK: Because her statement would be direct evidence of her lack of consent made in court under oath under the obligation to tell the truth and in the fear of - - -

HAYNE J: But my question is directed to the statute. How does her statement in court, under oath, "I did not consent", accord with 55(1)?

MR CRADDOCK: Your Honour, the only answer that I can give you to that - it may not be a particularly persuasive answer but it is the best I can do with this piece of language - is that it is predicated upon an acceptance of the determination of criminal liability based upon proceedings in court on the basis of sworn evidence.

GLEESON CJ: Mr Craddock, let me give you another well-known example of a case not regarded as one of the high points of common law juris prudence, the famous murder case in which there was an attempt by the Crown to lead evidence that an accused named Harry, I think, went into a house and about a minute later a woman came - - -

MR CRADDOCK: Bedinfeld.

GLEESON CJ: - - - out of the house with her throat cut and said "Look what Harry's done to me".

MR CRADDOCK: Bedinfeld has finally bitten the dust.

GLEESON CJ: Yes. The House of Lords has said not only would that evidence now be admissible, it would be cogent evident. Now, you tell us why the statement, made by the woman with her throat cut "Look what Harry has done to me", is relevant.

MR CRADDOCK: Because it is made in circumstances which the law regards - and this is what the res gestae is all about. The House of Lords went to some pains to say "Look, forget about the Latin tag, you have really got to look at the context in which the utterance is made in circumstances where you can exclude positively the possibility of concoction where the circumstances really force the utterance, that utterance can be relied upon as evidence of the facts. We have then a situation where there are recountings of past events which do not have that same safety barrier against concoction." That is the distinction that Chief Justice Mason was drawing in Walton at 293 and 294. We have then a completely different situation where we have proceedings before a court where the witness is giving evidence in the presence of the accused under oath, in knowledge of the obligation to tell the truth and in terrorem of the liability for prosecution should the complainant or the witness lie.

GLEESON CJ: But it then becomes a question of degree, does it not? Of course it is possible to imagine cases in which the possibility of concoction is so high that you might say evidence of this kind could not rationally affect the assessment of the probability of the existence of a fact in issue. But it is equally possible to conceive of cases where it could, is it not, so that it depends on the facts and circumstances of the individual case?

MR CRADDOCK: If one forgets about the whole of the common law, as a matter of pure logic that may be so but the common law drew the line in the sand - and it is a line in the sand because it does come down to a matter of judgment - at excluding evidence once there was a possibility of concoction which could not be obviated.

GLEESON CJ: But the line that the common law drew was the hearsay rule.

MR CRADDOCK: Yes.

GLEESON CJ: We know that the hearsay rule has gone under the Evidence Act.

MR CRADDOCK: No, the hearsay rule is maintained by the Evidence Act and there are exceptions made to it.

GLEESON CJ: Yes; that is what I meant.

GAUDRON J: Do we not go back more fundamentally though even than what is suggested? What really was the basis of the hearsay rule? Was it a basis of unreliability or was it a basis in logic? Can hearsay ever prove anything in the sense of bearing directly or indirectly on the assessment of a probability? That is the question, is it not? I think it was addressed to some extent, well by the philosophers at least, but have the reported judgments ever dealt with that? That is really what we have to grapple with in terms of section 55(1), I think, not what the common law was or was not.

MR CRADDOCK: Perhaps I could put this submission. It is very likely that the cases have discussed the matter at that level of - - -

HAYNE J: I am not sure that you will find too much in the cases discussing it at that level.

GAUDRON J: I think you have to go back to Bentham.

GLEESON CJ: I am not sure you will find much that is very flattering about the hearsay rule in the writings of Bentham.

MR CRADDOCK: No, but the focus of the inquiry, not surprisingly, in the cases is more: what does this evidence go to? When we come to complaint evidence we get to a stage in our examination of the statute where we ask: does the Act provide the mechanism for determining whether this evidence goes to a fact in issue or to the - - -

GLEESON CJ: Well, you use the expression "goes to", but the statutory expression is "could rationally affect the assessment", et cetera. It would come as a surprise to most people who are not lawyers to be told that there are no circumstances in which the fact that a woman has complained that she has been raped could rationally affect the assessment of the probability that she has been raped.

MR CRADDOCK: A few years in law school will sort them out, but - - -

GLEESON CJ: That would be about the only remedy for that - - -

MR CRADDOCK: But that, with respect, rather begs the question because the Act is designed to provide a means of admitting evidence which could rationally affect the assessment of the probability of existence of a fact in issue in proceedings upon a cause of action and one really simply cannot take oneself out of that context and put oneself on the street and consider in a way that you might consider a hearsay statement by someone at the bus stop saying either, "The bus has just been" or, "The bus is yet to come".

GAUDRON J: Does not 55(1), as it were, ultimately depend on the question whether, in the circumstances, you would assume or presume, given the conduct of ordinary affairs, that a person is lying or telling the truth, or, perhaps as a third ground, whether in the circumstances you would make no such assumption.

MR CRADDOCK: Well, if you were bade to do that rationally and to do it in the context of a cause of action before a court, so far as hearsay is concerned, whether it be complaint or otherwise, the answer would be no. For the reasons that hearsay was regarded by the common law as unreliable it was made in the absence, ordinarily, in the absence of the accused without - - -

GAUDRON J: But it was regarded as reliable in the situation of recent complaint.

MR CRADDOCK: But only as to credibility. It was not reliable in the sense of going to the facts and issues. It was reliable in the sense that it allowed an assessment of the credibility of the complainant, and no more.

GLEESON CJ: A possible point of view is that the rule about the admissibility of recent complaint evidence was never an exception to the hearsay rule - - -

MR CRADDOCK: That is our point.

GLEESON CJ: - - - but was an exception to the rule against admitting prior consistent statements and that it was applied subject to the hearsay rule, so the juries were told it was not to be received as evidence of the fact. What this Statute has done is to treat it as an exception to the hearsay rule.

MR CRADDOCK: We do not go that far but we agree with the first proposition that it was never hearsay.

GLEESON CJ: All those statements in the cases that evidence of complaint was not evidence of the truth of what was alleged by the complainant were made against the background that if you said otherwise you would obviously be violating the hearsay rule, but this statute has set out to qualify or modify the hearsay rule.

MR CRADDOCK: That is one contention. An alternative contention is that the complaint statements were never hearsay, were never admitted as going to the facts.

GLEESON CJ: There is an article in Volume 1 of the Australian Law Journal that ought to be compulsory reading for advocates about hearsay evidence which says that whether or not evidence is hearsay depends on the purpose for which it is being used.

MR CRADDOCK: Yes.

GLEESON CJ: I think the House of Lords in Subramaniam - - -

MR CRADDOCK: That is Subramaniam's point precisely, your Honour.

Subramaniam says in abundantly clear terms that whether a statement is hearsay or not depends upon the purpose for which it is tendered.

GLEESON CJ: Now, what this statute does is to say, subject to satisfying the test of relevance, first-hand hearsay can be used as evidence of the fact, provided certain conditions are fulfilled.

MR CRADDOCK: Yes, which begs the question, "Is the evidence of complaint hearsay or not?". Now, our proposition is that complaint evidence is not hearsay, it is not tendered for the truth of the facts asserted, never was, and - - -

HAYNE J: I do not understand those propositions that you have elided about three, I think. You say "never was". That is a reference to the common law, is it not?

MR CRADDOCK: Yes.

HAYNE J: You say "cannot be hearsay". In what sense "cannot be hearsay", that is cannot meet 59(1) of the Act or some other proposition buried in it?

MR CRADDOCK: Well, that proposition - - -

HAYNE J: Sorry, (a) or (b) that, which one?

MR CRADDOCK: Well, (a) and (b), and may I attempt to develop (b). But firstly, we spring from the proposition that evidence of complaint is not hearsay. We say that by reason of the application of Subramaniam.

HAYNE J: I do not understand that. You need to develop that further. I do not understand what you mean by it.

MR CRADDOCK: Well in Subramaniam - - -

KIRBY J: What is the reference?

HAYNE J: I understand Subramaniam.

MR CRADDOCK: Yes. The relevance of the evidence was as to consistency, not as to the truth of the facts asserted.

GLEESON CJ: No, that was the purpose for which the common law permitted it to be used, but the common law never denied its relevance.

MR CRADDOCK: Well, we draw issue with that. The common law - - -

GLEESON CJ: If it had not been relevant, you would not have had to exclude it as hearsay. At common law you only get to the question of applying exclusionary rules if it is assumed that the evidence is relevant.

MR CRADDOCK: Yes.

GLEESON CJ: Because the primary rule of evidence at common law is comparable to that stated in section 56 of this Act.

MR CRADDOCK: Yes, your Honour, but we say that its usefulness was the purpose of its tender. That was as to credibility. There was no occasion for the application of the hearsay rule to it. The reason for the direction to the jury that could not be used as evidence of the facts was not the application of the hearsay rule, but merely that the entire purpose of tendering it was to go only to the question of the credibility of the complainant. The hearsay rule - - -

HAYNE J: The entire permitted purpose of tender?

MR CRADDOCK: No, the entire use of it, the entire purpose of tendering it. It was because of a perception, a presumption against the credibility of a female complainant in a rape trial.

GLEESON CJ: That was why it was allowed to be used for a limited purpose. But the circumstance that it could not be used as evidence of the fact sprang, did it not, not from the irrelevance of the information sought to be imparted, but from its violation of the hearsay rule.

MR CRADDOCK: Well - - -

HAYNE J: Which in turn reflected the common law's, some may say, obsession with two things, the quality of evidence and the adversarial system, the opportunity for confrontation rather than the civilian system of quantity of evidence and corroboration.

MR CRADDOCK: Well, that is a matter upon which we may disagree, but the contention we put is that it was not ever a matter of the evidence being relevant, but only permitted to be used on the limited basis, it was a matter of it only being useful on the limited basis and tendered for that purpose only.

GLEESON CJ: But is not the best way of testing your proposition to consider how it applies to evidence that got in as part of the res gestae? When the woman came out of the house with her throat cut and said, "Look what Harry has done to me", and you then, as the House of Lords now does, accept that that evidence is part of the res gestae, what is the use you make of it?

MR CRADDOCK: Well, you make use of it on the facts in issue, but you do so because you see it as evidence which is reliable and in respect of which the possibility of concoction is eliminated.

GLEESON CJ: And you would say the same of the complaint in the present case if it had been made while the act was going on, instead of half a minute later outside the toilet?

MR CRADDOCK: Yes, that may be so.

GLEESON CJ: Well now, is that not the situation at common law that this legislation was intended to alter?

MR CRADDOCK: We say not. When we move on from the section 56 test, this is assuming our correctness of our proposition that section - - -

McHUGH J: Before you do, can I ask you a question about the construction of section 55, in the context of an out-of-court statement? When section 55 says:

The evidence that is relevant in a proceeding is evidence that, if it were accepted -

is the "it" referring to the verbal formulation of the statement or to its truth?

MR CRADDOCK: We say, on our construction of the Act, that it is the verbal formulation of the statement. If one accepts that the complaint was made, then it has a relevance in that it supports the credibility of the complainant and that is its relevance to the proceeding, but that presupposes the correctness of our proposition that section 55 deals with all the kinds of relevance in a criminal proceeding. But we move on from there to say that, even though that gives evidence of prima facie admissibility, not only is the hearsay rule preserved, but the credibility rule is preserved.

GLEESON CJ: Well, the fact that she was complaining about it, a minute after it happened, could lead you to think that she might not have been consenting to it while it was happening.

MR CRADDOCK: Well, we say that there is another fact to be considered and one cannot leave aside entirely a notion inherent in section 55 of reliability and the avoidance of the possibility of concoction. We submit that the Evidence Act does not abandon all of those principles of the common law and, indeed, we point to section 9, which provides that the Evidence Act is not to be taken to abrogate any principle of common law or equity, save where there is an express intention or it is by necessary intendment.

KIRBY J: Is the Act a code or not a code?

MR CRADDOCK: Well, section 9 rather suggests that it is not.

KIRBY J: It sounds that way.

HAYNE J: If your submission is that section 55 incorporates notions of reliability, what work do you give to the words "if it", that is the evidence, "were accepted"?

MR CRADDOCK: That is, I apprehend, at least in part Justice McHugh's question. My answer to that is that it is aimed at the acceptance of it for its purpose, for its relevant purpose, and when you are talking about complaint evidence it means its relevance upon the complainant's credibility.

HAYNE J: But does not the formulation, if it were accepted, as opposed to if it could be accepted, or some other expression, suggest that notions of reliability are notions that are to be dealt with later in the Act, that the question of relevance depends upon the acceptance - perhaps the unthinking and unquestioning acceptance - of the truth of the evidence in question, regardless of considerations of inherent reliability or other factors that may bear upon it?

MR CRADDOCK: Or relevantly that the complaint statement was made. Of course, that renders it admissible prima facie but, in accordance with the process that your Honour Justice Hayne is positing, we then have the application of section 102 which says that if it goes to credibility only, then it is inadmissible subject to a grant of leave to buttress credibility against a particular attack made upon the evidence. So the construction that we attempt to give your Honour conforms with the structure that your Honour has posited, in our submission.

GLEESON CJ: When you are making a decision about 55, are you allowed to take into account in applying the word "rationally" the fact that the maker of the statement might, on the one hand, be the Archbishop of Sydney, and might, on the other hand, be a notorious criminal?

MR CRADDOCK: It would be very brave to make any judgments given those two facts in this day and age, your Honour. I do not know that they are good examples to place at two ends of the spectrum but, be that as it may, we do not see that as being part of the - - -

GLEESON CJ: It would be possible, would it not, to have a case in which as a matter of rationality you have to say, "Evidence of what that person said out of court in those circumstances couldn't affect my decision as to what happened"?

MR CRADDOCK: Yes, I do not submit that section 55 distinguishes between classes of witnesses in that way.

KIRBY J: Does it not reserve to the decision maker the question of whether the decision maker accepts or not accepts and in that sense puts the issue of credibility to one side because it is a hypothesis if it were accepted?

MR CRADDOCK: Yes; if we are talking about evidence going to the facts in issue but, if section 55 is talking about the whole panoply of bases upon which evidence may be tendered and if it the essential gateway by virtue of section 56, if it is not relevant under section 55 it does not get in at all.

KIRBY J: That is right. That is a very important point for the way a court should approach the construction of 55(1) because it is the gateway to everything that follows in the trial, and not only in criminal trials but in civil cases, and it will not be construed narrowly, I would have thought.

MR CRADDOCK: No, and quite the opposite because otherwise - - -

KIRBY J: You do not get to first base.

MR CRADDOCK: You do not get to first base. But if that is so, if section 55 does really bring into play all classes of evidence, all kinds of evidence for their different purposes, not only the question of the fact in issue, then it is meant also to refer to evidence that goes to credibility only. It renders all of those classes of evidence which have different purposes admissible subject to the application of the exclusionary rules. Now, whether one thinks it a good thing or a bad thing, one thing that the Evidence Act certainly does is preserve the credibility rule. Evidence going only to credibility is rendered inadmissible. But there would be no point in having a credibility rule in section 102 if it were not first prima facie relevant and admissible pursuant to section 56 operating on the definition in section 55.

So that we say the path of reasoning is as follows: is it relevant for any purpose? We say that complaint evidence is relevant for a purpose - that is credibility - so that it falls within the terms of the definition in section 55. It is rendered prima facie admissible under section 56. Then one comes to the exclusionary rules.

GLEESON CJ: But by using that expression "relevant for a purpose", you have elided two different considerations. You have elided the question of whether it could rationally affect the assessment, et cetera, and the question of the purpose for which the law, either the common law or the statute law, will permit it to be used. They are two different questions.

MR CRADDOCK: I concede that I have done that but I submit that that is necessarily the inquiry that section 55 dictates because it is the only path to admissibility finally because it refers to evidence which could rationally affect directly or indirectly proof of the facts.

GLEESON CJ: The fact that it is the gateway means, amongst other things, that when you get further down the track you have to bear in mind that you have come through that gate because, if you could not get through the gate, you could not have got in to the hearsay rule or any of the other rules.

MR CRADDOCK: Yes, we accept that. We accept that, necessarily as a consequence of that, the evidence was relevant in terms of section 55 but of course we say - and it is a matter for judgment ultimately - that section 55 deals with all of the different bases upon which evidence may be relevant in a proceeding either directly or indirectly. If that be so, then it renders relevant, prima facie, evidence which goes to credibility only.

GLEESON CJ: That confuses two different issues, does it not? Whether or not evidence is relevant is not a question for a lawyer to answer; it is a question the answer to which depends on considerations of logic and experience. If the answer to the question is no, you do not need to consider any other rules of evidence but, once you have decided that information is relevant to the decision of an issue in the proceedings, then the lawyer comes along and applies various complicated rules about what relevant evidence will be received and what relevant evidence will be rejected.

KIRBY J: Does that not run into 56(1)? If it is relevant by the test of 55 it is admissible in the proceedings and therefore received.

MR CRADDOCK: Yes, perhaps it is a matter of regret that we do have lawyers involved at that initial stage because evidence will be tendered and it will be either be admitted by a judge applying legal rules or not.

GLEESON CJ: But to use a racing metaphor, the Act says, as the common law said, as I understood it, if this evidence is irrelevant you can put down your glasses. As that chart is intended to demonstrate, if the evidence is relevant then read on.

MR CRADDOCK: I accept that.

HAYNE J: Is it implicit in your proposition that evidence, "I heard the complainant say he raped me", could not rationally affect the assessment of the probability that she did not consent?

MR CRADDOCK: Not directly.

GAUDRON J: But it must be, must it not, because - - -

MR CRADDOCK: We say it does indirectly. We say that it is one of the - - -

GAUDRON J: Directly or indirectly is there, because what you have to say is that it is relevant only to credit. That is to say, it is not relevant to whether or not she consented. It is relevant only to whether she has told the same story all along and therefore is more likely than not telling the truth now than otherwise. You have to grapple with that.

MR CRADDOCK: Yes, but that is precisely our proposition, that when you grapple with that you come to the conclusion inexorably, we say, the Act or no, that the evidence goes to credibility because it is - - -

GAUDRON J: It certainly goes to credibility but you have to say it goes only to credibility.

KIRBY J: You have to say it could not rationally affect the assessment.

GAUDRON J: And whether or not she consented.

KIRBY J: That is very hard to say, is it not? If the person comes out of the bathroom and says that "He raped me", then it is very hard to say that could not rationally - a jury might reject it, it might disbelieve her, it might not accept it but it is a little artificial to say it could not rationally affect. Unless there is some rule of the common law that is preserved by this and prevents you taking that into account and saying "That is just what she says", it does not affect what happened.

GLEESON CJ: Suppose, at the same time, she had a black eye and a torn dress. Would that make a difference to your argument?

MR CRADDOCK: No, your Honour.

KIRBY J: You are holding your line fast by the old principle of the common law which you say has not been displaced, that there is a distinction, it is difficult and there are lines to be drawn but the line is drawn between what people say and what is seen that they have done?

MR CRADDOCK: Partly that, but we say that this definition includes evidence which goes only to credibility. It says that it is relevant evidence for the purpose of prima facie admissibility, but, then you go to the credibility rule and you find that evidence which goes only to credibility is inadmissible.

GLEESON CJ: Mr Craddock, take a case that falls within section 65(2)(b).

MR CRADDOCK: I was hoping you would forget all about 65.

GLEESON CJ: That is a case in which the maker of the complaint, for some reason, is not present, because he is dead, for example, and suppose the evidence, in the circumstances, satisfies 65(2)(b), what is the point of receiving evidence as to the credibility of a witness who is not present?

MR CRADDOCK: Well, clearly none, however, that proceeds from the same starting point as to whether it is relevant as to credibility or relevant as to the facts in issue but there is another level of complexity in there which is that the circumstances make it unlikely that the representation is a fabrication. Now, we might have a similar problem in dealing with the application of 65(2)(b) to the problem we have in dealing with "complaint" which is, how does the Act provide the means of determining whether the circumstances make it unlikely that the representation is a fabrication. If the answer is that, conformably with section 9, the court is, nevertheless, entitled to have regard to established common law principles, then one would look, for example, to the sorts of considerations which are referred to by Chief Justice Mason in Walton and if one were to accept what his Honour said then only in rare cases, indeed, would statements as to asserted facts be regarded as free of the possibility of concoction so that reliability could be assured.

KIRBY J: We have a bit of a struggle between two ways of approaching the statute. One is to say, because of section 9 or because of the ancient principle of construing statutes you assume that Parliament has not taken away a very old principle of the common law unless it is done so clearly and that if you look at this it could be construed one way and it could be construed another and it is not clear and therefore you hold fast to the old principle but the other way is to say, "Well, the Law Reform Commission gave specific thought to this and it is an Act that is based on the Law Reform Commission Report and we are authorised, enjoined to look to what the reform intended to do and it intended to do exactly as the Crown asserts". How does one resolve that dilemma?

MR CRADDOCK: Well, the approach that we would commend to your Honours is to proceed firstly from the legislation; it is a matter of construing the statute.

KIRBY J: That does not help much, because the statute - you need an unscrambler and it is a little bit unclear.

MR CRADDOCK: I mean to go on a little further than that. If, as we say, section 55 is talking about all of the kinds of relevance, and that is, it includes relevance to credibility only, you then find that you are met by the exclusionary rule in section 102 and the inquiry becomes one, how do I determine whether this evidence does go to credibility only? And this is evidence that is relevant in the proceeding and, prima facie, admissible because sections 55 and 56 say so. If it is not evidence that has come through that gateway, there is no occasion for section 102 to be in the legislation at all but, at that point of the process, one asks, well, how do I determine whether it is evidence going to credibility only? Does the Act - - -

McHUGH J: Is it accurate to say that it went to credibility only? Did it not have a substantive content? Did not Lillyman's Case decide that it not only went to confirm the evidence of the complainant, but also as to negativing consent on her part?

MR CRADDOCK: No, your Honour, we say that Lillyman said it goes only to credibility.

GLEESON CJ: Lillyman said, in two or three places, that it negatives consent and, indeed, the next case Osborne was a case where there was no issue as to consent and counsel argued in Osborne that Lillyman therefore did not apply, because there was no issue as to consent. The argument fastened upon the emphasis that Lillyman placed upon its function in negativing consent.

MR CRADDOCK: Well, it begs the question how it does that, and what we say about Lillyman is that the relevance of the evidence was as to credibility only if the jury using the fact of complaint found that, because of the consistency, the evidence of the complainant was reliable - she was a truthful witness - then they moved to find the fact in issue. It is the only way really to read Lillyman, in our submission, because - - -

KIRBY J: What is the reference to Lillyman?

MR CRADDOCK: Lillyman (1896) 2 QB 167.

KIRBY J: By the way, what was the citation of the House of Lords decision that you were referring to earlier?

MR CRADDOCK: That was Andrews.

GLEESON CJ: (1987) 2 AC.

MR CRADDOCK: Thank you, your Honour. In Lillyman at page 170, Justice Hawkins for the court said, at about point 7:

It clearly is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains.

If it has something to do with the lack of consent it is because, by reason that it is evidence of consistency, it buttresses the complainant's credibility, so that the evidence that she gives in the witness-box might more readily be accepted by the jury.

GLEESON CJ: But does not the very fact that she is complaining about it a short time after it happened possibly support a conclusion that she was not consenting to it when it happened, depending on the circumstances.

GAUDRON J: It would depend whether it was the first reasonable opportunity, perhaps. There may be a need to bring that - - -

MR CRADDOCK: Assume rough contemporaneity.

GLEESON CJ: Yes, we are talking about proximate complaint.

MR CRADDOCK: We say not. We say that even in the circumstances of a fresh complaint, roughly contemporaneous, the evidence is not evidence of the facts.

GAUDRON J: Perhaps you can look at it from the other side of the coin. What if there is no evidence - this is before the amendments to the Crimes Act - were there no evidence of recent complaint, for example, were there evidence that she did not complain? What did that go to, credit or the facts?

MR CRADDOCK: In ancient times, and one has to go back to ancient times for the answer to that, it was evidence positively of consent.

McHUGH J: This is part of the problem with this particular area. If you go back into history, this rule derives from the requirement that the complainant had to make the hue and cry before she could bring her appeal. When appeal became obsolete and proceedings proceeded by way of indictment, the evidence was still let in. For 200 years or more the courts did not rationalise that the real basis of it was never really explained until Lillyman, and then Lillyman sought to justify it on the basis that appears at page 177 of the judgment. But, I do not know that in this particular area you get much assistance. Is it not really a matter of just applying the statute to this sort of evidence and saying as a matter of logic, could it rationally affect the assessment of the proof of the facts in issue?

I do not think you will find any persuasive, philosophical analysis of the basis for the admission of complaint evidence, and the hearsay rule, itself - or the basis of it - as a subject of dispute between writers. Most people say it is everything to do with the jury system, but Professor Morgan argued strenuously it had everything to do with the adversary system. It was to protect those who appeared for people because they did not have an opportunity to deal with the hearsay evidence. But, be that as it may, should not we start with the statute and its terms?

MR CRADDOCK: Yes, your Honour, we do not dispute that at all. That is precisely where we start. We get to the point, we say, where we discover that evidence which, according to the statute, is relevant, and therefore, prima facie, admissible, is nevertheless liable to be excluded where it goes to credibility only.

McHUGH J: But you seem to want to put a gloss on it. You want to put a gloss on 55(1)'s application of this sort of evidence by reference to 55(2)(a).

MR CRADDOCK: Well, I would not agree with the terms in which your Honour puts it, certainly low gloss - - -

McHUGH J: Well, you want us to put a pair of spectacles on. You want us to read through the spectacles of the common law.

MR CRADDOCK: Well, if it were just down to myself, I would rather you read it all in private and I did not have to try and grapple with it. But, if there is a gloss, it is a low gloss. We say that the section 55 definition encapsulates all of the types of relevance and that must be so, not just because of what is said in 55(2) but because there is a credibility rule. And you only get to the credibility rule once you have passed through the gateway and you have evidence which is relevant in terms of section 55 but which is nevertheless inadmissible because it goes to credibility only. And so, you then have to ask yourself, "Well, how do I determine whether it goes to credibility only?" And if you go for a little wander around the Act as far and as wide as you might and you arrive at the very end and find the dictionary definition of credibility, you find that it does not help you particularly in determining whether the evidence goes to credibility only, one is then thrown back to the common law. That is the path of reasoning. If the Act does not provide the mechanism for determining whether evidence goes to credibility only but the Act preserves the credibility rule, then how does one determine?

We say that you look to well-established, accepted notions of the common law. You have regard to the fact that you have not been able to discover in the legislation itself any express abrogation or abrogation by necessary intendment, and you look to the reasoning of the common law and you discover that even if there was a patchy history, an unexplained history of complaint in the several hundred years leading up to the cases discussed in Lillyman, you arrive at the point in Lillyman where the Court of Queen's Bench said in unequivocal terms that it goes to consistency, to credibility only. You then go to Kilby where the matter was before this Court and where this Court held in unequivocal terms that it is evidence going to credibility only, and to the various reaffirmations of that proposition by this Court in Suresh, Crofts and a string of other cases in recent times, and - - -

KIRBY J: You say if all of this long history was going to be disturbed, it would have been done in clearer language than appears in the Evidence Act?

MR CRADDOCK: Quite so, and notwithstanding the one line in an interim report by a Law Reform Commission in 1985, 10 years before the enactment of this legislation.

McHUGH J: But this legislation makes enormous inroads into it.

MR CRADDOCK: Of course it does, but which - - -

McHUGH J: And in situations a complaint to a policeman about some crime can frequently be admissible in this particular case and the policeman could give evidence even though the complainant was not called.

MR CRADDOCK: Your Honour, we accept that the evidence - and I not going to use the word "reform" again - but we accept that Act had the purpose of bringing in change but which - - -

McHUGH J: Rationalisation.

MR CRADDOCK: Rationalisation.

McHUGH J: The Law Reform Commission would have said.

MR CRADDOCK: If that is what the Law Reform Commission says then let us take them at their - - -

McHUGH J: No, they do not say that. I am attributing that to them.

MR CRADDOCK: No, I understood it that way. But if one were to attribute it without a reference, it does rationalise. It certainly does that. It provides a sole test of admissibility, that being relevance. It provides a broad definition of relevance which encapsulates all of the different types of evidence and their different relevances. It makes them all admissible, subject to exclusionary rules, but it then retains the rule that evidence to credibility is prime facie inadmissible but for exceptions and thus far, we would say, that it certainly does rationalise in the sense of making more rationale the reception of evidence. But, at the end of the day, one looks to the particular kind of evidence which is being tendered, evidence of complaint, two questions: is it relevant within the terms of section 55 so that it is admissible at all? The answer is yes. Secondly, is it evidence going only to credibility? One must ask and answer that question because section 102 is there.

McHUGH J: That, itself, raises an interesting question as to whether you can really ever draw a line between evidence that only goes to credibility and evidence that affects the proof of the facts in issue.

MR CRADDOCK: Your Honour had a bit to say about that in Palmer v The Queen in reliance on Natta v Canham and Zuckerman's article and a number of other sources.

McHUGH J: That is so.

MR CRADDOCK: Be that as it may, your Honour's discourse in relation to that subject was not adopted by the Parliament. That is necessarily the case because section 102 was enacted.

McHUGH J: Yes, the Act seems to assume there is a distinction between credit - that there can be such a thing as evidence which goes only to credibility and does not affect proof of the issues.

MR CRADDOCK: Yes, and that being the case - - -

McHUGH J: I have very considerable difficulty in grasping that.

KIRBY J: Do you say that because the Parliament did preserve that, it has preserved it against the background of 100 more years of this distinction in the area of complaint of rape and that therefore one should assume that that is a signal that in this area the distinction is being preserved? Is that what you are saying?

MR CRADDOCK: No, your Honour, not precisely that but something not so far removed from that. The distinction is certainly preserved. Whether it is a good thing that is being preserved or not is a matter for the academics, now. Justice McHugh's entreaties to rationality in Palmer v The Queen were not adopted by the Parliament. The distinction between the two classes of evidence is maintained and one has to grapple with how you go about determining into which class it falls. Now, because the Act does not provide the mechanism for doing that, save to say that evidence as to credibility is inadmissible, you are necessarily bound to look elsewhere and in relation to this particular class of evidence there is an unbroken line of authority a little over 100 years in age which says, unequivocally, that evidence of complaint goes to credibility only.

GLEESON CJ: But there is a difference between saying, in the days when the common law hearsay rule had its full application, evidence of this kind was only permitted to be used in relation to the credibility of a witness and saying evidence of this kind relates only to the credibility of a witness and it is that gap that you seek to straddle in all your submissions.

MR CRADDOCK: Yes, your Honour, we do. We recognise that one must embark upon that inquiry as well, even when one is thrown back to the common law to determine what is evidence going only to credibility. So, that is where we do not go as far as your Honour Justice Kirby posited the argument. We do not go as far as to say, "The Act does not tell you, the common law says it and that is the end of the debate". One has to take into account other changes brought by the Act to see whether they impact upon the application of the statements by courts in Kilby and Crofts and so on and so forth for the question. But, it is at that point that we put this proposition that with respect to evidence of complaint it was not a situation where at common law it was relevant to the facts and the credibility but it could only be used as to credibility because the hearsay rule took it away from the direct application to the facts.

We say that, on the contrary, it was evidence that did not have relevance on the facts. The only purpose for its admission, its only relevance, was as to credibility, and we say that that is what Lillyman held, that is what Kilby adopted and that is what this Court, in a string of cases, Crofts and so on and so forth, have reaffirmed time and again since.

GLEESON CJ: But translating that submission into the language of the statute, you now have to say, it is evidence that only ever could and only ever can relate to credit, and it never could and never can rationally affect the assessment of the probability of, for example, absence of consent.

MR CRADDOCK: Well, we must, for our argument, include the words in parentheses, but, having done so, then, at that point, we do put the matter the way that your Honour has posited, and we do so because, as I have said probably a few times perhaps too many today, section 55 draws together and makes relevant all classes of evidence which have any kind of relevance in a proceeding, whether it be directly as to the facts in issue, or indirectly, and we say "indirectly" is a word that has been put there for some reason, and it is an indication that section 55 is meant to include evidence that goes to credibility only, and if it were not, then there would be no occasion for section 102.

KIRBY J: Well, it includes that, but the step before that is whether this evidence goes to credibility only or rationally affects the assessment of the probability of the existence of the fact.

MR CRADDOCK: Well, if it goes either directly or indirectly, then it is relevant under the terms of section 55, but that leaves you, when you come up against the potential application of the exclusionary rules, to determine whether it goes to credibility only. If it is not relevant within the terms of section 55, you do not get to section 102 at all.

KIRBY J: So, in your view, the key question is not the relevancy question but the credibility exclusion, and you say, between section 55 and that exclusion, there has been no change in the hypothesis which the common law embraced, namely its relevant, but it is only relevant to credibility?

MR CRADDOCK: Yes.

McHUGH J: Can I put to you that that distorts what the common law was all about. This rule is a relic of history. Came the 19th century, the hearsay rule was then firmly established. You could not justify admitting this, having regard to the hearsay rule, but the courts had to find a justification for evidence that had been admitted for hundreds of years, and they said, "It's still admissible and we'll admit it on this limited basis that it confirms the consistency of her account". But the common law has never said anything as to whether or not it could prove the facts of the case. The common law was never asked to answer that question because the hearsay rule excluded that aspect of it. But here we are faced with a different question. Hearsay rule does not have the same bite. We have to look at 55 and apply it logically. You seek to take a justification for allowing the evidence in when the hearsay rule was at its zenith as proof that the common law would not recognise it as having any probative effect. It was not a question the common law ever had to answer because it was cut off at the heels by the hearsay rule.

MR CRADDOCK: That is, if I may say with respect, perhaps an available interpretation or opinion about the history, and it is one which, I suppose, has in its support the fact that the hearsay rule was - I do not know about it at its zenith, but it was certainly alive and well in 1896 - but, whilst that might be an available opinion about the history of it, it is not a proposition which we would submit has any support in the cases. The cases do not say around Lillyman and - - -

KIRBY J: You are talking about common law cases?

MR CRADDOCK: Yes; and subsequently that this evidence would be relevant to the facts in issue. It could render more probable the fact asserted in the representation but the hearsay rule stands in the way of that and so its admission, if at all, must be limited to a non-hearsay purpose. If any of the cases had said that, then there might be some judicial support for your Honour's interpretation of the history, but there is not.

GLEESON CJ: But all the cases about the res gestae are irreconcilable with your proposition, are they not? All you needed was for this complaint to have been made about a minute or two earlier and it would have been admissible as evidence of a fact.

MR CRADDOCK: Well, yes, that really rather gets back to another, I suppose, assumption in our argument - and we cannot shy away from it - and that is that you would look at all of this predicated upon the fact that you are dealing with evidence to be admitted in proof of a cause of action. And that is because that exception has been admitted only because the courts have held that the possibility of concoction is eliminated and it is part of the transaction itself, in any event. It is part of the criminal transaction.

KIRBY J: What is the attempt of the Act to reproduce the res gestae principle?

GLEESON CJ: Section 65(2)(b).

MR CRADDOCK: Yes, we would accept that.

GLEESON CJ: Which would have allowed the evidence in, even if the maker of the complaint had not been called as a witness.

MR CRADDOCK: So long as it was part of that transaction so that, having regard to common law notions - it is clearly why it was done, I mean it did not just - - -

KIRBY J: That seems to be a little more flexible than even the res gestae had developed. It was developed - and I sat in a case Astill, I think, which related to the development of the res gestae rule - but (b) seems to be wider than the common law. Why would (b) not apply here in this case?

MR CRADDOCK: Well, in our submission, it is not wider than the common law. We would submit that at certain - - -

KIRBY J: Shortly after is more flexible than res gestae.

MR CRADDOCK: Shortly afterwards would only be an extension of the common law if Bedinfeld still held sway.

GLEESON CJ: Well, Bedinfeld is gone, as you said.

MR CRADDOCK: Yes, well, precisely.

GLEESON CJ: As it richly deserved. But the question that Justice Kirby asks you raises an interesting paradox. It would have been very odd if the admissibility of this evidence would have been greater in the absence from the witness box of the complainant.

MR CRADDOCK: Yes, that is a paradox which - - -

KIRBY J: But does not the paradox make you go back and question your construction of 55?

MR CRADDOCK: No, your Honour, because 55 is still the essential gateway. You do not get anywhere near section 102 lest it be relevant according to section 55.

HAYNE J: But 65(2)(b) would contemplate two forms of statement, would it not, "I am not consenting" or "I did not consent"?

MR CRADDOCK: Yes, because it contemplates shortly afterwards, that must be so. We accept that, your Honour.

HAYNE J: Yes. Thus the statement "I did not consent" contemplated by 65(2)(b) is admissible on what basis, do you say?

MR CRADDOCK: It must still be part of the transaction.

HAYNE J: Assume that to be so, why is it relevant?

MR CRADDOCK: It must also be the case that the circumstances make it unlikely the representation is a fabrication. In other words the possibility of concoction is eliminated. It is still a matter for judgment what "shortly after" means.

HAYNE J: I accept all of those difficult problems may arise but does your argument acknowledge that if those difficulties are overcome, the statement is relevant as going to the fact of consent?

MR CRADDOCK: Yes, because this is an exception to the hearsay rule so it is only dealing with evidence which is relevant to the fact in issue. It must necessarily follow that section 55 is talking about evidence relevant to the fact in issue. As to the conundrum of more reliable evidence with maker unavailable - - -

GAUDRON J: Your recent complaint, of course, if we can call it recent complaint, if you are wrong it will be admissible in the case of any crime, will it not? If you are wrong.

MR CRADDOCK: Yes.

McHUGH J: Yes.

MR CRADDOCK: I hate to think about that.

McHUGH J: It is. Supposing - - -

GAUDRON J: "I have been robbed".

HAYNE J: Yes.

McHUGH J: Yes, exactly.

GAUDRON J: Somebody tries to run me off the road.

MR CRADDOCK: I do not see anything standing in the way of the admission. If we are wrong, I do not see anything standing in the way of the - - -

KIRBY J: What is so wrong about it?

HAYNE J: The statement to the police goes in.

GLEESON CJ: Even complaints of sexual assault made by that class of person referred to in one of the judgments as "abandoned old men".

MR CRADDOCK: Yes. I do not see a barrier to the admission of all of those complaints if - - -

McHUGH J: Those complaints - - -

MR CRADDOCK: - - - as proof of the fact if we are wrong. If we are wrong in our contention that it is credibility only, then, "I was robbed, I was bashed, he just stole my wallet"- - -

HAYNE J: But the limitation then becomes fresh. That is the only limitation or, indeed, the principal limitation, is it not?

MR CRADDOCK: Yes, sure. We accept that. But if we are wrong then so long as freshness in Graham terms is established, all of those out-of-court representations go in as evidence of the truth of the facts asserted.

KIRBY J: Is that consistent with what the Court said in Lee?

MR CRADDOCK: Yes, it is, because the, presumably, maker available, the assertion in the representation, is intended by the maker.

McHUGH J: Not only complaints that occur after the event, but, in many cases, it may even be complaints that lead to a charge. Take a case of a hotel licensee being charged with suffering betting on the premises. Arguably, a police constable would be able to say, "I went to the premises as a result of being told by X that betting was taking place on the premises there last week". I do not see why that may not, arguably, be admissible.

MR CRADDOCK: Maker available, fresh in the memory.

KIRBY J: Well, fresh is the test though; I mean, I though Justice McHugh was saying that - - -

MR CRADDOCK: No, but if the gambler - maybe there is some other term for such a person - had come out of the place and said to a policeman walking by - - -

KIRBY J: "I am terribly shocked; I have just been to a hotel and I am absolutely shocked that" - - -

MR CRADDOCK: "I never thought I would do it, but constable" - - -

KIRBY J: "I never thought I would see it in Australia".

MR CRADDOCK:- - -I went in there and I succumbed, the man offered me a really good price on High Court in the Third and I took him up".

GLEESON CJ: It is a case, is it not, as a matter of history, that it was only in about the middle of the 19th century that the courts got to the point of limiting the class of evidence of complaint that would be admitted even on this narrow basis to evidence of complaint in sexual cases. There was a time, was there not, when there was at least a question as to whether evidence of complaints of other types of assault, for example, might be admitted?

MR CRADDOCK: I do not know, your Honour. That might be so.

KIRBY J: Justice Hunt says in one of the cases that these sections have become a growth area. Has it grown outside the area of sexual complaint or - - -

MR CRADDOCK: Not to my knowledge. I am probably the wrong person to ask.

KIRBY J: But there is no reason of principle; the Act is not specific to sexual complaints?

MR CRADDOCK: No, it is not, but my practice would not let me give you even anecdotal evidence as to what happens in the cases - - -

KIRBY J: Assuming that all this is so and assuming we have some ambiguity in the statute, you tell us first we have to go to rudiments, we have to go to the meaning of the statute from its terms; and secondly, you have to read it against a background of common law, but what reasons of policy would there be if one has an ambiguity not to construe it but to allow this evidence to be admitted and to put an end to what on one view is an absurd distinction between things said freshly after incidents or - - -

MR CRADDOCK: Because it allows self-corroboration on the basis of a self-serving statement.

GLEESON CJ: And the protection against that is section 136, is it not, or at least that is what the scheme of the Act intends, that you consider it in the circumstances of the individual case and if, in the circumstances of the individual case, there is a danger of fabrication or some other danger that attracts the operation, then the judge can limit the use of the evidence and indeed can limit it in a manner that would have conformed to the pre-existing common law.

KIRBY J: Does that mean limit it getting before the jury or does it mean giving instruction to - - -

MR CRADDOCK: Cut down the use of it to - - -

KIRBY J: That is by instruction to the jury once it is in?

MR CRADDOCK: Yes.

KIRBY J: But once it is in the damage may be done.

MR CRADDOCK: Yes, I think that must be so. It is separate to the discretion to exclude it altogether and the terms of section 136 are to limit the use to be made of the evidence, so - - -

KIRBY J: Which section are you reading now?

MR CRADDOCK: 136, it must - - -

KIRBY J: And which is the general power to exclude?

MR CRADDOCK: The general power to exclude prejudicial evidence in criminal proceedings is 137. There is a more general provision relating to proceedings generally, including civil proceedings, in section 135, A slightly different test, but 136 permits the court to limit the use to be made of evidence.

KIRBY J: So, it has to get, on this theory, through, firstly of all, the gateway of relevance; secondly, a gateway of freshness; thirdly, a judicial discretion to exclude on general principles; and, fourthly, the judicial power to instruct the jury of the care with which they must exercise it. Well, what is so wrong with all that?

MR CRADDOCK: Well, there are two pathways.

KIRBY J: I think Justice Bruce analysed it in supporting Justice Hunt's judgment in one of the cases, BD, I think, along those line.

MR CRADDOCK: Yes. Justice Hunt also drew attention to 165, but there are two pathways. Firstly, there is the one that we take exception with which is the pathway through section 66, but, if it comes in through section 66, different considerations will ultimately apply to the exercise of the discretion because it is admitted for the very reason that it is relevant to the facts in issue.

GLEESON CJ: But what is so different about that result from the very course that was being proposed, I think by the then Chief Justice of this Court in Walton, of having a general qualification to the hearsay rule to be administered by courts on a case by case discretionary basis related to reliability and fairness?

MR CRADDOCK: Well, it was an extremely narrow exception that was proposed.

GLEESON CJ: In that case they recognised only the exception in relation to telephone conversations but I thought they were considering the possibility of a wider exception to the hearsay rule.

MR CRADDOCK: There was a discussion about a broader exception, but it was not much broader; it was indeed extremely narrow and it would be limited - and this appears at page 293 and 294 of the judgment in Walton at 166 CLR - only to cases of implied exceptions, where the possibility of concoction is excluded, and his Honour went on to say that, where it is an express assertion of a fact, then, ordinarily, you would regard the possibility of concoction as inescapable, and it would not fall within the terms of any such broadening of the exceptions. But, that did not really go very far.

When this Court came to consider the exception that was sought in Bannon v The Queen [1995] HCA 27; 185 CLR 1, in relation to the admission by a third party of the offence charged, the Court discussed those Canadian cases which dealt with necessary and reliable,and at page 12 of that report in the judgment of Chief Justice Brennan, his Honour really pricked that balloon by noting that the Canadian exception, and the proposed exception, if it be characterised as such in Walton, depended for admissibility on a judicial opinion about reliability, which was not to be regarded as an appropriate means of determining admissibility; admissibility by judicial opinion rather than - - -

McHUGH J: The difference was it is strongly arguable that all the exceptions to the hearsay rule are really grounded in reliability, but that is reliability as a category, and the departure that was made by Chief Justice Mason in Walton, and which was subjected to some strong criticism by Professor Tapper, was that judges would determine reliability on a case-to-case basis, as opposed to introducing new categories.

MR CRADDOCK: Yes, so rather than have a rule you would have admissibility based on judicial opinion.

McHUGH J: Yes.

MR CRADDOCK: That is what Chief Justice Brennan said at 12 of that report.

KIRBY J: Yes, but it is opinion by reference to a criterion. The alternative is just lurching around amongst individual categories, so-called.

McHUGH J: Justice Kirby is a strong proponent of admitting the evidence subject to discretions. He dissented - - -

MR CRADDOCK: That dissent was noted by the Law Reform Commission. One could argue all day about that, but be that as it may - - -

GLEESON CJ: No, do not do that.

MR CRADDOCK: I am not going to do that because you have a hearsay rule, and we have statutory exceptions, and that is the end of that for New South Wales, it seems.

GLEESON CJ: Has that covered what you want to say about your first point?

MR CRADDOCK: Yes, it does, your Honour.

GLEESON CJ: Your second point is that in this case the judge, although he was not asked to do so, should have limited the use of this evidence by reference to section 136?

MR CRADDOCK: Yes.

GLEESON CJ: That requires, does it not, a consideration of the detail of the facts and circumstances in which these complaints were made.

MR CRADDOCK: Yes.

KIRBY J: You presented a late, extra submission which collects all of the complaints.

MR CRADDOCK: For that purpose, yes. Really, so that your Honours are saved a little of the trouble of running around the appeal books looking for the references to the complaints.

KIRBY J: Does it say when in relation - they do not seem to say when in relation to the alleged event the complaints were made.

MR CRADDOCK: Those temporal elements of the complaints were not really clearly the subject of evidence, but it does not seem - - -

KIRBY J: It is all at the party, and it is all within a matter of minutes of the emergence of the complainant from the bathroom.

MR CRADDOCK: I think we would accept this proposition: that within the terms of Graham it was all evidence fresh in the memory.

KIRBY J: Had you accepted it is all within minutes of the alleged incident? What is the longest period on your case? I know there was a dispute about the bloopers tape and so on, but what was the longest on your case?

MR CRADDOCK: I do not think that I could put a time limit on it, but I would accept that it was nevertheless fresh in the memory. It was certainly minutes rather than hours, but when one says minutes, one connotation of that is three, four, five or six. It may well have been half an hour or 45 minutes when you look at the kind of transactions which were involved. The act was concluded; she remained in the room for some time - although that is not identified temporarily, and that is not surprising.

GLEESON CJ: Is there a dispute about the fact that she vomited into a bucket or a container?

MR CRADDOCK: Apparently not, I saw no reference in the transcript to dispute about that.

KIRBY J: And then she went into the bathroom and washed the underpants. So that would take a few minutes.

MR CRADDOCK: Yes, and when one adds all of those things together, the minutes are adding up but, nevertheless, you would conclude, I think fairly - and certainly the jury were capable of concluding, they were entitled to conclude that the complaints were all fresh in the memory.

McHUGH J: Do you take any separate point about Dr Tiernan's evidence? It was some hours afterwards, was it not?

MR CRADDOCK: It was. There was no objection to it but, in any event, its relevance was as to history. There was no separate point taken as to whether it went beyond history, although section 60 of the Act renders evidence of history given to doctors evidence of the facts in issue as well. We would say that it would be part of the general application for limitation. it might have a separate element in that it was in a quite different context to a spontaneous complaint to friends shortly after the event. It was in the context of a medical examination some period after the event.

GLEESON CJ: But it is significant on this issue, is it not, that the allegations she was making were accompanied by signs of substantial distress on her part?

MR CRADDOCK: Yes.

GLEESON CJ: Whatever had happened to her in that room, she had not found it exhilarating.

KIRBY J: Your case was, as I understand it, that the distress was because he decided to go home to his girlfriend and not to leave with her. Is that a correct understanding of what your answer was to the distress?

MR CRADDOCK: Partially. That was something which he could give evidence about, that she said, "I suppose you are now going to leave your girlfriend", and he gallantly said "No, don't be ridiculous", or something of that sort. But as to whether there was any other - - -

KIRBY J: That would not explain vomiting. It would be a rather unusual reaction to that news, to then go and vomit.

MR CRADDOCK: That preceded that statement, as I understood the evidence. I may be wrong about that, but I think that the vomiting preceded the discussion about whether he would remain loyal to the person with whom he then spent time.

KIRBY J: So the long and short of it is, the vomit gets in, the distress gets in, the tears get in and the washing of the underpants gets in, but her statement "He just raped me" does not get in.

MR CRADDOCK: Not under section 66 as evidence of the facts directly, but we would - - -

KIRBY J: Do you think citizens would regard that as an absurd result? It may be what the Act requires but it would strike an ordinary citizen as an absurd result.

MR CRADDOCK: Maybe it would. Lots of - - -

KIRBY J: What do we lawyers tell them? What is our explanation?

MR CRADDOCK: Lots of things about the manner in which the law determines admissibility and use of evidence might strike Jo or Joanne Public as being absurd.

GLEESON CJ: Yes, we have them, but we are not necessarily proud of them.

MR CRADDOCK: Some of them may, nevertheless, be necessary to a proper determination of a cause in action.

GLEESON CJ: True.

GAUDRON J: May it be that it is not simply freshness of memory, though, that determines this issue. May it be that the first gateway is really, first reasonable opportunity of complaint, whatever the offence?

MR CRADDOCK: Well, not under section 66, if it goes in that way.

GAUDRON J: I know, that is to say it may well be relevant, but only as to credit, if the complaint is subsequent, and - - -

MR CRADDOCK: Well, that might answer Justice McHugh's question about whether the statement to the doctor fell into a different category to the statements to the - - -

GLEESON CJ: Indeed, in the that respect, this case is much stronger for the Crown than BD, is it not? BD was a case in which the complaints were made a day or two after the relevant events and was not, as I understand it, accompanied by any signs of distress.

MR CRADDOCK: Yes.

McHUGH J: I have problems about - - -

MR CRADDOCK: There is no getting round the fact this was a very, very strong Crown case but we say all the more important reason that the jury only act upon admissible evidence in a permissible way.

McHUGH J: I have problems about the statement being made at the first reasonable opportunity. If that is the criterion of relevance under section 55, then this sort of case would seem to prevent the witness giving evidence in the witness box about it, would it? If the witness can give evidence in the witness box about the fact, why is not a statement made at any time not relevant, as long as it could rationally affect the assessment of the probability of the evidence?

MR CRADDOCK: But this gets back to my proposition that it all has to be looked at in the context that we have a system of determination of criminal liability by way of court proceedings where the primary evidence is given on oath by witnesses. That is the only reason really for saying that out-of-court statements stand in a different category.

McHUGH J: I have to tell you that I always thought I had a good recollection of most rules of evidence and when I first saw this legislation, I formed the view that it would be best for me if I forgot all about them and just looked at the legislation itself.

MR CRADDOCK: I do not know that I want to buy into that.

GLEESON CJ: Mr Craddock, is that a convenient time?

MR CRADDOCK: Yes, your Honour.

GLEESON CJ: We will adjourn until 2.15.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GLEESON CJ: Yes, Mr Craddock.

MR CRADDOCK: Thank you, your Honour. I think, and perhaps hope as well, that we have got to the point where we can deal with the discretionary question. We make a submission in our written submissions at paragraph 25 that if we are wrong about the section 66 admissibility point, then, nevertheless, the evidence of complaint ought to be limited to the credibility use.

GLEESON CJ: There was no attempt to have it excluded under sections 135 or 137.

MR CRADDOCK: No, there was not. That being discretionary matter, there was no occasion for going behind that, even though we complain about the failure to limit, notwithstanding the lack of application. If the path towards admissibility is via section 66 of the Evidence Act, then there are quite different considerations which spring to mind in relation to the discretion question to a path of admissibility under section 108(3)(b). Indeed, we would have to concede that the case for limiting the use to which evidence is put if the path of admissibility under section 66 is considerably weaker, than the case for limiting the use to which evidence is put if the path is under 108(3)(b).

The obvious reason for that is if it comes in under section 66(2) directly as evidence of facts, as an exception to the hearsay rule, then that is a different matter to evidence coming in specifically by leave to buttress credibility against an attack made upon it. But, even if the path of admissibility is section 66(2) one cannot put aside from consideration that the evidence is self-serving. It may be that the Parliament has chosen the test for admissibility as being "maker available and fact fresh in the mind at the time of the representation" but when one comes to consider whether the use to which the evidence is put ought to be limited, in our submission, one ought to have regard to the fact that it is a self-serving statement which may not really add much to the complainant's evidence.

GLEESON CJ: It is only self-serving in a rather technical sense. She was not boasting about having been raped.

MR CRADDOCK: No, but it is not a mere matter of technicality that the evidence is self-serving.

GLEESON CJ: Well, it did not advance her interests.

MR CRADDOCK: It may have. I mean, she was found in a situation where she was distressed and it may have come to light, otherwise, that there had been sexual connection between the complainant and the appellant. To make a complaint that it was non-consensual, in the circumstances, may well have been self-serving. It may well have advanced what she saw as her interests. The other point to be considered is that I becomes relevant after she has given sworn evidence that it occurred, so the question arises, quite apart from the credibility proposition, "What does it add to her evidence, the sworn evidence that has been given of the fact of the non-consensual intercourse?"

Now, the question of discretion, even if the ground of admissibility is section 66(2), would proceed upon a consideration of the fact that the evidence is self-serving, that the representation is made at a time when the appellant was absent, that it was not made by the complainant in an atmosphere of realisation of the need to be completely accurate about a matter, and to tell - - -

GLEESON CJ: Why do you say it was made when the appellant was absent? It was made in circumstances where one of the people to whom she complained went straight away and confronted the appellant with the allegation.

MR CRADDOCK: That may be so. He was not present - there is no evidence that he overheard or was present on the occasion of the making of the complaint. He might not have been terribly far away.

GLEESON CJ: No.

MR CRADDOCK: He may have been readily able to be spoken to by somebody who received the complaint. That is as may be. The complaint itself was made in his absence. That, in our submission, is a matter which would weigh in the balance on the discretion whether its use ought to be limited. That may be a strong factor or a less powerful factor, depending on the circumstances of the case.

KIRBY J: Looking at the circumstances of this case, it seems difficult to imagine the judge would exclude the evidence in the exercise of discretion. If one came to that view, why would one not apply the proviso in this appeal, if the avenue in is section 66?

MR CRADDOCK: Well, I am not suggesting that there was any question of exclusion of the evidence, merely a limitation under section 136 as to the use to which it could be put.

KIRBY J: Yes, but if you came to the view that - well, at some stage at the end of your argument, I would like you to address the question of the proviso, because as you properly conceded, this was such a strong case. It is hard to see how any miscarriage of justice has occurred, except a technical failure to conform to the law, which was not drawn to the judge's notice.

MR CRADDOCK: I will deal with that at the end if I may. I do not wish to say anything more about the exercise of the discretion, if the path of admissibility is section 66(2). If the path of admissibility is section 108, where, if either we are correct in our first proposition or complaint, whether or not it was also admissible under section 66 was, in fact, admitted under section 108, to buttress credibility against an attack made upon it, the considerations in favour of a limitation on the use of the evidence are considerably stronger and they will be different.

If I can take your Honours to section 108. The relevant exception re-establishing credibility would be (3):

The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a) evidence of a prior inconsistent statement of the witness has been admitted -

subsection (b) is the relevant paragraph:

it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave -

So that assuming that this is the path of admissibility for the purposes of this argument, either because it is the only path of admissibility or the way in which it is tendered in the particular case.

If evidence of a prior consistent statement is to be admitted in order to buttress credibility or to re-establish credibility, that is the express purpose for the admission of the evidence. Presumably, because there is a leave requirement, it follows upon a determination by the trial judge that the evidence which is to be led of complaint is capable of meeting the particular attack upon credibility which is either made or anticipated.

Nevertheless, although the means of its admission is a determination that it ought to be admitted specifically to buttress credibility, section 60 might then be taken to apply to it so that it is rendered evidence of the fact asserted. So that one would have to go to section 136 in order to ensure that the evidence is limited to the use for which it was in fact admitted. If that be so, we say that evidence of complaint in sexual cases ought to be limited as a general rule because it is self-serving, because, unless it also goes in as some sort of implied admission by conduct, a failure to deny, it will be made in the absence of the accused. It will ordinarily be made absent an appreciation of the need for accuracy and for truthfulness and absent any appreciation of a liability if a false complaint is made. For all of those reasons, if the evidence is going in specifically by leave to buttress credibility, it ought to be limited.

KIRBY J: There is nothing in the Act which distinguishes between sexual cases and other cases. Sexual cases can be a whole range of types of complaint and in a sense this case presents, as you have acknowledged, on its merits and facts, a very strong Crown case. But there will be cases where there are complaints by complainants which are not so reliable as on the face of things this case may seem. We have to try to fashion a principle out of the Act which would apply across the board. How can one apply a principle that is absolute as to all sexual cases given that there will be cases where the complaint is fresh and telling, confirmed by vomit and all sorts of other considerations and sworn to by a series of witnesses? There will be cases where it is a long way distant from that case. Why should there be an absolute rule for all cases of sexual complaint?

MR CRADDOCK: For the reasons that we have advanced that where, more particularly - and this is where the argument differs as between the admission via 66 and the admission via 108 - if the basic premise, when one is talking about evidence that has come in under 108, is that it is being admitted for a particular purpose and that is to buttress credibility, when one adds to that those other considerations about the inability to exclude the risk of concoction, the making of the representation in the absence of the accused with the representor not having brought to bear upon him or her a present appreciation of the need for accuracy and the liability for criminal sanction if an untruthful complaint is made, for all of those reasons we say that a general rule is justified under section 136 in case of complaints in sexual matters.

Whether those considerations would apply to any other complaint - and during the luncheon adjournment my junior counsel who has a practice in the District Courts and the Local Courts tells me that complaints are being relied upon in other than sexual assault cases, that fresh complaints are being relied upon across the board, increasingly so - whether or not those considerations would justify a general rule in relation to any other type of crime or type of complaint is not a matter about which I make any submission. Our submission as to a general rule is limited to complaints in sexual matters for the reasons that I have advanced.

That brings us, I suppose, save for the proviso question, to the question of the directions, but for one matter that can be dealt with best, I think, in the context of the proviso, and that is the - - -

GLEESON CJ: Now, as to these directions, again, there was no complaint made at the trial?

MR CRADDOCK: Yes, that is right.

GLEESON CJ: Did you argue this case in the Court of Criminal Appeal?

MR CRADDOCK: No, your Honour. Mr Barker put the appellant's case to the Court of Appeal, together with - - -

GLEESON CJ: Presumably, there must have been at least some kind of implied leave given to raise these points"

MR CRADDOCK: That is, I think, the position we arrived at this morning or, at least, I cannot put it any different to that. It does not appear to be any explicit, as I recollect it - perhaps I am wrong, but I cannot recall any explicit grant of leave and certainly no refusal of leave under rule (4).

KIRBY J: It may have been on a not unreasonable footing that this Act is so complicated that it was easy for things to be overlooked or mistakes to be made.

MR CRADDOCK: Or that the question was seen as so important that if there was error then it would very likely have given rise to a miscarriage of justice and that would be a perfectly adequate basis for granting leave.

GLEESON CJ: The relevant direction is at page 332, I think.

MR CRADDOCK: Yes. The cavalry next to me has drawn my attention to appeal book 389, the third line down:

Whilst I would grant leave to argue this ground, the ground must fail.

GLEESON CJ: Thank you.

MR CRADDOCK: Returning to 332 and to the directions, if we are wrong in our first argument then there is nothing wrong with the direction given at line 25. That is that:

Under the law in this State, the hearsay evidence, as it is called, is some evidence of the fact that the incident did take place.

Then there is the direction about which some complaint was made before the Court of Appeal and his Honour goes on to say:

It is a matter for you as to whether you accept it or not, but it is evidence of the fact of -

and I would put a comma there:

the proof of -

and I would put another comma there -

the truth of the allegation that was being made - that is, that she had not consented to having intercourse with this man, that she had been raped.

His Honour then goes on at 333 to refer to:

inconsistencies in the evidence - if you find there to have been some inconsistencies? When I say there were, it is a matter for you to decide if there were or were not inconsistencies concerning it. So that you have got that evidence concerning the complaint, as I say, that is hearsay evidence -

and that must be the evidence of the complaint witnesses -

but it is some evidence of the fact. If you accept it, in relation to what took place on this night, that goes to support what the complainant says occurred.

The difficulty that we have with these directions, that they fail to draw any distinction between the evidence of the complainant that she was raped, and the complaint witnesses that she complained.

GLEESON CJ: But this is all in the context of what he called hearsay evidence.

MR CRADDOCK: Yes.

GLEESON CJ: This is the judge instructing the jury about the use they can make of the hearsay.

MR CRADDOCK: Yes, being the evidence also of the complaint witnesses, Miss Ovadia, Miss Stephens and Miss Fahey.

GLEESON CJ: I am not sure why you say also. This is him telling them what use they can make of the evidence of Stephens, Fahey and Ovadia.

MR CRADDOCK: Yes; there is also the hearsay evidence of the complainant that she made a statement out of court in which she represented that she had been raped. Be that as it may, the difficulty we see is with the views that the jury are told they can make of the complaint witnesses, Ovadia, Fahey and Stephens. The use that they could make of the evidence of those witnesses was towards an inference, a finding of fact, that the complainant had complained, and nothing more than that.

GLEESON CJ: We only get to this ground of appeal on the assumption that you are wrong in relation to your first ground.

MR CRADDOCK: Yes.

GLEESON CJ: If you are wrong in relation to your first ground, and section 66 was the proper basis for the reception of this evidence, then what the jury was told was perfectly orthodox, was it not?

MR CRADDOCK: We say not. Section 66 permits the evidence, additionally, of those who heard the representation. We accept that.

GLEESON CJ: But that is all this is about.

MR CRADDOCK: As to what you make of it, that is a different question. What the jury may have done with the evidence of the complaint witnesses on these directions is to reason towards the finding of fact that she was raped from the repetition of the complaint that she was. That, we would submit, is an impermissible path of reasoning.

HAYNE J: What is the asserted fact that would be admitted under section 66 if your first contention were rejected?

MR CRADDOCK: That she was raped.

HAYNE J: What then is the error you assign to this direction, on that hypothesis?

MR CRADDOCK: That the jury can reason towards the conclusion that she was raped from the repetition of the complaint that she was. In other words, that the more often you say it, the more likely it is true.

GLEESON CJ: That was accompanied by the warning given at lines 30 to 32 on page 332.

MR CRADDOCK: Yes, we accept that, but if they accepted these three witnesses, they may nevertheless conclude that she must have been raped because she kept complaining about it.

GLEESON CJ: A possible point of view is that these directions were given with a fairly light touch, having regard to the circumstances of this case.

MR CRADDOCK: Well perhaps that is a possible view of it, but the reason why we see it as giving rise to a miscarriage of justice, rather than just a series of directions which were given with a light touch, is that this essentially - and this is a matter relevant to the proviso as well - this was a trial which was very largely about complaint, and if - - -

GLEESON CJ: It was about consent.

MR CRADDOCK: That was the issue, but the means of determining the facts in relation to that were largely by way of evidence of complaint. It was a trial where the evidence directly from the complainant as to the incident itself was fairly brief. Practically the remainder of the Crown case was devoted to evidence of complaint. Complaint took on a very large character in this trial. There was evidence from the complainant of her various complaints, there was evidence from three complaint witnesses; that was the bulk of the evidence in the trial. So that, whatever directions the jury were given about complaint were critical and it really does not matter much what one thinks, reading between the lines, as to whether directions were given with a light touch; the jury was entitled, and the appellant was entitled to have the jury directed with scrupulous accuracy as to the law, which they would apply to their fact-finding exercise.

HAYNE J: If section 66 applied, were the jury entitled to take the evidence of complaint as evidence of the truth of the ascertain of absence of consent?

MR CRADDOCK: If section 66 applied, they were entitled to use the evidence of complaint as evidence of the truth of the fact asserted. But the evidence of Ms Ovadia, Ms Stephens and Ms Fahey went to the making of the complaint, and to permit the jury, upon an assessment of those three witnesses, to conclude from their evidence the critical fact of lack of consent, we say is not permissible under section 66 and a misdirection, and a serious misdirection because the trial was really all about complaint.

GLEESON CJ: But the evidence of Ms Ovadia about the fact of the making of the complaint was not hearsay evidence. That was direct evidence of the fact of the making of complaint. The hearsay evidence was the evidence given by Ms Ovadia of a previous representation made to her by the complainant.

MR CRADDOCK: I am not sure that the jury would have drawn that distinction, your Honour.

HAYNE J: Why should they? Section 66(2)(b) expressly contemplates that evidence may be given by a third party of the representation in question, does it not? That is a person in the position of Ms Ovadia.

MR CRADDOCK: Yes, I understand what your Honour says. We have difficulty with the proposition that that means that you take the evidence of the complaint witness as itself evidence of the fact of a lack of consent as opposed to the fact of the making of the complaint which you assess - - -

HAYNE J: The relevant representation is "I was raped". That is the representation which is in issue, is it not?

MR CRADDOCK: Yes. That is the one that the maker of the representation intends to assert but not the complaint witnesses. All they can assert is that the complaint was made, not that it was true.

GLEESON CJ: But they give evidence of the representation and you then ask what did the representor intend to assert by the representation. What she intended to assert was that she did not consent to the sexual activity which, it was common ground, had occurred.

MR CRADDOCK: Yes. We say that the direction permits the jury to travel beyond that to reason from the evidence of the complaint witnesses to the fact of lack of consent, rather than to the fact of the making of the complaint. In other words, it does become true if you say it more than once. It does become a matter of counting oaths within these directions. What his Honour ought to have done was carefully directed them that what was available to them as evidence of the fact of lack of consent, if it goes correctly in under section 66, was the evidence of the complainant that she complained soon after the event, that is, the truth of her representation, that assertion of fact which she intended, but that so far as the complaint witnesses are concerned, their evidence goes to the fact that she complained.

There may be an issue in a case as to whether there was in fact a complaint. Their evidence of itself cannot prove the fact. How could it? They were not there. But his Honour's directions permit the jury to reason directly from their evidence to the fact of lack of consent. In a case where so much of the trial was devoted to evidence of complaint, the appellant was entitled to directions which correctly stated the law more so in a particularly strong Crown case.

If your Honours please, unless there are any matters, those are our submissions but for one matter, and that is that we had a bit of a go at undertaking the exercise that Justice Kirby suggests and that we accept we ought to have undertaken. We cannot really do that justice but, if your Honours are minded to reserve judgment in the matter, then we would - - -

GLEESON CJ: We will be reserving our decision in this matter. So, if you want to put in further material in writing within seven days, I can see no reason why you should not have that opportunity.

MR CRADDOCK: Yes, that is what we suggest, just to trace - if I could put the terms of it, if anything wants anything further, say, relevance, credibility and hearsay from Interim Report 26 through 38 through the Bill and the Act, if that meets the terms of your Honour's inquiry.

KIRBY J: It does.

GLEESON CJ: Thank you, Mr Craddock. Yes, Mr Blackmore.

MR BLACKMORE: Your Honours, we submit that the evidence was relevant evidence. Perhaps I will not need to spend an enormous point of time on each of these points, but we submit that under sections 55 and 56 the evidence of complaint, if we can call it that, was relevant to consent at least. We submit that the reasoning process which is attached to that is something along these lines: she says that she was raped; she complains shortly after there was sexual intercourse. We say that that complaint that she was raped goes directly to whether or not she consented and is some evidence of that lack of consent. It is just that: some evidence of it. Likewise, there was evidence of a conversation that took place - - -

KIRBY J: Can I ask you to just pause there. It has been conceded that this was a strong Crown case on the merits but we have to test the proposition and the working of the statute against weak cases or cases that are of a non-sexual character. It would be helpful to me to have your assistance on how, though this evidence is relevant, one would draw the line because that is essentially what a judge would have to do with a complaint made some time later, maybe years later, decades later. How does one apply the Act to the whole variety of circumstances? It is easy in a sense to answer this problem but it has to be answered in a way that is consistent with other problems.

MR BLACKMORE: There no doubt is a point that is reached at some stage when the complaint is made - if I can call it complaint. I want to say something about that, "complaint".

GAUDRON J: Why?

MR BLACKMORE: Because essentially a complaint about consent or a - - -

GAUDRON J: It may not be admissible, but it may.....

MR BLACKMORE: Well, that is, I think, around the same point.

GAUDRON J: No, no.

MR BLACKMORE: Not necessarily. Perhaps if I just continue, I will make it clear what I am trying to say. Essentially, consent is a state of mind. You can judge somebody's state of mind by a number of factors. One of the factors is about what they say about their state of mind. In this case we have a clear indication about her state of mind fairly shortly after the event. If someone says something about their state of mind, stretching it out to the absurdity of 50 years afterwards, it may not of itself carry much weight and - - -

KIRBY J: But would it still be relevant if it still passed the 55 test?

MR BLACKMORE: Yes, only if it could at that stage be something that could rationally affect - - -

GLEESON CJ: Well, the test is rationality. You could have a person who is making complaints who is shown to be delusional.

MR BLACKMORE: Absolutely, and it would then depend upon the circumstances. You may have other evidence which shows, despite the fact that they are somewhat delusional, there is some substance to the complaint; and it then becomes a question of assessing not only the particular piece of evidence, but also the evidence of the way it fits together with the other evidence in the case.

GAUDRON J: Did you say that at least all evidence of recent complaint is relevant, no matter the crime?

MR BLACKMORE: Yes.

GAUDRON J: Yes. But you say there comes a point when it is not.

MR BLACKMORE: There may come a point. It is a matter of speculation about the particular facts in the case.

GAUDRON J: But the difficulty is, if accepted, it would seem that one has to work on the premise that it is accepted in terms of working out whether it is relevant, and if somebody says, "Well, I think she was telling the truth 50 years later", that is it, is it not?

MR BLACKMORE: Well, initially it is going to be a question for the judge to admit the evidence or not admit the evidence.

GAUDRON J: It is not discretionary at that point, is it?

MR BLACKMORE: No, but it must be a question of law whether or not evidence is admitted. If it is objected to, the judge must rule on whether or not the evidence is going to be admitted. If, in his view, it cannot rationally affect an issue, then it almost certainly will not be admitted.

McHUGH J: In the case of statements, do you accept that it is the verbal formulation of the statement which is the subject of the acceptance hypothesis in section 55, or is it the truth of the facts in that statement which is the subject of the hypothesis?

MR BLACKMORE: It is the truth; it is what you can derive from that particular statement.

GLEESON CJ: Just a minute. It is evidence, is it not, that is the subject of section 55?

MR BLACKMORE: Yes.

GLEESON CJ: All right. Well now, it is the evidence of Ms Ovadia, is it not?

MR BLACKMORE: Yes.

GLEESON CJ: And the question is, what is the relevance, or was the evidence of Ms Ovadia relevant?

MR BLACKMORE: We say, yes, it was. Again, it was some evidence of the complainant's state of mind.

HAYNE J: No. Ms Ovadia's evidence is, "I heard the complainant say these words". What is the hypothesis that is encompassed by the words "if it were accepted"? Is it, "I am to accept this witness heard this", or is it something else?

MR BLACKMORE: In that example I would say it is, "I heard it". That is what she is giving evidence about.

GLEESON CJ: It is evidence of a representation.

MR BLACKMORE: Yes.

GLEESON CJ: The evidence of Ms Ovadia is evidence that the complainant made a representation to her, and the question under section 55 is whether evidence of Ms Ovadia that the complainant made that representation to her could rationally affect the assessment of the probability of lack of consent. The answer to that question may be "No", if it appeared, for example, from an examination on the voir dire, or from other evidence, that the complainant was a delusional person.

MR BLACKMORE: Yes, that is right.

KIRBY J: But there is a long spectrum between delusional people and non-delusional, and dishonest people, and then people who are out and out liars, and who are fabricating complaints for their own purposes which may or may not be clear.

MR BLACKMORE: No, there is clearly, at this entry point, some risk that evidence that will go in has been concocted. But, the fact is that it is very difficult to provide any guarantee about any evidence.

McHUGH J: Your concession that there can be limitations seems to involve the proposition that you look outside the contents of the evidence to determine whether or not it can rationally affect the assessment of the probability.

MR BLACKMORE: Yes, in my submission, that is right. It would depend upon all of the circumstances in the case. It may be a question for the voir dire to be determined whether or not this evidence could in a particular case.

McHUGH J: That is something you have really got to add to the section.

HAYNE J: That a question of relevance could be determined by a voir dire about whether the person whose statement was overheard was delusional, biased, notoriously untruthful. It seems an odd point in the process at which to cut it off. The cut-off might more readily be assumed to occur at a later point in the process.

McHUGH J: Yes.

GLEESON CJ: If evidence that carried the risk of fabrication were, on that account, inadmissible, criminal trials would be shortened greatly.

MR BLACKMORE: Yes. That was, I think, the point I was making earlier, that almost all evidence has the risk of fabrication. It is impossible to exclude that risk at this point, the point of entry.

McHUGH J: That is why it seemed to me, reading the section, that the better view may be that you examine the 55 issue according to its terms - in terms of the statement.

MR BLACKMORE: I can understand what your Honour says about that and I may well be wrong about it. I am not - - -

McHUGH J: Yes, I have got no concluded view about it.

MR BLACKMORE: No. I can indicate to your Honours that there is a discussion of this issue in the report at paragraphs 640 and 641. I am sorry, my copy does not have a - I think it is page 350 of the Interim Report, Report No 38. Very briefly, and I will not read it all, there are quite a number of paragraphs dealt with here. It does not necessarily go directly to the issues we have been talking about but it does address how the Commission saw the breadth of this particular provision.

McHUGH J: They seem to have seen it in terms of a logical connection between the evidence and the facts and that it bears on a matter in issue.

MR BLACKMORE: I think, having read that, that was why I was submitting to your Honour before that perhaps it is part of the mosaic that you have to consider at the time.

McHUGH J: But look at the example at the top of 351, evidence that an accused expressed:

an intention to have killed the victim.

So, presumably, the evidence is in form, "I heard the accused say" and the relevance they attach to that is the holding of the intent to kill, not anything else.

MR BLACKMORE: Yes, not the mosaic of other facts in the case. I am not sure I can usefully add much to that part of the discussion.

GLEESON CJ: All right. We have your written submissions about the detail of the facts of the case in so far as we have to attend to them.

MR BLACKMORE: Yes, your Honour. There are a couple of other issues which arose in the argument which I need to address very briefly, the first of which was it is not just simply one throw away line in the Report No 38, there are other references.

GLEESON CJ: It is Report No 26.

MR BLACKMORE: I am sorry, 26. There are in fact other references in Report No 38, the final report. I will just give those references.

GLEESON CJ: This is partly the material Mr Craddock was going to work on over the next seven days but by all means let us have them.

MR BLACKMORE: They are contained in our written submissions at the bottom of page 7 in footnote 16, in particular. I was going to take your Honours to two particular passages. The first is on page 25 under the heading of "Policy framework" which is a section that was dealing with the balance struck favouring the prosecution.

(d) Hearsay evidence. The relaxation of the hearsay rule would assist the prosecution. For example, complaints of victims would be admissible as evidence of the truth of the facts asserted.

GLEESON CJ: I think the next sentence is important, too.

MR BLACKMORE: Yes. That is particularly significant in relation to another aspect and that is this, that your Honour the Chief Justice was questioning my opponent in relation to what happens with statements that occur simultaneously with the Act. What this Act does, it does not recognise distinctions in that way. It does not recognise res gestae. It is no answer for the appellant to say here, "Well, that could go in under the res gestae". In either goes in in accordance with section 55, 56, 59, if it is a representations, which it was in your Honour's example, and 66, or it does not go in at all.

It does not matter that it is - well, subject to section 72, which we have addressed briefly in our written submissions, I do not need to take your Honours to section 72 if the evidence goes in under section 66 and I am satisfied we can just address what we have put in writing in that regard, but there is nothing in the Act that talks about res gestae; likewise, there is nothing in the Act that talks about complaint evidence. What the Act talks about is evidence and it treats a large amount of evidence in the same way.

KIRBY J: But section 65(2)(b) looks a bit like res gestae.

MR BLACKMORE: There are sections which - yes, you could say almost where a statutory formulation of res gestae, but they also provide limitations. Section 66 also may have, a sense, of res gestae operation. Fresh can be immediate, of course, just as much as it can be hours and days. Section 72, which deals with statements about intent and knowledge; almost certainly they would be things - and they have to be contemporaneous - which might have come in under the res gestae, but there is no specific reference to res gestae in the Act. It is, as Justice McHugh was saying before, difficult to put the common law of evidence together with the Evidence Act, and think about them together. It is easier to think of the Act - - -

KIRBY J: That may be so, but the Act is written against 100 years of the common laws, drawing a distinction between the relevance of matters to prove the credibility of the complainant and the relevance of matters to prove that what is being said actually took place as a matter of fact, and the question is whether the Act sufficiently indicates the purpose of altering that very well-established law and the relevancy of statements for that limited purpose and that limited purpose alone.

MR BLACKMORE: Yes, I understand that. Clearly, obviously, we say that it does, it covers that field under section 66, and there is really no other operation or way in which the common law can layer over the operation of section 66. Perhaps the distinction is that now there are uniform controls in relation to the admission of the evidence; uniform controls in the sense that the evidence must at least be fresh, and given the decision in Graham, that must now be within hours or days. Before, as your Honours would be aware, complaint evidence did go in sometimes a lot longer than that, sometimes much, much longer than that.

Now, it would be difficult to put that evidence under section 66. It will rely upon going in, if it had been admissible at all under section 108, to rebut fabrication on the part of the complainant, but it is important to note that that section is a section which requires the leave of the judge and, in this case, the respondent makes the submission that if the evidence is admissible under section 66, then the Crown in the case ought not to have to rely on the leave of the judge to get useful evidence before the Court.

The other passage which I simply refer to is on page 79, in paragraph 144(a).

KIRBY J: This is Report No 38.

MR BLACKMORE: Again, yes.

KIRBY J: Yes.

MR BLACKMORE: And it is addressing the issue of prior consistent and inconsistent statements.

KIRBY J: Which paragraph on page 79, sorry.

MR BLACKMORE: Paragraph 144(a), page 79.

KIRBY J: Yes, I have that.

HAYNE J: The other example that you mention is in the draft explanatory memorandum at pages 228 to 229, particularly under clause 129, where an example is given of hearsay and then when that is read with the exception proposed in clause 58.

MR BLACKMORE: Our submission in relation to limitation of the evidence is dealt with in the written submissions. It commences at paragraph 27. We have quoted from the decision of Mr Justice Hunt as he then was in the Court of Criminal Appeal in New South Wales in relation to the meaning of unfair prejudice used in section 136. I will not repeat the submissions we make here but in relation to this particular evidence we do submit that the judge did not have to limit this evidence. The evidence had sufficient cogent value of itself, together with the evidence of distress and injury, to go to an issue in the case, that is to consent.

Just perhaps very briefly addressing one matter that your Honour Justice Gaudron raised as to whether or not the other complainants - they were three people who were complained to. Your Honour raised the question as to whether or not perhaps the first complaint should go in as evidence of the truth. This is as I understood, your Honour, but that the second two complainants perhaps not being, at the first reasonable opportunity, could be limited.

GAUDRON J: No, that was not what I was adverting to, but I will tell you what I was adverting to, and it is the question I put to you before. Is there a distinction to be drawn in terms of potential to effect the probability of something if it is made at the first - not necessarily the first - but soon after the events in question as distinct from fresh, rather than at some other time.

MR BLACKMORE: Yes. I am not sure that I can answer that any better than I have already attempted to, your Honour.

GAUDRON J: No.

MR BLACKMORE: Just to come back to one other issue that your Honour the Chief Justice raised in relation to res gestae. With respect, the difficulty that my opponent has in answering that question is the fact that the evidence of the contemporaneous statement is evidence as to her state of mind at that time. It is certainly fresher at the time. But it is only a question of weight, not a question of admissibility, when you move back in time to the Ovadia complaint which perhaps took place 15 minutes after the event.

GLEESON CJ: There is no reason why evidence of the res gestae is more relevant than evidence of fresh complaint, however it may well be more reliable.

MR BLACKMORE: Absolutely and carry more weight which is our submission.

KIRBY J: It carries more weight because it is seen as more reliable.

MR BLACKMORE: Yes, and in this case, reliability is governed by its freshness to a large extent.

KIRBY J: In part because it is in the heat of the moment, in part because there has not been time for people to have cooked the books.

MR BLACKMORE: Yes. It cuts down the risk that we were talking about before of fabrication.

KIRBY J: I wonder if empirical research would show that these assumptions of the common law are justified. There are so many assumptions in the law of evidence that may not be justified but they are written in stone.

MR BLACKMORE: I think your Honour made the point earlier that they are difficult ones for juries to necessarily understand the distinction. One of the reasons perhaps that evidence under section 108, when it is admitted, then by reason of section 60 becomes evidence of the fact, is to eliminate the distinction of having to address credibility on the one hand, and on the other hand just having the evidence available for the jury.

KIRBY J: But there still is a distinction between saying you can use this to defend attacks on her as a person who has made this up but you cannot use it to prove that what she says is true because you need something more direct than that, than self-serving statements.

MR BLACKMORE: There is a distinction.

GLEESON CJ: The distinction would become of great practical importance if she was not there in the witness-box giving her evidence.

MR BLACKMORE: Yes. The advantage of section 66 of course is it requires her to be there. One of the protections, if you like, under the Act in that regard is that she is available to be cross-examined about these issues. It must be acknowledged there would be some cases where the complainant herself may not be a very good witness. She may not remember very much. Then the evidence of those who she complained to may be much more significant. This was not such a case.

GLEESON CJ: You keep saying "the complainant herself". This rule was never limited to female complainants.

MR BLACKMORE: Absolutely. I suppose I am addressing the facts of this particular case, and it is not limited in fact to sexual assault cases at all. It is also not limited to the Crown. The accused, had he emerged from the room making glowing remarks about the complainant to some friends about what had happened, he may well have been able to rely upon that as going to his belief about consent. The law has expanded somewhat by reason of this section but it expands both ways and it expands, with respect, evenly.

Perhaps if I could just move on very briefly to talk about - if your Honours wish me to talk about substantial miscarriage of justice. We have addressed that issue fairly extensively in our written submissions.

GLEESON CJ: We have the written submissions.

MR BLACKMORE: Yes. We make the point, obviously, which was conceded that it was a very strong case. Subject to that - - -

KIRBY J: I suppose the appellant's argument is that in a sense, the stronger the Crown case, the more important that the law should be properly applied and explained, and the jury should act according to law.

MR BLACKMORE: I acknowledge the force of that, and sometimes in a very strong case that can be very important. The way we frame our argument in this regard, very briefly is: let us assume that the evidence was admitted in the way in which he wishes it to be, that is, as going to the credibility of the complainant. In this particular case, what the judge told the jury was, in effect, that you could not use this evidence unless you believed the complainant. Our submission is, had we got a direction under the Kilby formulation, that is, that you can use this evidence to support the credibility of the complainant, you would have been able to use that evidence before you assessed the truthfulness of the complainant. Arguably, the Crown would have been better off.

We make the submission that, of course, the evidence ultimately going in under section 66 does not preclude the judge saying to the jury, "You can also use it for the purpose of credibility". It may be some evidence as to the truth of the consent; it may be some evidence to support her credibility, as well. But, in this case, the directions that were given were very favourable. We also make the submission of there was nothing said at trial, at all. This Court, in effect, sits now as the Court of Criminal Appeal. Rule (4) is available to the Court, in our submission, at this point.

GLEESON CJ: Thank you, Mr Blackmore. Yes, Mr Craddock.

MR CRADDOCK: I make one submission in reply: we do not subscribe to the sauce for the goose and sauce for the gander proposition about the application of section 66. If we are wrong about section 66, then the sauce for the goose and the gander does follow, and the evidence of that is the judgment of the Court of Criminal Appeal in Crisologo, a mirror image, the court held, of the position of fresh complaint by a complainant in a sexual matter. If we are wrong about section 66, then it is open for the accused to call evidence of the statements he made shortly after an act as proof of the truth of a fact in issue, say, for example, consent.

GLEESON CJ: Or belief in consent.

MR CRADDOCK: Or belief in consent, yes - each of those. So then, do we descend in a criminal trial into an assessment of the relative merits of what each person involved in a sexual act or some allegedly criminal conduct said - - -

KIRBY J: What would have happened in this case if the accused had come out and said to four of his friends, male, "I never thought she'd agree to it, but she did"? Now, do you say that on the Crown's hypothesis that would be admissible in the trial?

MR CRADDOCK: Yes, that is what the Crown has conceded, that if he did so, then - - -

GLEESON CJ: Now, why should it not be?

MR CRADDOCK: Because it is the same as on the other side of the fence, saying it, counting oaths is not a proper way to determine facts in issue in a criminal trial. It does not - - -

GLEESON CJ: It is not a question of counting oaths only. People's behaviour, including what they say as well as how they look and the manner in which they conduct themselves, can often rationally assist the determination of where the truth lies on a particular issue, depending on the circumstances of the case. If he had come out and been completely open and frank with surrounding people as to the fact that he just engaged in sexual activity, that could well have a rational bearing on whether or not he believed that she was consenting.

MR CRADDOCK: We make the same submission there as we make in relation to the complainant, that it does not have that character and, on the other hand, it includes an unwelcome vice of moving the determination of the fact in issue away from those who have a direct involvement to those who they report to soon after the event. And we say that the development which is exemplified by Crisologo is not only not to be welcomed - - -

GAUDRON J: I do not think I know that case.

MR CRADDOCK: It is on the list of authorities.

GAUDRON J: Yes, thank you, I have it now. It is just that there is a tendency to speak as though everybody is familiar with everything that happens in the New South Wales Court of Criminal Appeal.

GLEESON CJ: Now, you are going to give the.....away.

MR CRADDOCK: Is that not the case?

GAUDRON J: Definitely not, I am sorry.

MR CRADDOCK: I do apologise.

HAYNE J: For once I am actually silent, Mr Craddock, for once I am silent.

McHUGH J: I have to say to you, Mr Craddock, this is very poor advocacy down this end of the - - -

MR CRADDOCK: I was speaking in that direction, I think. We say that not only is the development exemplified by Crisologo most unwelcome but wrong in law. If your Honours please.

HAYNE J: Just before you sit down, did not the accused give evidence in-chief of what happened after the event, and in particular his conversations? I have in mind 248 of the appeal book, particularly at lines 40 and following.

MR CRADDOCK: Yes, he does. But he does not say in terms that he went to his mates and made the reverse of a complaint. He does not say that he went to his mates and asserted that he had just had sexual intercourse and that the lucky - - -

HAYNE J: He asserted that to the complainant rather than to a third party, did he not?

MR CRADDOCK: He did not assert that, I do not think, did he? What he says is he had a conversation about - I suppose, perhaps by implication, if she said, "You know, look, I can say that you made me do it", and he says "Say what you want to say", perhaps by implication. But it is not a case of going off and telling your mates that the lucky co-actor in the matter consented and enjoyed it as much as the accused, which of course is what Crisologo, we say wrongly, invites.

GLEESON CJ: Thank you, Mr Craddock. We will reserve our decision in this matter and the Court will adjourn now and resume at 10.15 am on Tuesday morning.

AT 3.27 PM THE MATTER WAS ADJOURNED